Hatzimanolis v ANI Corporation Ltd

[1992] HCA 21

HIGH COURT OF AUSTRALIA

Mason C.J., Deane, Dawson, Toohey and McHugh JJ.

HATZIMANOLIS v. A.N.I. CORPORATION LIMITED

(1992) 173 CLR 473

3 June 1992

Workers' Compensation (NSW)

Workers' Compensation (NSW)—Injury arising out of or in course of employment—Injury during interval occurring within overall period of work—Sightseeing tour organized by employer on workers' day off—Workers Compensation Act 1987 (NSW), s. 4 "injury".

Decisions

MASON C.J., DEANE, DAWSON, AND McHUGH JJ. The question in this appeal is whether the appellant, who was employed to work in a remote area in Western Australia, was within the course of his employment when he sustained injury during a sightseeing journey on his day off. The Compensation Court of New South Wales held that he was. The Court of Appeal reversed that decision on the ground that the journey was not incidental to the performance of his duties. We would allow the appeal and restore the award made in favour of the appellant. We would do so on the ground that the appellant sustained injury during an interval occurring within an overall period or episode of work and while engaged, with his employer's encouragement, in an activity which his employer had organised.
The factual background

2. In July 1988, the appellant, who was doing casual work for A.N.I. Corporation Ltd. ("A.N.I.") at Wollongong, learnt that that company was quoting for electrical work at the Mt Whaleback Mine at Mt Newman in Western Australia. He applied for a job at Mt Newman with A.N.I. should it be successful in obtaining the contract. A.N.I. obtained the contract and employed the appellant on the project. Before leaving Wollongong, Mr Pope, a supervisor employed by A.N.I., briefed the successful applicants on the nature of their employment at Mt Newman. He told them that the contract was for three months, that they would be required to work about ten hours each day for six days each week, that tools would be supplied for them, that A.N.I. would pay board and living expenses, and that A.N.I. would hire two vehicles to provide transport for the group. Mr Pope informed the group that there was a possibility that they might have to work on Sunday. He also told them that, if they got the chance, they could visit the areas around Mt Newman and the Pilbara region of Western Australia. Return air fares were to be provided. He also informed the group that the only things they would really have to worry about providing for themselves were drinks and cigarettes.

3. At Mt Newman, A.N.I. provided rent-free accommodation for its workers in a camp which was located about 15 or 20 minutes walk from the town of Newman. Each worker was given an air-conditioned cabin. Workers other than those employed by A.N.I. also lived in the camp which had a mess building, a TV room, a swimming pool, and communal bathing and toilet facilities. In accordance with the promise made by Mr Pope, A.N.I. hired two Toyota vehicles which were used, inter alia, to transport its employees to and from their work place.

4. The appellant sustained injury on the third Sunday after his arrival at Mt Newman. He was not required to work on that Sunday and he had not been required to work on the first two Sundays after his arrival. On the first Sunday, Mr Pope made the two Toyota vehicles available for the use of the A.N.I. employees. They went on a sightseeing tour around the Newman area. On the second Sunday, they walked to the Newman Show, which was being held on that day, but they were driven back in the Toyotas. During the following week, Mr Pope suggested that, as the employees would not be working on the Sunday, they might like to take a trip to Wittenoom Gorge which was about 400 kilometres away. The witnesses who gave evidence in the Compensation Court gave different accounts of what Mr Pope said on that occasion. In the Court of Appeal, Waddell A.J.A. said that the discrepancies were not material. Having regard to the failure of A.N.I. to call Mr Pope as a witness, there seems no reason to doubt the account of Mr Guy, one of the employees, who said that Mr Pope had said, "I'm organising a trip to Wittenoom this weekend for anybody who cares to come along." All but one of the employees decided to go.

5. On the Sunday after this conversation, Mr Pope and the other members of the group set out on the journey in the two Toyota vehicles. They took with them food provided by the mess at the request of Mr Pope. On the return journey, the appellant was seriously injured when one of the vehicles overturned.
In the course of employment

6. Section 9 of the Workers Compensation Act 1987 (N.S.W.) provides that a worker who has received an injury is to receive compensation from the worker's employer in accordance with the Act. Section 4 defines injury to mean "personal injury arising out of or in the course of employment".

7. For the purposes of s.4, the course of employment is not identical with the period of employment of a worker or with the work which that person performs. From a very early stage in the history of the law of workers' compensation, it was recognised that the course of employment covered not only the actual work which a person was employed to do but also "the natural incidents connected with the class of work" (1) Charles R. Davidson and Company v. M'Robb (1918) AC 304, at p 321. In 1931 in Whittingham v. Commissioner of Railways (W.A) (2) (1931) 46 CLR 22, at p 29, Dixon J. said that there can "no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service". But his Honour went on to say that it was "another matter to be sure what is included within this conception". He thought that, in considering what was incidental to service, the sufficiency of the connection between the worker's employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.

8. Incidence of service, however, is not a principle the application of which will determine whether the injury was sustained in the course of employment; it is a conclusion. When a tribunal concludes that a worker sustained injury while doing something incidental to his or her employment, it records a result which must have been reached, consciously or unconsciously, by reference to some principle or standard which leads to that result. Furthermore, while the matters to which Dixon J. referred in Whittingham must be examined for the purpose of determining whether an injury was sustained in the course of employment, those matters do not automatically determine that question. Without the assistance of an organising principle, a tribunal of fact cannot know which of them is or are determinative.

9. In Henderson v. Commissioner of Railways (W.A)(3) (1937) 58 CLR 281, at p 294, Dixon J. acknowledged that general expressions such as "incidental to the performance of the work" had not "proved very helpful" in determining whether an injury had occurred in the course of employment. His Honour suggested that, in cases which were not concerned with injuries sustained during actual work, the test of whether an injury had been sustained in the course of employment ultimately depended upon whether the workman was doing something which he was "reasonably required, expected or authorized to do in order to carry out his actual duties" (4) ibid. Dixon J. also applied that principle in Humphrey Earl Ltd. v. Speechley (5) (1951) 84 CLR 126, at p 133 although in that case he omitted the adjective "actual".

10. In Kavanagh v. The Commonwealth (6)(1960) 103 CLR 547, at p 556, Dixon C.J. suggested that it was "perhaps unwise to substitute any expression as an equivalent for the well-known words 'in the course of' which had a long history in the law before they were taken up by the English Workmen's Compensation Act 1897". Unwise or not, Australian courts have almost invariably applied the test formulated by Dixon J. in Henderson when called upon to determine whether an injury occurring during intervals between work was sustained "in the course of employment". On the whole, the flexible application of the test has enabled a satisfactory line of demarcation to be drawn between those injuries which are work-related and those which are so remote from the notion of the worker's employment as not to call for compensation by the employer. Nevertheless, only by use of a strained interpretation of the words "in order to carry out his duties" is it possible to reconcile the application of the test with the decisions in many modern cases where workers have been held to have sustained injury in the course of employment.

11. Given the flexible nature of the application of the test, it is not surprising that what is now perceived as required, authorised or expected to be done in order to enable an employee to carry out his or her duties covers many situations that were not contemplated when the test was first formulated in Henderson in 1937. Nothing better illustrates this point than the contrast between the decision in Whittingham, decided in 1931, and the decision in The Commonwealth v. Oliver (7)(1962) 107 CLR 353, decided in 1962. Significantly, Dixon C.J. was a party to both decisions. In Whittingham, the worker was injured when he was struck by a cricket ball during a lunchtime stroll in a nearby yard where it was customary for some of his fellow employees to play cricket during the luncheon interval. The claim for compensation failed. In Oliver, where the facts were "surprisingly close" (8) ibid, at p 357, the claim succeeded. There the employee had sustained injury while playing cricket on a concrete apron in the front of a hanger where he worked. Dixon C.J. said that (9) ibid, at p 358:
"the circumstances of the employment make it clear that the
employees were not expected to leave the premises for lunch, that the custom of playing for a time during the thirty minutes allowed for lunch was a recognized practice and the proper inference is that the course of the employment extended over that half-hour". Menzies J. said(10)ibid, at pp 364-365 that the case had to be determined not against the background of Whittingham decided 30 years before:

"but against the background of what seems to me to be a widely-accepted and sensible present-day practice of employers encouraging workers to spend intervals between working hours, which must often be spent upon the employers' premises, in recreational activities".

12. Since Oliver, appellate courts have upheld many awards of compensation in favour of workers in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity, convenience or enjoyment(11) See, for example, Baudoeuf v. Dept. of Main Roads (1968) 68 SR (N.S.W.) 406; Danvers v. Commissioner for Railways (N.S.W.) (1969) 122 CLR 529; Mason v. Social Welfare Dept. (1974) VR 506; Favelle Mort Ltd. v. Murray (1976) 133 CLR 580; Commonwealth v. Lyon (1979) 24 ALR 300; Qantas Airways Ltd. v. Kirkland, unreported, New South Wales Court of Appeal, 9 October 1980; A.T.L Limited v. Rolls, unreported, New South Wales Court of Appeal, 10 December 1980. But, as we have indicated, in many cases these decisions have been reached only by a strained reading of the words "in order to carry out his duties". In Danvers v. Commissioner for Railways (N.S.W.), for example, a railway worker died when a van, provided by his employer for his accommodation, caught fire during the night. The van was moved from work site to work site. On the day of his death, the worker had finished work at about 4.00 p.m. and had no further duties to perform until the following morning. Nevertheless, this Court, reversing the Court of Appeal of New South Wales, held that it was open to the Workers' Compensation Commission to find that the worker's death occurred in the course of his employment. Barwick C.J., with whose judgment Kitto and Windeyer JJ. agreed, adopted the statement of Dixon J. in Henderson(12)(1937) 58 CLR, at p 293 that doing what was reasonably required, expected or authorised to be done in order to carry out duties may include being at a place at which the workman's presence "is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment"(13).Danvers (1969) 122 CLR, at p 536 But Barwick C.J. said that in applying such a statement to the circumstances of a case, its elements "should be applied liberally and practically"(14) ibid His Honour said that it was not enough to exclude the use of the employer-provided accommodation from the course of employment to establish that there was other accommodation available in the vicinity of the place of work. If alternative accommodation was available, the worker would be outside the course of his employment in choosing to use the employer's accommodation only if he had a real and meaningful choice to use the alternative accommodation. His Honour also said(15) ibid, at p 537 that, in determining the course of employment, regard had to be had: "to the general nature and circumstances of the employment and not
merely to the circumstances of the particular occasion out of which the injury to the employee has arisen". In Commonwealth v. Lyon, Deane J. upheld a finding that a Customs clerk who sustained injury while playing football for the Customs team in a lunchtime match was injured in the course of his employment. His Honour did so because, although the employer had no control over the field where the game was played, it had extended its encouragement to the activities of the team and had transported the players to the place where the game was played. Speaking of the test applied by Dixon J. in Henderson and Speechley, Deane J. said(16)(1979) 24 ALR, at p 303:

"That test is plainly a most useful aid as a criterion of inclusion in the concept of 'course of employment' (ie if the test is satisfied, the respondent was doing something in the course of his employment). If, however, the test is to be used as a criterion of exclusion (ie if the test is not satisfied the respondent was not doing something in the course of his employment) it is, in my respectful view, necessary to place a gloss on the words 'in order to carry out his duties' which conclude the question formulated by Dixon J. so that that prima facie intractability may be tempered to accord with the current views of what comes within the scope of employment which are more liberal than those prevalent at the time Dixon J. formulated it (see per Dixon J. Commonwealth v. Oliver(17))(1962) 107 CLR, at p 358."

In Park v. Peach(18)(1967) VR 558, the Full Court of the Supreme Court of Victoria held that a taxi driver was injured in the course of his employment when he was struck by a vehicle while crossing a road after leaving the taxi for the purpose of buying a newspaper. Adam J. said(19) ibid, at p 564 that the test applied in Speechley should not be treated as "laying down any fixed standard applicable to all cases". His Honour said that in "no appropriate" sense was the worker in Oliver doing something "in order to carry out his duties".

13. Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something "in order to carry out his duties" at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers.

14. A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way. However, it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. That formulation would cover not only the case of the "lunchtime" injury, as in Oliver, and the case of the railway worker, as in Danvers, but also many cases involving injuries occurring during intervals between daily periods of work which could not fairly be regarded as within the course of employment. Thus, an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor, although the case would come within such a formulation. The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.

15. The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees. For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.

16. Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen"(20) Danvers (1969) 122 CLR, at p 537.
The occurrence of the injury

17. In the present case, the appellant was already a casual employee of the respondent at Wollongong in New South Wales when he was engaged to work as an employee of the respondent on a project at the remote location of the mine at Mt Newman in Western Australia. The project was expected to last for some three months. The appellant was briefed in Wollongong and travelled to Mt Newman in his capacity as an employee of the respondent. His air fares to and from Mt Newman were the responsibility of the respondent. The basis upon which he was engaged for the project was that he would be working extended working hours (approximately sixty hours per week) spread over six days per week with the possibility of also being required to work on the seventh day (i.e. Sunday). While on location at Mt Newman, the respondent provided him with free accommodation and full board in a "camp" which included some recreational facilities. In these circumstances, the whole period during which the appellant was engaged in working at Mt Newman constituted an overall period or episode of work. The outing in the course of which the appellant sustained his injuries took place in an interlude or interval in that overall period or episode of work.

18. Counsel for A.N.I. conceded that "when a person such as the appellant has been taken to a remote part of Australia and has there performed work and is housed and fed there for the duration of the employment the course of employment will go beyond the hours at which the appellant is engaged in his actual work". Consequently, he conceded that "the appellant would have been in the course of his employment while working at the mine, travelling to and from the mine, eating and sleeping and even enjoying recreational activity at the camp". But he contended that it did not follow that the appellant was in the course of his employment "during the whole of the time" that he spent in the Mt Newman area. This contention is correct because the appellant would not necessarily be in the course of his employment while engaged in an activity during an interval or interlude in his overall period or episode of work if A.N.I. had not expressly or impliedly induced or encouraged him to engage in that activity during that interval. In Goward v. The Commonwealth(21) (1957) 97 CLR 355, this Court upheld a finding that a railway worker, living in a camp as an incident of his employment, was not killed in the course of his employment when the evidence disclosed no more than that he had been struck by a train on a nearby railway line some hours after the cessation of actual work. While Goward was decided five years before Oliver and twelve years before Danvers, it is difficult to accept that it would be decided differently today, having regard to the primary findings of fact which were made in that case.

19. The evidence in this case, however, establishes that A.N.I. encouraged the appellant to spend his work-free Sunday at Wittenoom Gorge because A.N.I., through Mr Pope its supervisor, organised the excursion, provided the vehicles and the food, and invited the appellant "to come along". It follows that, although the appellant's injury was sustained during an interval between carrying out his ordinary duties, it was sustained in the course of the employment.

20. Counsel for A.N.I. contended that the correct inference to be drawn from the evidence was that Mr Pope organised the trip in his private capacity as a fellow worker and not as the supervisor of A.N.I. But when regard is had to Mr Pope's position in relation to the other employees, his role as spokesman for A.N.I. in explaining the general nature, terms and conditions of the employment at Mt Newman, and his part in organising and providing the vehicles and food for the 800 kilometre trip, the most cogent conclusion to be drawn from the evidence is that he acted on behalf of A.N.I. when he organised the trip and invited the appellant and the other employees "to come along". In the absence of any denial from Mr Pope or other officers of A.N.I., the inevitable conclusion is that Mr Pope was authorised to make the company's vehicles available for the use of the employees on their day off and that his authority extended to organising and making the vehicles available for sightseeing journeys of the kind embarked on on this particular Sunday.
Order

21. The appeal should be allowed.

TOOHEY J. The background to this appeal is set out in the judgment of the other members of the Court. In view of the recital of facts in their judgment, it is unnecessary to do more than state them in summary form.

2. At the time of the accident the appellant was driving one of the respondent's vehicles, participating in a trip to Wittenoom Gorge which had been organised by the respondent's supervisor. The possibility of some such trip had been mentioned by the supervisor at the time of the appellant's engagement - some recompense, it would appear, for the remote area in which the appellant and others would be working and for the long hours involved.

3. The words "personal injury arising ... in the course of employment" in s.4(a) of the Workers Compensation Act 1987 (N.S.W.) (and in comparable statutes) have a long lineage. But the way in which they have been interpreted and applied over the years has not resulted in great consistency or predictability. To some extent uncertainty is inherent in the words used; in part it is a result of substituting other terminology to explain the language of the section. And, at the same time, changing relationships between employers and employees, including different work practices, have caused the courts to look afresh at the operation of the expression. Their Honours have examined the leading Australian authorities on the meaning of "in the course of employment". I shall not repeat in any detail that examination; rather I shall try to identify the cumulative effect of the decisions and its consequences for this appeal.

4. The early workmen's compensation legislation required that there be personal injury "arising out of and in the course of employment". One of the first text-book writers on the subject commented(22) Beven, The Law of Employers' Liability and Workmen's Compensation, 4th ed. (1909), p 369:
"These phrases have separate and distinct valuations."
Because of the conjunctive nature of the statutory requirement, emphasis tended to be placed on "employment", which Beven(23) ibid described as covering:

"all that class of acts which ordinarily or reasonably fall to be done by those engaged in the work assigned to the workman".

The dual requirement, it has been suggested(24) Lord Finlay LC. in Charles R. Davidson and Company v. M'Robb (1918) AC 304, at p 315, was introduced to answer the claim of a workman injured away from work but whose "nerve or agility ... (was) impaired by the conditions of his work", in which event it might be argued that the accident arose out of his employment.

5. In Charles R. Davidson and Company v. M'Robb(25) ibid at p 321 at p 321 Lord Dunedin said of the expression "in the course of employment":

"In my view (it) ... is a different thing from 'during the period of employment.' It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work - e.g., in the workman's case the taking of meals during the hours of labour; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof."

6. With the introduction of the disjunctive expression "arising out of or in the course of employment", there was no reason to give "in the course of" a restricted interpretation(26) Boulter, Workers' Compensation Practice in New South Wales, (1966), p 29. Inevitably, perhaps, "arising out of" was seen as implying a causal relationship; "in the course of", a temporal connection(27) The Commonwealth v. Oliver (1962) 107 CLR 353, at pp 355-359. The extension suggested by Lord Dunedin's words "natural incidents connected with the class of work" found its way into later decisions, including those of this Court. Thus, in Whittingham v. Commissioner of Railways (W.A)(28) (1931) 46 CLR 22, at p 29. Dixon J. spoke of "the employee ... doing something which is part of or is incidental to his service". And in Henderson v. Commissioner of Railways (W.A)(29) (1937) 58 CLR 281, at p 294. See also Humphrey Earl Ltd. v. Speechley (1951) 84 CLR 126, per Dixon J. at p 133: "Whatever is incidental to the performance of the work is covered by the course of the employment" his Honour said: "To be in the course of the employment, the acts of the
workman must be part of his service to the employer. It includes the doing of whatever is incidental to the performance of the work." But his Honour added: "General expressions of this kind have not proved very helpful."

7. Later, in Kavanagh v. The Commonwealth (30) (1960) 103 CLR 547, at p 556, Dixon C.J., having referred to the workman doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service, commented:

"It is perhaps unwise to substitute any expression as an equivalent for the well-known words 'in the course of' which had a long history in the law before they were taken up by the English Workmen's Compensation Act 1897."

He then pointed out that the words were to be seen as early as 1687 in the headnote to Turberville v. Stampe which reads(31)(1687) 1 Ld Raym 264 (91 ER 1072):

"A master is responsible for all acts done by his servant in the course of his employment, though without particular directions."

The Chief Justice's admonition to adhere to the language of the statute is salutary. That is not to say that the learning of vicarious liability in the law of torts should be imported into workers' compensation law; there is good reason why that should not be done(32) Kavanagh (1960) 103 CLR, per Dixon C.J. at pp 556-557.

8. The problem, recognised in the cases, is that once "in the course of employment" is treated as capable of extending to injuries sustained while an employee is not actually performing his or her work, there is a need to identify some controlling principle. Words like "incidental" tend only to replace one kind of uncertainty with another.

9. In Henderson(33) (1937) 58 CLR, at p 294, after the passage quoted earlier in this judgment, Dixon J. continued: "Where the accident arises shortly before the beginning of actual
work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties." (emphasis added)

10. Clearly enough, there are relativities built into this passage. What is "shortly" before or after work is necessarily relative. What is "at or near the scene of operations" may be very different in a remote area of Australia to what it is in a city. In any event, both expressions are affected by "the nature and terms of the employment" and by "the circumstances in which work is done". In Henderson itself the deceased worker was killed by a train during the lunch hour while crossing the railway line from where his gang worked to the camp where he and the gang lived, they not being required to live there, but authorised to do so. His death was held to have occurred in the course of his employment. By contrast, in Speechley a claim for compensation was rejected in the case of an employee who serviced and repaired machines and implements supplied by his employer to the proprietors of shops in the metropolitan area. The employee and a shop proprietor went off to a village for a hot fish lunch which the employee insisted upon and, on the return journey, the employee was injured in a road accident. Dixon J.(34) (1951) 84 CLR, at p 133 endorsed what he had said in Henderson, as appears in the passage emphasised above, save that he referred to "duties" rather than "actual duties".

11. I do not propose to examine the many authorities here and elsewhere in which the words "in the course of employment" have been considered. In assessing the impact of any particular decision, regard should be had to the appellate process by which the case was finally determined. In some instances, there was no appeal by way of rehearing and the question was whether there was evidence upon which the court or tribunal below (usually the latter) could have reached its decision. The dismissal of an appeal in such a case does not necessarily carry an endorsement of the reasoning in the judgment appealed from. In other cases the appellate court was in a position to look at the matter afresh and, within the usual constraints, apply its own assessment of the facts.

12. To return to the search for a controlling principle. As Mahoney J.A. observed in the present case(35) ANI Corporation Ltd v. Hatzimanolis (1991) 23 NSWLR 125, at p 128: "A worker's employment will, of course, include those things which,
by the terms of his contract of employment, he is required to do. The terms of employment may be either express or implied". Mahoney J.A. continued(36) ibid:

"But it has, in my opinion, been recognised that, in addition to acts which, under the contract of employment the worker is required to do, there are acts which, though he may not be required to do, he may be authorised or allowed to do."

His Honour then gave illustrations from decided cases. Later, he observed(37) ibid, at p 129:

"And the worker's employment may extend to other acts or things. There are things which, though a worker is not required by his employment to do and which he might not be obliged to do even if directed by his employer, yet are so connected with his employment that, if he does them, he is acting in the course of the contract of employment."

Again, his Honour gave illustrations.

13. The various categories identified by Mahoney J.A. and amplified in his reasons fall within the words of Dixon J. in Henderson quoted earlier in this judgment, as modified in Speechley. In other words, in those categories the answer to the question whether the worker was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties is yes. It is true that Mahoney J.A. used the words "authorised or allowed to do". I would read those words as synonymous in the sense that "allowed" requires that the employer direct his or her mind to the circumstances in question. If "allowed" is taken to mean no more than not prohibited, it falls outside the language of Dixon J. and is so wide as to rob "in the course of the employment" of any content.

14. It is true that the words "in order to carry out his duties" have an air of unreality in cases where a worker is injured "in an interval when labour is suspended", to use the words of Dixon J.(38) Henderson (1937) 58 CLR, at p 294 However, if the worker is then doing something which he or she is required or expected to do by the employer, the connection with the performance of duties will usually be apparent. If the worker is doing something which he or she is merely authorised to do, any connection with the performance of duties may be tenuous. The connection may be no more than that the employer has authorised what the worker is doing in the interval as part of good industrial relations between the parties. Nevertheless, I would retain the words "in order to carry out his duties", whatever their imperfections. To eliminate them, without substituting something in their place, tends to remove any connection with the employment. This is particularly so if the terminology "required, expected or authorized" is broadened to include "allowed" or "permitted". I would therefore adhere to the formulation of Dixon J. in Henderson as modified in Speechley. It is a formulation which sufficiently identifies the principle underlying "in the course of the employment". That is not to say that there will not be borderline cases; but there will always be such cases whatever approach is taken.

15. In the judgment of the other members of the Court it is said: "For the purposes of worker's compensation law, an injury is more
readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work." I agree with the distinction drawn between overall and discrete periods of work. What their Honours say is necessarily only the application of principle to particular situations. An employer is more likely to be held to have required, expected or authorised a worker to do something relevant to the carrying out of his or her duties during an interval in an overall period of work than in an interval between discrete periods of work.

16. All members of the Court of Appeal held that the appellant's injuries were not sustained in the course of his employment. Though they expressed their reasons in different ways, they clearly regarded the accident as outside the scope of the appellant's employment and not in any way incidental to his duties. But when regard is had to the terms of the appellant's employment, what was said at the time of his engagement, the location where he was working, the hours and days worked, the use made of the respondent's vehicles for the convenience of its employees and the role of the respondent's supervisor in organising the trip to Wittenoom Gorge for the appellant and his fellow employees, the conclusion is inevitable that the appellant was, at the time of the accident, doing something which he was "reasonably ... authorized to do in order to carry out his duties", that is, an activity which the respondent saw as making the working conditions more attractive than they would otherwise be.

17. The appeal should be allowed.

Orders

Appeal allowed with costs.

Set aside the order of the Court of Appeal of New South Wales and in lieu thereof order that the appeal to the Court be dismissed with costs.