Injac v Tooth & Co Limited

[1995] HCATrans 21

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney           No S138 of 1994

B e t w e e n -

ALEKSANDAR INJAC

Applicant

and

TOOTH & CO LIMITED t/as MONA VALE HOTEL

Respondent

Application for special leave
to appeal

MASON CJ
BRENNAN J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 FEBRUARY 1995, AT 11.24 AM

Copyright in the High Court of Australia

MR M.L.D. EINFELD, QC  If the Court please, I appear with my learned friend, MR J.A. GRACIE, for the applicant.  (instructed by Vickovich & Associates)

MR J.G. POULOS, QC:  If the Court please, I appear with my learned friend, MR A.B. PARKER, for the respondent.  (instructed by Tillyard & Callanan)

MASON CJ:   Mr Einfeld.

MR EINFELD:   If the Court please, the Court about three years ago, your Honours, granted special leave to a worker injured away from his place of employment to argue that his injuries had nonetheless occurred in the course of his employment, as that terms was used in the New South Wales Compensation Act and in the resultant appeal, reported as Hatzimanolis v A.N.I. Corporation Ltd 173 CLR 473, the Court in the joint judgment of four of the members of the Court deemed it necessary to revise the test for course of employment which had been first enunciated by Justice Dixon as he then was many years earlier, in particular having regard to changes that had taken place in the workplace in the intervening decades.

This proposed appeal, your Honours, exposes for the Court’s determination similar considerations with respect to the expression “ordinary recess” where used in section 11 of the Workers Compensation Act.  In the present environment, your Honours, such a provision is, we would submit, one of emerging and increasing application, not the least because of its introduction into the Commonwealth Workers Compensation Act in legislation in recent years, in 1988.

The question of the applicability of tests enunciated by this Court many years earlier as an applicable measure of determining whether or not an injury had taken place in the course of employment or, in this case ordinary recess, we say is an important and very relevant question in the modern environment.

MASON CJ:   It is not a question of principle, though, is it?

MR EINFELD:   We would submit it is, and moreover that this case is particularly apt for raising it because the rapid change and movement in the nature of workplace arrangements has meant that an application of old doctrine, as occurred in the court below, has been completely inapt to describe or to apply to modern day employment circumstances.

MASON CJ:   But surely it is just a question of fact and degree?

MR EINFELD:   We would submit not, your Honours.  In the present case, for example, the court determined that by reference to this Court’s decision in Landers v Dawson in which the Court had adopted successive descriptions applied by the Full Court of Victoria of “ordinary recess” as being relevant to a lunch break or a tea break or a smoko, as it was then called, that the adoption of those kinds of criteria as a measure of what was an ordinary recess in the 1990s is completely to ignore the changes that have taken place by reason of enterprise bargaining and advances in work conditions under awards since 1962 or 1964 when this Court last looked at that expression.

TOOHEY J:   But you have got a fact situation here of a man working two shifts: one from 9 am until 3, and the other from 5 pm until 9 pm.

MR EINFELD:   Yes, your Honour.

TOOHEY J:   Is it not just a matter of applying the language of the section?  Is that an ordinary recess or not?  It is very hard to see that the Court, if special leave were granted, could enunciate a principle that would resolve that question for future cases.

MR EINFELD:   To the contrary, we would submit, your Honour, because what their Honours in the majority did in the court below was to say that where one has what were described as two shifts, but a break nonetheless in the worker’s employment of two hours instead of the usual one hour, by dint of that fact this break was not an ordinary recess.  Now, we accept completely that if the appropriate test for what is an ordinary recess were applied, then there would be no special leave point in determining whether or not it could or could not or was or was not applicable to the particular facts in the particular injured worker’s case.  But what has happened here is that their Honours in the majority have said, we have a two hour break not a one hour break.  We have a worker who said he works two shifts and therefore we will treat that as two separate periods of employment.  Now, we submit that the appropriate point of principle is - and the appropriate point for special leave is that in light of the extensive advances that have occurred in workplace conditions, the changes in hours, the changes in the nature of employment, the advent of enterprise bargaining and the like, that it is no longer appropriate to even address the question in terms of whether it is one hour or two hours or in terms of whether it is alone or in terms of whether it is a break in the nature of a smoko or a tea break, which we would submit are outmoded concepts.

TOOHEY J:   But you.....that sort of problem ordinarily under the general language of the section dealing with accidents arising out of or in the course of employment, would you not?

MR EINFELD:   That, of course, would depend upon the facts of the particular case.  That may be right, but not necessarily be right, remembering that in the New South Wales Act, the way the section is structured, whether or not a worker has been injured during the course of an ordinary recess will then take one to the definition of “course of employment’.  In other words, if he is injured during the course of any ordinary recess, he will be deemed to be injured in the course of his employment.  So the question really is not one which can be resolved in terms of what your Honour put to me.

We would submit, your Honours, that consistently with what was done in Hatzimanolis, where this Court looked at the test laid down by Justice Dixon in two cases, firstly in 1937 and then again 12 or 14 years later, for what was the course of employment, and then said that the test then applied had to be modified as a matter of principle having regard to changes that had taken place over the intervening 30 or 40 years in the nature of workplace arrangements.

BRENNAN J:   Would you be able to state a test for modern conditions?

MR EINFELD:   Yes, we do.  With respect, we submit that it is very much akin to that which was stated by the trial judge at page 28 of the application book.  It is a combination, we would submit.  If I could take your Honour to page 28 of the book, page 2 of the judgment of Justice Priestley, where his Honour the trial judge applies criteria which we say are apt to constitute a statement of principle which takes account of modern changes.  In the last cited passage at W on page 28 his Honour the trial judge said:

“In this case, it seems to me that the particular period was a recognized break in the applicant’s normal duties, that is, in relation to the particular shift he was working on the day.....The mere fact that it happens to be of two hours duration rather than perhaps of one hour duration, which may be more common, is not in these circumstances of any relevant consequence.  In my view, what is important is that the nature of the break was -

now I interpolate, firstly -

one which was ordinarily allowed -

secondly -

regularly taken and -

thirdly -

in accordance with the terms of the employment.

And may we add, “and for a period reasonably commensurate with the hours of the working day”.  So we would enunciate as appropriate to the 1990s, as a test of what is an ordinary recess, the following:  to be applied to the given facts in any given case, whether or not the break is a recognised break in the applicant’s normal duties, ordinarily allowed, regularly taken and in accordance with the terms of employment and for a period reasonable commensurate with the hours of the working day.

In the broad, that was the approach adopted by Justice Priestley.  What he said was, it is no longer appropriate, as happened in Drummond and in Landers v Dawson to look any more at concepts like smoko, tea break, lunch break.  A chef who today works a 12-hour day from 9 in the morning until 9 o’clock at night and who has a two hour break in the middle of the day, instead of perhaps the one hour break of the usual 9 to 5 worker, there as a matter of ordinary course, as a matter of the ordinary application and implementation of the usual terms of his employment he has a two hour break instead of a one hour break is not in point.  When one looks at the ordinary working day from 9 in the morning till 9 at night, then a two hour break is reasonably commensurate with the kind of lunch break or intervention in the ordinary working day that once might have been described, in the passages to which their Honours in the majority referred, in Landers v Dawson.

BRENNAN J:   Why is not this a matter - the meaning of this phrase in the New South Wales Act, why is not that a matter properly to be determined by the New South Wales Court of Appeal?

MR EINFELD:   Two reasons.  Firstly, because even in New South Wales we would submit that the changes in work conditions are such that the Court of Appeal has, on the principles or the precepts we have proffered, described the test inappropriately ‑ ‑ ‑

BRENNAN J:   That may be so, but why should this Court grant special leave to correct errors made by an ultimate Court of Appeal in a State in respect of the construction of particular words in a State statute?

MR EINFELD:   Because the same words are used in Queensland Act and the same words, more relevantly, are now used in the Commonwealth legislation recently introduced.  It is in particular reference to the fact that the advent of enterprise bargaining will, and has, been introduced with such increasing force and rapidity, in particular in the Commonwealth workplace as much as in the States, that the test or the principles adopted by Justice Mahoney and Justice Powell in the court below are, as we say, no longer appropriate for application to the modern workplace and this Court, as it did in the earlier case to which we have referred, ought enunciate appropriate considerations for those who will be affected, not directly by the New South Wales Act but by the legislation in Queensland and more particularly in the Commonwealth.

BRENNAN J:   Looking at those four criteria which you expressed before, one, two and three are no more than what are permissible breaks in employment.  Four is the one which deals with period.

MR EINFELD:   Yes.

BRENNAN J:   So that the only thing that you are adding to any prior definition is No 4.

MR EINFELD:   Oh no.  One and three I am adding, in the sense that - I am adding four to what the trial judge below had enunciated as an appropriate test.

BRENNAN J:   I appreciate that, but in relation to the test that has thus far been applied in determining the meaning of “ordinary recess”, one, two and three would be criteria of that, would they not?  Would you have an ordinary recess which was not ordinarily allowed, not regularly taken, not in accordance with the terms of employment?

MR EINFELD:   No, certainly not.  But what I am saying is the High Court did not even - in Landers and Drummond, which is the authority to which resort was had in this case and is normally had, it does not even speak in terms of a recognised break ordinarily allowed, regularly taken.  It speaks of a break in the nature of a lunch break, a tea break or a smoko.

BRENNAN J:   Right, because it is so obvious.  One, two and three are so obviously inherent in each of those instances.

MR EINFELD:   With respect, that is not the way the cases have been approached, nor indeed were they in Drummond, nor in the Full Court in Victoria in Landers v Dawson nor in the High Court, because the emphasis there was not upon the matter we would submit ought be the appropriate focus, namely the regular application of the particular terms of employment of the particular employee and employer.  Hitherto the test has been expressed in terms of, what is usual in the, as it were, global marketplace?  We know, said this Court, that smoko and tea break are common, and without purporting to exhaustively define the nature of the break, that is the kind of break which would normally be described as an ordinary recess.  With that there is no quibble.  What we submit is that the application in the court below of those kinds of what we submit are outmoded precepts, outmoded concepts in the modern workplace, in effect we submit constitutes or amounts to an error of law, an error in principle, because they focus not upon what is regular or ordinary in the course of the relationship between the employer and the employee which now has changed so much from the days where, in the 60s and earlier, employees were traditionally employed pursuant to awards which laid down the conditions and laid down the nature of the ordinary recesses, for that matter, in terms of what your Honour was putting to me.  But now, as a result of enterprise bargaining, the nature of the employment relationship will change so much from workplace to workplace, from industry to industry, we submit it is no longer appropriate to speak in those generic broad terms.  One has to look at the particular break and the ordinary day of the particular worker and employer, to see whether it is a particular break which is ordinarily allowed under those terms of employment and regularly taken and in accordance with those terms of employment.

Having regard to the fact that in the court below the majority especially focused - each of Justices Mahoney and Powell focused on the fact it was a two hour break and saw some significance in the fact that it was two hours, we submit the proper approach is that of Justice Priestley, that that has no particular significance when regarded as part of a 12-hour day.  It would be surprising, indeed, if by application of notions of tea break and smoko and the like, one were to now say that in a 12-hour working day of a chef, who has his break for two hours instead of one, that taking the two hour break or any one of a number of other occupations where, as a result of flexibility in the workplace and flexitime and the like, workers work longer hours but with a longer break perhaps between, that that has any special significance.

As a matter of principle, we would submit, that is a matter for leave because it has a wideranging ramification; it would reflect the modernistic nature of work arrangements when compared with an application, as happened here, of the old fashioned precepts.

Can I just conclude by inviting your Honours just to have a look at one or two of the passages in Hatzimanolis because it is they we invoke by analogy.

MASON CJ:   Yes, but I must say, before you draw our attention to those passages, I have always regarded Hatzimanolis as an exceptional case in terms of the grant of special leave.  I have always considered that the kind of question raised by Hatzimanolis would not ordinarily have attracted a grant of special leave but it was thought in that case, having regard to what had happened in terms of history, that it was exceptional in the sense that this Court ought to have a look at it.

MR EINFELD:   With respect, I take on board what your Honour says to us, but may we just respond by saying that when one looks at Hatzimanolis, this case is almost a virtual reflection of it, but with respect to a different expression of equal importance in the Workers Compensation legislation, namely “ordinary recess” rather than “authorised absence” or “course of employment”.  I do not want to take your Honours through all the passages in the case but ‑ ‑ ‑

MASON CJ:   You do not have much time, so you had better confine the passages to short ones.

MR EINFELD:   My warning light is notionally flashing in front of me.  I am conscious of that.  If your Honours were to go to page 479 in the joint judgment of four members of the Court where the Henderson test, as it was described, was laid down.  At about point 3 the test is described:

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” -

Then there is reference to the modification of that test in a later decision of the same Judge at the middle of the page, and at the foot of the page, point 8:

Given the flexible nature of the application of the test, it is not surprising that what is now perceived as required, authorized or expected to be done.....covers many situations that were not contemplated when the test was first formulated -

Then over the page at 480 point 5 Justice Menzies said:

that the case had to be determined not against the background of Whittingham decided thirty 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.....in recreational activities.” -

and the like.  Then across the page, the foot of page 481, Justice Deane in Commonwealth v Lyon said:

“That test -

that is the Dixon test again -

is plainly a most useful aid as a criterion of inclusion in the concept of `course of employment’.....If, however, the test is to be used as a criterion of exclusion.....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.

Then further down, and this is the important passage at page 483, about point 3:

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 ‑

et cetera.  Now, your Honours, in this cases the employee was not paid under an award.  There have been those wide-ranging changes in the workplace to which reference was made in Hatzimanolis.  The point for special leave, we submit, is that the same kinds of considerations that applied in Hatzimanolis, exceptional as I accept they were, apply equally today in relation to the expression “ordinary recess”.  The changes which have taken place, we respectfully submit, require that this Court look again at the notions that were espoused by it and adopted by it in Landers v Dawson as the measure or appropriate measure for determining whether a particular lunch break in a given case was or was not an ordinary recess.

For those reasons, we submit that special leave ought be granted.

MASON CJ:   The Court need not trouble you, Mr Poulos.

The question sought to be raised concerns no more than the application to the particular facts of the case of the ordinary words of the statute.  That question raises no issue of general principle of interpretation.  As such the case is not one appropriate for the grant of special leave and the application is refused.

MR POULOS:   I would seek an order for costs.

MASON CJ:   You do not oppose that, Mr Einfeld?

MR EINFELD:   No, your Honour.

MASON CJ:   The application is refused with costs.

AT 11.47 AM THE MATTER WAS CONCLUDED