Workers' Compensation (Vict.)—Whether injury arose "out of or in the course of" the employment—Employee working broken hours—"Ordinary recess"—"Travelling between place of residence and place of employment"—Workers Compensation Act 1958 (Vict.), s. 8 (2) (a) (ii), (b) (i)*.

Decisions

June 5.
The following written judgments were delivered:-
KITTO, TAYLOR, MENZIES AND OWEN JJ. The Workers Compensation Board made an award in favour of the appellant worker against the respondent employer for the payment of workers' compensation and thereafter stated a case settled by the parties for the opinion of the Full Court of the Supreme Court in which no less than fifteen questions were asked. Some of these the Full Court found it unnecessary to answer, the remainder it answered in favour of the respondent. The facts, as found by the Board, were that the appellant was employed by the respondent in a bakery at Nullawarre, a country town in Victoria. He lived in the respondent's house and, during the summer months, was available for duty at any hour of the day or night when he was required to work by his employer. At the bakery his work consisted of assisting with the dough-making, which was done sometime "after lunch" or "in the afternoon", and with the baking of bread at some later but unstated time. His work also included making morning deliveries of bread to local customers and, on several days a week, to customers at Peterborough, a seaside resort, about fifteen miles away. In the ordinary course of events he was not required for work between the time when he had completed his delivery rounds in the mornings and the time "after lunch" or "in the afternoon" when the dough-making began. It was found also that it was the appellant's practice during the summer months to go for a swim at Peterborough, with the respondent's permission, after he had made his deliveries there and before returning to the bakery where he would later begin his work mixing dough. On the day when he received his injury, he had completed his local deliveries of bread and had then left the bakery at about 10 a.m. to drive to Peterborough in his truck to make deliveries to customers there. Having completed those deliveries at some unstated time he, with the respondent's permission, drove to the swimming pool with some friends and went in for a swim. At about 11 a.m. he slipped or tripped in some way when making a running dive into the water, struck his head and broke his neck. The Board found that "after the applicant completed his deliveries of bread and had set out for his swim he entered upon a venture of his own. His time was his own until he intended resumption of work after lunch. The place of his last delivery was part of his place of employment until…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Landers v Dawson

Details

AGLC: Landers v Dawson [1964] HCA 35
Case: [1964] HCA 35
Decision Date: 5 June 1964

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Landers v Dawson*. The dispute concerned the proper construction of a will and, in particular, whether a gift of residue was void for uncertainty. The primary issue was whether the testator's intention was to create a trust for a class of beneficiaries described as "my nieces and nephews" or whether the gift was intended to be an absolute gift to the executors, to be distributed at their discretion.

The court was required to determine whether the phrase "my nieces and nephews" constituted a sufficiently certain class of beneficiaries to give effect to the testator's testamentary intentions. This involved considering whether the testator intended to confer a power of appointment upon the executors or to establish a trust for the benefit of a defined group. The central legal question was whether the gift failed for uncertainty of objects, thereby rendering the residue undisposed of.

The High Court held that the language used in the will indicated an intention to create a trust for the benefit of the testator's nieces and nephews. The court reasoned that the testator had clearly identified the class of beneficiaries, and the executors were to distribute the residue amongst them. The use of the word "trust" in relation to the residue, coupled with the specific identification of the class, meant that the gift was not an absolute one to the executors to distribute as they saw fit, but rather a trust for the benefit of the named class. The court found that the class of nieces and nephews was sufficiently certain to be ascertained.

Orders