Maunder v Commonwealth

[1983] FCA 335

Re: DIANE MAUNDER
And: THE COMMONWEALTH OF AUSTRALIA (1983) 76 FLR 341
No. G266 of 1982
Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Morling(1) and Neaves(1) JJ.

CATCHWORDS

Workers' Compensation - appeal from Administrative Appeals Tribunal - question of law - whether employee injured on a journey from his employment or from his place of employment whether conclusion that employee's attendance at a mess party to a certain hour was incidental to employment was only conclusion open to Tribunal - whether finding that kind of transport used by the employee was not open to the Tribunal

Compensation (Commonwealth Government Employees) Act 1971, ss. 7(2), 27(1), 32, 33

Administrative Appeals Tribunal Act 1975, s.44

Workers' Compensation - Commonwealth employee - Member of Australian Regular Army - Attendance at Mess party at regimental depot - Death resulting from injuries sustained when travelling from regimental depot to home - Normal route - Whether employee injured on journey from employment or from place of employment - Disallowance of widow's claim for compensation by delegate of Commissioner - Whether participation in Mess party after certain time was "in the course of employment" or "incidental to employment" - Whether employee's vehicle was "of a kind that the employee could . . . have been reasonably expected to use" - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss 7(2), 27(1), 32(1), 33 - Administrative Appeals Tribunal Act 1975 (Cth), s. 44.

HEADNOTE

Sections 32 and 33 of the Compensation (Commonwealth Government Employees) Act 1971, so far as relevant, provide:

"32.(1) Subject to this section this Act applies . . . in relation to a journey by an employee from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end) as if the journey constituted part of his employment by the Commonwealth. . . . 33.(3) Where -

(a) an employee makes a journey in relation to which paragraph (b) of sub-section (1) does not apply by reason only that the journey commenced after the expiration of the prescribed period referred to in that paragraph;

(b) the journey was made by the first means of transport -

(i) that was conveniently available for use by the employee;

(ii) that would ordinarily have enabled the employee to commence the journey after the time when he ceased work; and

(iii) that was of a kind that the employee could, having regard to all the circumstances of the case, have been reasonably expected to use; and

(c) the employee did not make an earlier journey from his place of employment after the commencement of that period, the first-mentioned journey shall be deemed to be a journey in relation to which that paragraph applies."

The appellant was the widow of Captain Maunder a member of the Australian Regular Army, who had attended a party on 22 August 1980, in the Sergeants' Mess of the Monash University Regiment of which he was Adjutant Quartermaster. Evidence showed that at 4.54 a.m. on the following day Captain Maunder was injured in an accident while he was driving his motor car on the normal route between the Mess and his home while his blood alcohol level percentage was .273. Evidence also showed that, at the time of the accident, Captain Maunder had only $1 in cash on his person and that there was no public transport available on that route. Captain Maunder subsequently died from his injuries, and the appellant made a claim for compensation pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 on the basis that Captain Maunder had been on a journey "from his employment" within the meaning of s. 32 of the Act and "from his place of employment" within the meaning of s. 33 of the Act. The appellant's claim for compensation was disallowed by the delegate of the Commissioner for Employees' Compensation and, following its review of the delegate's determination, the Administrative Appeals Tribunal (the Tribunal) upheld the delegate's decision. The Tribunal found, inter alia, that Captain Maunder's participation in the party at the latest after 10.30 p.m. on 22 August 1980, was not in the course of his employment and was not incidental to his employment. Further, the Tribunal found that Captain Maunder's vehicle was not a vehicle "of a kind that the employee could . . have been reasonably expected to use" within the meaning of s. 33(3)(b)(iii) of the Act and hence the appellant's claim for compensation failed.

Pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975 the appellant appealed on a question of law from the decision of the Tribunal to the Full Court of the Federal Court of Australia. It was contended on behalf of the appellant that the Tribunal had erred in law in finding that Captain Maunder's attendance at the party after 10.30 p.m. on 22 August 1980, was not an incident of his employment.

Held: (1) The Tribunal's finding of fact, that it was an incident of Captain Maunder's duty to be present at the Mess party until 10.30 p.m. but not thereafter, was reasonably open on the evidence before the Tribunal.

Kavanagh v. Commonwealth (1960) 103 CLR 547; Bill Williams Pty Ltd v. Williams (1972) 126 CLR 146; Davidson v. Mould (1944) 69 CLR 96, referred to.

(2) It was open to the Tribunal on the evidence before it to reach the conclusion that it could not have been considered reasonable that Captain Maunder should attempt to go home or to go home by driving his motor vehicle, which was a question of fact.

Commonwealth v. Wright (1956) 96 CLR 536, referred to.

HEARING

Sydney, 1983, October 19; November 18. #DATE 18:11:1983

APPEAL.

Pursuant to s. 44 of the Administrative Appeals Tribunal Act 1975, the appellant appealed on a question of law to the Full Court of the Federal Court of Australia from the decision of the Administrative Appeals Tribunal which had upheld a decision by the delegate of the Commissioner for Employees' Compensation to disallow the appellant's claim for compensation which had been made pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 (Cth).

M. H. McHugh Q.C. and N. Robson, for the appellant.

G. Griffith Q.C. and G. Moore, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Williams, Dibbs & Co.

Solicitor for the respondent: T.A. Sherman, Acting Commonwealth Crown Solicitor.

J. D. W.

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

The appeal is therefore dismissed with costs.

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal under s.44 of the Administrative Appeals Tribunal Act 1975 which provides for an appeal to this court on a question of law.

The appellant is the widow of the late Captain Owen Maunder who sustained personal injuries on 23 August 1980 which resulted in his death on 30 August 1980. Arising out of the death of her husband the appellant made a claim for compensation pursuant to the provisions of the Compensation (Commonwealth Government Employees) Act 1971 ("the Act"). The basis of her claim was that when her husband received the injuries from which he subsequently died, he was on a journey from his employment within the meaning of s.32 of the Act, and from his place of employment within the meaning of s.33. The claim for compensation was disallowed by the Delegate of the Commissioner for Employees' Compensation and the proceedings in the Administrative Appeals Tribunal were a review of the Delegate's determination.

On 31 March 1980 Captain Maunder, who was a member of the Australian Regular Army joined the Monash University Regiment as Adjutant Quartermaster. On Friday 22 August 1980 Captain Maunder attended a party in the Sergeants' Mess. The party was to celebrate the birthday of two members of the Mess. The Commanding Officer of the Regiment had given tacit approval to the holding of the function. It was usual for the Mess to hold what was referred to as a "Happy Hour" as a regular occurrence on Friday evenings at the Mess. Ordinarily "Happy Hours" ran from about 5.30 p.m. to about 7.30 p.m. The party on 22 August commenced at about 5.30 p.m. and continued until the following morning. Captain Maunder remained in the Mess until 2.30 or 3 a.m. on August 23. There had been as many as 30 men and women in attendance at the party but when Captain Maunder left it only 7 or 8 remained. The Tribunal found that there was no specific order requiring the party to end at any particular time.

The Tribunal found that it was most likely that after Captain Maunder left the party he either rested in his office, which was adjacent to the Mess, or in his car which was parked nearby. It was unable to make a finding as to when he drove his car out of the regimental depot. But having regard to the fact that the accident in which Captain Maunder received his injuries occurred at 4.54 a.m. on August 23 and to the further fact that the site of the accident was 20 minutes by car from the depot it seems probable that he left the depot about 4.30 a.m. In this respect the Tribunal said in its decision that it was not satisfied that Captain Maunder deviated from or interrupted his journey once that he left the depot.

At the time of the accident Captain Maunder had only $1 in cash on his person. This sum was insufficient for him to pay his fare by public transport from the depot to his home at Glen Waverley. There was, in any event, no public transport available at that hour of the morning from the area in which the depot was situated to Glen Waverley.

The Tribunal found that at the time of the accident Captain Maunder was travelling by a normal route leading from the regimental depot to his home. There were no licensed premises between the depot and the site of the accident which would have been open after 2.30 a.m. on 23 August 1980. When the accident occurred Captain Maunder had a blood alcohol level of .273. Driving a motor vehicle with a blood alcohol level of .05 constitutes a breach of the Motor Car Act 1958 (Vic.) s.81A. The Tribunal accepted evidence from an experienced medical practitioner that the driver of a motor vehicle with a blood alcohol reading of .273 would have impaired co-ordination, muscular functions and ability to properly control a motor vehicle and would be very much under the influence of alcohol.

The Tribunal found that Captain Maunder's attendance at the party was incidental to his employment and remained so for a period. However it further found that:-

"there came a time not precisely to be identified when his continued participation was no longer an incident of his employment but was referable to his own personal choice to continue at a social gathering with a continuing in-take of liquor. That in-take and his remaining at the party was beyond any requirement of or incident of duty; and not incidental to his employment. He was, as the saying goes, on a 'frolic of his own'. I find that his participation in the party, at the latest after 10.30 p.m. on 22 August 1980, was not in the course of his employment and was not incidental to his employment."

The Tribunal further found that after leaving the party and before leaving the depot Captain Maunder did not work or attempt to work. Accordingly it found that when Captain Maunder was injured on the morning of 23 August 1980 he was not on a journey from his employment. The claim for compensation based on s.32 of the Act therefore failed.

Further, the Tribunal found that Captain Maunder's vehicle was not a vehicle "of a kind that the employee could ... have been reasonably expected to use" within the meaning of sub-section 33(3)(b)(iii) of the Act. It found that, having regard to all the circumstances of the case, including Captain Maunder's inebriation, "it could not have been considered as reasonable that he should attempt to go home or to go home by driving his motor vehicle." Accordingly the claim for compensation based upon s.33 of the Act also failed.

Before referring to the arguments advanced in support of the appeal it is convenient to make brief reference to the relevant provisions of the Act. Sub-section 7(2) provides that a member of the Defence Force shall, for the purposes of the Act, be deemed to be employed by the Commonwealth. By virtue of sub-section 27(1) if personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is liable to pay compensation in respect of that injury in accordance with the Act. Sub-section 32(1) provides as follows:

"32. (1) Subject to this section, this Act applies in relation to a journey by an employee to his employment by the Commonwealth (irrespective of the place at which the journey commenced) or in relation to a journey by an employee from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end) as if the journey constituted part of his employment by the Commonwealth."

Section 33 provides, in part, as follows: "33 (1) Subject to this section and sections 35 and 36, where an employee (other than an employee to whom the next succeeding section applies) makes a journey to or from his place of employment, then -

(a) . . .

(b) in the case of a journey from that place of employment - if the journey commenced during the period of one hour immediately after the time when he ceased work (in this section called a 'prescribed period'), the journey shall be deemed, for the purposes of sub-section (1) of the last preceding section, to have been a journey from his employment by the Commonwealth.

(2) . . . .

(3) Where -

(a) an employee makes a journey in relation to which paragraph (b) of sub-section (1) does not apply by reason only that the journey commenced after the expiration of the prescribed period referred to in that paragraph;

(b) the journey was made by the first means of transport -

(i) that was conveniently available for use by the employee;

(ii) that would ordinarily have enabled the employee to commence the journey after the time when he ceased work; and

(iii) that was of a kind that the employee could, having regard to all the circumstances of the case, have been reasonably expected to use; and

(c) the employee did not make an earlier journey from his place of employment after the commencement of that period, the first-mentioned journey shall be deemed to be a journey in relation to which that paragraph applies."

The principal attack on the Tribunal's decision was that it erred in law in finding that Captain Maunder's attendance at the party after 10.30 p.m. on August 22 was not an incident of his employment. It was submitted that, it having been found that attendance at the party was incidental to his employment up until that hour, there was no evidence justifying a finding that it ceased to be incidental thereafter. We see the force of the submission and we have hesitated before concluding, as we have, that it must be rejected.

It was, of course, well open to the Tribunal to find that Captain Maunder's attendance at the party up to 10.30 p.m. was incidental to his employment by the Commonwealth. Indeed, the contrary was not asserted by the respondent. Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work. See Kavanagh v The Commonwealth (1960) 103 C.L.R. 547 at p. 559 per Fullagar J. and Bill Williams Pty. Limited v Williams (1972) 126 C.L.R. 146 at pp. 158-9 per Stephen J. where his Honour said:

"That which is incidental to a worker's work depends upon 'the sufficiency of the connexion between the employment and the thing done by the employee' which is 'a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment': Whittingham v Commissioner of Railways (W.A.) per Dixon J. ((1931) 46 C.L.R. 22 at p.29). It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he 'was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties': Humphrey Earl Ltd. v Speechley per Dixon J. ((1951) 84 C.L.R. 126, at p.133): whether the accident has happened 'while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service': Pearson v Fremantle Harbour Trust ((1929) 42 C.L.R.,320 at p.330)."

The one, but difficult; question to be determined on this aspect of the case is whether on the facts found by the Tribunal the only conclusion reasonably open to it was that attendance at the party until between 2.30 a.m. and 3 a.m. was incidental to Captain Maunder's employment. If that was the only conclusion open the Tribunal's decision manifests an error of law which can be corrected on appeal to this court. If it was not, then even if we would not have reached the same decision, it is not reviewable on appeal to this court. As Walsh J. pointed out in Williams' Case, supra, at p.156, it is sometimes a difficult task to determine whether different conslusions or but one conclusion are or is reasonably open. His Honour also pointed out that it is easy, in making a decision on that question "to slip across the boundary which must be maintained between the evaluation of the legal consequences of facts already found and the making of findings of fact." Furthermore as Jordan C.J. said in Davidson v Mould (1943). 44 S.R. (N.S.W.) 113 at p.115 of the question whether an injury arose out of or in the course of employment:

"In approaching the subject, it needs to be remembered that the question whether a particular injury arose out of or in the course of employment is one of fact. In this connection, a question of law arises when it is contended on the one hand that there was no material before the Commission on which it could find that it did, or on the other that on the material which the Commission accepted and its findings on that material it necessarily followed that it did: Tompsett v Southern Portland Cement Limited ((1941) 41 S.R. 126 at 132; 58 W.N. 137 at 139; Austn Digest (1941) 154). Between these two extremes, the question is one of degree, depending on the view taken of the relative importance and significance of the facts proved in evidence; and a decision either way by the Commission is one of fact and cannot be disturbed by this Court: Dennis v Watt ((1942) 43 S.R. 32; 60 W.N. 7)."

It is plain that, in the present case, the Tribunal correctly accepted that the scope of Captain Maunder's employment included all that was incidental to that employment. It held, in effect, that it was an incident of his duty to be present at the Mess party until 10.30 p.m., but not thereafter. In our opinion that finding was a finding of fact. It was reasonably open on the evidence before it.

The reason why his presence at the party until 10.30 p.m. was incidental to his employment was that it served the purpose of fostering the esprit de corps of his regiment and contributed to the morale of the noncommissioned officers who were members of the Mess. The evidence apparently satisfied the Tribunal that these purposes were not served by Captain Maunder's attendance at the party after 10.30 p.m. We are unable to say that the only conclusion properly open to the Tribunal was that these purposes were served by his attendance as the party up until the time he left it. The party commenced at 5.30 p.m. on August 22. We do not think that attendance at it for an indefinite period thereafter would necessarily have been an incident of Captain Maunder's employment. If the party had continued for 24 hours and Captain Maunder had stayed until its conclusion, it could not have been said that the only finding reasonably open was that his attendance until the conclusion was an incident of his employment, although such a finding may have been open. On the facts of the present case, it was a matter of degree whether attendance at the party until between 2.30 a.m. and 3 a.m. on August 23 was an incident of Captain Maunder's employment. Being a matter of degree, it was a matter of fact, and for the Tribunal to determine. See Miller Hotels Pty. Limited v Tunks (1973) W.C.R. 154 at 155 per Reynolds J.A., with whom Hutley J.A. and Bowen J.A. (as he then was) agreed.

We are therefore of the opinion that it has not been shown that the Tribunal erred in law in finding that Captain Maunder's attendance at the party after 10.30 p.m. on August 22 was not an incident of his employment.

Counsel for the appellant submitted a further argument that the Tribunal's reasons erroneously proceeded upon the basis that in order for Captain Maunder's attendance at the party to have been incidental to his employment, it was necessary that such attendance should have been a requirement of his duties as Adjutant. This submission was based upon a passage in the Tribunal's reasons in which it said, after referring to Captain Maunder's intake of liquor and his attendance at the party until between 2.30 a.m. and 3 a.m.:

"That intake and his remaining at the party was beyond any requirement of or incident of duty; and not incidental to his employment."

However, it is plain from a reading of the whole of the Tribunal's reasons that it accepted that the appellant did not have to establish that her husband's attendance at the party was a requirement of his duties. Indeed, the use of the phrase "or incident of duty" demonstrates that this was the Tribunal's view.

Had we been of the opinion that the only conclusion reasonably open on the evidence was that Captain Maunder's attendance at the party until he left it between 2.30 a.m. and 3 a.m. was incidental to his employment, the question would have arisen whether the time which elapsed between his leaving the party and the commencement of his journey home disqualified that journey as "a journey by an employee from his employment by the Commonwealth" within the meaning of those words in sub-section 32(1). Counsel for the Commonwealth submitted that it did. He relied upon The Commonwealth v Wright (1956) 96 C.L.R. 536 at 557 per Kitto J. where his Honour said:

"What, then, are the terminal points of a journey which possesses the character indicated by the words 'travelling to or from his employment by the Commonwealth'? One is clear enough: it must be either a place to which the employee is going because the performance of his duties as an employee of the Commonwealth awaits him there, or a place from which he has set out upon ceasing to be engaged in the performance of those duties."

Reliance was also placed upon a passage from the judgment of Fullagar J. in the same case, in which his Honour said:

"But a man cannot, in my opinion, properly be said to be travelling from his employment unless the occasion of his journey is the cessation for the time being of the duties of his employment and his primary purpose is to leave those duties behind him." (96 C.L.R. 536 at 553)

Since the Tribunal made no specific finding on this question, we would have remitted the matter for further consideration had we been of the opinion that the Tribunal had erred in law in finding that attendance at the party after 10.30 p.m. on August 22 was not incidental to Captain Maunder's employment. We see the force of the respondent's argument that the time which elapsed after Captain Maunder left the party and before he set out on his journey home was such that he cannot be said to have commenced that journey upon ceasing to be engaged in the performance of his duties. But had the Tribunal found that Captain Maunder was on duty until he left the party, it may have been open to it to find that when he received his fatal injuries he was journeying "from his employment" within the meaning of those words in sub-section 32(1). As we do not need to resolve that question to dispose of the appeal, we prefer to leave the question unanswered.

Counsel for the appellant also submitted that the Tribunal erred in law in rejecting the appellant's claim for compensation insofar as it was based upon s.33 of the Act. It was argued that the journey in the course of which Captain Maunder was injured was a journey from his place of employment, that the journey was a journey in relation to which paragraph 33(1)(b) did not apply by reason only that the journey commenced after the expiration of the prescribed period referred to in that paragraph, that the journey was made in circumstances falling within paragraph 33(3)(b) and that Captain Maunder did not make an earlier journey from his place of employment after the commencement of that prescribed period. The consequence was, so it was argued, that the journey is to be deemed to be a journey in relation to which paragraph 33(1)(b) applied, that is to say it was a journey which is to be deemed, for the purposes of subsection 32(1), to have been a journey from Captain Maunder's employment by the Commonwealth.

For a journey to constitute part of an employee's employment by the Commonwealth by reason of the operation of s.32 of the Act the journey must answer the description of a journey by the employee to his, employment by the Commonwealth (irrespective of the place at which the journey commenced) or a journey by the employee from his employment by the Commonwealth (irrespective of the place at which the journey is intended to end). Making explicit that the place of commencement of the journey is irrelevant in the case of a journey to employment and the place of destination irrelevant in the case of a journey from employment no doubt removed from consideration some of the matters that had been the subject of debate under the provisions repealed by the Compensation (Commonwealth Government Employees) Act 1971. But a consideration of what was said in The Commonwealth v Wright (1956) 96 C.L.R. 536 is sufficient to indicate that other difficulties could stand in the way of an employee establishing in the circumstances of a particular case that his journey was one properly answering the description of a journey to or from his employment by the Commonwealth.

The obvious purpose of ss. 33 and 34 of the Act, read with ss. 35 and 36, is to relieve an employee from the necessity to establish that his journey falls within the language of section 32 provided he can bring himself within s.33 or s.34.

To fall within sub-section 33(1), in the case of a journey from the employee's place of employment, it is only necessary to show that the journey commenced during the period of one hour immediately after the time when the employee ceased work, an expression which, by virtue of s.36, includes the performance of any act constituting part of the employment of the employee. If the journey, although a journey from the employee's place of employment, did not commence during that one hour period and the time at which the journey commenced was the only reason why the journey did not fall within the terms of paragraph 33(1)(b), the employee must establish to the satisfaction of the tribunal of fact that, in terms of paragraph 33(3)(b), the journey was made by the first means of transport -

(i) that was conveniently available for use by the employee;

(ii) that would ordinarily have enabled the employee to commence the journey after the time when he ceased work; and

(iii) that was of a kind that the employee could, having regard to all the circumstances of the case, have been reasonably expected to use;
and that he did not make an earlier journey from his place of employment after the commencement of that period.

In speaking of the first available means of transport paragraph 33(3)(b) read in its context is clearly referring to the means of transport first available to the employee after the employee ceased work. The legislative intention seems to be that, if the employee delays in leaving his place of employment and commencing his journey until after the prescribed period, he must, to obtain the benefit of s.33, show that a means of transport was not available to him during the prescribed period.

It was pressed upon us that the reference in paragraph 33(3)(b) to the first means of transport that was conveniently available for use by an employee is a reference to the first means of transport available to him after the time when he leaves his place of employment with the intention of making the journey. We do not think this is the meaning of that paragraph.

Counsel for the appellant submitted that the Tribunal should have held that the means of transport chosen by Captain Maunder was a motor vehicle, pointing to the use of the word "kind" in sub-paragraph 33(3)(b)(iii) as supporting this argument. He also submitted that in considering the application of that sub-paragraph the Tribunal was bound to take no account of any considerations relating to the capacity or other personal attributes of the employee. We are satisfied that the correct way in which to describe the means of transport chosen by Captain Maunder is to say that the means of transport was to drive himself in his own motor vehicle. We are also satisfied that in applying sub-paragraph 33(3)(b)(iii) the Tribunal was required, in accordance with its express language, to have regard to all the circumstances of the case. There is no warrant for excluding from those circumstances the capacity or other personal attributes of the employee.

The Tribunal was "not able to be satisfied or make any finding one way or the other that Captain Maunder's motor vehicle was the 'first means of transport that was conveniently available for (his) use'" but concluded, in terms of sub-paragraph 33(3)(b)(iii), that Captain Maunder's motor vehicle, in the circumstances, was not one he could reasonably have been expected to use. The Tribunal said:-

"In my view, it could not be said to have been regarded or contemplated as being reasonable that a man in such a state of inebriation would drive or use a motor vehicle. Having regard to all the circumstances of the case, including his inebriation, it could not have been considered as reasonable that he should attempt to go home or to go home by driving his motor vehicle."

The question whether it was reasonable that Captain Maunder should attempt to go home by driving his own vehicle was a question of fact and we are satisfied that it was open to the Tribunal on the evidence before it to reach the conclusion that it did.

In the course of argument reference was made to the provisions of sub-section 8(3) of the Act. In the view we have taken it is unnecessary to express any view on the application of that sub-section to the facts of this case.

The appeal is therefore dismissed with costs.