McDermott, James Thomas v Commonwealth of Australia

[1981] FCA 256

Re: JAMES THOMAS McDERMOTT
And: THE COMMONWEALTH OF AUSTRALIA
No. ACT G31 of 1981
Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Fox J.

CATCHWORDS

Compensation - Commonwealth Employee - Appeal from decision of Administrative Appeals Tribunal - Course of employment - Staff Barbecue Party - Injury during Impromptu Swim - Whether conclusion of Tribunal that "frolic of his own" open to it on the Evidence.

Administrative Appeals Tribunal Act 1975, s.44.

Compensation (Commonwealth Government Employees) Act 1971 (Cth).

HEARING

CANBERRA

#DATE 18:12:1981

ORDER

1. The application be dismissed with costs.

JUDGE1

The case has been fully and well argued on both sides. It is not out of disrespect for counsel or their arguments that I will deliver judgment forthwith.

The application before me is by way of an appeal under s.44 of the Administrative Appeals Tribunal Act 1975, and it relates to a finding of the tribunal as to the compensation entitlement of the applicant under the Compensation (Commonwealth Government Employees) Act 1971. The applicant, on 20 March 1980, suffered a fracture of the vertebra of his neck when he dived into Lake Burley Griffin. The question is whether when he did this he was acting in the course of his employment.

The tribunal heard the evidence which, as I understand, was substantially not in dispute, and made certain findings of fact which I set out as part of this judgment:-

"4. On this evidence I find the following facts:

(a) a system of flexi-time operated in Prime Minister and Cabinet which enabled employees to take time off between 1200 and 1400;

(b) it is customary in the Public Service, and I think encouraged by the employer, for functions to be organized when officers are leaving the department at which a small presentation is made;

(c) an officer of the Prime Minister and Cabinet Registry was so leaving that department and a barbeque ("BBQ") was organized on the shores of the Lake;

(d) this function was attended by workmates, including the applicant, of the officer leaving;

(e) also in attendance were Mr Blackwell, as head of the Registry; his immediate superior officer and the next succeeding superior officer;

(f) the officers collected for a present and refreshments (wine, beer and soft drinks) and it appears they brought their own food;

(g) some of those attending the BBQ moved from the BBQ area to the shores of the Lake; it was a hot day and Mr Blackwell suggested a swim;

(h) some others concurred; they had brought no swimming clothes or towels; they stripped down to their underpants and entered the water with Mr Blackwell leading;

(i) the applicant dived when he was knee-deep in the water (I prefer Mr Pring's evidence to that of the applicant's as to this) and struck his head causing an injury;

(j) subsequently, and after the two senior officers and Mr Blackwell had departed, Mr Pring and a female who were attending the BBQ were thrown into the Lake by others attending the function."

The essence of the decision is set out in paragraph 7 and that also should become part of my reasons. Paragraph 7 is as follows:

"I do not in this matter have to reach a conclusion on whether attendance at the BBQ function for the departure of an employee is in the course of employment on the specific facts of this case. I am satisfied, on these facts, that even if attendance at the BBQ simplicita was within the course of employment, and I specifically make no finding as to that, bathing in the Lake by some of those attending the BBQ amounted to a frolic of their own and that any injury which occurred during that frolic was outside any course of employment. I think this view is borne out by the fact that two employees were subsequently cast into the Lake fully clothed. Accordingly, I find as a fact that at the time the applicant suffered his injury he was not in the course of employment."

The appeal to this court, which is of course an original application to the court, is in relation to a question of law only. It is not part of the function of this court to reconsider the facts and form its own view with regard to them. So far as is relevant to this case, the applicant must show that the tribunal misdirected itself in law in a material respect or that the conclusion that it reached was not open to it.

Two matters have been relied upon. Whereas there is no contest in regard to sub-paragraphs (a) to (i) inclusive of paragraph 4, which I have already set out, it is said, in the first place, that sub-paragraph (j) suggests that the tribunal was considering a wrong test when it dealt with the fact that two people attending the party were thrown into the lake. Coming at the point it does in the tribunal's decision, I can understand the submission being made but I do not think that it really has substance in the general context. What the tribunal was doing was pointing to one facet of the facts which gave some colour or some indication of the nature of the activity in which the applicant was engaged at the time he suffered the injury in question.

The next criticism made is that the tribunal should have made a finding as to whether the function which he described as a barbeque function was in the course of the applicant's employment. It is said in this connection that this is the essential question and that the swimming activity was just an incident of the party, so that an award should have been made for the applicant on the basis that the party was in the course of employment. At least it is put that the tribunal erred by not making the finding and manifested its error by expressly stating that it proposed to make no specific finding.

I can also understand this submission which, in relation to certain factual situations, might have considerable weight. However, the essential matter always is to find out what the employee was doing at the time he suffered the injury; to find whether he was then in the course of his employment. This is a matter of examining the facts and evaluating them, and is not a matter capable of being regulated at each point by some rule of law. There are indeed a great number of cases dealing with matters such as the present, and the tribunal had earlier turned its attention to some of them. There can be no doubt it was well aware of the tests both from the reference to the cases which I have mentioned and also from the fact that the officer constituting it has had considerable experience in these matters, as is apparent from some of the reported cases.

He formed the view on the facts that the swimming activity was a sufficiently distinct matter to be examined separately and that having been examined in this way it could not be said to form part of the course of the employment.

The conclusion he reached with regard to what he called the frolic - that is to say, the swimming frolic - was on an assumption he was prepared to make in favour of the applicant that the rest of the function could be said to have arisen in the course of the employment. As I have said and as is apparent from the passage I have set out, he made no finding on this matter but he proceeded on a basis otherwise favourable to the applicant.

I do not propose to attempt to add to the already excessive weight of case law dealing with this type of situation or to endeavour to formulate legal tests in relation to what are essentially matters of fact. I would only say that the more it is understood that what the tribunal is doing in such a case is arriving at a conclusion of fact and the more it is understood that an appeal to this court is only on a question of law, the more likely it is that disputes will be finally and satisfactorily settled.

I am of the view that there is no error in the tribunal's finding which amounts to an error of law, and I am also of the view that the conclusion it reached was open to it on the facts.

The application is dismissed and as costs have been requested, the application is dismissed with costs.