Norwest Beef Industries Ltd v Janides, John

[1983] FCA 130

Re: NORWEST BEEF INDUSTRIES LIMITED
And: JOHN JANIDES (1983) 77 FLR 119
No. NTG11 of 1983
Workmen's Compensation - Workers' Compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), Lockhart(2) and Jenkinson(3) JJ.

CATCHWORDS

Workmen's Compensation - whether respondent injured while travelling to his employment - whether immediate purpose in making journey was to enter upon duties which employment imposed - meaning of "immediate purpose" - interval of time between respondent reaching place of employment and commencing the actual performance of his duties

Workmen's Compensation Act (N.T.) s.8(2)

Worker's Compensation - Whether respondent injured while travelling to his employment - Whether immediate purpose in making journey was to enter upon duties which employment imposed - Question of fact - "Immediate purpose" - Interval of time between respondent reaching place of employment and commencing the actual performance of his duties - Workmen's Compensation Act (NT), ss 8(1)(a), 8(2).

HEADNOTE

The respondent's permanent home was near Darwin. Im March 1981 he signed a contract to work for the appellant at Katherine commencing on Monday 6 April 1981. The appellant agreed to pay the respondent's air fares or other travelling expenses plus travelling time allowance. The respondent left Darwin on Friday 3 April 1981 to travel to Katherine, some 330 kilometres away, and spend the weekend preparing his accommodation and equipment necessary for his work. The respondent was injured on 3 April 1981 when the motor vehicle in which he was a passenger was involved in an accident about fifteen miles north of Katherine. He was thereby injured and incapacitated for work. The Workmen's Compensation Tribunal determined that the respondent was entitled to compensation pursuant to the Workmen's Compensation Act on the ground that he sustained injury by accident while travelling to his employment pursuant to s 8(2) of that Act. The employer's appeal to the Supreme Court of the Northern Territory was dismissed.

Held: (1) The issue to be determined was essentially one of fact. What was the purpose of the employee's travel?

(2) The respondent's purpose in travelling had been to enter upon the duties required by his employment.

Australian Coastal Shipping Commission v Averell (1969) 122 CLR 348, applied.

Commonwealth v Wright (1956) 96 CLR 536 at 552 (per Fullagar J), explained.

(3) Appeal dismissed.

HEARING

Sydney, 1983, May 31; July 8. #DATE 8:7:1983

APPEAL

Appeal from a judgment of the Supreme Court of the Northern Territory dismissing an appeal against a determination of the Workmen's Compensation Tribunal.

P J Deakin, for the appellant.

J Waters, for the respondent.

Cur adv vult

Solicitors for the appellant: Mildren Silvester & Partners.

Solicitors for the respondent: Waters, James & O'Neil.

TJG

ORDER

The appeal be dismissed.

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

Orders accordingly

JUDGE1

On Friday 3 April 1981 the respondent left Darwin as a passenger in a motor vehicle travelling to Katherine. At a point about 15 miles north of Katherine there was an accident as a result of which he was injured and incapacitated for work.

The Workmen's Compensation Tribunal, without making any particular award at that stage, determined that the respondent was entitled to compensation on the ground that he sustained injury by accident while travelling to his employment (Workmen's Compensation Act s.8(2)). An appeal to the Supreme Court against that determination was dismissed and the employer now appeals to this court.

The question to be answered is whether at the time he was injured the respondent was travelling to his employment. He had worked in the meat industry since about 1957 and was a slicer by occupation. His permanent home was at Howard Springs, just south of Darwin. He had in previous years worked at the appellant's meat works at Katherine. In March 1981, in response to a letter from the appellant enclosing a form of contract, the respondent signed the contract and returned it. It was a standard form with provision for various details to be inserted. Neither the original contract nor a copy was available but the parties proceeded before the Supreme Court with reference to a standard form accepted as identical to that signed by the respondent except that few details appeared. Nothing seems to turn on that.

By the terms of the contract the respondent was to start work at Katherine on Monday 6 April 1981 at 7 am. The estimated length of the killing season was 24 weeks. The appellant agreed to provide the respondent with economy class air transport from Darwin to Katherine and to pay him a sum equivalent to one day's pay by way of travelling time allowance. The appellant also agreed that if the respondent elected to travel by other means he would be reimbursed the cost of air travel in accordance with the provisions of cl. 17 of the Meat Industry (Katherine Meat Works Employees) Agreement, an industrial agreement. Although strictly speaking the contract did not provide for a travelling time allowance in the event of the respondent travelling by means other than air, the appellant did not dispute that the respondent was entitled to such an allowance in that event. Again nothing much seems to turn on that particular matter.

When the respondent decided to leave Darwin on Friday, it was his intention to arrive in Katherine late that afternoon, unload the vehicle on which there were a number of domestic appliances and personal effects and make camp for the night. He planned on the following day to clean out a flat he had rented for the duration of the killing season and set it up as a home during that time. On the Sunday he would go to the appellant's store to get the necessary clothing to start work on Monday, get knives required for his work and then sharpen and set those knives. It was his intention to use the weekend, in his own words, "to get set up" for the start of work on Monday.

The appellant argued before the Tribunal, before the Supreme Court and before this court that, in accordance with the authorities, it could not be said that in travelling to Katherine on Friday, when he was not due to start work until Monday morning, the respondent was travelling to his employment.

We were referred to a number of authorities in which provisions comparable to s.8(2) of the Workmen's Compensation Act have been discussed, in particular a line of decisions by the High Court dealing with Commonwealth legislation. Some of those decisions are of little assistance in the present case because they concern the special position of a member of the armed services. However, this court is bound by the statement of the High Court in Australian Coastal Shipping Commission v. Averell (1969) 122 CLR 348 at p.351:
"In a series of cases . . . the Court . . . has established, not without dissent, that a worker can only be said to be travelling to or from his employment if there is 'a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties', to use the language of Fullagar J. in The Commonwealth v. Wright. What has been found to be implicit . . . is the necessity for a journey from a place of abode, permanent or temporary, to a place where the duties of employment are to be performed".

The criterion of "immediate purpose" is not one that is always easy to apply. In the present case the learned judge in the Supreme Court said:
"I do not think that temporal immediacy can have been intended in a case such as this . . . I think the immediacy required by the cases when applied to a case such as this is one of priority of purpose".

Whether or not the dictum of Fullagar J. contemplates the notion of immediate purpose as temporal or as involving priorities is something on which it is unnecessary to express an opinion. It is enough that the word 'purpose' refers to the object to be attained and the word 'immediate' suggests directness, the absence of any intervening medium or agent.

In my view, to concentrate too much on the interval of time likely to occur between the respondent reaching Katherine late on Friday and beginning the actual performance of his duties early on Monday morning tends to divert attention from the real issue. As I see it, the question to be asked is not what was the respondent's purpose in travelling to Katherine on Friday but rather what was his purpose in travelling to Katherine. He had only one purpose in travelling to Katherine and that was to travel to his employment.

The question is essentially one of fact. It is not hard to imagine a situation in which a worker, in comparable circumstances, made the journey so far in advance of the day on which he was to start work that it is clear he had other purposes in mind in making that journey. But that is not the case here.

It would be wrong, in my view, to speak of the respondent travelling to Katherine for the purpose of making camp or cleaning out the flat or even obtaining clothing and equipment. These things explain why he travelled on Friday rather than on Sunday but they were not the purpose of his journey. They were merely incidental to the purpose which was to travel to Katherine to enter upon the duties required by his employment. If these matters have significance, it is because they reinforce the conclusion that the respondent, when injured, was travelling to his employment. To carry out his work in Katherine he needed accommodation, clothing and tools; hence his decision to travel on Friday rather than later.

In my view the appeal should be dismissed with costs.

JUDGE2

This appeal from the Supreme Court of the Northern Territory concerns a claim by the respondent, a seasonal worker, to workmen's compensation following injuries sustained by him while travelling from his home near Darwin to Katherine where his employer, the appellant, conducted a meatworks.

The respondent claimed compensation pursuant to sub-s. 8(1) of the Workmen's Compensation Act of the Northern Territory on the ground that his injuries were sustained "while he" was "travelling to . . . . his employment".

The Workmen's Compensation Tribunal found in favour of the respondent. The appellant appealed from that determination to the Supreme Court of the Northern Territory which dismissed the appeal with costs. The appellant appeals to this Court from the Supreme Court's judgment.

The facts are not in dispute and may be stated briefly. The respondent, a meat slicer by occupation, had been in the meat industry since about 1957. Slicing is a skilled occupation in the butcher's trade. He lived at Howard Springs near Darwin. At the time he sustained his injuries he had worked at the appellant's meatworks at Katherine in various killing seasons. In about March 1981 he received a letter from the appellant enclosing a form of contract. The letter was in the following terms:-
"Although the Meat Industry is generally in turmoil, resulting in few employment opportunities, Norwest has decided to open Katherine from 6 April, 1981, with Contracts of Employment being offered to those who completed last Season under 1980 Contracts.
You are invited to complete a Contract of Employment for 1981 Season as a Slicer, and you must signify your answer by the 20th March, 1981. Any vacancies at that date will be offered to others.
Your attention is drawn to the clause in the Contract which requires your attendance and performance in terms of your Agreement."

The respondent signed the form of contract and immediately returned it. Under the contract the respondent agreed to present himself ready to commence work at the meatworks in Katherine not later than 7:00 a.m. on 6 April 1981. The appellant agreed to provide him with economy class air transport ("including Air Company coach to and from the airport where necessary") from Darwin to Katherine or, if the respondent elected to travel by other means, to reimburse him the cost of air travel at economy class rates from Darwin to Katherine in accordance with the relevant industrial agreement. In addition, the appellant agreed to pay the respondent a travelling allowance of one day's pay. The appellant also agreed to supply the respondent with an economy class air fare ticket or the value thereof when he fulfilled his contractual obligations, that is when the killing season finished, from Katherine to Darwin and to pay him one day's pay as a travelling allowance.

Early in the afternoon of Friday 3 April 1981 the respondent set out from his home at Howard Springs to travel to Katherine, a distance of about 330 kilometres. He had arranged accommodation in a flat at Katherine some time before leaving Howard Springs. He travelled in his own motor lorry with a man named Keith who was also a meat slicer. They had worked at the meatworks at Katherine together in previous seasons and it was their practice to share accommodation there. Keith drove the lorry. Before leaving Howard Springs the lorry was loaded with goods for use in Katherine including a deep freezer full of meat, washing machine, refrigerator, bedding, cutlery, crockery, groceries, television set and personal items. At about 4:00 p.m., when approximately 15 miles north of Katherine, the lorry was involved in a collision in which one of the respondent's arms was broken. He was flown to Darwin for medical and hospital attention. He was certified as fit for duty on 21 August 1981 when he returned to Katherine to work as a meat slicer.

When the respondent set out from Howard Springs to Katherine it was his intention that, on arrival at Katherine later that afternoon, he would commence unloading the lorry, make camp for the night, see if he could find any of his old acquaintances and spend at least part of Friday evening with them; that on the following day (Saturday) he would clean out the flat and move into it with his friend Keith; and that on Sunday he would go to the meatworks to be fitted out with working clothes, boots and knives and then sharpen and set them.

He gave evidence that he left on Friday "to get set up" by which he meant:-
"I cleaned the flat out; put the fridges; get the beds done up - see if there's anything missing; all the groceries away and what have you, and like I just said previously, you've got to get the right measurements for your clothes - protection clothes what they give you; protection gloves - you've got to get the right size. Maybe you need new knives - then it takes a long time to grind them down and get them perfect. They've got to be perfect or they make the job hard. That takes time. That's the only reason I went down this Friday."

The appellant abandoned the grounds of appeal set out in the notice of appeal challenging his Honour's findings that at the time of the accident the respondent was an employee of the appellant. The only question argued before us was whether the respondent's injuries were caused to him while he was travelling to his employment.

Sub-section 8(1) speaks simply of travelling to or from an employment, not to or from a place of employment. "Employment" is not synonymous with the place where the work is performed. It is "an abstract conception": per Dixon C.J. in The Commonwealth v. Wright (1956) 96 C.L.R. 536 (at p.545).

Fullagar J. said (at p.552):- ". . . there must be a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be . . . to enter upon the duties which his employment imposes upon him . . . "

The provisions in Australian workers' compensation legislation equivalent to sub s. 8(1) of the Act have attracted much judicial attention and excited some division of opinion.

In Australian Coastal Shipping Commission v. Averell (1969) 122 C.L.R. 348, the High Court, comprising McTiernan, Kitto and Menzies JJ., said (at p. 351):-
"In a series of cases, The Commonwealth v. Wright (1956) 96 C.L.R. 536; Adcock v. The Commonwealth (1960) 103 C.L.R. 194 and The Commonwealth v. Hollis (1968) 118 C.L.R. 305, the Court has considered the meaning and application of s.9A of the Commonwealth Employees' Compensation Act and has established, not without dissent, that a worker can only be said to be travelling to or from his employment if there is 'a real connexion between the journey and the employment in the sense that the immediate purpose of the employee in making the journey must be either to enter upon the duties which his employment imposes upon him or to absent himself temporarily from those duties', to use the language of Fullagar J. in The Commonwealth v. Wright (1956) 96 C.L.R. at p.552. What has been found to be implicit in the section is the necessity for a journey from a place of abode, permanent or temporary, to a place where the duties of employment are to be performed. See The Commonwealth v. Wright per Fullagar J. (1956) 96 C.L.R. at p. 553, and per Kitto J. (1956) C.L.R. at p.557; Adcock v. The Commonwealth per Fullagar J. (1960) 103 C.L.R. at p.204., per Kitto J. (1960) 103 C.L.R. at p.205; and per Windeyer J. (1960) 103 C.L.R. at pp.210, 213 and 214."

When used in relation to the purpose of a journey the word "immediate" has, I think, a temporal significance. It is a rather elusive concept, but is more readily explicable when considered in the light of its origin. It evolved from Fullagar J.'s judgment in Wright's Case where a soldier was killed accidentally by a passing motor car while he was walking along the Murray Valley Highway towards the Bandiana Military Camp, where he lived. Unless specially rostered he was off duty from 4:30 in the afternoon on Fridays until 7:25 on Monday morning. During that period he was entitled to go and come as he chose from the camp. Soldiers living in the camp who were not rostered for duty were allowed without any leave pass to go in and out of the camp during the period off duty between Friday afternoon and Monday morning. He was killed at 6:45 p.m. on the evening of Saturday 17 July 1954. The point at which he was killed was two miles from the entrance to the camp. Fullagar J. said that it was not established that the soldier was travelling to his employment when he met his death. He thought it a fair enough inference that he was on his way to the camp at Bandiana, but that was not enough. He may have been returning to Bandiana in the sense of a place of employment, but it was not shown that he was in any real sense returning to his employment. He might have gone into and out of the camp many times during the period from Friday afternoon until Monday morning. If he did it could not fairly be said that he would have spent his time travelling to and from his employment. As the accident occurred early on Saturday evening, he may have intended to remain in the camp only for a few minutes or he may have intended to sleep there. His Honour said (at p. 554):-
". . . unless it is proved that his purpose was to resume the duties of his employment (which I think, on the whole, improbable) compensation is not, in my opinion, payable."

In view of these findings his Honour was not satisfied that the "immediate purpose" of the soldier in going to the camp was to enter upon the duties of his employment.

I do not think that too much significance should be given to the word "immediate" when ascertaining the purpose of a journey. The essential question is, as Fullagar J. himself recognised more than once in his judgment in Wright's Case, whether the purpose or occasion of a person's journey is to assume the duties of his employment. The word "immediate" when qualifying purpose is more readily understandable on the facts of Wright's Case and Averell's Case than in the context of the present case.

The business carried on by the appellant namely, a meatworks in Katherine, was dependant upon a seasonal and itinerant work force. The appellant did not provide accommodation for its workers. The very nature of the employment of the respondent predicated that he would leave Darwin for Katherine in sufficient time to enable him to set up appropriate accommodation for his six to seven months sojourn in Katherine, this being the estimated length of the killing season. He needed time to clean out the flat and make it habitable. He intended to go to the appellant's store on Sunday to obtain the equipment which he needed including knives. He wished to do all this in sufficient time to enable him to be fresh to start work at 7:00 a.m. on the Monday.

It is unreal to say that, because the appellant chose to leave Darwin for Katherine on Friday rather than on say, Saturday or Sunday, his immediate purpose in making the journey was otherwise than to his employment. The respondent had only one purpose in travelling from Darwin to Katherine and that was to assume his employment with the appellant. It is true that he chose to travel on Friday so that he could make camp for the night, see old acquaintances, clean out the flat, collect protective clothing and knives and sharpen the knives. But all this activity was incidental to his purpose in undertaking the journey from Darwin to Katherine namely, to enter upon the duties of his employment.

The determination of the respondent's purpose in travelling to Katherine is ultimately one of fact. The Supreme Court answered the question in favour of the respondent. It has not been established that his Honour's conclusion was erroneous.

I would dismiss the appeal with costs.

JUDGE3

Appeal from a judgment of the Supreme Court of the Northern Territory of Australia (Nader J.), by which an appeal to that Court against a determination of the Workmen's Compensation Tribunal was dismissed.

The facts and issues on which the result of the appeal is to turn are stated in the reasons for judgment of the other two members of the Court. In reasons for judgment in another appeal heard at the same sitting of this Court in Darwin, Alice Springs Abattoirs Pty. Ltd. & anor. v Joseph Charles Finn (No. NTG 15 of 1982), particularly in paragraphs 14-22 thereof, I attempted to explain why I thought that a workman travelling a long distance from a place which had for a time been the centre of the general pursuit of his own affairs to the vicinity of a place of seasonal employment in the Northern Territory in order that he may commence, or resume, that employment, may be held to be "travelling to . . . his employment", within the meaning of those words in s. 8(1)(a) of the Workman's Compensation Act, notwithstanding that the immediate purpose of the workman in making the journey is to reach a seasonal, or permanent place of abode in that vicinity, or otherwise to establish himself in that vicinity. I refer to what is there stated. The respondent John Janides had proposed to allow himself a more ample period in Katherine than it had been possible for the respondent Joseph Charles Finn to allow himself in Alice Springs, before starting work. But in my opinion the period and the activities projected by Mr. Janides were not such as to lead to any different conclusion about his journey than that which I reached about the journey of Mr. Finn: that it was of such a character as to fall within s. 8(1)(a).

The terminus a quo of Mr. Finn's journey was not one which the evidence suggested that he was likely to visit again. That is not the case in this appeal. The terminus a quo of Mr. Janides' journey was his permanent place of abode at Howard Springs, near Darwin. I hope that what I have stated in Finn's Case concerning the operation of s. 8(1)(a) in the Northern Territory will have made it apparent that a journey by Mr. Janides from his home in Howard Springs to his flat in Katherine at the conclusion of a period of leave from his employment during the killing season, over a week-end or some other short intermission, might well be characterised by me as outside s. 8(1)(a). I express no opinion on the question, which I mention only to avoid misunderstanding. Such a journey might be characterised, in my opinion, as the journey in Lebrocq's Case was characterised rather than as I have characterised the journey with which this appeal is concerned.

I should also say, out of caution, that neither the contractual nor the arbitral provision concerning the expense of Mr. Finn's travel to his place of employment has in my opinion any relevance to the question whether his journey was within s. 8(1)(a).

I agree that the appeal should be dismissed with costs.