TGT Transport v Zammit

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 8302 of 1998

T.G.T. TRANSPORT

Appellant

HEATHER JEAN ZAMMIT

Respondent

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JUDGES:	WINNEKE, P., PHILLIPS and CHARLES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	14 and 15 June 2000
DATE OF JUDGMENT:	20 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 162

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Accident Compensation – Compensation payable to dependants of deceased worker – Whether worker “temporarily absent [from place of employment] … during any authorized recess” – Meaning of words considered.

Accident Compensation – Whether, in cases where injury is “deemed to arise out of or in the course of employment”, worker is required to demonstrate that the employment was “a significant contributing factor” to injury.

Accident Compensation Act 1985, s.82(2) and s.83(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J.B. Bingeman Q.C. and Mr. R.W. Dyer	Dunhill Madden Butler
For the Respondent	Mr. R.P. Gorton Q.C. and Mr. G.E. Chancellor	Maurice Blackburn Cashman

WINNEKE, P.:

The respondent, Heather Jean Zammit, is the widow of Charles Zammit who died on 4 May 1997, aged 48, as the consequence of a pulmonary embolism. (I shall hereafter refer to him as “the deceased”.) The deceased had suffered a compound fracture of the right tibia and fibula at a place near Beaudesert in Queensland on 14 April 1997 in circumstances which I shall hereafter describe. As a result of that injury he had developed a deep seated thrombosis in the veins of his right calf which ultimately gave rise to the fatal embolism whilst he was at his home in Tyabb on the Mornington Peninsula. At the time of his death, he and the respondent had three children, two of whom (Mandie and Maree Jean) were still living with and dependent upon their mother and father. The eldest child, Alan, was not so dependent.

By writ issued in the County Court in January 1998 the respondent claimed compensation for herself and the two younger children pursuant to s.92 of the Accident Compensation Act 1989 (“the Act”). It was the respondent’s contention that the injury suffered by the deceased on 14 April 1997 arose out of or in the course of his employment as an interstate transport driver with the appellant “T.G.T. Transport” – a transport haulage business conducted by Tony Zammit, the deceased’s brother (whom I shall call “Tony”).

Following a trial of the issues in September 1998, the County Court assessed and awarded compensation to the respondent for the benefit of herself and the two younger children in accordance with the provisions of s.92 of the Act. The sum awarded was in the amount of $142,490.00 to which interest in the sum of $27,474.00 was added in accordance with s.92 (7) of the Act. The judge assessed these amounts on the basis that the respondent and the two children were wholly dependent upon the deceased.

It was not in issue at the trial of the proceedings that the injury suffered by the deceased had “materially contributed” to his death (s.92(1)). However the appellant employer strongly contested the respondent’s claim that the injury had arisen “out of or in the course of” the deceased’s employment and, further or in the alternative, contested the claim that the deceased’s employment was “a significant contributing factor” to the injury. It also challenged the respondent’s claim that she and the two younger children were “dependants”, wholly or in part, of the deceased. These issues arose pursuant to s.82 (2) of the Act which provides for “entitlement to compensation” in the following manner:

“If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor which results in or materially contributes to the death of the worker, the worker’s dependants shall be entitled … to compensation in accordance with this Act.”

The deceased suffered his injury on a farm property at Rathdownie, a small country town in Queensland some 80 kilometres from Brisbane. At the time, he was watching a 4-wheel drive vehicle being driven up a wooden ramp onto the trailer of a vehicle owned by one Gerhardt Biermaler, also an interstate transport driver and an acquaintance of the deceased and his brother, Tony. Whilst the 4-wheel drive vehicle was ascending the ramp, the wooden structure fractured and a piece of it was propelled backwards into the right lower leg of the deceased, thus fracturing the tibia and fibula of that leg. Although, surprisingly, the evidence did not identify with any accuracy the time at which the accident occurred, it would appear that it happened at about 4.45 p.m. or 5 p.m. in the evening. The deceased was taken to the Beaudesert hospital by ambulance where he arrived at about 6.10 p.m.; and the evidence indicated that the ambulance had arrived some 30 to 45 minutes after the accident and that the hospital was some 30 kilometres from the place where the accident occurred.

The deceased had, for a substantial period of his working life, conducted a transport business in partnership with his wife, the respondent. He owned his own truck and the business was conducted largely within the environs of Melbourne. It would seem that the income generated by the business was earned predominantly through the exertion of the deceased, who drove the truck. The evidence was that, in or about mid-1996, the deceased became ill – an illness which manifested itself in symptoms of hypertension. He ceased to work and, as a consequence, the business foundered. He sold his truck and, throughout the latter half of 1996 he sought treatment which was mainly of a conservative nature. Towards the end of 1996 he had recovered his health sufficiently to look for gainful employment. At that time, he and the respondent were largely dependent upon the receipt of social service benefits, predominantly in the nature of “job search allowances”. By the beginning of 1997, the deceased was looking for work in a number of areas, including the trucking industry. However, without his own truck, he was forced to seek work as a contract driver for other hauliers. By the time he suffered his injury in April 1997, he had driven a number of loads interstate for Biermaler and Tony Zammitt, for which he had been paid on a contract basis. Because he was inexperienced in the field of interstate haulage he was, to a significant extent, dependent upon those who engaged him for assistance in both vehicle management and locational guidance.

Prior to Saturday 12 April 1997, the deceased was engaged by the appellant to drive one of its trucks on an interstate haulage trip to Brisbane and return. His employment, as the judge found, required him to transport the load to an assigned company depot in the environs of Brisbane, where he was to unload his cargo, and then take the empty truck to a roadside service station in Rocklea, Brisbane, to wait in the hope or expectation of being assigned a “return load” through the agency of a “loadmaster” who had his offices at the service station. If and when such a “return load” was assigned, the terms of the deceased’s employment were that he would load the truck at the depot nominated and return with the cargo to Melbourne. In the meantime, his truck would be his “home” and he was expected to accommodate himself within it. If no return load could be secured the deceased was required to bring the truck back to Melbourne empty.

On 12 April 1997, the deceased set off on his trip to Brisbane. He travelled in “convoy” with trucks driven by Tony and Biermaler. The deceased travelled in advance of the other two trucks lest he needed their assistance en route. It appears that they travelled to Brisbane via the Newell Highway and, by pre-arrangement, met at various way-side stops. Their last meeting place was at Goondiwindi, some four hours driving from Brisbane, late in the evening of Sunday 13 April. From there they travelled to their respective destinations, agreeing to meet at the Rocklea service station on the following morning after they had discharged their loads. Tony’s destination was in Warwick, some 150 kilometres south of Brisbane whilst the destinations of the deceased and Biermaler were within the suburban areas of Brisbane. The judge found that the deceased had probably discharged his load at Tolls Transport Co. in Brisbane on the morning of Monday 14 April, whence he had taken his empty truck to the Rocklea service station. He was there with Beirmaler when Tony arrived at about noon on the Monday.

Whilst they were driving towards Brisbane on the Sunday evening, Biermaler had been conversing with Tony on the CB radio, a facility which the deceased’s truck did not have. Biermaler had enquired of Tony, in the event that he could not secure a return load for the Monday, whether he would come with him to Rathdownie to assist him in loading the 4-wheel drive vehicle onto his truck. Biermaler had apparently made an arrangement to bring that vehicle back to Melbourne so that he could restore it for the purposes of re-sale. Tony had agreed to render such assistance if no load was available on the Monday. When Tony learned on the Monday morning from the loadmaster that the chances of securing a return load on that day were highly improbable in respect of each of his trucks, he left his “contact number” with the loadmaster and set off with the deceased and Biermaler for Rathdownie in order to assist the latter load the 4-wheel drive vehicle onto his truck. It would appear from the evidence that they must have set off on their journey at some stage in the early afternoon of the Monday. It was later in the afternoon, and whilst the vehicle was being loaded onto Biermaler’s truck, that the injury was suffered by the deceased. At the time when the injury was suffered the deceased was standing a short distance behind the wooden ramp up which the 4-wheel drive vehicle was driven. It was not suggested at the trial that the deceased had done, or was doing, anything which contributed to his injury.

At the trial, the respondent contended that the injury suffered by the deceased arose out of or in the course of the actual employment of the deceased or, at least, occurred in circumstances which were naturally incidental to that employment in the sense that the injuries were sustained during an “interval or interlude” within an overall period or episode of work which the employer had encouraged or induced the deceased to take.[1] If this were not so, the respondent contended that the court should find that the injury occurred during an “authorized recess” within the meaning of s.83(1)(a) of the Act in which case the injury would be deemed to have arisen out of or in the course of the deceased’s employment. In its form relevant to these proceedings, s.83(1)(a) provided:

“An injury to a worker is deemed to arise out of or in the course of employment for the purposes of … s.82(2) if the injury occurs –
(a)while the worker on any working day that the worker attended at the place of employment is temporarily absent on that day during any authorized recess and does not during that absence voluntarily subject himself to any abnormal risk of injury.”

S.83(2)(a) provides that, for the purposes of the section, “place of employment”, where there is no fixed place of employment, “includes the whole area, scope or ambit of employment”.

[1]Hatzimanolis v. A.N.I. Corporation Ltd. (1992) 173 C.L.R. 473 at 484.

In careful reasons, the judge (who, if I might say so, is very experienced in this jurisdiction) found that the injury suffered by the deceased did not arise out of or in the course of his actual employment with the appellant; nor was it suffered during an interval or interlude within an overall period of work which his employer had induced or encouraged him to take. However, his Honour did find that the injury had occurred in the circumstances predicated by s.83(1)(a) of the Act and that, accordingly, the injury was deemed to have arisen out of or in the course of employment for the purposes of s.82(2).

In reaching the conclusions to which I have referred, his Honour made a number of significant findings. Thus, he said:

“that the employment of the deceased was for a return trip from Melbourne to Brisbane and that the time during which the deceased was absent from Melbourne until his return was one episode of employment, the period of which was not affected by whether the return trip to Melbourne was with a load or not”.

Whilst his Honour was satisfied that [Tony] left a contact telephone number with the loadmaster in case of a load becoming available –

“there is nothing in the evidence to indicate that [Tony] asked or required the deceased to attend at Beaudesert so as to be in contact with him in case a load was offered. On the evidence, the deceased’s attendance was simply one of going along because he had nothing better to do during what, for most interstate truck drivers, would be a boring and dead period of working. There is a lack of evidence to support a finding that [Tony] required or expected his brother to attend Beaudesert, even though I suspect that [Tony] was the type of employer who would make unreasonable demands on his employees, especially his brother, over whom he appears to have held a particular sense of ascendancy. But suspicion cannot found a positive finding that he did so act on the occasion in question … The deceased’s presence [at Beaudesert] is equally explicable on the basis that he chose to go there and that his presence was unrelated to the conditions of his employment. On the evidence, the deceased could readily have stayed at the … roadhouse and awaited instructions there … The fact that he was at Beaudesert certainly was convenient for [Tony], if he wished to contact the deceased in the event of a load becoming available. … Therefore the deceased’s presence at Beaudesert was fortuitous and did not … result from any express or implied requirement of the deceased’s employment to do so. I am satisfied that the deceased was not present as an incident of his employment nor engaged in performing any of his contractual duties. He was there on his own account, namely, filling in time. Therefore I hold that the first basis of the plaintiff’s claim has not been made out on the evidence.”

His Honour then turned his attention to the respondent’s claim that the injury to the deceased had occurred during an interval or interlude between periods of actual work within an overall period of employment within the concept articulated by the High Court in Hatzimanolis.[2] His Honour said:
[2]Supra at 483-4.

“I have already found that the deceased’s employment was one which commenced when he left Melbourne driving the truck, and continued until his return with the truck to Melbourne. It is clear that the injury occurred in the course of a break in this overall episode of work. However, as stated by the High Court in Hatzimanolis, for such a break or interlude to be in the course of employment, the employer, either expressly or impliedly, must have induced or encouraged the employee to spend such interval or interlude at a particular place or in a particular way. Certainly, according to [Tony], when Biermaler asked for assistance over the CB radio to load the four-wheel drive vehicle, [Tony] stated, in effect, that he and the deceased would help. … However, the evidence does not disclose that this was communicated to the deceased at any time. … Once again the evidence is silent. Biermaler explains the deceased’s presence as the deceased simply coming along for the ride. I am unable to infer from the evidence that [Tony] induced or encouraged the deceased to spend this interval in his employment at Beaudesert … . In these circumstances, the second basis upon which the plaintiff puts her claim fails.”

His Honour then considered the submission that the injury had occurred in the extended meaning of “arising out of or in the course of employment” deemed to exist by reason of s.83(1)(a) of the Act. His Honour referred to the terms of the sub-section and the extended definition given to “place of employment”[3] and concluded that, within the meaning of that definition, the roadhouse at Rocklea formed part of the deceased’s place of employment. He continued:
[3]See [10] above.

“The evidence is silent as to when the deceased arrived at the Shell Roadhouse. According to [Tony], when he arrived at about mid-day on Monday, the deceased was in the TV room watching T.V. The destination of the load which the deceased was carrying was Tolls Transport which, according to [Tony] was open until 11 p.m. on a Sunday night.”

His Honour considered the evidence bearing on the question as to when the deceased had unloaded his truck, and continued:
“However, on the evidence I consider the probability is that the deceased’s truck was unloaded on the Monday morning and then taken to the Shell Roadhouse.   Even if the deceased had unloaded and taken the truck to the Shell Roadhouse at Rocklea on the Sunday night, it is clear from the conditions of employment that he was required to sleep in the truck and to be there when [Tony] arrived in order to receive instructions as to what he was next to do.   [Defence counsel] submitted that Monday 14 April 1997 was not a working day for the deceased.   There was nothing for him to do and he was not required for work until Tuesday.   Therefore, the plaintiff fails, he said, at the threshold of s.83, as the deeming provision only applies where the plaintiff has attended at his place of employment on a working day and the injury sustained.
I reject this argument as, in my opinion, he was required to be at the Shell Roadhouse to await instructions from his employer.   Therefore Monday 14 April 1996 (sic) was a working day for the deceased under his terms of employment.   [The Plaintiff’s counsel] contends that the deceased’s absence from the Shell Roadhouse, that is from his place of employment, and his attendance at Beaudesert was during an authorized recess.
According to the evidence of [Tony], once a driver had unloaded his truck and taken it to the Shell Roadhouse at Rocklea, the driver was free to do anything he chose.   In other words, the driver was authorized to absent himself from his place of employment, that is the Shell Roadhouse.   Accordingly, the deceased’s presence at Beaudesert was during an authorized recess and, furthermore, [Tony] knew that the deceased was so absenting himself from the Shell Roadhouse and permitted him to do so without objection.   Indeed the deceased remained in the presence of [Tony] throughout.   The only fair inference from these facts is that the deceased’s absence from the Shell Roadhouse was one which at the very least was implicitly authorized by [Tony].”

His Honour next considered whether the deceased was “voluntarily subjecting himself … to any abnormal risk of injury” and concluded that he was not. He therefore concluded that, in accordance with s.83(1)(a) of the Act the injury sustained by the deceased was deemed to have arisen out of or in the course of the deceased’s employment for the purposes of s.82(2) of the Act. His Honour also made findings that the deceased’s employment was a “significant contributing factor” to his injury within the meaning of s.82(2) and that the respondent and the two represented children were wholly dependent upon the earnings of the deceased at the time of death. I will turn to those findings hereafter.

Appeal

The right of appeal to this Court given by the Act to a party to proceedings before the County Court is limited to an appeal “on a question of law raised during [the] proceedings” (s.52 of the Act). This means an appeal against the decision of the judge on a question of law raised during the proceedings and involved in his decision.[4]
[4]Dunstan v. Amcor Ltd [2000] VSCA 9 at [16] to [18].

The appellant’s notice of appeal raised a large number of questions of law some of which were repetitive and others not pursued. Three questions were ultimately distilled from them, upon which argument was addressed to the Court. They were:

(i) Whether, upon the facts found by his Honour, it was open in law for him to conclude, upon a proper interpretation of s.83(1)(a) of the Act, that the deceased had suffered injury whilst, on a working day on which he had attended his place of employment pursuant to his contract of service, he was temporarily absent therefrom during an authorized recess?

(ii) Whether, on the facts which he found, it was open in law for the judge to conclude that the deceased’s employment was a significant contributing factor to his injury within the meaning of s.82(2) of the Act?

(iii) Whether, on the facts which he found, it was open to the judge to conclude that at the time of his death, the respondent and the two named children were wholly dependent upon the earnings of the deceased?

In response to the Notice of Appeal, the respondent filed a Notice of Contention pursuant to Rule 64.17(5) of the Supreme Court (General Civil Procedure) Rules 1996, stating that she proposed to contend:

(i) That his Honour was in error in concluding that the deceased was not present, at the time when he suffered injury, as part of or incidental to his employment and that the injury did not arise out of or in the course of that employment with the appellant within the meaning of s.82(1) and (2) of the Act.

(ii) That his Honour erroneously decided that the injury to the deceased did not occur during an interlude or interval within an overall period or episode of work, and thus did not occur in the course of the deceased’s employment with the appellant within the meaning of s.82 of the Act.

During the course of the hearing of the appeal, we were informed by counsel for the respondent that the Notice of Contention would not be pursued and that no argument would be addressed in support of the points raised in the Notice.
Question 1: Interpretation of s.83(1)(a) of the Act

In respect of the first question which was raised for our consideration, I am of the opinion that it was not open to the learned judge to conclude, on the facts as he found them to be, that the deceased’s injuries were suffered during an “authorized recess” within the meaning of s.83(1)(a) of the Act. The provisions of that sub-section, in their current form, were introduced by s.12 of Act 67 of 1992. However, apart from substituting the words “authorized recess” for the words “ordinary recess”, the sub-section, relevantly, is in a form similar to that which has existed in this State for many years. It was first introduced into the law of this State by the Workers’ Compensation Act 1946 (Act No.5128, s.3(1)(e)) in the following form (so far as relevant):

“… any injury by accident to a worker shall be deemed to arise out of or in the course of the employment if the accident occurs –
(a)while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment –
(i)is present at his place of employment; or
(ii)having been so present, is temporarily absent therefrom on that day during an ordinary recess and does not during any such absence voluntarily subject himself to any abnormal risk of injury.”

Act No. 5128 of 1946 also introduced the definition of “place of employment” which has endured to this day; namely:
“Any reference in the last preceding sub-section to ‘place of employment’ shall, where there is no fixed place of employment be deemed to include a reference to the whole area scope or ambit of the employment.”

The sub-section, in substantially the same form, became s.8(2)(a) of the Workers’ Compensation Act 1958 and, later still, s.83(2)(a) of the Accident Compensation Act 1985 (Act No.1091 of 1985). There can be little doubt that it was introduced into the compensation law of this State to relax what had been perceived to be the rigorous interpretation given to the words “arising out of or in the course of the employment”. Before 1946, in the State of Victoria, a worker was only entitled to compensation if the injury had both “arisen out of and in the course of the employment”. The 1946 amendments changed this to “arising out of or in the course of the employment”. The test was thus changed to a non-cumulative one. Even so, the courts had required, before the injury could be said to have arisen in the course of employment, a “sufficient degree of connection” between the circumstances in which the injury occurred and the actual performance of the worker’s duty. Even where the worker had suffered injury during a lunch-time break and was upon the premises of his employer, the degree of connection with actual performance of duty might be regarded as insufficient to constitute the injury as one arising “in the course of the employment”.[5] Particular difficulties were encountered in determining whether the course of employment was still subsisting when the worker had left his place of employment during temporary recesses – whether customary or authorized.[6] It was clearly to meet such problems that the Victorian Parliament, conscious no doubt of the remedial nature of the legislation, introduced the provisions extending the meaning of the words “arising out of or in the course of the employment” to encompass, inter alia, circumstances in which the worker had, on a working day, attended at his place of employment and was either present there when injured or was injured when temporarily absent during an ordinary recess, without having subjected himself to any abnormal risk.[7]

[5]Whittingham v. Commissioner of Railways (W.A.) (1931) 46 C.L.R. 22 at 29-30 per Dixon, J.

[6]cf. Henderson v. Commissioner of Railways (W.A.) (1937) 58 C.L.R. 281 at 294 per Dixon, J.

[7]cf. Landers v. Dawson [1963] V.R. 491 at 494-5, per Lowe and Pape, JJ.;

The words “while the worker on any working day on which he has attended at his place of employment and, having been so present, is temporarily absent therefrom during any ordinary recess” have, over the years, come to acquire an accepted meaning in this State, which is consonant with the historical reasons for which the words were introduced. In Drummond v. Drummond[8], the worker was employed as a farm labourer in a farming business conducted by his father and brother at Walwa in north-east Victoria. He was employed to work on the farm on week-days and on Saturdays. On Saturdays he worked on the farm until noon when he ceased work, pending his return in the evening to perform further duties. During the Saturday afternoon in question he had been to watch a football match in Walwa, following which he commenced to drive to the farm to complete his evening duties. The car ran off the road and he sustained incapacitating injuries. It was submitted that his injuries were compensable within the extended meaning given to the words “arising out of or in the course of employment” by s.8(2)(a) of the Workers’ Compensation Act 1958, in that the injury occurred whilst the worker, “on a working day on which he had attended at his place of employment … was temporarily absent therefrom during [an] ordinary recess”. Upon a question of law submitted to it, the Full Court found that the injury was not compensable. The Court said (at 463-4):

“It may be assumed that Saturday was a working day and that his day’s work had not finished at noon when he left the farm because he had to return in the evening to perform certain small duties.   But was the period from noon until the evening an ‘ordinary recess’?
The extended operation of s.8(2)(a) is intended to cover injury sustained during a break in work, such as for morning or afternoon tea, or lunch-time, or a ‘smoko’ or similar break normally referred to as a ‘recess’.   The section extends to injury during such a recess, even though during such recess the worker may be temporarily absent from his place of employment.   If, on its true construction, the extension covers such a case as the present the applicant will be entitled to recover.
But, in our opinion, the period between noon and the evening on the Saturday when the applicant was injured was not an ‘ordinary recess’ within the meaning of those words in s.8(2)(a)(ii).   The word ‘recess’ in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work.   It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times … .   It is a period of rest incidental to a period of labour, in its general acceptation.   The recess is something in the nature of an interval between two or more periods of work in a normal day.   It would not be a normal or natural use of language to speak of the period between noon on Saturday and Saturday evening, a period of some 5 to 6 hours, as a ‘recess’.   It is much more than a brief interruption of an otherwise continuous period of work. It is really a cessation of one period of work and the performance of his evening duties.”

The Full Court went on to state[9] that the view which it had formed of the meaning of “recess” was assisted by the word “ordinary” which it said was “more apt to convey the idea that the period in question is one which would ordinarily be described as in recess”.

[8][1960] V.R. 462

[9]supra at 464

This view of the sub-section was adopted by the Full Court in the later case of Landers v. Dawson[10], where the worker was employed by the respondent in a bakery some 15 miles from Peterborough, a sea-side resort in Western Victoria. In the summer period his duties involved him in making daily deliveries of bread to customers in Peterborough, following which it was his custom, as the respondent knew and permitted, to go for a swim in a swimming hole. The worker was required to be available for duty throughout the 24 hours of each day and to work at such times as the respondent required. After making his morning deliveries he was required to return to the bakery to commence “dough-making” in the afternoon. On the day in question, having completed his deliveries in Peterborough, he went for a swim and in the course of diving, broke his neck. Inter alia it was submitted that he suffered his injury while, having been present at his place of employment, “was temporarily absent therefrom during an ordinary recess”. The Full Court applied the law as stated in Drummond v. Drummond[11], and held that upon the proper construction of the sub-section (that is s.8(2)(a)(ii)) the injury was not sustained whilst the worker was temporarily absent from his place of employment during an ordinary recess. The Court said that, from the time the worker had completed his deliveries until he returned to the bakery to resume his duties, he was off-duty and upon “a venture of his own” – a period extending from some time before 11 a.m. until after lunch and that during this period he could please himself as to what he did. The Court concluded[12]:

“This period would not, in our view, ordinarily be described as a recess, and the nature of the activity undertaken, the duration of the intermission and its purpose all lead to the view that the injury was not sustained during an ‘ordinary recess’.”

[10]supra at 499

[11]supra at 463-4

[12]supra at 500

Landers v. Dawson went to the High Court on appeal.[13] The High Court upheld the decision of the Full Court and, in the course of doing so, Kitto, Taylor, Menzies and Owen, JJ.[14], approved the meaning attributed to the words “ordinary recess” by the Full Court in Drummond v. Drummond[15]. Their Honours said[16]:

“The appellant was not working a continuous 24 hour day interrupted by relatively short breaks for refreshment or relaxation. During the substantial intervals of the day and night when he was not required to work, his time was entirely his own. He was off-duty and could use his off-duty periods for any purpose that he thought fit. The only effect of his getting the respondent’s permission to go swimming was that a period was defined within which he would not be expected to be available for work at the bakery. It is unnecessary to attempt to define the meaning of the words ‘ordinary recess’ in the context in which they appear in the Act; it is sufficient to say that we agree with their Honours in the Full Court that the appellant’s injury could not reasonably be held to have occurred during an ‘ordinary recess’!”

[13](1964) 110 C.L.R. 644

[14]at 650-1

[15]supra at 463-4

[16]at 651

Windeyer, J., who was the other member of the High Court to decide Landers v. Dawson, referred to the history of the workers’ compensation legislation in Australia and to the progressive relaxations made by the legislature and the judiciary to the meaning of the words “arising out of or in the course of the employment” and to the difficulties which had been encountered in applying the principles enunciated in Henderson’s case[17] in ascertaining whether or not the injury had occurred “in the course of employment”[18]. His Honour continued (at 653):

“In the Act with which we are here concerned, the legislature has met the difficulties by making considerations of time and place decisive, in most cases, for determining what occurrences are within the course of employment. Thus s.8(2) of the Act provides that an injury is deemed to arise out of or in the course of employment if the injury occurs while the worker is present at his place of employment on a working day or ‘having been so present, is temporarily absent therefrom on that day during any ordinary recess …’. And ‘the place of employment’ shall, where there is no fixed place of employment, be deemed to include a reference to the whole area, scope or ambit of the employment.” (s.8(3))

His Honour then referred to the fact that the worker, whilst delivering bread, could be said to have been at the ‘place of employment’ within the extended definition. He continued[19]:
“By an ‘ordinary recess’, I take it, is meant a break of limited duration in the continuity of a normal working day, regularly allowed for meals or rest. The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. Recesses, variously called lunch-hours, tea breaks, smokos, stand-downs etc., are normal features of employment in many industries. They are ordinary recesses. It seems to me to be a misuse of words to say that the appellant when he was swimming was temporarily absent from his place of employment during an ordinary recess.”

[17]supra

[18]cf. Davidson v. Mould (1944) 69 C.L.R. 96; Kavanagh v. The Commonwealth (1960) 103 C.L.R. 547 at 556-7 per Dixon, C.J.; Commonwealth v. Oliver (1962) 107 C.L.R. 353; Hickox v. Education Department [1974] V.R. 426 at 430.

[19]at p.654

The meaning attributed by the High Court and our own Full Court to the words contained in the sub-section have been subsequently approved both in this State and in other States where similar provisions have been added to counterpart legislation.[20]
[20]Carbis v. Bounceball Pty. Ltd.[1972] V.R. 211 at 213-4 per Smith, J.; Tooth & Co. Ltd. v. Injac (1994) 10 NSW C.C.R. 437; Tahourdin v. University of Queensland (1996) 17 Qd. Lawyers Reps. 34 at 38 per Judge McLoughlin Q.C.

Notwithstanding that in the current Act which his Honour had to apply, the adjective “authorized” has been substituted for the adjective “ordinary” before the word “recess”, I am for my own part of the view that, on the facts which his Honour found, it was not open to him to conclude, on the proper interpretation of s.83(1)(a), that the deceased had suffered his injury on a working day on which he had been present at his place of employment when he was temporarily absent during a recess, even if that absence was authorized. It was, I think, open to his Honour to conclude that Monday 14 April 1997 was a “working day” in the sense that he had unloaded his truck on that morning and had driven the truck, empty, to the Shell Roadhouse at Rocklea. These were activities which he was required to engage in as part of his service to his employer. Having regard to the nature of his contract of employment, and the extended definition given by the Act to “the place of employment”, it was also open in my view for his Honour to find that, whilst he was in the truck and the Roadhouse, he was present at his place of employment on that working day. However, once he had left the Roadhouse, and his truck, to travel with Tony and Biermaler to Rathdownie, it could not sensibly be concluded that, on the proper interpretation of s.83(1)(a), he was “temporarily absent on that day during [an] authorized recess”. On no view, on the facts found, was he injured during “a relatively brief interruption in an otherwise continuous period of work” on that day. On the best view for him of the facts found, he had ceased the service which he was employed to perform at some stage early in the afternoon and had departed with Tony and Biermaler upon an enterprise which was unrelated to his contract of employment and which, on any view, was of some hours duration. Not only, as I see it, do the facts fail to support the conclusion that the deceased was temporarily absent from his work during a recess, but they also fail to support the conclusion that the interruption was within “an otherwise continuous period of work”. It seems to me that the actual work which he was employed to do had ceased when he left the Roadhouse and, upon the facts found, it was not probable that there would be any further actual work to do on that day. He was off-duty, and his time was his own until he was notified by his employer that there was a cargo to be loaded, something which, as his Honour found, was unlikely on that day. It is one thing to say that, whenever he returned to his truck, he may have resumed the course of his employment; it is quite another thing to say that he was returning, on that day, to resume a continuous period of working activity.

It is, perhaps, unfortunate that his Honour’s reasons on this very important aspect of the respondent’s claim are somewhat peremptory and given without reference to the authorities to which I have referred in this judgment. Having regard to the otherwise full reasons of his Honour, I can only assume that he was not referred to them. Having found that the injury did not occur whilst the deceased was in the course of his employment, all that his Honour said in relation to the question of “temporary absence during an authorized recess” was that, because the deceased was “free to do anything he chose” he was “authorized to absent himself from his place of employment, namely the Shell Roadhouse” and that, accordingly, the deceased’s presence at Beaudesert was during an “authorized recess”. He further concluded that, because Tony knew and permitted the deceased to so absent himself, the “only fair inference from these facts is that the deceased’s absence from the Shell Roadhouse was one which, at the very least, was impliedly authorized by [Tony]”. These conclusions suggest to me that his Honour was equating an injury which occurred during an “authorized absence” from the place of employment with an injury occurring while the deceased was “temporarily absent from the workplace during an authorized recess”. Such a construction of the provisions of s.83(1)(a) is not warranted.

Emboldened by the increasingly broadened interpretation which the courts, in recent years, have given to the meaning of “injuries arising in the course of employment”[21], it was submitted by respondent’s counsel that we should impute to the legislature, by introducing the concept of “authorized recess” in place of “ordinary recess” an intention to move away from the constraints which the courts have placed upon the meaning of “ordinary recess” in favour of a more liberal interpretation which would encompass within its meaning the circumstances of the present case. It was submitted that the concept of “ordinary recess” was initially introduced into the relevant legislation to extend entitlement to compensation to circumstances which did not previously come within the meaning of the concept of injuries occurring in “the course of employment”. Now that the latter concept has come to be accepted as including circumstances which were formerly embraced by the meaning of “ordinary recess”, we should readily infer that the legislature, by substituting “authorized recess” for its predecessor intended that a more liberal interpretation should be given to circumstances in which compensation is claimed for injuries occurring whilst the worker is absent from his place of employment with the permission of his employer. It was, thus, contended that an “authorized recess” must contemplate circumstances, wider in their ambit, than those previously contemplated by “ordinary recess”.
[21]cf. Hatzimanolis, supra

For my own part, I cannot accept that submission. If that had been intended it would have been simple for the legislature to introduce the term “authorized absence” in place of, or as an alternative to, “ordinary recess” (cf. s.11 of the Workers’ Compensation Act 1987 (NSW). But, whether the term “ordinary” or “authorized” is used, its meaning is necessarily confined by the words “being temporarily absent on that day from the place of employment during a recess”. So long as s.83(1)(a) is so confined, it does not seem to me that the range of circumstances in which injuries will be deemed to arise out of or in the course of employment whilst the worker, on a working day, is temporarily absent from his place of employment on that day during a recess, can be much broadened, whether the recess is described as an “ordinary” one or an “authorized” one. As I see it, the words to which I have referred import the elements of brevity, periodicity and suspension of activity which are the defining qualities of a “recess” rather than the description of it as “ordinary” or “authorized”. There is nothing in the parliamentary debates introducing the 1992 amendments which suggests that the Parliament intended to broaden the scope of the operation of the sub-section. Indeed, it is clear from those debates that the amendments were introduced to narrow the scope of compensable injuries and to cut the cost of the administration of the scheme previously known as “Workcare”. It was said by the Minister introducing the amendments that the reforms were “urgently needed … to arrest the financial haemorrhaging of the Workcare scheme in this State”.[22] Against this background, it seems to me that it can be argued that the legislature intended to narrow the range of interruptions of working activity which would ordinarily be described as “recesses” to those which in fact had been authorized by the employer, whether expressly or by implication. Such a construction seems to me to be supported by the reasons given by the Minister for the removal from the scope of “s.83 injuries” those suffered by the worker whilst travelling to and from work. He said[23]:

“The new definition of injury means that a worker who is involved in an accident while travelling to or from work cannot receive compensation under Work Cover, because work is not a significant contributing factor. The employer, after all, cannot have control over or take responsibility for accidents that occur while the worker is not at work.” (my emphasis)

Question 2: “Significant Contributing Factor

[22]Hansard, Legislative Assembly, 30 October 1992, p.306

[23]Hansard, supra at 308.

What I have so far said in response to Question 1 is sufficient to dispose of this appeal in favour of the appellant. In deference to the substantial debate which ensued at the trial, and, to a lesser extent, on the appeal as to the proper construction of s.82 of the Act, it is desirable that I should say something about it. During the course of the appeal, however, much of the heat went out of that debate because counsel for the respective parties, in contrast to the directly opposed stances which they had previously taken as to the proper construction of s.82, became united in proposing a different but uniform approach as to the proper construction of the section.

As part of its 1992 reforms, and in pursuit of its objectives of “cost-cutting” and narrowing of entitlements, the legislature introduced into various parts of the Act the concept of the “significant contributing factor”, as a consequence of which the worker was required to demonstrate a strong causal connection between employment and injury as a pre-requisite to compensation entitlement. The concept was introduced into s.82(1) in the following manner:

“If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.” (my emphasis)

As I have previously noted, the legislature introduced the same qualification into s.82(2) – that is, the “entitlement of dependants” provision – and also into the definition of “injury” in s.5 of the Act. Whilst it retained the general definition of “injury” as meaning:
“any physical or mental injury”,

it qualified the definition of “disease” based injuries and “recurrence/aggravation” injuries, in the following way:
“(b) a disease contracted by a worker in the course of the worker’s employment, whether at or away from the place of employment, and to which the employment was a significant contributing factor;
(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, where the worker’s employment was a significant contributing factor to that recurrence etc. …” (my emphasis)

There is no reason to doubt that these amendments were made to “tighten” the definition of “injury”, a fact emphasized by removing from the scope of compensation “travelling injuries”, which had been compensable under the previous legislation. In introducing the Bill, the Minister said:
“The word ‘significant’ has been included in the definition of injury and elsewhere in the Act to emphasize the point that workplace injuries will be compensable under Work Cover only if there is a strong connection between work and the injury.”

As I have said, at the trial the appellant and the respondent took extreme and opposing stances about the interpretation of s.82, in cases where s.83 deemed an injury to arise out of or in the course of employment. The appellant contended that entitlement to compensation required the worker to overcome a “double hurdle” – first to prove that the injury “arose out of or in the course of employment”; secondly to demonstrate that the employment had been a significant contributing factor to the injury. This was so, the appellant submitted, whether the injury actually arose out of or in the course of employment or whether, pursuant to s.83 it was deemed to do so. The amending words, so the appellant contended, should be given the full effect which the legislature intended them to have.[24] On the other hand, the respondent submitted that, in circumstances where the court had found, pursuant to s.83, that the injury was deemed to have arisen out of or in the course of the worker’s employment, it could not have been intended that the worker should have to demonstrate that the employment was a “significant contributing factor” to the injury because s.83 envisaged circumstances where the injury did not actually arise out of or in the course of employment. It was put that, although the circumstances predicated by s.83(1)(b) and (c) might demonstrate a causal connection between the employment and the injury, those predicated by s.83(1)(a) and (d) could rarely, if ever, demonstrate such a connection. Thus sub-paragraph (d) deemed an injury to arise out of or in the course of employment if the worker suffered injury whilst he or she was “in attendance at any place for the purpose of obtaining a medical certificate”; or at a place “receiving medical, surgical or hospital advice, attention or treatment”; or “receiving a personal and household service or an occupational rehabilitation service”; or “receiving a payment of compensation in connection with any injury for which the worker was entitled to receive compensation”; or “for the purpose of submitting to a medical examination required by or under this Act”. It was the respondent’s submission that, in each of those circumstances, it would be impossible to prove that the worker’s employment significantly contributed to an accidental injury occurring at the places referred to and that the purpose and effect of s.83 would be rendered nugatory. In this regard, the respondent pointed to the lack of congruity between the amendments made to the definition of “injury” and the apparent sphere of operation, after amendment, of s.82. Whereas the amendments to “injury” suggested that the only injuries in respect of which the worker had to demonstrate a strong causal connection between employment and injury were “disease” based injuries and “recurrence, aggravation, etc.” injuries, but not “injuries simpliciter”, the entitlement provisions of s.82 operated in a reverse fashion because it was only in respect of “injuries simpliciter” that the strong causal connection had to be shown. The “significant contributing factor” criterion in s.82 was redundant to the operation of the section with regard to “disease based” injuries and “recurrence etc. injuries” because they would only qualify as compensable injuries if the employment could be demonstrated to have been a significant contributing factor to them. In the face of these incongruities, it was submitted on the respondent’s behalf that, in the case of “s.83 injuries”, the court should find the strong causal connection, required by s.82, simply because they were “deemed to arise out of” the employment.
[24]cf. Transport Accident Commission v. Treloar & Ors. [1992] 1 V.R. 446 at 462-3 per Brooking, J.

The learned judge rejected the construction of s.82 contended for by the appellant in favour of the one contended for by the respondent. Although he accepted that it was the evident intention of the legislature, by its amendments to s.82(1) and (2), to qualify and cut down the compensation entitlements of workers and their dependants in certain circumstances by requiring a “strong connection between workplace injuries and the worker’s work”, he agreed that if the amending words were to be given their full force and effect with respect to “s.83 injuries”, they would stultify the operation and effect of s.83 because they would “bar entitlement, as factually it would be impossible“ to demonstrate a strong causal connection between the employment and the injury, and that this could not have been Parliament’s intention. Accordingly he accepted the respondent’s submission that, where the court had concluded, pursuant to s.83, that the injury was deemed to have arisen out of or in the course of the employment, the strong causal connection required by the words “significant contributing factor” in s.82(1) and (2) was itself satisfied by the fact that the injury was deemed to have arisen “out of the employment”. In support of this conclusion, his Honour referred to and relied upon Favelle Mort Ltd. v. Murray[25] and Popovski v. Ericsson Australia Pty. Ltd.[26]. Although these cases were decided upon the basis that the injuries there in question had “actually arisen out of” the worker’s employment, his Honour was of the view that they could be applied to a case where, in accordance with s.83, the injury was deemed to have so arisen. H e said:

“From the above, it follows that if an injury arose out of employment, then ipso facto the employment must be a significant contributing factor. It is otherwise if the injury occurred or was deemed to occur only in the course of employment. In such a case it would be necessary to show that the employment was a significant contributing factor to the injury.”

[25](1976) 133 C.L.R. 580 at 598-9, per Mason, J.

[26][1998] VSC 61 at [51] ff. per Ashley, J.; reversed by the Court of Appeal on other grounds; [2000] VSCA 52

In Popovski, Ashley, J. was concerned with whether employment had been “a significant contributing factor” to injury. Relying upon what was said by Mason, J. in Favelle Mort, his Honour suggested that it was, whenever injury “arose out of” employment. But in Favelle Mort, Mason, J. suggested only that, when injury arose out of employment, employment was necessarily “a contributing factor” and what was said there by no means applies equally when the question is whether the employment is “a significant contributing factor”. Be that as it may, it became apparent during the course of the appeal that problems arose whether one accepted the construction of s.82(1) and (2) proposed by the appellant or the one proposed by the respondent. The appellant’s construction would, as the learned judge pointed out, render incompensable many of the injuries contemplated by s.83. But, equally, there are problems created by the acceptance of the respondent’s proposed construction. Quite apart from the fact that one cannot know whether the injury is deemed to have arisen “out of” or “in the course of” the employment, it seems to me to be a strange result that the worker has to demonstrate “the strong causal connection” between employment and injury where the injury is found to have actually arisen out of or in the course of the employment, but is relieved of the burden of doing so where the injury is deemed to have so arisen. It was in these circumstances that both counsel embraced the suggestion made by the Court that the fiction created by the deeming provisions of s.83 comprehends that the activities being carried out by the worker, when he or she suffers the injury, are being carried out as part of the employment. If such a construction were to be accepted, then the amendments to the entitlement provisions in s.82 would be left with some work to do because, although in most of the circumstances contemplated by s.83, injuries suffered by external accident would have a strong connection with the deceased’s employment, those arising from underlying causes, such as aneurysm or heart attack etc., would still have to be shown to have such a connection with the deemed employment. Although it might be said, on the one hand, that this construction perpetuates the discongruity between the s.5 definition of “injury” and the terms of s.82, to which I have already referred, on the other hand it seems to me to better promote the legislative intention, evinced by the amendments to the definition of “injury”, that it is only injuries emanating from underlying causes which should have to be shown to have a strong causal connection with the worker’s employment. Notwithstanding the perceived difficulties, counsel for the appellant advised the Court, after receipt of instructions, that this construction of ss.82 and 83 was one acceptable to his clients. Although such a construction is different from the one adopted by the learned judge, it was agreed that it would produce the same conclusion as the one to which he came.

Question 3: Dependency

In my view the learned judge was entitled to conclude that the respondent and the two children whose interests she represented were wholly dependent upon the earnings of the deceased. He said, correctly in my view, that dependency is a question of fact which requires that past events as well as future probabilities be taken into account.[27] His Honour reviewed the evidence, to which I have previously referred; namely that for a long time the deceased had supported his wife and children through his own exertion; that supervening ill-health had caused him to temporarily suspend his working activities in 1996; the sale of the truck; the desire demonstrated by the deceased to return to gainful employment in late 1996 and early 1997; and the manifestation of that desire by re-introducing himself into the work-force as a truck driver. In the light of that evidence, he concluded:
[27]Blum v. Lipski [1928] V.L.R. 247

“Therefore, I am satisfied that, once employment was obtained, the deceased would have given up unemployment benefits and that the plaintiff and the two dependent children would have become wholly dependent upon the earnings of the deceased.”

Furthermore, his Honour concluded that there was nothing in the medical evidence which suggested, absent his injury, that the deceased would have been precluded by ill-health from working, and that he was satisfied:
“that the deceased would have obtained work which would have continued into the foreseeable future”.

Each of these findings was open on the evidence and, in my view, entitled the judge to find that the respondent and the two children were wholly dependent upon the deceased at the time of his death. Indeed, I have strong reservations whether Question 3 raises a question of law within the meaning of s.52 of the Act. Rather it seems to me to be challenging findings of fact which were wholly within the province of the trial judge.
Conclusion

In conformity with these reasons, I would allow the appeal and, in lieu of the orders made by the trial judge, give judgment for the defendant. Because, on the facts found, it was not, in my opinion, open to the learned judge to conclude that the deceased was injured whilst absent from the workplace during an authorized recess, there is no basis for remitting the matter for further hearing and determination. Like Phillips, J.A., I have reached this conclusion with much regret because it will undoubtedly have unfortunate consequences for the respondent and her children who have lost their provider in tragic circumstances.

PHILLIPS, J.A.:

I agree with the President that this appeal should be allowed and the respondents' claim for compensation dismissed, but as we are disagreeing with the trial judge who is particularly experienced in this area I shall say something for myself. I gratefully adopt, however, the President's statement of the facts.

In 1951 Dixon, J. said, in an oft-quoted passage in Humphrey Earl Ltd. v. Speechley[28]:

"The respondent’s work apparently required him to spend the day or portions of it visiting customers of the appellants and his absence from the appellants’ place of business at Lidcombe obviously was likely to include the luncheon interval. His use of the motor cycle so long as it was confined to the purposes of his duties was undeniably within the course of the employment. The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties.” [Emphasis added]

This last sentence reflected what his Honour had said in 1937 to like effect in Henderson v. Commissioner of Railways (W.A.)[29], and by and large it was treated as governing decisions on whether a worker was still in the course of employment when injured during an interval or interlude between periods of work. In Park v. Peach[30] Adam, J. pointed out that, in the light of the remarks made by Dixon, J. himself in Commonwealth v. Oliver[31], what his Honour had earlier said in Speechley “should not be treated as laying down any fixed standard applicable to all cases” - and the High Court agreed in Hatzimanolis v. A.N.I. Corporation Ltd.[32].

[28](1951) 84 C.L.R. 126 at 133

[29](1937) 58 C.L.R. 281 at 294

[30][1967] V.R. 558 at 564

[31](1962) 107 C.L.R. 353

[32](1992) 173 C.L.R. 473

In Hatzimanolis Mason, C.J., Deane, Dawson and McHugh, JJ. said in a joint judgment[33]:-

“Since Oliver, appellate courts have upheld many awards of compensation in favour of workers in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity, convenience or enjoyment. [I omit the references] But ... in many cases these decisions have been reached only by a strained reading of the words “in order to carry out his duties”.

After concluding therefore that "the Henderson-Speechley test 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”, their Honours posited these new guidelines[34]:

"Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”. [Emphasis added]

[33]at 480

[34]173 C.L.R. at 484

This was said in the context of a worker's day off. The plaintiff had been engaged by his employer to move to Mt. Newman for 3 months, working 6 days a week and 10 hours per day. Sunday was the day off and on this occasion the employer, recognising that its workers were in a somewhat isolated pocket of Australia, had organised a sightseeing trip which it invited the plaintiff to join. Injured on this trip, the plaintiff was held to have been still in the course of employment and so entitled to compensation. Their Honours stressed that not every incident during such an end-of-the-week break was compensable: the difference here lay in the special circumstances of the employment (which enabled their Honours to conclude that the injury occurred during what was "an interval or interlude in an overall period or episode of work") and the particular use made of that recreational interlude by the plaintiff (a use which had been induced or encouraged by the employer).

In the case now under appeal, the trial judge found that the deceased had been employed, not simply for the trip up to Queensland and then separately for any return trip, but for the whole enterprise as one. He said:

"I find that the employment of the deceased was for a return trip from Melbourne to Brisbane and that the time during which the deceased was absent from Melbourne until his return was one episode of employment, the period of which was not affected by whether the return trip to Melbourne was with a load or not."

This one episode of employment was then referred to by the judge as "one overall episode of work", and there is no challenge to that finding on this appeal. No doubt the finding was strongly influenced by this passage in the joint judgment in Hatzimanolis[35]:-
"Where, for example, as in Danvers [i.e., Danvers Commissioner for Railways (N.S.W.) (1969) 122 C.L.R. 529], an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work.”

The significance of this can be seen in what their Honours added next:-
“An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality [and returns home]”.

It may be, perhaps, that the instant case was somewhat different from both Danvers and Hatzimanolis in that the deceased was employed on a casual basis simply to drive to Brisbane and back; that is, he was not only engaged for the return trip as one job (as the judge found), he was engaged only for that job. It was no part of some larger contract of employment. But whether significant or not, that does not arise for consideration now in the absence of any challenge to the judge's finding, and so I pass it by.

[35]at 483

Having determined that the deceased had been employed for the trip up to Queensland and back, the whole being but "one overall episode of work”, the judge then found that between the two trips the deceased had not been in the course of his employment when he departed from the service station at which he might have waited until told whether or not a return load was available. Whatever might have been "the course of employment" had the deceased continued to wait at the service station, when he departed the service station for Beaudesert he was, according to the judge’s findings, in an interval or interlude in an overall period of work. Accordingly, he was in the course of employment at the time when he was injured at Beaudesert only if he satisfied the guidelines in Hatzimanolis – and on that the judge found against the claimants. His Honour said:-

"I have already found that the deceased’s employment was one which commenced when he left Melbourne driving the truck, and continued until his return with the truck to Melbourne. It is clear that the injury occurred in the course of a break in this overall episode of work. However, as stated by the High Court in Hatzimanolis, for such a break or interlude to be in the course of employment, the employer, either expressly or impliedly, must have induced or encouraged the employee to spend such interval or interlude at a particular place or in a particular way."

After briefly canvassing the evidence his Honour concluded:-
". . . I am unable to infer from the evidence that Zammit [the de facto employer] induced or encouraged the deceased to spend this interval in his employment at Beaudesert where the four-wheel drive vehicle was to be loaded."

Although an appeal against that conclusion was adumbrated in the appellants' notice of appeal, no argument was mounted on that score: to that extent the appeal was not pursued. That left only the possibility of applying in favour of the claimants the statutory extension found in s.83(1)(a).
The statutory extension in s.83(1)(a)

It is in order to point up the contrast it affords with the provision in s.83(1)(a) that I have mentioned the common law on the course of employment when injury or death occurs during "an interval or interlude between periods of work" in which the worker is pursuing his own interests, concerns or needs (as distinct from those of his or her employer). According to s.83(1)(a):-

“(1)An injury to a worker is deemed to arise out of or in the course of employment for the purposes of section 82(1) and 82(2) if the injury occurs-
(a)while the worker on any working day that the worker attended at the place of employment having been present at the place of employment is temporarily absent on that day during any authorised recess and does not during that absence voluntarily subject himself or herself to any abnormal risk of injury”.

First, unlike the common law as expounded in Hatzimanolis (and it must be said unlike most of the antecedents of s.83(1) - and indeed this very section until its amendment in 1992 - which dealt also with presence in the workplace), this statutory provision focuses only on absence from the workplace, which at least underlines the possibility of its extending the concept of compensable injury. Secondly, the connection between injury and compensation is almost exclusively temporal; the question it raises is whether the injury occurred at a time when the worker after attending the workplace on the day of injury was absent as described in paragraph (a). Thirdly the absence of the worker from the workplace is largely unqualified as to purpose or activity; it is enough if the absence satisfies the description of a temporary absence during an authorised recess. In the case under appeal we may put aside as irrelevant the qualification of the worker's subjecting himself to some "abnormal risk of injury"; for that was expressly negatived by the trial judge and no challenge is made to that finding. (Nowadays there is, too, the added requirement, found in s.82(1) and (2), that the injury be one to which the employment was a "significant contributing factor", but on that I simply express my agreement, if I may, in what the President has said, especially in view of the particular circumstances attending the argument on this appeal and to which his Honour makes reference.)

In terms at least, if the injury occurs during the absence marked out by s.83(1)(a) then the injury is deemed to arise out of or in the course of employment, without further inquiry. In so far as paragraph (a) operates irrespective of the manner in which or the purpose for which the worker is then spending his or her time, the statute is wider than the common law; in that it operates only if the injury occurs during an "authorised recess" it is, I think, narrower. That is because, in my opinion, not every interval or interlude between two periods of work is necessarily a "recess" within the meaning of s.83(1)(a) - and, as I see it, that is the key to this appeal.

The cases both before and after Speechley concerning interludes between periods of work were not easy to reconcile, particularly concerning meal breaks: see for example the cases canvassed by Jordan, C.J. in Davidson v. Mould[36] (a majority decision of the Full Court, itself affirmed by a majority of the High Court[37]), Flanagan v. Great Northern Wool Dumping & Stevedoring Co. Pty. Ltd.[38]. One need only contrast Whittingham v. Commissioner for Railways (W.A.)[39] and The Commonwealth v. Oliver[40] to appreciate the uncertainty. In both, the worker was struck by a cricket ball during the lunch break and while he was on the employer’s premises. In the first, he failed in his claim for compensation: in the second, he succeeded, and it was doubtless to overcome such uncertainty, in certain situations at least, that the Parliament intervened and made provision for compensation which turned largely upon considerations of time and place: Landers v. Dawson[41] per Windeyer, J. When first enacted in Victoria in 1946 as s.5(5)(a) of the Workers Compensation Act 1928[42], the new provision for compensation had two limbs, the first depending simply upon the worker's presence at the workplace when the injury occurred and the second, if he or she was absent at the time, the nature and extent of the absence. Section 5(5) provided that injury by accident should be deemed to arise out of or in the course of employment

“. . . if the accident occurs-
(a)while the worker on any working day on which he has attended at his place of employment pursuant to his contract of employment-
(i) is present at his place of employment; or
(ii)having been so present, is temporarily absent therefrom on that day during any ordinary recess and does not during any such absence voluntarily subject himself to any abnormal risk of injury".

[36](1944) 44 S.R.(N.S.W.) 113 at 116-7

[37](1944) 69 C.L.R. 96

[38](1949) 49 S.R.(N.S.W.) 340

[39](1931) 46 C.L.R. 22

[40](1962) 107 C.L.R. 353

[41](1964) 110 C.L.R. 644 at 653

[42]introduced by the amending Act No. 5128 s.3(1)(e)

The first of these two limbs (which by then were found in s.8(2)(a)(i) of the Workers Compensation Act 1958) was considered in Carbis v. Bounceball Pty. Ltd.[43] where the Full Court held that it was not enough for a worker to be present at the fun park at which he had earlier been working that day; it was necessary that his presence be at "his place of employment" as such, and thus not some hours after his employment, which had been casual for that day, had altogether ceased: see also and compare Clissold v. Country Roads Board[44]. Similarly, if an absence from the workplace is relied upon, it will be important to determine whether the absence is one which falls fairly within the description in the statute. In saying that I do not overlook the warning against undue "refinements" in Buchanan & Brock Pty. Ltd. v. Harris[45] in relation to another, and not altogether dissimilar, extension which was then to be found in s.8(2)(b) of the Workers Compensation Act 1951), but it will be important to decide if the statutory description now found in s.83(1)(a) was satisfied in this instance, if only because of the significant differences between the common law on intervals or interludes between periods of work and the statutory extension which is limited now to absences from the workplace[46]. (If a worker is present in the workplace when injured, that is nowadays seen as sufficient anyway, since Kavanagh v. Commonwealth[47].)
[43][1972] V.R. 211
[44][1981] V.R. 259
[45](1957) 98 C.L.R. 22 at 28
[46]The reference to the worker’s presence in the workplace at the time of injury was in s.83(2)(a)(i) of the Accident Compensation Act 1985. It was omitted when s.83 was rewritten in 1992 as part of the introduction of WorkCover by the Accident Compensation (WorkCover) Act 1992; see s.12 of Act No.67 of 1992.
[47](1960) 103 C.L.R. 547

In his reasons for judgment in this instance the judge dealt fairly briefly with the claim under s.83(1)(a). His Honour said:-

"According to the evidence of Zammit [who was the de facto employer], once a driver had unloaded his truck and taken it to the Shell Roadhouse at Rocklea, the driver was free to do anything he chose. In other words, the driver was authorized to absent himself from his place of employment, that is, the Shell Roadhouse. Accordingly, the deceased’s presence at Beaudesert was during an authorized recess and, furthermore, Zammit knew that the deceased was so absenting himself from the Shell Roadhouse and permitted him to do so without objection. Indeed, the deceased remained in the presence of Zammit throughout. The only fair inference from these facts is that the deceased’s absence from the Shell Roadhouse was one which at the very least was impliedly authorized by Zammit.”

This was a very clear finding that the deceased's absence from the service station at Rocklea, near Brisbane, was authorised by his employer; it was in fact an authorised absence. But with great respect that is not the question raised by s.83(1)(a): contrast Workers Compensation Act 1987 (N.S.W.) s.11(a) which speaks of the worker's being absent form the workplace during "any ordinary recess or authorised absence": as to which see Tooth & Co. Ltd. v. Injac[48]. In Victoria the question under s.83(1)(a) is whether, the worker being absent from the place of employment at the time of the injury (as the judge found), he was "temporarily absent during an authorised recess". That the deceased intended to return to the service station was clear enough; his absence was only for the purpose of filling in time while he was waiting to learn if there was to be return load. But was the absence during a "recess", quite apart from its authorisation? That was the critical question and on that the reasons for judgment are silent.

[48](1994) 10 N.S.W. C.C.R. 437

It may be said at the outset that the fact that the deceased was at the time fulfilling his own needs or wishes was irrelevant. As the judge found, he was not then going about his employer’s business, he was simply filling in time for want of something better to do. When the full significance of that is appreciated, with its consequences in the application of the statutory extension which enables compensation to be recovered, it seems to me clear that Parliament, in referring to a “recess” had in mind a relatively brief interruption to what otherwise would be a continuous period of work, and commonly a continuous period of work on the one day. In a passage quoted with approval by Kitto, Taylor and Menzies, JJ. in Landers v. Dawson[49] Lowe, Gavan Duffy and Dean, JJ. had said in Drummond v. Drummond[50]:

“... The word ‘recess’ in its normally understood acceptation refers to a relatively brief interruption in an otherwise continuous period of work. It is normally associated with rest, refreshment or relaxation, such as ordinarily occurs at regular times, such as lunchtime, morning or afternoon tea, or ‘smoko’. It is a period of rest incidental to a period of labour in its general acceptation. The recess is something in the nature of an interval between two or more periods of work in the normal day.”

Thus, the tea break, the "smoko" and the lunch break, all these can be recognised readily enough as a “recess” in the ordinary sense, even when vague in duration, flexible or indeterminate, as was so in Thompson v. Lewisham Hospital[51]. In that case the worker, a domestic maid, was using her tea break to take her car for repair and, when injured during that absence from her workplace, she was held entitled to compensation by virtue of an extension similar to ours, save that reference was to absence during an "ordinary recess".

[49](1964) 110 C.L.R. 644 at 650

[50][1960] V.R. 462 at 463-4

[51][1978] W.C.R. (N.S.W.) 111

That was the context, too, in which their Honours were speaking in both Drummond and Landers v. Dawson, but what I have quoted from Drummond did not, to my mind, turn on any difference between a recess and an ordinary recess. In Drummond the Full Court dealt expressly with the word "recess", adding only as an afterthought that "the view we have formed is assisted by the word 'ordinary' " as to the meaning of which their Honours considered "there is room for some difference of opinion". Nor can I think the word "ordinary" of particular significance for present purposes. As Hutley, J.A. said in Thompson at 113, an ordinary recess is simply "an ordinary one, that is, not one which on a special occasion the employee is given". In the case under appeal, the recess, if such it was, may have been a special one, given the particular circumstances in which the deceased's absence from early contact at the service station was authorised by Mr. Zammit; but if it was special that is of no particular consequence under our s.83(1)(a) which (unlike its antecedents in Victoria and since its rewriting in 1992[52]) no longer speaks of an "ordinary recess". The only term now used is "authorised recess", which probably admits of a recess granted specially.
[52]See footnote 46, supra.

The problem for the present claimants is that there was no “recess” here. What occurred was, to my mind, like the end-of-the-week break on a Sunday in Hatzimanolis. True it is the judge found that the deceased was engaged in "one episode of employment”, but as the judge also found, the injury occurred during "an interval or interlude within [that] overall period or episode of work" - "in the course of a break in this overall episode of work". The critical question was whether that "interval or interlude" - that "break" - was a "recess" within the meaning of s.83(1)(a), and to my mind it was not. The trip to Brisbane had come to an end and a period of waiting had begun; provided he kept in touch, the deceased was reasonably free to do as he liked. The trip to Melbourne might not have begun for a day or two more. The deceased had in truth come to the end of one period of work and was not yet due to begin another. This was closer to the break between shifts considered in Injac, than the "relatively brief interruption in an otherwise continuous period of work . . normally associated with rest, refreshment or relaxation" (as described in Drummond) "such as ordinarily occurs at regular times such as at lunchtime, morning or afternoon tea, or 'smoko'". It is quite irrelevant that in Hatzimanolis recovery was allowed; for that depended upon the concept of the course of employment at common law and had nothing to do with the statutory extension in s.83(1)(a).

More to the point is the rejection in Drummond v. Drummond of the claim for compensation by the farm hand who was off work for a time between bouts of activity on the farm run by his father in partnership with his uncle, both of whom had their residences on the farm. The Full Court said[53]:-

"It is of some importance that the Board has found that ‘on Saturday the applicant performed general farm duties until noon, when he ceased work. On Saturday evening he returned to his father’s house and performed further duties.’ It is to be observed that the finding of the Board is that applicant ‘ceased work’ at noon, and ‘returned’ in the evening to perform further duties. This seems to us inconsistent with the period being regarded as a mere ‘recess’ from work as we understand that word.”

[53][1960] V.R. at 464

In Landers v. Dawson the High Court, after approving what had been said about "recess" in Drummond, rejected the claim of the worker at a bakery who assisted in delivering the bread early in the morning and with the dough-making in the afternoon, and had time in between. One day, he went swimming in his break, after checking to see that he would not be needed in the meantime. He was injured while swimming but was denied compensation under what was then s.8(2)(a)(ii) of the Workers Compensation Act 1958 (Vic.) because he was not absent from the workplace "during [an] ordinary recess". Again, what was said by the Court did not, I think, depend upon the difference between a recess and an ordinary recess; for that difference was pointed up in the joint judgment of Kitto, Taylor, Menzies and Owen, JJ. at 651 in this fashion:-

“The argument seemed to us to proceed upon the basis that since the appellant was available for duty for twenty-four hours of the day, any break in that period, whether for sleep or food or for activities such as swimming, was a ‘recess’ and that, if allowed as often as the appellant’s swimming at Peterborough was allowed, it was an ‘ordinary recess’. But that, we think, is unsound. The appellant was not working a continuous twenty-four hour day interrupted by relatively short breaks for refreshment or relaxation. During the substantial intervals of the day and night when he was not required to work, his time was entirely his own. He was off duty and could use his off duty periods for any purpose that he thought fit. The only effect of his getting the respondent's permission to go swimming was that a period was defined within which he would not be expected to be available for work at the bakery."

In much the same fashion here, the deceased was not working 24 hours a day so that any break in his work qualified as a recess (whether special or ordinary). The deceased had ended the first trip and had yet to be called upon to start the return; in the meantime he was simply off work; he was not on a recess within the meaning of s.83(1)(a). As Powell, J.A. put it in Injac[54], the period between 3 p.m. and 5 p.m. in that case, when the chef was off work each day, was "not an 'ordinary recess' but rather a break between two distinct periods of work". That the chef himself gave evidence in terms of "shifts" was not regarded by the Court as determinative at all; nor was the fact that living close-by he was able to go home during the break. (As to this last see also Havard v. Illawarra Meat Co. Ltd.[55].)
[54]10 N.S.W. C.C.R. at 453-4
[55](1956) 73 W.N.(N.S.W.) 334

Equally, it was not in my opinion of any significance in this case that the deceased was presumably liable to recall during his break (if "recall" is the right word when employer and employee went off together), should a load for Melbourne have turned up while he was away form the service station. In Thompson v. Lewisham Hospital, supra, Hutley, J.A. dismissed as irrelevant the fact that the break might have been interrupted had the need arisen. The then Mr. McHugh Q.C. had submitted that if the worker was liable during the break to be recalled to duty the break could not be a recess; but that argument was rejected. Similarly, I would reject any contention that if the worker is liable to recall during the break, then that break must be a recess: neither submission is right. Thompson demonstrated that a recess could be indeterminate or uncertain in length, and so too, I think, a break that is not a recess. Such considerations of irregularity or interruption might or might not be relevant in any given case, but they are not determinative. In Clissold v. Country Roads Board[56] the worker was at home and off duty, though liable to answer the telephone if it rang while he was there, in case of emergency. It could not sensibly be suggested that while at home for the night after concluding work for the day he was absent from the workplace "during a recess" unless that expression is to encompass every absence from the workplace of the worker who is in regular and permanent employ - and that is not so; that is not the sense of the word "recess" as used in s.83(1)(a).
[56][1981] V.R. 259

Conclusion

Accordingly, for the reasons I have given I cannot see that the deceased, while in Beaudesert, could be regarded as having been absent from the workplace during an “authorised recess”. I have said that, in my respectful view, the trial judge did not address the real question raised by s.83(1)(a), but rather found instead that, while in Beaudesert, the deceased was on an “authorised absence”. As this is an appeal on a question of law only, what I have just said is sufficient to justify this Court’s allowing the appeal on the ground that his Honour misdirected himself and setting aside the order made for compensation.

In certain circumstances that would require in turn that the matter be remitted for further hearing and determination, but it is otherwise, I think, in this instance. Like the President, I am clear in the view that on the facts found below it was not open to the judge to find that the deceased, while at Beaudesert, was absent from the workplace “during an authorised recess” and, that being so, I agree that this Court should not only allow the appeal and set aside the award of compensation; it should also dismiss the respondents’ claim. It is unnecessary, then, to express any opinion on the other matter that was argued on the appeal, the question of the claimants' dependency upon the deceased, and I say nothing on that score.

Having reached the conclusion that the respondents' claim should be dismissed, I add that I do so with a good deal of regret; for it will be particularly unfortunate for the widow and children of the deceased who was killed as the result of a freak accident. But, as I see it, the result is the direct consequence of our applying the legislation according to its terms.

CHARLES, J. A.:

I have had the considerable advantage of reading the reasons for judgment of the President. As to the three questions upon which argument was addressed to this Court and which are set out in [14] of the President's reasons, I agree with everything the President has said as to questions (ii) and (iii), and have nothing to add. I differ only, with respect, in relation to the first question. In my view it was open to the trial judge, upon the facts found by his Honour, to conclude that the deceased suffered injury whilst, on a working day on which he had attended his place of employment pursuant to his contract of service, he was temporarily absent therefrom during an authorized recess.

In the circumstances outlined by the President, the question becomes whether the trip to Beaudesert could properly be found to be an "authorized recess" within the meaning of s.83(1)(a) of the Accident Compensation Act 1985, notwithstanding that the trip might have involved an absence from the Shell Roadhouse at Rocklea of possibly three hours. It is convenient to start with the definitions in some of the dictionaries of the word "recess". In Drummond v. Drummond[57], Lowe, Gavan Duffy and Dean, JJ. referred to Webster's Dictionary where "recess" is defined to mean: "remission or suspension of business or procedure for a comparatively short time; a short intermission, as of a legislative body, court or school"; and to Murray's Oxford Dictionary where the word is defined as: "the act of retiring for a time from some occupation; a period of cessation from usual work or employment". In the third edition of the Macquarie Dictionary, "recess" is defined as "withdrawal or cessation for a time from the usual occupation, work, or activity", and the example is then given of Mr Hawke (later the Prime Minister), spending "three days summing up his evidence, then the court went into recess until January 1967". The American Heritage Dictionary defines recess as "a temporary break from work, especially of a law court or of Parliament during a vacation". I mention these various dictionary definitions merely because only Webster provides a definition which adds the description "comparatively short" to the duration of any such remission or suspension. In each of the other definitions, the act of retiring or period of cessation is plainly temporary, but there is no suggestion that the period in question should necessarily be short.
[57][1960] V.R. 462 at 464.

The cases dealing with the meaning of "recess" in this State have, I think, all been decided when the phrase in the relevant legislation was "ordinary recess", the expression "authorized recess" being inserted by the Accident Compensation (Workers Compensation) Act 1992. In Drummond v. Drummond, the worker, a farm labourer, was employed in general farm duties on weekdays, and on Saturdays worked until noon, when he ceased work. His practice was to return to his father's house on Saturday evenings when he fed the dogs and separated a cow from her calf, activities which might plainly have left a gap of up to seven or eight hours between his periods of working activity. On the day in question the worker and his wife drove several miles to Walwa to watch a football match and he was injured on his return journey home. The break was found not to be an "ordinary recess". The Court, in the passage quoted by the President at [17] took the view that the word "recess" in its normally understood acceptation referred "to a relatively brief interruption in an otherwise continuous period of work", and that it was normally associated "with rest, refreshment or relaxation, such as ordinarily occurs at regular times". The Court[58] laid particular stress on the use of the adjective "ordinary" since that adjective assisted in the view that "the period in question is one which would ordinarily be described as in recess".
[58]At 464.

This view of the sub-section, as the President has shown, was applied by the Full Court in Landers v. Dawson[59], in a decision later upheld by the High Court[60]. There the worker was employed in a bakery. During summer he delivered bread in the mornings and, after completing his round, with his employer's permission he would go for a swim in a swimming hole at Peterborough, returning after lunch to resume his duties making dough in the afternoon. On the day in question while swimming, the plaintiff struck his head, becoming totally incapacitated for work. It was held that the injury had not occurred during an ordinary recess. Kitto, Taylor, Menzies and Owen, JJ. said[61] –

"The appellant was not working a continuous twenty-four hour day interrupted by relatively short breaks for refreshment or relaxation. During the substantial intervals of the day and night when he was not required to work, his time was entirely his own. He was off duty and could use his off duty periods for any purpose that he thought fit. The only effect of his getting the respondent's permission to go swimming was that a period was defined within which he would not be expected to be available for work at the bakery. It is unnecessary to attempt to define exhaustively the meaning of the words 'ordinary recess' in the context in which they appear in the Act; it is sufficient to say that we agree with their Honours in the Full Court that the appellant's injury could not reasonably be held to have occurred during an 'ordinary recess'."

Windeyer, J. said[62] –
"By 'an ordinary recess', I take it, is meant a break or interruption of limited duration in the continuity of a normal working day, regularly allowed for meals or rest. The phrase seems to connote a suspension of activity which is to be resumed at the end of a stated period. Recesses, variously called lunch hours, tea breaks, smokoes, stand-downs etc., are normal features of employment in many industries. They are ordinary recesses. It seems to me a misuse of words to say that the appellant when he was swimming was temporarily absent from his place of employment during an ordinary recess."

[59][1963] V.R. 491.

[60](1964) 110 C.L.R. 644.

[61]At 651.

[62]At 654.

It will be apparent from the passages quoted that much emphasis was placed by the Victorian Full Court and the High Court on the wording of the Act, stress being laid on the adjective "ordinary" as a word which carried with it the connotation of regularity, and, possibly, the notion of rest, refreshment or relaxation. But although such breaks may usually be "relatively short", they are not always so. For example, a stand-down, according to Windeyer, J. a "normal feature of employment in many industries" and an ordinary recess, might occur at irregular intervals and last several hours. The significance of the adjective "ordinary" in the Victorian legislation before 1992 is readily apparent in what was said by the Full Court in Drummond v. Drummond[63], and in Landers v. Dawson both in the Full Court and in the High Court.
[63]At 464,"The word 'ordinary' is more apt to convey the idea that the period in question is one which would ordinarily be described as in recess". This passage was itself quoted in the judgment of Lowe and Pape, JJ. in Landers v. Dawson [1963] V.R. 491 at 499, and in what was said in the joint judgment in the High Court in Landers v. Dawson at 110 C.L.R. at 650-1 and by Windeyer, J. at 654.

Landers v. Dawson was considered by the Court of Appeal of New South Wales in Tooth & Co. Ltd. v. Injac[64], where the worker was a chef employed at the Mona Vale Hotel between the hours of 9.00 a.m. and 3.00 p.m. and 5.00 p.m. and 9.00 p.m. During the break interval, the worker usually returned to his home, but on the occasion in question the worker had been to his bank and was injured as a pedestrian crossing the road after he left the bank. Mahoney and Powell, JJ.A. (Priestley, J.A. dissenting) held that it was not appropriate to describe the period of time that existed between the end of one shift and the commencement of the next shift worked by the worker as a "recess". Their Honours said that "recess" is used to denote a break in the actual execution of work during the period of time when the worker is in the course of his employment. Mahoney, J.A. said[65] that –

"I do not think that a period of two hours between 'shifts' during which the worker was free to do what he wished was within the phrase 'ordinary recess'. 'Recess', I think, means something else."

[64](1994) 10 N.S.W.C.C.R. 437.

[65]At 439.

In my view the decisions in Drummond v. Drummond and Landers v. Dawson are of limited assistance in resolving the issues presently before this Court. The facts in either case would have made it very difficult to characterize the break as an "ordinary recess". Furthermore, in Tooth & Co. Ltd. v. Injac it is to be noted that the worker's injury occurred at a period of time existing between what were characterized as two different shifts, and at a time when the worker was free to do what he wished.

When the Victorian Parliament amended the workers compensation legislation in 1992, the words "authorized recess" were substituted for "ordinary recess". I accept that the amendments in 1992 were introduced to narrow the scope of compensable injuries and to cut the cost of administration of the "WorkCare" scheme. But the omission of the adjective "ordinary" from the wording of s.83(1)(a) in my view removes at least some of the underpinning which led the courts in Drummond v. Drummond and Landers v. Dawson to conclude that for an "ordinary recess" the period in question is one which would ordinarily be described "as in recess". The substitution of "authorized" for "ordinary" may be significant in at least two ways: first, in removing from the deeming effect of s.83(1)(a) a temporary absence from work which might previously have been regarded as an "ordinary recess" but which, if unauthorized, is no longer covered; and secondly, in including within the sub-section's deeming effect a temporary absence which is authorized, but which would not previously have been regarded as "ordinary". The fact that the general intent of the 1992 amending legislation was unquestionably to cut down costs in my view provides no justification for concluding that the relevant amendment had only the former of these two possible consequences.

Landers v. Dawson has also been discussed by the Court of Appeal of New South Wales in Thompson v. Lewisham Hospital[66]. Section 7(1)(e) of the New South Wales Workers Compensation Act then provided that –
[66][1978] W.C.R. 111.

"Where a worker on any day on which he has attended at his place of employment pursuant to his contract of service or apprenticeship –
(i)        is temporarily absent therefrom on that day during any ordinary recess; and
(ii)      does not during such absence voluntarily subject himself to any abnormal risk of injury; and
(iii)     during such absence receives an injury without his serious and wilful misconduct,
the worker (and in the case of the death of the worker, his dependants) shall receive compensation from the employer in accordance with this Act."

The respondent worker was employed by the Lewisham Hospital as a domestic maid. Her duties required her to serve meals to the patients in private wards, to collect trays and to carry out various cleaning tasks. On Monday 15 March 1976, she commenced work at 9.30 a.m. and was to work until 6.00 p.m. The facts, as described by Glass, J.A.[67] were that she received an injury at 3.45 p.m. when she was temporarily absent from her place of employment. Her car had developed mechanical trouble shortly before her arrival at work that day. On reaching the hospital she had telephoned the NRMA and arranged for one of its representatives to be at the hospital at 3.00 p.m. An NRMA tow-truck arrived at about that time. After various preliminary operations had been carried out in her presence, the tow-truck left the hospital between 3.20 and 3.25 p.m., towing the worker's vehicle with the worker in company. They arrived at a garage she had nominated shortly before 3.30 p.m. and she was at that garage until 3.32 p.m. At 3.35 p.m. she left the garage intending to walk back to the hospital. She called in at her home and at 3.40 p.m. set out for the hospital on foot. At 3.45 p.m. she was struck and run down by the truck. Had she not been injured, she would have been away from the hospital for shortly under half an hour. There was some contest at the trial as to whether she had obtained permission from her superiors to leave the hospital premises, but it was unnecessary to resolve that question.

[67]At 115-116.

Counsel for the hospital (the then Mr McHugh, Q.C.) submitted that a period of rest allowed by the employer which would otherwise be an ordinary recess would not qualify for such description if the employee could at any time be recalled to duty. Glass, J.A. (with whom Hope, J.A. agreed) said[68] of this submission that –

"This was said to be the effect of decisions such as Flanagan v. Great Northern Wool Dumping & Stevedoring Co. Pty. Ltd. (1949) 49 S.R.(N.S.W.) 340, where a worker who had left his employer's premises during the period of 1 hour allowed for the evening meal was held to be outside the course of his employment. It was argued that since the amendment was introduced to provide compensation for an employee who was away from the employer's premises and was therefore necessarily outside the course of his employment, the section on its proper construction cannot apply to persons who are still within the course of their employment. This would be the position with maids who were subject to recall and accordingly they could not satisfy the requirements of s.7(1)(e). However, a necessary premise in this argument does not correctly state the law. It is quite clear from the reasoning in Flanagan v. Great Northern Wool Company supra, at 342, and Humphrey Earl Ltd. v. Speechley (1951) 84 C.L.R. 126 at 134, that a worker who leaves the premises of his employer during a lunch interval is not necessarily outside the course of his employment. Depending upon the means he adopts for obtaining his lunch, this activity may still be incidental to his employment and for that reason within the course of it. The premise upon which the argument rests is also unsound when considered from a more general standpoint. There is nothing in the Act which requires the various kinds of entitlement to compensation to be placed in watertight and mutually exclusive compartments and forbids any construction which provides for a common area between their respective spheres of operation. It has, for example, been held that the circumstances of the worker's injury may properly fall within s.7(1)(e) notwithstanding that they also fall within the journeying provisions of s.7(1)(b): Havard v. Illawarra Meat Co. Ltd. (1956) 73 W.N.(N.S.W.) 334. It follows that a period of rest which would otherwise fall within the statutory definition of ordinary recess does not fail to do so because the employee during its duration can be said also to be in the course of his employment."

[68]At 117-118.

Two matters of relevance to the present case in my view are to be found in this passage. The first is that the recess in question qualified as an "ordinary recess" notwithstanding that the employee could at any time be recalled to duty. The second is that the section applied notwithstanding that the employee was still within the course of her employment. In the present case there was, it seems to me, much to be said for the view that the deceased remained in the course of his employment during the trip to Beaudesert, having regard to the judge's conclusions on the facts to which I shall presently turn. The judge, however, held the contrary and that finding would have been difficult to disturb on appeal. Be that as it may, Thompson is authority for the view that the fact that the deceased remained, while on the trip, in the course of his employment would not of itself have prevented the occasion being found to be a "recess" if the trip might properly have been so described.

In the present case, the trial judge, who was plainly dissatisfied with the evidence given by Tony Zammit[69], found that Monday 14 April 1996 was a working day for the deceased under the terms of his employment with the appellant. His Honour found on the evidence that –

"The employment of the deceased was for a return trip from Melbourne to Brisbane and that the time during which the deceased was absent from Melbourne until his return was one episode of employment, the period of which was not affected by whether the return trip to Melbourne was with a load or not."

The deceased, having discharged his load in Brisbane and driven to the Shell Roadhouse at Rocklea, was not thereafter free to do as he wished for the remainder of the day, his Honour finding that the deceased was required to stay at the Shell Roadhouse awaiting the chance of a load on Monday or be able to be contacted if a load became available. The judge said –
"I could not imagine [Tony] Zammit permitting the deceased to take himself off to Brisbane for the day, if there was even a remote chance of obtaining a load. I am satisfied that Zammit was a person who, on the occasion of this employment, called the shots and required the deceased to remain in contact with him or at the Shell Roadhouse where the truck was parked. Indeed, on the evidence, I am satisfied on the balance of probabilities that such was the case."

[69]His Honour said that Zammit was an unreliable witness and certainly in many matters not a witness of truth.

The evidence was, clearly enough, that it was unlikely that a load would become available to the deceased during that Monday. But Gerhardt Biermaler said that, although loads on Monday were very scarce, and he did not think one would become available, "not on the Monday", nonetheless it was possible that one would become available "if you're lucky". Tony Zammit left a contact mobile number with Jeff, the loading master at the Shell service station. Before leaving the service station, Biermaler and Tony Zammit went to speak to Jeff to ask what work was likely to be available. Jeff said that it was "fairly quiet", and Biermaler then said "Right, we'll be going away for a while, ring us if you can if there's any loading". The two Zammits then left with Biermaler in Biermaler's truck, to help him load the four-wheel drive vehicle onto Biermaler's truck at Beaudesert. They had with them two mobile phones, one of Biermaler's and one belonging to Tony Zammit. The deceased apparently did not have a mobile telephone.

The judge found that there was nothing in the evidence to indicate that Tony Zammit asked or required or expected the deceased to attend at Beaudesert so as to be in contact with him, and he went along because he had nothing better to do during what was likely to be a boring and dead period of waiting. However, in re-examination, Tony Zammit volunteered that he had offered the deceased's assistance to Biermaler as well as his own, stating that the deceased had no idea that Zammit had offered his assistance.

In the foregoing circumstances it is, I think, of particular significance that the deceased was employed for a return trip from Melbourne to Brisbane, the whole period in which the deceased was absent from Melbourne until his return being one episode of employment. If a load had become available to the deceased at Rocklea, his return journey could, subject to complying with road transport law as to necessary periods of rest, have commenced immediately. In no sense could the trips to and from Brisbane have been described as differing shifts. The deceased was required to remain available to Tony Zammit in the remainder of that Monday, "to remain in contact with him or at the Shell Roadhouse". He was not, therefore, free to do as he chose or, as the judge expressly found, free to take himself off to Brisbane for the day. The context was that in what had already been found to be a working day, the deceased, in going with the other two to Beaudesert, chose one of the only two options available to him at the time. Had the deceased chosen to remain at the Shell Roadhouse at Rocklea until a load became available (say on Monday evening or Tuesday morning), there could, I think, have been no doubt that his activity would properly have been called "an otherwise continuous period of work".[70] The trip on which the three embarked was likely to take two to three hours.[71] But the trip to Beaudesert might have been aborted two minutes after departure, if, unlikely though it may have been, a load had become available and Jeff, the loading agent, had contacted either Tony Zammit or Biermaler on their mobile phones. If such contact had been made within a short period after their departure, the three may well have returned immediately to enable the deceased to pick up the load and leave. Biermaler's evidence was that if a load became available, they would go back and the system operating between them was that the deceased would take the first load available.
[70]See Drummond v. Drummond at 464, in the third paragraph quoted by the President at [17] above.
[71]There is no clear evidence as to the duration of the trip to Beaudesert, but the distance from Rocklea to Beaudesert is approximately 70 kms, which could easily have been travelled in one hour, and the loading of the four-wheel drive vehicle onto the truck, if the deceased had not been injured, could well have been completed in something under half-an-hour.

It follows in my view that the deceased was engaged in a single continuous episode of employment, and was originally resting at the Shell Roadhouse, as part of and during the course of his employment. The period of waiting at Rocklea was of uncertain duration capable of being terminated at any time by a phone call from the loading agent indicating that a load was available. The deceased then left with Tony Zammit and Biermaler on the trip to Beaudesert for a period itself of uncertain duration, and which might have been brought to a halt very shortly after its commencement by the deceased being recalled to pick up an available load. The deceased's absence from Rocklea was plainly authorized, as the judge found, and in taking the trip, he remained in contact with Tony Zammit, his employer, and was, as I have said, taking one of the only two alternatives available to him at the time which enabled him to remain in contact.

In these circumstances it seems to me that it was open to the trial judge to conclude that the deceased's trip to Beaudesert could properly be found to be an "authorized recess" within the meaning of s.83(1)(a) of the Act, notwithstanding that the trip might have involved an absence from the Shell Roadhouse for three hours. If the deceased was injured while temporarily absent from his place of employment during any authorized recess, his injury was deemed by s.83(1)(a) to arise out of or in the course of his employment for the purposes of s.82. For the reasons given by the President, he was then entitled to compensation.

Accordingly I would dismiss the appeal.

Clissold v. Country Roads
Board [1981] V.R. 259 at 274-5 per Young, C.J.

[2000] VSCA 162

20 September 2000