Wheeler v State of South Australia - [2012] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WHEELER v STATE OF SOUTH AUSTRALIA
[2012] SASCFC 111
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Nicholson)
25 September 2012
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - ARISING OUT OF EMPLOYMENT
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - JOURNEY INJURIES - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN ALLOWED TO BE RAISED ON APPEAL - OTHER MATTERS - LEGAL GROUND APPEARING ON EVIDENCE
Appellant succeeded on judicial determination by single member of Tribunal of his claim for compensation - that decision overturned on appeal by Full Bench of Tribunal - appellant now appeals to Full Court of this Court against that decision - appeal to Full Bench and to this Court available only on a question of law.
Whether Full Bench of Tribunal exceeded its jurisdiction by making its own factual determinations - whether, on facts as found at first instance, appellant's claim to be determined by reference to s 30(5) of Workers Rehabilitation and Compensation Act 1986 (SA) - whether s 30(5) constitutes a code in relation to journey injuries - whether now open to respondent to rely upon s 30(5) having previously disclaimed reliance on that provision - whether, on facts as found at first instance, appellant's disability came within s 30(5) - whether, in any event, appellant's disability came within s 30(2).
Held: appeal dismissed - Full Bench of Tribunal did not exceed its jurisdiction and did not make its own factual determinations - appellant's claim is to be determined by reference to s 30(5) - s 30(5) states exhaustively the circumstances in which a journey injury will arise from employment - respondent permitted to rely upon s 30(5) on appeal despite having previously disclaimed reliance on that provision - appellant's disability did not come within s 30(5) - appellant's disability did not come within s 30(2).
Workers Rehabilitation and Compensation Act 1986 (SA) s 30, s 86, s 86A, referred to.
Chadburn v Queen Elizabeth Hospital [1999] SAWCT 47; Connecticut Fire Insurance Co v Kavanagh [1892] AC 473; Coulton v Holcombe (1986) 162 CLR 1; Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529; Patterson v WorkCover Corporation [2007] SAWCT 11; Peet v Workers Rehabilitation and Compensation Corporation (1966) 66 SASR 474; State of South Australia v Brophy (1997) 68 SASR 97; State of South Australia v Wheeler [2012] SAWCT 13; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; TransAdelaide v Karanicos [1996] SASC 5536; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Wheeler v South Australia Police [2011] SAWCT 30, considered.

WHEELER v STATE OF SOUTH AUSTRALIA
[2012] SASCFC 111
Full Court: Sulan, White and Nicholson JJ

SULAN J: I would dismiss the appeal. I agree with the reasons of White J.
WHITE J. The appellant succeeded on a judicial determination by Hannon DP in the Workers Compensation Tribunal of his claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act).[1] That involved a determination that he had, within the meaning of s 30(2) of the WRC Act, sustained a disability arising from his employment on 3 April 2009.
[1] Wheeler v South Australia Police [2011] SAWCT 30.
However, that decision was overturned on appeal by the Full Bench of the Tribunal.[2] The appellant now appeals by permission to this Court against that decision.
[2] State of South Australia v Wheeler [2012] SAWCT 13.
Appeals from a decision of a single presidential member to the Full Bench of the Tribunal, and in turn from the Full Bench of the Tribunal to this Court, lie on a question of law only.[3] The principal contentions of the appellant in this Court were that the Full Bench of the Tribunal erred in various ways in its application of s 30(2) of the WRC Act and exceeded its jurisdiction by making, and giving effect to, its own determination of the factual circumstances relating to his claim. In relation to the latter complaint, the appellant submitted that the Full Bench should have confined its consideration of the question of law raised by the appeal to the factual findings made by Hannon DP.
[3] WRC Act s 86(1) and s 86A(2) respectively.
During the course of the hearing of the appeal, this Court raised a further issue. That was whether, on the facts found by Hannon DP, the appellant’s entitlement was to be determined by reference to s 30(5) of the WRC Act, and not s 30(2), with the effect that his claim should, in any event, have been dismissed. This gave rise to the issue of whether it is now open to the State to rely upon s 30(5) given that it had previously disclaimed reliance on that provision, both in final submissions before Hannon DP and on the appeal to the Full Bench.
For the reasons which follow, I consider that on the factual findings made by Hannon DP, a determination of any entitlement which the appellant may have under s 30(2) cannot be determined without reference to s 30(5). Further, on the basis of those facts, s 30(5) precludes the appellant from having an entitlement to compensation. If it was necessary to do so, I would also conclude that the appellant does not bring his claim within s 30(2).
Statutory Scheme and the Code in s 30(5)
Section 30(1) of the WRC Act provides:
Subject to this Act, an injury is compensable if it arises from employment.
Section 30(2) elaborates on the expression “arises from employment” for the purposes of s 30(1).
(2)     Subject to this section, an injury arises from employment if—
(a)     in the case of an injury that is not a secondary injury or a disease—it arises out of or in the course of employment; or
(b)     in the case of an injury that is a secondary injury or a disease—
(i)    the injury arises out of employment; or
(ii)the injury arises in the course of employment and the employment contributed to the injury.
Subsection (4) qualifies the expression “arises from employment” in relation to disabilities arising from a worker’s involvement in a social or sporting activity.
(4)However, an injury does not arise from employment if it arises out of, or in the course of, the worker's involvement in a social or sporting activity, except where the activity forms part of the worker's employment or is undertaken at the direction or request of the employer.
Subsections (5) to (7) qualify the expression still further in relation to disabilities arising out of or in the course of a journey.
(5)An injury that arises out of, or in the course of, a journey arises from employment only if—
(a)     the journey is undertaken in the course of carrying out duties of employment; or
(b)     the journey is between—
(i)    the worker's place of residence and place of employment; or
(ii)    the worker's place of residence or place of employment and—
(A)an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; or
(B)a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable injury,
and there is a real and substantial connection between the employment and the accident out of which the injury arises.
(6)However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).
(7)The journey between places mentioned in subsection (5)(b) must be a journey by a reasonably direct route but may include an interruption or deviation if it is not, in the circumstances of the case, substantial, and does not materially increase the risk of injury to the worker.
It is convenient to use the shorthand “journey injury” to refer to the disabilities to which subss (5) to (7) refer.
As can be seen, s 30(5) provides that a journey injury arises from employment only if the circumstances satisfy at least one of two alternatives. First, the journey must have been undertaken in the course of carrying out “duties of employment” (subs (5)(a)). Alternatively, the journey must have been between the particular places referred to in subs (5)(b) and, in such cases, there must be a “real and substantial connection between the employment and the accident out of which the injury arises”.
Subsection (6) qualifies the circumstances in which there may be a sufficient connection between the accident and the employment for the purposes of subs (5)(b). The word “journey” is not defined in the WRC Act, but subs (7) qualifies the range of journeys to which subs (5) refers.
Section 30(2), upon which the appellant relied in the Tribunal and in this Court, commences with the words “Subject to this section”. Those words indicate that the subsection is to be construed in the context of s 30 as a whole. They also suggest a legislative intention that any provision in s 30 which is inconsistent with subs (2) should prevail.
Looked at broadly, s 30(2) can be seen to be a provision of general application, that is, as specifying in a general way the circumstances in which a disability will be regarded as arising from employment for the purposes of the WRC Act. Subsection (5) on the other hand, is a provision of more specific application as it is concerned with particular disabilities only, that is, those arising out of, or in the course of, a journey. Its specific (and limiting) effect is indicated by the use of the words “only if”.
Subsections 30(2) and 30(5) have, for material purposes, been in their present form since 1994. This Court has previously considered the inter‑relationship between the two provisions. In TransAdelaide v Karanicos,[4] Doyle CJ (with whom Millhouse and Williams JJ agreed) compared s 30 with its form before 1994 and continued:
It is quite clear that the intention behind the new section 30 was to narrow the scope of what is a compensable disability. In particular, Parliament chose to take a more restrictive approach than had previously been taken to the well known concept of a journey injury. Under the previous section 30 a disability was compensable if, among other things, it arose in the course of a journey between the worker’s residence and place of employment. A disability was also compensable if it arose in the course of a journey between the worker’s residence or place of employment and a place which the worker was attending for purposes similar to those identified now in section 30(5)(b)(ii).
In the previous section 30 there was no provision requiring “a real and substantial connection between the employment and the accident out of which the disability arises” and no provision equivalent to subsections (6) and (7). Under the previous section 30 if a disability was suffered in the course of a relevant journey, that would suffice to make it compensable.
The amendment is to be approached on the basis that it was Parliament’s intention to restrict the scope of the employment of a worker.[5]
[4] [1996] SASC 5536.
[5] Ibid at [5]-[7].
Doyle CJ turned to the inter‑relationship between subsections (2) and (5) later in his reasons.
Parliament has now chosen to make separate and varied provision in relation to journeys, and those provisions are found in subsections (5), (6) and (7). I have already commented on the obviously more restrictive features of the new provisions.
At the outset it is necessary to consider the relationship between subsection (2) and subsection (5). I incline to the view that subsection (5) is now to be treated as an exception to subsection (2), and to the view that subsection (5) deals exclusively with journeys. I say this for two reasons. First, it is not easy to read subsection (5)(a) as wider in its reach than subsection (2)(a). “Duties of employment” seems to be, if anything, a narrower expression than “in the course of employment”. It is not easy to see why Parliament would have added a narrower alternative to subsection (2)(a). Secondly, it should be noted that subsection (2) now, and for the first time, begins with the words “subject to this section”. The obvious explanation for the introduction of those words is that subsection (5) is a qualification on subsection (2), and that if a journey is involved one must turn to subsection (5).[6]
As can be seen, Doyle CJ preferred the view that subs (5) deals exclusively with journeys. However, ultimately he did not consider it necessary to decide the issue conclusively. He was prepared to leave open, at least as a theoretic possibility, that there may be some disabilities that would not come within subs (5) but which may come within subs (2).
[6] Ibid at [19]-[20].
The inter‑relationship between the two provisions was considered again in State of South Australia v Brophy.[7] Doyle CJ (with whom Bollen and Duggan JJ agreed) said that subs (5) should “probably” be regarded as an exclusive code in relation to disabilities arising out of, or in the course of, a journey:
There is also reason to think that subs (5) is intended as an exclusive code in relation to a disability that arises out of or in the course of a journey. This is suggested by the opening provision of that subsection, and by the fact that subs (2) now begins with the words “Subject to this section”.[8]
[7] (1997) 68 SASR 97.
[8] Ibid at 101.
Doyle CJ concluded, on the basis of the facts as found in the Tribunal, that Mr Brophy could not bring himself within subs (5) and continued:
That leaves the question of whether, in the alternative, the worker can rely upon the provisions of s 30(2)(a). I remain of the view that I expressed in Karanicos, that subs (5) is probably intended to deal exhaustively with the disability that arises out of or in the course of a journey, and is intended to exclude reliance upon subs (2)(a). However, it is again unnecessary to decide that point because, in my opinion, on the facts of this case it could not in any event be said that the disability arose out of or in the course of employment. …
If I am wrong in that, I would if necessary hold that subs (5) is intended to be a code relating to journey injuries, and that the worker cannot resort to subs (2)(a). However, because I do not consider it necessary to so hold, as I have already said, I refrain from saying anything more about that.[9]
[9] Ibid at 104-5.
As can be seen, Doyle CJ used the word “code” to indicate the effect of s 30 in stating exhaustively the circumstances in which a journey injury will be compensable. I will use the word in the same sense.
Although ultimately Doyle CJ did not express a concluded position, his view about the proper inter‑relationship between subss (2) and (5) should be regarded as carrying considerable weight. I note that in several of its decisions, the Tribunal has acted on the basis that s 30(5) constitutes a code in relation to journey injuries.[10]
[10] For example, Chadburn v Queen Elizabeth Hospital [1999] SAWCT 47; Patterson v WorkCover Corporation [2007] SAWCT 11 at [32].
In the present appeal, counsel for the appellant acknowledged the difficulty in raising “a sensible argument” against the proposition that s 30(5) is a code in relation to journey injuries. In my respectful opinion, that was an appropriate concession. As already noted, subs (5) is a provision of specific application whereas subs (2) is of general application; subs (2) commences with the words “subject to this section”; and the limiting nature of subs (5) is indicated by the use of the words “only if”.
Accordingly, I would hold that subss (5)-(7) do state exhaustively the circumstances in which injuries arising out of, or in the course of, a journey may be held to arise from employment.
The Circumstances Giving Rise to the Claim
There was little dispute in the judicial determination proceedings at first instance as to the circumstances in which the appellant sustained his disability on 3 April 2009.
The appellant is a police officer. As part of his employment, he participated as an instructor in a training course conducted by the National Counter Terrorism Committee (NCTC) in Mount Isa from Monday 30 March to Friday 3 April 2009. The appellant travelled to Mount Isa on Saturday, 28 March and planned to leave on Saturday, 4 April.
The appellant and the other course participants stayed at the Outback Motel, Mount Isa. On the first four days of the course (Monday to Thursday) they left the motel at around 7.00 am and travelled by bus to the various venues at which the course was conducted. They would return by bus at around 4.00 or 5.00 pm.
On Friday, 3 April, the arrangements were a little different. The course participants left the motel at about 7.00 am and returned at about 2.00 pm. After a short period they were then conveyed by bus to the Mount Isa Police Station for a debriefing session. Attendance at the debriefing session was compulsory for all participants and instructors.
The debriefing session commenced at 3.30 pm and continued for about an hour. At its conclusion, the course was officially closed and the students were free to leave. However, they all moved to the Mount Isa Police Social Club (the Club) located in an adjacent building.
The course instructors, including the appellant, then conducted a further debriefing session. The second debriefing session concluded no later than 5.30 pm.
All the instructors then went to the Club and socialised with the students. Hannon DP accepted that the socialising took place in accordance with arrangements made by the NCTC and in accordance with the usual practice at the conclusion of a NCTC course. Some food was provided at the expense of the Mount Isa Police and participants bought their own drinks.
Neither the appellant nor any other course participant was required to attend this gathering and each could have left at the end of the respective debriefing sessions. Nevertheless, there was some informal or tacit understanding that participants would attend the social gathering as part of the building of relationships, for some more informal debriefing, and for general networking.
From about 7.30 pm, various participants left the Club as they wished: some to meet travel commitments and some to engage in social activities elsewhere. Some, including the appellant, stayed at the Club until about 11.00 pm. During this time the appellant consumed some food and drank six to eight mid‑strength beers.
The appellant left the Club in the company of two other instructors, Messrs Quigg and Blunn, and some others. Instead of walking directly to the motel, they went to buy some pizza, which involved a deviation of some two blocks from a direct route.
However, the group walked past the pizza bar, which was their intended destination, and went on a further block or so to the Carpentaria Buffalo Club (the Carpentaria Club). Some of the group went into the Carpentaria Club but the appellant did not. After some discussion, he and Messrs Quigg and Blunn retraced their steps to the pizza bar. Their intention was to buy some pizza and then return to the motel.
Mr Blunn entered the pizza bar while the appellant and Mr Quigg remained outside. While they were waiting, a verbal altercation developed between two other persons near the pizza bar. What followed is a little unclear, but when Mr Blunn emerged with the pizza, one of these persons kicked the box from his hands. The appellant then made some comment which attracted attention to him. It appears that the second participant in the altercation then struck the appellant with some force to the back of his head, rendering him unconscious. These injuries gave rise to his compensation claim.
The Decision of Hannon DP

For reasons to be outlined shortly, Hannon DP considered the worker’s claim by reference to s 30(2) and (4). He rejected the appellant’s claim that he had been engaged in one period or episode of work throughout the whole of his time in Mount Isa.[11]
[11] [2011] SAWCT 30 at [42].
Hannon DP considered that the appellant’s daily periods of work between Monday and Thursday had comprised the whole of the time between his leaving of the motel at about 7.00 am until his return at about 4.00 or 5.00 pm.[12] He then reasoned that the work period on Friday 3 April should be characterised in the same way, with the effect that the appellant would not have completed his daily period of work until he had returned to the motel in the way that he had planned at the time of the assault, sometime after 11.00 pm. Hannon DP’s reasoning appears in the following passages:
[50]… The characterisation of the daily periods of work as encompassing each day of the worker’s participation in the NCTC course from the time of leaving the accommodation for training activities until the return from those activities to the accommodation after completion of work related activities for the day applies also to the employment on Friday 3 April 2009, despite the difference in the routine.
[51]… A liberal and practical approach requires that the collective nature of the participation in the NCTC course by the worker and others be recognised. Members of the course were transported to a remote regional centre. They were allocated the same accommodation. They travelled together to and from training venues. In the circumstances, the entire activity of the worker between the daily departure from and return to the common accommodation is properly characterised as activity in the course of employment. The variation in routine on Friday 3 April 2009 was not such as to break the connection between the employment and the activity of returning to the accommodation, particularly given that this activity was necessitated by the NCTC having transported the worker away from his accommodation at the conclusion of the training activities in order to participate in the debrief without making arrangements for his return.
[52]My conclusion that the journey back to the accommodation on 3 April 2009 was an activity in the course of employment is not premised upon a finding that the worker’s attendance at the social function was an activity in the course of his employment, or that it was undertaken pursuant to an express or implied expectation held either by the NCTC or SA Police. … I find [the worker’s attendance at the social function] can properly be characterised as an interlude or interval in the course of the daily period of work. The disability did not occur during that interlude or interval, but after the worker had embarked upon the activity of returning to his accommodation.
[53]In this context, I do not consider that it makes any difference that the worker’s departure for the motel was delayed for a substantial period of time by his attendance at the social event. Whilst it delayed the worker’s return, it had no influence on the events which occurred, apart from giving rise to the making of a relatively insignificant deviation from a direct route back to the accommodation in order to purchase pizza.
[12] Ibid at [43].
Thus, Hannon DP concluded that there was “a sufficient link” between the worker’s return journey to the motel and his employment so that the disability could be regarded as having arisen in the course of his employment or in the course of an activity sufficiently incidental to the employment.[13]
[13] Ibid at [55].
In relation to s 30(4), Hannon DP concluded that the appellant’s activity in “returning to [his] accommodation was not a “social activity” within the meaning of s 30(4)”.[14] Accordingly, Hannon DP upheld the application for judicial determination.
[14] Ibid at [57].
However, Hannon DP made in addition a number of findings to the effect that the appellant was engaged in a journey at the time of the assault. Those findings appear in the following passages:
[52]My conclusion that the journey back to the accommodation on 3 April 2009 was an activity in the course of employment is not premised upon …
[53]… The essential nature of the activity remained a journey back to the accommodation. …
[54]… The existence of a link between the social event and the worker’s employment is not necessary for the conclusion that the journey back to the accommodation on 3 April 2009 was an activity in the course of employment.
[54]… [H]is participation at the event, in a building adjacent to the site of the debrief, and in the ongoing company of course participants, was the main factor responsible for the delay in his return journey to the accommodation.
[55]Accordingly I find there is a sufficient link between the worker’s return journey to his temporary accommodation and his employment ….
(Emphasis added)
These passages indicate clearly a factual finding by Hannon DP that the appellant was at the relevant time engaged in a journey from the Club to the motel. His disability occurred in the course of that journey. Given these findings, the worker’s entitlement to compensation was to be assessed by reference to s 30(5)-(7), and not by reference to s 30(2) or s 30(4).
Hannon DP’s omission to address s 30(5) is explained by the express disclaimer, during the closing submissions of counsel then appearing for the State, of reliance on that provision. This was despite the fact that the application of s 30(5) had been identified by the parties in a document entitled “Agreed Statement of Issues” as an issue for determination by the Tribunal. Further, in his opening submissions, counsel for the State had confirmed that s 30(5) “remains alive”.[15]
[15] T.3.
For reasons which have not been explained, counsel for the State informed Hannon DP in his final submissions that s 30(5) “is not pursued by either party as being part of this case”[16] and that “s 30(5) does not form part of this dispute”.[17] In consequence of those statements, Hannon DP addressed the circumstances of the appellant’s claim by reference to s 30(2) and s 30(4) only.
[16] T.53.
[17] T.62.
Appeal to the Full Bench of the Tribunal
The notice of appeal to the Full Bench filed by the State asserted that Hannon DP had erred in law in two respects. The second concerned the finding that the worker was not engaged in a “social activity” within the meaning of s 30(4), and can be put to one side for present purposes. The first complained of Hannon DP’s failure to apply s 30(5):
The learned Trial Judge erred in law in that:
(i)having found that the worker’s disability [arose] out of, or in the course of a journey, he then failed to apply, or failed to correctly apply, the provisions of Section 30(5) of the Workers Rehabilitation and Compensation Act, 1986.
Given the State’s express statements to Hannon DP that it did not rely upon s 30(5), the inclusion of this ground of appeal is a cause of some surprise. Counsel for the State before the Full Bench recognised that this was so. He sought and obtained permission from the Full Bench to delete this ground and to substitute:
The learned Trial Judge erred in law in that in finding that the worker’s disability occurred in the course of the journey, he failed to apply or failed to correctly apply Section 30(2) of the Workers Rehabilitation and Compensation Act.[18]
[18] As it happens, the State has never acted on that grant of permission by filing an amended notice of appeal containing the revised ground, but nothing turns on that presently.
In my respectful opinion, a ground of appeal in these terms contains some shortcomings. As noted earlier, s 86(1) of the WRC Act provides that an appeal lies to the Full Bench against a decision of a single presidential member on a question of law only. The appellate jurisdiction of the Full Bench of the Tribunal is accordingly limited to appeals of that kind. That being so, it is appropriate that notices of appeal identify the question of law sought to be agitated on the appeal. That is necessary in order to give both the Tribunal and the respondent proper notice of the matter to be argued and to allow them to consider whether the appellate jurisdiction of the Full Bench has been properly invoked.
The amended ground of appeal in this case alleged an error by Hannon DP in his application of s 30(2) but did not particularise the alleged error. It was an assertion of error without identification of the error asserted. Because of this, the amended ground did not provide proper notice to the Full Bench or to the present appellant of the matter to be agitated.
However, counsel for the State before the Full Bench submitted that the ground was intended to raise the question of “whether the facts [found] by the learned Trial Judge in relation to the journey bring the case within s 30(2) of the Act properly construed”.[19] A question in those terms is a question of law[20] and it seems that the appeal hearing before the Full Bench proceeded on that basis.
[19] Full Bench Appeal Transcript, p3.
[20] Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474.
In addressing that question, the Full Bench reasoned as follows:
[18]The assault cannot be regarded as having occurred during a break in the respondent’s working day.
[19]At the time of the assault, the respondent’s duties had ended several hours before. He had no further obligations as an instructor to SAPOL or NCTC. When he was walking to his motel he was not doing anything connected with his work as a police officer or as an instructor.
[20]Unlike the situation when the respondent was being transported with other instructors and participants in the course when it might be assumed that he was under some level of control by his putative employer, that was not the case when he embarked upon the journey from the Mt Isa Police Social Club to his motel. The respondent was free to choose when, how and with whom he was to travel to his motel.
[21]In undertaking the journey to his motel, the respondent had “assumed the same relation to his employer’s premises and work as an ordinary member of the public.[21]
(Footnotes omitted) (Emphasis added)
On that view of the matter the Full Bench concluded in the following passages that the incident in which the appellant was assaulted did not have any connection with his work or employment such that it could be said to have occurred in the course of his employment:
[23]… But for the fact that the respondent needed to get back to his accommodation at some point in time after the conclusion of the conference because of his participation in the debriefing exercise on the afternoon of 3 April there was no connection between the incident giving rise to the respondent’s injuries and his duties of employment.
[24]Accordingly, in our view, the only conclusion of law open on the facts was that the circumstances of the respondent’s injuries did not arise out of or in the course of his employment with the employer.[22]
[21] State of South Australia v Wheeler [2012] SAWCT 13.
[22] Ibid.
The Full Bench went on to express agreement with the conclusion of Hannon DP regarding the application of s 30(4). However, by reason of its conclusion concerning s 30(2), it allowed the appeal and made an order confirming the State’s rejection of the appellant’s claim.
The passages which I have emphasised in the reasons of the Full Bench indicate that it too regarded the appellant as being engaged in a journey at the time of the assault.
The State’s Present Reliance on s 30(5)
Generally, appellate courts are reluctant to permit new points to be taken on appeal. Other than in exceptional circumstances, litigants are not permitted to raise for the first time on appeal a matter which, had it been taken at first instance, could have been met by further evidence.[23] However, when the issue raised for the first time on appeal is one of law, and it is plain that the other party could not have adduced any further evidence relating to the matter had the point been taken in the court below, the issue may, and often will, be considered. Lord Watson stated the position in this respect in Connecticut Fire Insurance Co v Kavanagh:[24]
When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below. But their Lordships have no hesitation in holding that the course ought not, in any case, to be followed, unless the Court is satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea.[25]
The High Court referred to this passage with approval in Suttor v Gundowda Pty Ltd.[26]
[23] Coulton v Holcombe (1986) 162 CLR 1 at 7-8.
[24] [1892] AC 473.
[25] Ibid at 480.
[26] (1950) 81 CLR 418 at 438. See also Coulton v Holcombe (1986) 162 CLR 1 at 8.
In the present case, the application of s 30(5) was a live issue in the judicial determination proceedings before Hannon DP until the closing submissions made by counsel for the State. This suggests that the parties led all the evidence bearing on the issue which was available to them. Counsel for the appellant acknowledged, quite fairly, during the submissions in this Court that no further evidence could have been led.
These circumstances do not necessarily mean that this Court should now determine the appeal by reference to s 30(5). That is especially so given the State’s express disclaimer in the Tribunal of reliance on s 30(5). As the High Court observed in University of Wollongong v Metwally (No 2),[27] parties should, other than in unusual circumstances, be bound by their conduct at trial:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.[28]
However, this appeal has one further feature which, to my mind, makes it appropriate for the Court to entertain the submissions concerning s 30(5). That is that it is not possible to apply s 30(2) to the facts as found by Hannon DP without regard to the other provisions in s 30. That is because s 30(2) is expressly made subject to the other provisions in s 30. This being so, it is appropriate for this Court to consider the belated submissions made by the State concerning s 30(5).
[27] (1985) 59 ALJR 481.
[28] Ibid at 483.
Was the Appellant Carrying Out Duties of his Employment?
As previously noted, the effect of the findings made by Hannon DP is that the worker’s disability arose out of, or in the course of, a journey between the Club, on the one hand, and the Outback Motel, on the other. The latter was the appellant’s temporary place of residence while in Mount Isa.
The appellant did not contend that the journey was one to which s 30(5)(b) could apply. No doubt this was because of the difficulty in showing “a real and substantial connection” between his employment and the incident out of which his disability arose.
The appellant submitted instead that, at the relevant time, he was undertaking a journey between the Club and the motel in the course of carrying out duties of employment and therefore that subs (5)(a) was applicable. He submitted that he was subject to an implied obligation to use the Outback Motel for accommodation while in Mount Isa and accordingly that his activity in returning to the motel was part of the discharge of that duty.
As Doyle CJ observed in TransAdelaide v Karanicos,[29] the expression “duties of employment” in subs (5)(a) is a narrower concept than the expression “in the course of employment”.[30] Doyle CJ went on to say:
[I]t seems to me that the focus of the expression “duties of employment” as a matter of ordinary language is a reference to the carrying out of tasks under a contract of employment or the performance of an activity which is related to that which the worker was employed to do. This is by no means a precise test, and has to be applied in a commonsense and practical manner. But to my mind the ordinary meaning of the language suggests that it requires an affirmative answer to the question of whether one would say that in undertaking the journey the worker was performing the worker’s job, complying with an instruction from the employer given by the employer in the exercise of its control as employer, or doing something reasonably incidental to one of those things. It is also necessary to view the journey in context. By that I mean that one should not look at the journey in isolation but should consider what preceded it and what was going to follow it. Sometimes the link between the journey and the employment would only emerge when the journey was seen in context.[31]
[29] [1996] SASC 5536.
[30] Ibid at [20].
[31] Ibid at [23].
Thus, the concept of carrying out duties of employment has at its heart the doing of something which workers may be required to do, either because it is the activity for which they are employed, or because it is within the power of control of an employer to direct that it be done. In addition, a journey which is reasonably incidental to one or other of these circumstances may amount to the carrying out of a duty of employment.
On the findings made by Hannon DP it is difficult to conclude that the appellant’s journey answers any of these descriptions. It cannot be said that the appellant was carrying out a duty of his employment in the sense of engaging in an activity for which he was employed. Persons employed as drivers, couriers, district nurses or commercial travellers will undertake a journey in order to carry out employment duties of this kind, but the worker’s journey cannot be sensibly characterised in the same way.
Counsel did not contend that the appellant’s duty to return to the motel arose from an express obligation imposed by the Commissioner of Police or the NCTC. He submitted that it was to be implied from the circumstances. There is a difficulty in such a characterisation. The appellant did not commence the journey until well after he had completed his employment activities for the day and until well after he became free to use his time as he wished.
Even if that circumstance is ignored, it is difficult to distinguish the appellant’s journey from the Club to the motel from the journeys undertaken by all workers who reside separately from their place of work. The fact that the motel, being the appellant’s temporary place of residence, was provided at the expense of the South Australian Police or the NCTC does distinguish the present circumstances from many cases. However the supply of that accommodation cannot reasonably be understood as carrying with it an implicit direction that it had to be used by the appellant, even after the conclusion of the course with the effect that the appellant was to undertake the journey from the Club to the motel. There was no doubt an expectation that the appellant would make use of the accommodation which had been supplied but, in my opinion, it is not open to infer from that expectation that the journey commenced by the appellant at about 11.00 pm on 3 April was undertaken pursuant to some implied direction of his employer. There was no suggestion that the appellant was to carry out any further employment duty or function at the motel. At the time of commencing the journey the appellant was free to move as he chose. He exercised that freedom by going first to the Carpentaria Club before returning to the pizza bar.

Accordingly, on the facts found by Hannon DP the appellant’s disability did not arise from his employment as it did not come within s 30(5).
This is sufficient to indicate that the appeal should be dismissed.
The Application of s 30(2)
In case my conclusion about the effect of subs (5) in s 30 is incorrect, it is appropriate to address briefly the submissions concerning s 30(2). This requires the Court, for this purpose, to ignore the provisions in subs (5)-(7).
The appellant’s submission in short was that the Full Bench did not identify in its reasons the question of law on which its appellate jurisdiction under s 86(1) depended, and that it had failed to limit its consideration to that question. It had instead made and relied upon its own factual findings. The appellant also contended that the Full Bench had been wrong in concluding that his disability did not arise out of or in the course of his employment for the purposes of s 30(2).
In my respectful opinion, the submission that the Full Bench did not identify the question of law for its determination should be rejected. It is implicit in [15] of the reasons of the Full Bench that it considered that the issue for determination was that of whether, on the facts found by Hannon DP, the appellant’s disability had arisen out of, or in the course of, his employment. This was the issue identified by counsel for the State when seeking permission to amend the grounds of appeal to which I referred earlier in these reasons. The Full Bench was correct in characterising that question as one of law.[32]
[32] Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474 at 475.
The factual findings said to have been made by the Full Bench are those set out in [18]-[21] of its reasons, reproduced earlier in these reasons. In my opinion, those passages should not be characterised as containing new or independent factual findings. Instead, they are a recitation of particular matters which had, expressly or implicitly, been found by Hannon DP and which the Full Bench considered pertinent to the resolution of the question of law.
Next, the appellant emphasised the conclusion of Hannon DP that the whole of his activity between departing from and returning to the motel was “properly characterised as activity in the course of employment”.[33] He submitted that this was a factual finding which could not be sidestepped by the Full Bench. In my respectful opinion, this part of the reasons of Hannon DP should not be understood as a factual finding. It was in the nature of a step in the reasoning of Hannon DP from his findings of fact about the appellant’s activities on 3 April to the conclusion that the disability arose out of or in the course of the employment. That step involved an amalgam of factual and legal conclusions, the latter comprising Hannon DP’s conclusions about the appellant’s duties and the course of his employment. The Full Bench was not required to treat this step in the reasoning process as a factual finding which it was bound to act upon in the determination of the question of law raised on the appeal.
[33] [2011] SAWCT 30 at [51].
Finally, the appellant submitted that his return to the motel was incidental to his employment activities. Accordingly, it could be said that his disability arose out of, or in the course of, his employment and the Full Bench had erred in law in concluding otherwise.
The parties were in agreement as to the relevant principle relating to this issue. They referred to a passage from the judgment of Barwick CJ in Danvers v Commissioner for Railways (NSW):[34]
It has become apparent in Australia that what is in the course of an employment cannot be limited to what the employee is by the terms of his engagement express or implied contractually bound to do. … The course of an employment, to use the language of Dixon J in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at pp 293, 294, includes the doing of “whatever is incidental to the performance of the work” and will include what he “is reasonably required, expected or authorised to do in order to carry out his actual duties”. Thus it may include being at a place at which the workman’s presence “is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment”. In applying such a statement of the facts and circumstances of a particular case, its elements, in my opinion, should be applied liberally and practically.[35]
[34] (1969) 122 CLR 529.
[35] Ibid at 536.
There is a well recognised sense in which the journeys of workers between their places of residence and place of work may be regarded as incidental to the performance of their employment. However, in the present case, the appellant’s work activities had ceased several hours before he commenced the journey. The appellant had been free to leave at the earliest at about 5.30 pm, but even if one allowed a reasonable period for socialisation, he had been free to leave the Club by 6.30-7.00 pm. The Full Bench was correct in reasoning that by the time of the journey, the appellant had no further obligation as an instructor in the NCTC course and that in undertaking the journey he was not doing anything connected with his work as a police officer or as an instructor. The appellant was undertaking the journey in his own time and, further, at a time when he had freedom of movement.
In these circumstances, in my respectful opinion, the Full Bench was correct to conclude that the appellant’s disability did not arise out of or in the course of his employment.
Conclusion
For the reasons given above, I would dismiss the appeal.
This makes it unnecessary to consider the State’s notice of contention that the appellant’s disability did not arise from his employment by reason of s 30(4) of the WRC Act.
NICHOLSON J. I would dismiss the appeal and agree with the reasons of White J.