Whittingham v Commissioner of Railways (WA)

This case concerned an appeal to the High Court of Australia from the Supreme Court of Western Australia. The appellant, Robert Whittingham, sought compensation under the Workers' Compensation Act 1912-1924 (WA) for the loss of an eye sustained when he was struck by a cricket ball during his lunch break. Whittingham was employed as a machinist by the Commissioner of Railways (WA). The accident occurred on a recreation ground owned by the Commissioner and attached to the workshops, where it was customary for employees to play cricket during their lunch interval. The Local Court of Perth had initially awarded compensation, but this decision was overturned by the Full Court of the Supreme Court of Western Australia.

The central legal issue before the High Court was whether the accident, which occurred during the appellant's voluntary lunch break while he was strolling on his employer's recreation ground, arose "out of or in the course of" his employment as defined by section 6 of the Workers' Compensation Act 1912-1924 (WA). This section provided for compensation if an injury by accident arose either "out of" or "in the course of" employment, or whilst the worker was acting under the employer's instructions, a disjunctive formulation differing from the cumulative requirements of the English Act.

A majority of the High Court, comprising Rich, Starke, and Dixon JJ., held that the accident did not arise out of or in the course of Whittingham's employment. Their reasoning focused on the fact that the lunch interval was not considered time worked, and Whittingham was on the premises for his own convenience and pleasure, not performing any duty or engaging in an activity incidental to his service. They applied principles established in cases such as *Pearson v. Fremantle Harbour Trust* and *Charles R. Davidson & Co. v. M'Robb*, emphasizing that the accident must have a sufficient connection to the actual performance of the employee's duties. In contrast, Evatt and McTiernan JJ. dissented. Evatt J. found the accident arose "out of the employment," arguing that the employer's premises had become a place of special danger due to the customary practice of playing cricket, and that the Western Australian Act's disjunctive wording extended coverage to such risks. McTiernan J. concluded the accident arose "in the course of" the employment.

The High Court, by a majority of three to two, dismissed the appeal. The orders of the Supreme Court of Western Australia, which had set aside the award of compensation, were affirmed.