WorkCover Authority of NSW v Walsh - [2004] NSWCA 186

NEW SOUTH WALES COURT OF APPEAL

CITATION: Workcover Authority of NSW v Walsh [2004] NSWCA 186 revised - 22/06/2004

FILE NUMBER(S):
40674/03

HEARING DATE(S): 25 May 2004

JUDGMENT DATE: 22/06/2004

PARTIES:
Workcover Authority of New South Wales
Timothy John Walsh

JUDGMENT OF: Hodgson JA Tobias JA McClellan AJA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): CC 39457/01

LOWER COURT JUDICIAL OFFICER: Ashford CCJ

COUNSEL:
A: A S Campbell SC / S M Harris
1R: D Roberts SC / S Meehan
2R: No appearance
3R: P Strain

SOLICITORS:
A: Workcover Authority of NSW
1R: Commins Hendriks, Wagga Wagga
2R: Wagga Distribution Centre
3R: Sheekey Williams, Wagga Wagga
4R: Walsh & Blair, Wagga Wagga

CATCHWORDS:
Workers Compensation - Appeal in point of law - Course of employment - Whether outside - Periods of work - Interlude or interval - Gross misconduct - Illicit drug use - Intentional self-inflicted injury - Substantial contributing factor - Truck driving - Rest break - ss 4, 9, 9A, 14 Workers' Compensation Act 1987 (NSW)

LEGISLATION CITED:
Compensation Court Act 1984 (NSW)
Workers Compensation Act 1949 (NT)
Workers' Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40674/03
CC 39457/01
HODGSON JA
TOBIAS JA
McCLELLAN AJA
Tuesday 22 June 2004

WORKCOVER AUTHORITY OF NEW SOUTH WALES v WALSH & ORS

This was an appeal in point of law brought by the Workcover Authority, with the uninsured employer and various dependants of a deceased worker as respondents.

During a break at a Marulan truck stop the deceased, an employed truck driver travelling back to Wagga from Sydney, ingested methamphetamine to keep him awake for the remainder of his journey. He died at the same location after suffering a cardiac arrhythmia which was in part precipitated by the methamphetamine, a drug he had been using for a long time. It was revealed that his work, in particular in the 24 hours leading up to his death, involved driving for long periods of time with little rest or sleep.

A successful claim for worker’s compensation was brought pursuant to the Workers’ Compensation Act 1987. The Act relevantly provided that an injured worker would be compensated by an employer for an injury (s 9), where ‘injury’ referred to a personal injury arising out of, or in the course of, employment (s 4). However, no compensation was payable unless the employment was a substantial contributing factor to the injury (s 9A). Further, no compensation was payable in respect of an intentional self-inflicted injury (s 14(3)). Section 14(2) provided that if the injury was solely attributable to the wilful and serious misconduct of the worker, then no compensation was payable unless death or permanent injury ensued.

On appeal three arguments were advanced. Firstly, that the primary judge erred in finding that the deceased was still in the course of employment when he ingested the amphetamine. Secondly, that the primary judge erred in finding that s 14(3) had no application: it was said to have been obvious that s14(3) applied as the act of ingesting the drugs was an intentionally self-inflicted injury. Thirdly, that the deceased’s employment ought not to have been considered a substantial contributing factor to the injury.

Held (dismissing the appeal):

Per Tobias JA with Hodgson JA substantially agreeing and with McClellan A-JA substantially agreeing with Tobias JA and agreeing with Hodgson JA:

Section 14(2) neutralised the deceased’s gross misconduct and any effect it may have had in taking him beyond the course of his employment. (Higgins v Galibal Pty Limited (1998) 17 NSWCCR 106, applied; Pollack v Stickfast Labels Pty Limited (in liq) (2002) 24 NSWCCR 279, distinguished; Dew v Maher (1996) 14 NSW CCR 56; Tiver Constructions Pty Limited v Clair (1992) 110 FLR 239; Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473; Humphrey Earl Limited v Speechley (1951) 84 CLR 126, considered).

Misconduct, so as to take an employee outside the scope of their employment must in all the circumstances be foreign or repugnant to the employment.
The ingesting of amphetamine was not, in the circumstances, misconduct sufficient to take the deceased beyond the course of his employment when consideration was had to the fact that the drug was taken to keep him awake for the remainder of his journey and that the undertaking of his employment had resulted in him having had little sleep. (Pollack v Stickfast Labels Pty Limited (in liq) (2002) 24 NSWCCR 279, distinguished.)
In any event, the primary judge’s finding that he was not outside the course of his employment was a finding of fact and thus non-appealable.
An injury can only occur if it causes a physiological or pathological change and/or disturbance to the normal physiological or pathological state.
Further, as the word ‘intentional’ governs ‘injury’ and not ‘self-inflicting’ in s 14(3), to satisfy the subsection there must be an intention to injure in the sense that the evidence establishes that there was no other reasonable intention besides self-destruction. In the present case the deceased did not intend to inflict any form of harm on himself. (Laing v Fridgmobiles of Australia Limited (1979) 53 WCR 116, considered)

The relevant injury was cardiac arrhythmia. This was a finding of fact that was not appealable. (Manningv New South Wales Sugar Mining Co-operative Limited (2003) 25 NSWCCR at 557, distinguished)

The phrase ‘employment concerned’ in s 9A refers to what the worker was doing in his employment and not the fact of being employed. (Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740; Dayton v Coles Supermarkets Pty Limited (2001) 21 NSWCCR 46)
It was open for the primary judge to find that the deceased’s employment, in particular the requirement that he drive long hours, was a substantial contributing factor. This finding was based upon both objective and subjective factors. Further, it is a non-appealable finding of fact.

Per Hodgson JA:

The primary judge made no error of law in holding that the deceased was in the course of his employment at the time of his death.
Where cardiac arrhythmia involves a sudden pathological change caused by toxicity, then that sudden pathological change is an injury within the meaning of the Act.

Section 14(3) does not apply where an objectively harmful act to oneself is done intentionally but without advertence to, or wish for, its injurious effect.

The question of whether employment is a substantial contributing factor is one of fact, and where the contribution is by way of a belief of the worker there is no additional requirement that the belief must be reasonable.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40674/03
CC 39457/01
HODGSON JA
TOBIAS JA
McCLELLAN AJA
Tuesday 22 June 2004

WORKCOVER AUTHORITY OF NEW SOUTH WALES v WALSH & ORS

Judgment

HODGSON JA: I agree with the orders proposed by Tobias JA, and substantially with his reasons.
In my opinion, whether or not the deceased is considered, as at the time of his death, as having been in an interval between occasions of performing employment duties, or as having been actually performing such duties, the primary judge made no error of law in holding that the deceased was then in the course of his employment. Even if the deceased’s injury was solely attributable to his serious and wilful misconduct, s.14(2) of the Workers’ Compensation Act 1987 (the Act) does not defeat his claim, because this was a case where the injury resulted in death; and in my opinion, the ingestion of amphetamines was not otherwise so foreign to the deceased’s employment duties as to take him out of the course of employment.
In my opinion, where cardiac arrhythmia involves a sudden pathological change caused by toxicity, that sudden pathological change is an injury within the meaning of the Act. It is otherwise where cardiac arrhythmia develops gradually from an underlying condition which is not work-related. In this case, the cardiac arrhythmia was not an intentional self-inflicted injury within s.14(3) of the Act. That still leaves open a possibility that the death was indirectly caused by a different injury, namely the ingestion of a toxic substance; so that if that had been an intentional self-inflicted injury, s.14(3) might apply to defeat the claim. However, in my opinion s.14(3) does not apply where an objectively harmful act to oneself is done intentionally but without advertence to or wish for its injurious effect: that is, it applies only where injury is intended in its character as an injury. It was certainly not shown by the appellant that the deceased intended to injure himself in this sense.
On the question of whether the employment was a substantial contributing factor to the injury, it was submitted that it was insufficient that the deceased believed the conduct in question would assist him to perform his duties, where objectively the conduct would be detrimental to that performance: the ingestion of the amphetamines was a harmful activity, which the worker could have engaged in at any time; and any belief of the worker that this had some connection with his work or would help in the performance of his duties was objectively unreasonable.
In my opinion, the question of whether employment is a substantial contributing factor is one of fact; and where the contribution is by way of a belief of the worker, there is no additional requirement that this belief must be reasonable. There was no error of law by the primary judge in making the relevant finding of fact.
TOBIAS JA: Timothy John Walsh (the deceased) died on 16 March 2000. He was survived by his widow, Susan Lee Margaret Walsh (the first respondent) who had had five children, all of whom were wholly dependant upon the deceased; Joanne Harrison (the third respondent) with whom he had five children, all of whom were wholly dependant upon him; and Margaret Hammon (the fourth respondent) with whom he had one child who was also wholly dependant upon him.
Ron Turnbull, trading as the Wagga Distribution Centre (the second respondent), employed the deceased as a truck driver from about October 1999 until the time of his death. At all material times the second respondent was uninsured.
The first respondent on behalf of herself and her five children, the third respondent on behalf of her five children and the fourth respondent on behalf of her child (together referred to as "the applicants") commenced proceedings in the Compensation Court of New South Wales seeking compensation in respect of the deceased's death pursuant to ss 9 and 25 of the Workers Compensation Act 1987 (the Act). On 25 July 2003, Ashford CCJ, found in favour of the applicants and ordered the second respondent to pay them compensation. However, because the second respondent was uninsured at the time of death, the appellant was ordered to pay the compensation awarded against the second respondent out of the fund constituted in pursuance of s 34 of The Workplace Injury Management and Workers Compensation Act 1998. The appellant appeals to this Court against her Honour's decision. The appeal is confined to an appeal in point of law: Compensation Court Act 1984, s 32.
The issues before the primary judge and on appeal
Before detailing the facts in this matter, it is convenient to touch upon the issues that were debated both before the primary judge and this Court, for it is in the context of those issues that the facts need to be considered.
Three issues arose in the proceedings. The first was whether the injury resulting in the deceased's death was one arising out of or in the course of his employment with the second respondent. The second was whether the deceased's death was caused by an intentional, self-inflicted injury within the meaning of s 14(3) of the Act. The third was whether the deceased's employment was a substantial contributing factor to his injury within the meaning of s 9A(1) of the Act. The primary judge found in favour of the applicants on each of these issues.
The facts as found by the primary judge
At all material times the deceased was a truck driver and had been employed in that capacity by a number of transport companies. The second respondent employed the deceased from 1999 until the time of his death. His duties included assisting in loading the truck and making deliveries from Wagga to Sydney and return, as well as in and around the local area. The first respondent's evidence was that it was the deceased's normal practice to leave Wagga on a Monday evening to drive to Sydney, returning the next evening and arriving back in Wagga early on the Wednesday morning. On occasions he would again drive to Sydney leaving on the Wednesday evening. However, the second respondent's records indicated a varying pattern of employment in the deceased's work performance.
After considering his employer's records, the primary judge attempted to reconstruct the deceased's workload in respect of the period leading up to his death. She found that it was the deceased's practice to leave Wagga in the late evening to travel to Sydney for deliveries on the following day and then return to Wagga that evening after the deliveries were made, arriving early the next morning. It was the second respondent's evidence that the vehicle the deceased was employed to drive was ready to be driven between 6pm and 9pm in evening and that it was necessary for the vehicle to be in Sydney by 6am the next morning to be unloaded. The deceased was then required to do deliveries and pick-ups, with the last pick-up done by 7pm that evening. He said he expected the vehicle to be back in Wagga by 7am the following day.
In the context of the deceased's workload, the primary judge summarised her findings in the following terms (at [42]):
"Following through to the week ending 24 November 1999 and considering the deceased had made a trip to Sydney on the Wednesday, it appears he also made a trip to Sydney on the Friday, did not work on Saturday or Sunday then travelled to Sydney on the Monday and again on the Wednesday of that week. This sample would give some credence to him working long hours as if he left for Sydney for example on the Thursday evening he would not return until late Friday or early Saturday and would again leave Sunday evening to drive to Sydney and return to Wagga on Tuesday. It would thus appear he made three trips to Sydney in some weeks, although there does not appear to be any regular pattern and indeed some weeks he appears to have only worked one or two days. For the week ending 8 March 2000 it seems he travelled to Sydney on 2 March 2000, did an eight hour trip Albury/Corowa on 3 March 2000, two hours local work on Saturday 4 March 2000, did not work on Sunday 5 March 2000, an eight hour shift Leeton/Griffith on Monday 6 March 2000 and a Sydney trip on Tuesday 7 March 2000. He did not work on Wednesday 8 March 2000 and then did a further Sydney trip on Thursday 9 March 2000. His next trip was listed as being on Tuesday 14 March 2000. This appears to be a heavy driving load."
Although the appellant suggested that the above findings established that the deceased was off duty between Thursday, 9 March 2003 and Tuesday, 14 March 2003, this is incorrect. It is apparent that the deceased left Wagga for Sydney on Thursday, 9 March 2003 and arrived in the early hours of Friday, 10 March 2003. He would then have been required to carry out deliveries during the day and would have left Sydney to return to Wagga on Friday evening, arriving there in the early hours of Saturday, 11 March 2003. He left Wagga to drive to Sydney on the evening of Tuesday, 14 March 2003.
The primary judge's description of the deceased's movements on the trip immediately prior to his death was as follows (at [43]):
"Susan Walsh said he left home between 7.00 pm and 9.00 pm on that day. It appears he would have left Wagga at about 12 midnight or so after the truck had been loaded and would have then driven to Sydney. He was required to be there by 7.00 am and if the trip took in the vicinity of 5 hours it can be assumed he may have stopped for a short break at a truck stop or else arrived earlier than 7.00 am. The rest of the day was apparently spent in deliveries of one kind or another and it appears he was then at Marulan at about 9.30 pm on Wednesday 15 March 2000, as he rang his wife from there advising he would be home in a few hours. …"
The deceased never arrived home. His body was located at approximately 11.30 am on Thursday, 16 March 2003 at a truck rest area at the intersection of the Hume Highway and Bungonia Road, Marulan. The deceased was found in the passenger seat of his truck. It is not known how long he had been at the truck stop. Her Honour referred to the deceased having telephoned his wife from Marulan at around 9.30 pm on Wednesday evening. However, the parties seem to accept that the deceased had travelled through the Marulan Truck Checking Station at 11.59 pm on Wednesday, 15 March 2003. The general consensus seems to be, although her Honour made no particular finding in this respect, that he died sometime between 12 midnight and 1am on Thursday,16 March 2003.
It is not in dispute that the deceased was a long time user of amphetamines whilst he was driving trucks. The third respondent gave evidence that he ingested the drug during the times that he had been performing long distance drives between Melbourne and Adelaide or Sydney and Brisbane. She was not aware of the deceased using amphetamines at times other than when driving.
The first respondent also gave evidence that prior to the deceased commencing work with the second respondent, he had been in the habit of taking drugs including 'speed'. From her observation, as found by the primary judge, his wife thought that the deceased snorted weekly and that he usually did so whilst driving long distances such as from Sydney to Melbourne or Sydney to Adelaide. After the deceased commenced employment with the second respondent, the first respondent observed a change in the deceased's personality and in early January 2000, she discovered a syringe in his workbag. At that point they separated but resumed cohabitation at the end of January 2000, when the deceased promised to stop using needles. However, it was the first respondent's evidence that the deceased was still using amphetamines on a weekly basis but, she thought, only when he was required to do long distance driving. However, she accepted that the deceased had used the drug even when not driving long distances.
At the post mortem, toxic levels of amphetamines were found in the deceased's bloodstream. Dr Docker's report to the coroner on the post mortem recorded the following:
"Toxicological analysis indicate a high level of Methamphetamine and probable recent use of cannabinoids. Methamphetamine has a number of side effects including cardiac arrhythmias. In the absence of an anatomical cause apart from hyper-inflation of the lungs, the probable cause of death is cardiac arrhythmia which was in part precipitated by drug levels and fatigue."
Accordingly, the report stated that the direct cause of death was due to cardiac arrhythmia and that the antecedent causes, being morbid conditions giving rise to the direct cause, was due to toxic levels of methedrine. It was common ground that methamphetamine was a substantial contributing factor to the deceased's death.
The primary judge found (at [44]) that at the time the deceased stopped at the Marulan truck stop, he purchased some coffee and perhaps some food. She assumed that at some time, and whilst at the truck stop, the deceased ingested amphetamine. However, she was unable to determine the method of administration. It may have been orally or by injection. As a result, she found the deceased suffered a cardiac arrhythmia, which led to his death.

Her Honour also found that that there was evidence supportive of the suggestion that, in order to stay alert whilst driving, truck drivers historically have a greater incidence of use of amphetamines than the general population. She said (at [46]) that
"the evidence of Professors Starmer and Christie support the proposition that truck drivers use such drugs to keep them alert when driving. The applicant's evidence was of the deceased using such a drug when truck driving and Margaret Hammon was also aware he used amphetamines when truck driving dating back to at least 1990."
It was submitted by the appellant that the primary judge had overstated the evidence of Professors Starmer and Christie in this regard. Professor Starmer, in a report admitted without objection, noted the findings of a 1992 survey in which he had been involved in which three groups of drivers were surveyed: truck, bus and car drivers. 5% of truck drivers and 1 % of bus and car drivers were found to take illicit stimulants to keep them alert whilst driving. He concluded that
"the objective confirmation that truck drivers take stimulant drugs more frequently than other motorists is clearly the most important outcome of the present study.
…
Regular use of stimulants is an unusual form of drug abuse in that it appears to be aimed at the preservation of the financial viability of the driver rather than personal gratification. The observed relationship between the likelihood of stimulant use and the status of the driver within the industry strongly supports the hypothesis of and industry-driven basis for stimulant drug usage. Such drug taking behaviour has potentially adverse consequences for road safety, although these may not be immediately obvious to the individual drivers concerned. There is good pharmacological evidence that a single small dose of a stimulant (eg. d-amphetamine, 5-10 mg) will produce an initial arousal and a performance-enhancing effect. …Moreover, with increasing doses, stimulant intoxication leads to excitable, unstable and aggressive forms of driver behaviour which commonly result in changes in risk-acceptance. When the effects of the stimulants wear off, there is a reactive depression which can cause the user to fall asleep at the wheel ("amphetamine crash"). Further problems, associated with tolerance and adverse cardiovascular consequences, are likely to be encountered by a driver who uses stimulants on a regular basis and is forced to progressively increase the dose to obtain the same effect."
Although the survey also revealed that 16% of truck drivers used licit stimulants whereas only 5% of those surveyed used illicit stimulants, nonetheless, the evidence referred to was sufficient, in my opinion, when taken in conjunction with the evidence of the first and third respondents relating to the deceased's drug taking habits, to justify the finding of the primary judge that whilst at the truck stop at Marulan the deceased had ingested amphetamine for the purpose of keeping him awake so as to enable him to complete his journey to Wagga. In this respect, her Honour found (at [43]) that the deceased
"was absent for some 24 hours and in that time had perhaps spent 2-3 hours loading, 5 or more hours driving to Sydney, an indefinite period doing deliveries and then a further 3-4 hours approximately driving back as far as Marulan. In that time his opportunity to rest or sleep appears to have been limited."
She also found (at [56]) that the deceased worked long hours driving for the second respondent and that in order to do so he regularly used amphetamines.
The applicable statutory provisions
The primary liability of an employer to pay compensation for injuries received by its workers is to be found in s 9(1) of the Act which provides:
"(1) A worker who has received an injury (and in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act."
The word "injury" is relevantly defined in s 4 of the Act to mean:
"personal injury arising out of or in the course of employment".
Two defences of the employer are relevant to the present matter. The first is founded on s 9A(1) which provides that:
"(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purpose of determining whether a worker's employment was a substantial contributing factor to an injury…
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d)…,
(e)…,
(f)…"
The second is founded in s 14(3) of the Act. It states:
"(3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury."
Relevant also is s 14(2). It provides:
"(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement."
In the present case the primary judge found (at [56]) that the deceased's injury was attributable to his serious and wilful misconduct in ingesting amphetamines. Although she did not find that it was solely so attributable, there can be little doubt that this was so and the parties proceeded on that basis.
The issues
Did the deceased's death result from an injury arising out of or in the course of his employment?
The primary judge found (at [56]) that the deceased was still in the course of his employment at the time of his injury, driving the second respondent's truck back to Wagga. The appellant challenged this finding on the basis that, her Honour had misdirected herself. It submitted that this was an "interval or interlude" case within the meaning of that expression as used by the High Court in Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473 at 484 as a consequence whereof the ingesting by the deceased of amphetamines was gross misconduct which took him outside the course of his employment. Alternatively, it was submitted that the taking of the amphetamines by the deceased so deviated from what was reasonably incident to the performance of his duties that it was not open to her Honour to make any but one finding, namely, that at the time he ingested the drugs he was no longer in the course of his employment.
The first respondent submitted that by stopping at the Marulan truck stop, the deceased did not commence an "interval" between periods of actual work within the meaning of Hatzimanolis. She submitted that the deceased's duties required him to drive from Wagga to Sydney, attend to deliveries, take delivery of a fresh load and then drive back to Wagga. Any short rest stop in the course of that drive could not be regarded as "an interval or interlude in an overall period or episode of work": Hatzimanolis at 484.
It was thus submitted that when the deceased stopped at Marulan he was, and at all times remained, in the course of his employment albeit that whilst still in the course of his employment he committed an act of serious and wilful misconduct by self-administering amphetamines. It was submitted that the present case was distinguishable, as the primary judge had held (at [53]), from that of Pollack v Stickfast Labels Pty Limited (in liq) (2002) 24 NSWCCR 279 and was governed by the decision in Higgins v Galibal Pty Limited (1998) 17 NSWCCR 106.
It was common ground that the legal bounds of the statutory expression "in the course of employment", being part of the definition of "injury" in s 4 of the Act, had been established by the High Court in Henderson v Commissioner for Railways (1937) 58 CLR 291; Humphrey Earl Limited v Speechley (1951) 84 CLR 126 and Hatzimanolis.
The relevant principle was stated by Dixon J in Henderson at 294 in these terms:
"The general principle governing the ascertainment of the "course of employment" appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful … Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations the question of whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which the work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties."
Dixon J also applied the above principle in Speechley although in that case he omitted the adjective "actual". He said (at [133]):
"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. This 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 reasonable required, expected or authorised to do in order to carry out his duties.
In Hatzimanolis, a worker employed in New South Wales successfully applied for a job with the same employer at Mt Newman in Western Australia. Before leaving for Mt Newman, a supervisor employed by the employer briefed the worker on the nature of his employment at Mt Newman and advising that there would be two vehicles to provide transport for the workers if they got the chance to visit areas around Mt Newman and the Pilbara region. Whilst employed at Mt Newman the supervisor informed him and his fellow workers that as they were not working on the following Sunday, he was organising a trip to Wittenoom Gorge on that day for anybody who cared to come along. The group travelled in the employer's vehicle and during the course of the trip the worker was injured when one of the vehicles crashed. The High Court held that the worker's injury was sustained during the course of his employment on the basis, according to Mason CJ, Deane, Dawson and McHugh JJ, that the employer encouraged the worker to spend his work-free Sunday on the trip, organised it and invited him to come along so that, although the injury was sustained during an interval between carrying out his ordinary duties, it nevertheless occurred in the course of his employment.
In their joint judgment, Mason CJ, Deane, Dawson and McHugh JJ noted the test formulated by Dixon J in Henderson and applied by him in Speechley as having been almost invariably applied by Australian courts when called upon to determine whether an injury occurring during intervals between work was sustained "in the course of employment". Their Honours continued (at 479):
"On the whole, the flexible application of the test has enabled a satisfactory line of demarcation to be drawn between those injuries which are work-related and those which are so remote from the notion of the worker's employment as to not to call for compensation by the employer….
Given the flexible nature of the application of the test, it is not surprising that what is now perceived as required, authorised or expected to be done in order to enable an employee to carry out his or her duties covers many situations that were not contemplated when the test was first formulated in Henderson in 1937."
Their Honours then noted (at [480]) that 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".
Examples of such cases were Commonwealth v Oliver (1962) 107 CLR 353, where a worker was injured when he was struck by a cricket ball during a lunchtime stroll in a nearby yard where it was customary for some of his fellow employees to play cricket during the luncheon interval; Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 where a worker's death was held to have occurred in the course of his employment when he died in a van provided by his employer for his accommodation which caught fire during the night, the worker having finished work at about 4pm and having no further duties to perform until the following morning; TheCommonwealth v Lyon (1979) 24 ALR 300 where Deane J upheld a finding that a Customs clerk who sustained injury whilst playing football for the Customs team in a lunchtime match was injured in the course of his employment; Park v Peach [1967] V.R.558 where it is was held that a taxi driver was injured in the course of his employment when he was struck by a vehicle while crossing a road after leaving the taxi for the purpose of buying a newspaper.
Their Honours then continued (at 482):
"Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer actively covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something 'in order to carry out his duties' at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development in this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases…"
Having noted that the distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the days work has ceased lies in the characterisation of the period or periods of work of those employees, the joint judgment continued (at 483):
"For the purposes of workers compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home."
The joint judgment then concluded in these terms (at 484):
"Moreover, Oliver and the cases which follow it show than an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude would invariably result in a finding that the injury occurred in the course of employment. 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 an activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment."
As I have observed, the appellant submitted that the present was an interval or interlude case in that the deceased had ceased driving at the Marulan truck stop for the purpose, no doubt, of having a rest break and a cup of coffee. It was submitted that it was during that interval or interlude that he committed an act of gross misconduct (by ingesting amphetamines) that took him outside the course of employment.
I am not convinced that the present case is, in truth, an interlude or interval case of the type that was contemplated by their Honours in Hatzimanolis. It is clearly distinguishable from the facts of that case itself as well as those of the other examples that I have recorded in [34] above. It is true that in the passage from the joint judgment recorded in [36], their Honours make reference to a tea break or lunch break within an overall work period as constituting an interlude or interval. In the present case, however, it is apparent that the deceased, being on a long-distance trip and having already driven for over two hours, was heeding the well-known admonition of the Roads and Traffic Authority that all drivers should "Stop, Revive, Survive" after a two hour driving spell – a matter noted by her Honour in [44] of her judgment. It could well be argued that in so doing the deceased was in fact performing his actual work which included not only the driving of the vehicle, but its loading, unloading and, I would suggest, the taking of appropriate rest periods in order to ensure continued safe driving. Furthermore, the deceased's duties extended to the protection of his employer's vehicle and the load it was carrying during the course of such stops. However, I do not consider it necessary to form a concluded view on this issue for the circumstances under or pursuant to which the deceased ingested the drugs (although it may have been gross misconduct) were not such as to take him outside the course of his employment as I will demonstrate.
A case with some similarity to the present was Tiver Constructions Pty Limited v Clair (1992) 110 FLR 239, a decision of the Court of Appeal of the Northern Territory. The worker was employed at a construction site some distance from Darwin. His duties took him to Darwin frequently to purchase parts, oil, fuel and whatever else was needed to set up camp and to perform the job required. One evening the worker left the site in his employer's truck and travelled to Darwin in order to purchase fuel, intending to return the following day. On the following day he set out to return to the construction site. On the way he met another employee in another of the employer's trucks travelling to Darwin to purchase parts. They swapped vehicles and the worker returned to Darwin. He arranged with his co-worker to meet at a hotel at a nominated time. Having completed his purchases at about 3pm, he met is co-worker at the hotel. He became intoxicated. The worker then left the hotel some hours later and drove along the only road to the construction site. Shortly after leaving the hotel he was involved in an accident and was seriously injured. It was submitted that, given that the worker was in the course of his employment up to the time he stopped at the hotel, he then went into "recreation mode" and abandoned his employment by drinking at the hotel until he was intoxicated. As his gross misconduct took him outside his employment, so the argument went, there could be no resumption of his employment when he later left the hotel in order to return to the camp.

The Court of Appeal rejected this argument. Their Honours considered that the worker was not merely returning to the camp for his own purposes; his journey was for his employer's purposes and was, therefore, in the course of employment. Reliance was place by the employer on the passage from the joint judgment in Hatzimanolis cited in [37] above. Martin and Mildren JJ (with whom, on the merits of the appeal, Gallop J agreed) held that the injury did not occur during an interval between episodes of work. It occurred during an episode of work as the worker was returning to the camp not for his own purposes but for the purposes of his employer. Moreover, their Honours did not consider that the High Court intended by its reference to "gross misconduct taking him or her outside the course of employment" to be laying down a universal proposition of law that whenever gross misconduct occurs during an interval between episodes of work, the employee must be outside the course of employment. They said (at 247):
"No doubt this will often be the case, but s 7(3) of the Act makes it clear that an employee is not taken outside the course of employment by his own serious and wilful misconduct if he suffers permanent and serious injury."
Section 7(3) of the Workers Compensation Act 1949 (NT) is equivalent to s 14(2) of the New South Wales Act.
Their Honours then referred to the following observations of Lord MacMillan in Harris v Associated Portland Cement Manufacturers Limited [1939] AC 71 at 83-84:
"My Lords, throughout the whole course of the legislation dealing with workmen's compensation from 1897 down to the present day the cardinal condition of a valid claim of compensation has been that the accident causing personal injury to the workman shall have arisen out of and in the course of his employment. Amending legislation has affected this cardinal condition in a not very logical fashion by providing that, if the accident results in death or serious and permanent disablement then, in certain cases, notwithstanding that certain facts are proved which might be thought to establish that the accident did not arise out of and in the course of the employment, the employer is to be precluded from so maintaining by reason of these facts alone. If the injury to the workman is proved to have been attributable to his serious and wilful misconduct compensation is not to be disallowed by reason of this fact if the injury results in death or serious and permanent disablement – which is tantamount to saying that although the accident is attributable to the workman's serious and wilful misconduct it may nevertheless be held to arise out of and in the course of his employment. In such a case, although the employer cannot in answer to the claim plead that the accident was due to the serious and wilful misconduct of the workman, he may still plead that for other reasons it did not arise out of and in the course of the employment. Further, but again only if the accident results in death or serious and permanent disablement, the employer is precluded from pleading that the accident did not arise out of and in the course of the employment because at the time of the accident the workman was (a) acting in contravention of a statutory or other regulation applicable to his employment or of orders given by or on behalf of his employer or (b) acting without instructions from his employer, provided in both cases that such act was done by the workman for the purposes of and in connection with his employer's trade or business. Subject to these qualifications and restrictions the plea that the accident did not arise out of and in the course of employment remains available to the employer."
Their Honours then said that his Lordship's observations were clearly applicable to the provisions of s 7(1), (3) and (4) of the Northern Territory Act. They continued (at 248):
"In interval cases, the ultimate question is still whether the injury arose by accident out of or in the course of the employment within the meaning of s 7(1). We do not understand the High Court to be in any way suggesting otherwise, or that s 7(3) and (4) have no application to such a case. We consider that all their Honours intended by their references to gross misconduct was to draw attention to the general rule, rather than the exception. It is the words of the Act which must rule in every case, and judicial pronouncements are not to be construed in the same way as an Act of Parliament, particularly when it is plain that general guidance is being offered, and the Court has not specifically averted to the relevant statutory provision in question."
This last observation of their Honours is to the effect that, in Hatzimanolis, the High Court was neither referred to nor considered the effect of s 14(2) of the Act, notwithstanding that it formed part of the 1987 Act with which they were dealing. In my opinion, it is clear that their Honours in Tiver considered that the Northern Territory equivalent of s 14(2) of the Act was an exception to the general rule that gross misconduct on the part of an employee in an interval or interlude case may take that employee outside the course of employment.
In Higgins, Priestley JA (with whom Stein JA agreed) observed that the passage in the joint reasons in Hatzimanolis stating that an interval injury would be within the course of employment "unless the employee was guilty of gross misconduct taking him or her outside the course of employment", has at times been used to justify the submission that gross misconduct will always take a worker out of the course of employment. His Honour agreed with the joint reasons in Tiver that the passage from Hatzimanolis did not support such a submission.
Priestley JA then considered the decision of this Court in Dew v Maher (1996) 14 NSW CCR 56. In that case, the supervisor of the worker was a professional pig shooter and a licensed explosives operator who used explosives principally for the destruction of rabbit burrows. The employer of the worker encouraged the supervisor in these activities, and any employees assisting him, which benefited the employer and his property by the eradication of rabbits. The worker and his supervisor participated in a prank while undertaking a pig chase in a utility that carried three other people in the rear tray of the vehicle. The supervisor prepared a bomb, with the worker's knowledge and assistance, with the intention of throwing it out of the cabin of the vehicle to frighten those travelling in the tray. The device exploded causing injuring the worker and his supervisor. The trial judge held that the worker was injured in the course of his employment and, because the worker was a follower rather than an instigator in the prank, he was not guilty of gross misconduct. Cole JA, with whom Handley JA and Cohen AJA agreed, held, applying Hatzimanolis that the worker was in the course of his employment in undertaking a pig-chase subject to his not participating in gross misconduct. However, he found that the worker was guilty of gross misconduct in using the employer's explosives for a purpose entirely foreign to his employment.
In the course of his judgment, Cole JA referred to the fact that it had been held in Tiver that the High Court in Hatzimanolis was not be taken as laying down "a universal proposition of law that whenever gross misconduct occurs during an interlude between episodes of work, the employee must be outside the course of employment". His Honour considered that that may be so because the majority in Hatzimanolis concluded their remarks on this topic by stating (at 484):
"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' ."
To that statement Cole JA added – "the circumstances attending the gross misconduct".
In Higgins, Priestley JA referred to the fact that s 14 was not referred to in Dew, nor was there any finding that the injury to the worker resulted in serious and permanent disablement although it appears that the worker lost an eye in the accident. Nevertheless, the three matters raised in that appeal did not involve consideration of s 14. Accordingly, Priestley JA considered that the complete absence of any discussion of s 14 in Dew would of itself make it doubtful whether it could be treated as a binding precedent on the construction of that provision. He was confirmed in this view that it should not be so treated as Cole JA's decision was referred to without disapproval in Tiver, which contained a considered view, essential to the decision in that case, of the provisions of the Northern Territory legislation, which were substantially identical to s 14 of the Act. His Honour was therefore of the opinion that this Court in Dew was not intending to pronounce upon the construction or effect of s 14. He considered that Tiver was the only case in which the relationship between "gross misconduct" in relation to the equivalents of s 4 and "serious and wilful misconduct" in the equivalents of s 14 had been discussed.
Having agreed with the view taken by Martin and Mildren JJ in Tiver, Priestley JA set out his own position in the following terms (at 57):
"As already mentioned, case law established that a worker might suffer an injury while doing something in the course of employment taken in its most literal sense, as for example, on the employer's premises during working hours, so clearly having nothing to do with the employment that the worker should not be considered to be in the course of employment when doing that thing. One species of thing which would take a worker out of the course of employment was what came to be called "gross misconduct". Other species were acts by workers in breach of regulations or employer's orders and another species acts without instructions from the worker's employer.
It seems to me that provisions in workers compensation legislation in terms such as s 14 were enacted on the footing that the authorities that had denied compensation to workers in the three types of cases described, operated too harshly when the injury which would have been in the course of employment but for those authorities was one resulting in the death or serious and permanent disablement of the workers. Accordingly the view was taken that in the two types of case now provided for in New South Wales by s 14(1), so long as the act had been done for the purposes of or in connection with the employer's trade or business, the injury should still be regarded as one in the course of the worker's employment, and compensation should be payable notwithstanding that the case law would otherwise have brought about the contrary result.
The case law position was to be eased in an apparently slightly more restrictive way when it was serious and wilful misconduct of the worker which, the cases said, took the worker out of what otherwise would have been the course of employment. In the case of serious and wilful misconduct compensation was not payable and the case law was not to be eased unless the injury to the worker was solely attributable to the serious and wilful misconduct of the worker. Hence, provisions such as s 14(2).
Against this background, what seems to me to be the only workable approach to s 14(2) is that it is written on the assumption that in its absence, compensation under s 9 would be denied to a worker (because on the authorities "serious and wilful misconduct" would have the result that an injury suffered by a worker guilty of such conduct would neither arise from nor be in the course of employment) and that the provision was inserted to reverse that result by precluding the application of the case law to "serious and wilful misconduct" of the worker resulting in death or serious permanent disablement. Thus, I read s 14(2) as if it said:
'If it is proved that an injury to a worker which but for this subsection would because of the worker's serious and wilful misconduct be denied compensation under s 9 because of the case law taking the worker out of the defined meaning of injury, by virtue of this subsection when that injury is solely attributable to the serious and wilful misconduct of the worker and results in death or serious and permanent disablement compensation is payable in respect of that injury.'
The objection to such a construction is of course that it adds words to the statute. However, if the words are not added, it seems to me s 14(2) has no operation at all. Unless it works in the way I have indicated, then the serious and wilful misconduct of the worker will have taken the worker out of the operation of s 9 and the injury will not be compensable. To read the subsection in the way I do (no doubt it can be put more elegantly) in my opinion achieves the giving of an appropriate meaning to the subsection as against construing it out of any effective existence.
A further opinion I have reached, relevant to the decision of this appeal is that 'serious and wilful misconduct' was intended to include 'gross misconduct' as that term had been used in the cases. Also, in my view, the intention was realised because in my opinion, the words in their ordinary meaning would include 'gross misconduct'. "
In my opinion, Higgins stands for the following proposition. Hatzimanolis states for the purpose of s 9 and the definition of "injury" in [(a)] of s 4 of the Act that an injury sustained in an interval or interlude in an overall period or episode of work will be within the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way unless the employee was guilty of gross misconduct taking him or her outside the course of employment. The last-mentioned aspect of this proposition is subject to the exception contained in s 14(2) where the injury is solely attributable to that gross misconduct and has resulted in death or serious and permanent disablement.
It was not suggested by the appellant in the present case that when the deceased stopped at the Marulan truck stop to rest and have a cup of coffee that he was otherwise than in the course of his employment. It was, however, submitted that by taking amphetamines he was guilty of gross misconduct taking him outside the course of employment.
In my opinion, there are two independent answers to these contentions. The first is that on the authority of Higgins, s 14(2) neutralised the deceased's gross misconduct and the effect it might otherwise have had of taking the deceased outside the course of employment so that compensation is nonetheless payable in respect of his death. The second is that, in my opinion, the serious and wilful misconduct (or gross misconduct) of the deceased in ingesting amphetamines was not such as to take him outside the course of employment. For his misconduct to have that effect, it was required in all the circumstances to have been misconduct that was entirely foreign or repugnant to his employment. In my opinion it could not be so characterised given the primary judge's finding that firstly, the deceased had been at the relevant time engaged in driving a load; secondly, that he had been working for some 24 hours and in that time had had little opportunity to rest or sleep; and thirdly that he had ingested the amphetamine for the purpose of keeping himself awake and alert so as to enable him to complete his journey.
I also observe that, in my opinion the primary judge's findings in [56] of her judgment constitute a finding that the deceased's misconduct did not take him outside the course of his employment. This is a finding of fact from which there is no appeal.
Finally, I refer to the decision of this Court in Pollack. In that case the worker, a heroin addict, was employed in the operation of a letterpress printing machine printing self-adhesive labels. He was engaged in this task on the day he was injured. By 11pm he had completed a large part of the job he had undertaken. He left the letterpress running knowing that it would cut out automatically after printing 1000 labels. He then went into an office in the premises, prepared some heroin he had with him, inserted it into a syringe that he also had with him and injected the drug into his arm. As a consequence of injecting himself with heroin, he collapsed in the office over a hot bar heater or radiator and was severely burnt. He conceded in cross-examination that the only reason he went into the office was to inject himself with heroin.
Ipp JA (with whom Meagher JA and Foster AJA agreed) said (at 283 [16], omitting citations):
"On the facts as found, the appellant left the factory floor and went into the office on the premises for the sole purpose of administering an injection of heroin to himself. He did this knowing that his employer would not approve of what he was doing. No matter how flexible the applicable of the test as to whether work done was in the course or within the scope of employment, the appellant's conduct in leaving the factory floor and injecting himself with heroin could not fall within that test. The appellant was not doing anything which he was reasonably required, expected or authorised to do in order to carry out his actual duties… The appellant was actually doing something that had nothing to do with his duties, something that his employer had warned him against doing and of which his employer, to his knowledge, seriously disapproved."
His Honour then referred to s 14(2) of the Act and continued (at 283-284 [18]):
"In my opinion, whatever s 14(2) means it does not convert conduct which was not in the course or within the scope of employment when the serious and wilful misconduct occurred into conduct that was in the course or within the scope of employment. I do not understand Higgins v Galliwell Pty Limited (1998) 45 NSWLR 45 as having this effect. In the circumstances of this case, s 14(2) does not assist the appellant."
In my opinion, there is no inconsistency between the above findings in Pollock and the present case. In Pollock, the appellant ceased to be in the course of employment when he left the factory floor for the sole purpose of injecting himself with heroin. Accordingly, as his Honour found, at the time the serious and wilful misconduct occurred - when he actually injected himself with heroin - he was not in the course of employment.
On the other hand, in the present case the deceased was in the course of his employment at the time that he ingested the amphetamines. In other words, unlike the situation of the worker in Pollock, the deceased was in the course of employment when the serious and wilful misconduct occurred. Thus, the primary judge was correct when, in [53] of her judgment, she held that
"this present claim can be distinguished from Pollock as it appears to me the deceased was still in the course of his employment whilst at the truck stop at Marulan, having apparently stopped there to have a coffee at least, and perhaps to have rung his wife."
Accordingly, the ingestion by the deceased of the amphetamines did not take him outside the course of his employment. Alternatively, if it did, s 14(2) applies to entitle his dependants to compensation.
Was the self-administration of the amphetamines by the deceased an "intentional self-inflicted injury" within the meaning of s 14(3)?
Her Honour dealt with this issue in [57] of her judgment. She held that the provision did not apply, as there was no evidence to suggest the deceased intended to inflict injury to himself by ingestion of amphetamines.
The appellant accepted that the deceased had no intention of taking his own life. However, it was submitted that the relevant injury was the initial ingestion by the deceased of the drug. As he clearly intended to ingest the drug, it followed that the injury was intentionally self-inflicted.

The first respondent submitted that the relevant injury was cardiac arrhythmia that resulted in his death. It was submitted that this was the injury as found by her Honour when she said (at [44]):
"It is assumed that at some approximate time, whilst at the truck stop, he ingested amphetamine. The method of administration is unknown. It may have been orally or by injection. As a result he suffered a cardiac arrhythmia which led to his demise."
It was therefore submitted that the identification of the injury for the purpose of s 14(3) was question of fact not subject to appeal.
In response, the appellant submitted that this Court in Manningv New South Wales Sugar Mining Co-operative Limited (2003) 25 NSWCCR at 557 had held that cardiac arrhythmia was not a "personal injury" within the meaning of s 4 of the Act. In that case the deceased, as the result of an accident, had become a quadriplegic. Some years later he died from cardiac arrhythmia due to sever and chronic heart disease consequent on chronic renal failure, which in turn resulted from his quadriplegia. The issue was whether the "injury" from which the deceased had died was the quadriplegia that he had sustained in the accident in 1979 or the medical complications secondary to the quadriplegia and which were, so it was accepted, in the nature of a disease. It was held by Sheller JA, with whom Mason P and Foster AJA agreed, that the relevant injury which resulted in the deceased's death was the personal injury that rendered him a quadriplegic.
His Honour noted that as the High Court had clarified in Zickar v M G H Plastic Industries Pty Limited (1996) 187 CLR 310, s 4 of the Act contained a definition of two types of injury. The first in sub-paragraph (a), referred to a "personal" injury whereas the second, in sub-paragraph (b)(i), refers to a disease injury.
In Zickar, Toohey, McHugh and Gummow JJ who, with Kirby J, formed the majority, observed (at 329) with respect to the definition of "injury" in s 4:
"That par (a) begins with the word 'means' and par (b) begins with the word 'includes' suggests that par (b) is designed to give an extended meaning to 'injury' by going beyond personal injury into a disease in the circumstances prescribed."
Their Honours then referred to Kavanagh v Commonwealth (1960) 103 CLR 547 to the effect "that there may be an injury by accident although the injury is not attributable to any external agency but results from some force or pressure exerted from within the body".
Their Honours in Zickar continued (at 332):
"The personal injury upon which the appellant relies is the rupture of the arterial wall. There can be no doubt, having regard to the medical evidence and the authorities to which we have referred, that this event constituted personal injury and it is not in dispute that what occurred took place in the course of the appellant's employment. Equally, it is not in issue that aneurism itself, that is, the swelling of the blood vessel, was a disease from which the appellant was suffering prior to the rupture. Does the existence of this disease take the matter into par (b) of the definition so that the appellant must show his employment to have been a contributing factor?
At 334 their Honours said:
"It may be accepted that the aneurism was an autogenous disease but the appellant's claim to personal injury within par (a) is based on the rupture which occurred. From Dr Stening's evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury."
Sheller JA in Manning then said (at 567 [20]):
"It is clear enough from this judgment [Zickar] that a worker who suffers a disease injury may yet be able to contend that he suffered 'personal injury'. His injury will fall within the definition if it arose out of or in the course of employment. On the other hand if the injury does not come within par (a) and is included as a disease under par (b)(i), the disease must have been contracted by the worker in the course of employment and the employment must have been a contributing factor. It is plain that a rupture of an internal body part due for example to blood pressure or any congenital aetiology is none the less a rupture and none the less a 'physical injury'. The only question remaining is whether it arose out of or in the course of employment."
The appellant In Manning had submitted that the relevant personal injury within par (a) of the definition of "injury" in s 4 was cardiac arrhythmia resulting in the death of the deceased. If that was relevant injury, then it occurred after the 1987 Act came into force. Whereas if the injury resulting in the deceased's death was the original quadriplegia, it occurred prior to the 1987 Act coming into force as a consequence whereof the benefits to the deceased's widow would be less.
As I have observed, the evidence in that case established that the cardiac arrhythmia was a medical complication secondary to the deceased's quadriplegia and in the nature of a disease. If that disease was to be treated as a separate injury, it was not one contracted by the deceased in the course of his employment and, therefore, would not fall within par (b)(i) of the definition. As Sheller JA pointed out at 569 [24], that explains why the appellant had submitted that it was a separate personal injury within the meaning of par (a) which arose out of his employment.
His Honour rejected this argument in the following terms (at 569 [25]):
"In my opinion, even the decisions of the majority in Zickar would not permit, on the facts of this case, a finding that the cardiac arrhythmia was a personal injury within the meaning of par (a) of s 4. There was no evidence, expert or otherwise, of rupture or breaking or tearing as an ingredient or consequence of the disease." (emphasis added)
Accordingly, it followed that the injury resulting from the death of the deceased was the personal injury resulting in the deceased's quadriplegia, an injury suffered before the commencement of the 1987 Act.
As I have already observed, the post-mortem evidence in the present case established that the direct cause of the death of the deceased was due to cardiac arrhythmia and that the antecedent cause was due to toxic levels of methedrine. It was the level of toxicity of the drugs that the deceased had ingested which caused the cardiac arrhythmia resulting in his death.
In Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286, Gleeson CJ and Kirby J, after referring to Zickar, said (at 300 [39]):
"All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidence of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or traumatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an 'injury' in the primary sense of that word."
Furthermore, in the joint judgment of McHugh, Gummow and Hayne JJ (at 308 [67]), their Honours referred to the judgment of Finn and Merkel JJ in the court below where they said that
"it was not a prerequisite to the finding of an 'injury' which is of an internal nature, that a physical event or incident involve a 'rupture or breaking', and that an occlusion, causing a disturbance of the normal physiological state, will suffice."
It is true that in Favelle Mort Limited v Murray (1976) 133 CLR 580, Jacobs J held that the entry of a virus into the human body is an injury within the meaning of the then definition of "injury" in the 1926 Act. Similarly, in Orica Limited v CGU Insurance Limited [2003] NSWCA 331, it was held in a mesothelioma case that the relevant injury occurred upon inhalation of asbestos fibres. As Santow JA pointed out in that case (at [140]), Mason J in Connair Pty Limited v Frederiksen (1979) 53 ALJR 505 at 512 considered that an infection due to the entry into the body of bacteria or a virus was an injury. His Honour further noted that Blackburn CJ in Ansett Transport Industries (Operations) Pty Limited v Srdic (1982) 42 ACTR 45 at 47 applied Favelle to conclude that the entry of toxic bacteria into the bloodstream causing a disease is an injury. In the light of these authorities his Honour held that the relevant employee, who eventually contracted mesothelioma, must therefore have suffered injury at the time he inhaled asbestos fibres, increasing his risk but not the severity of that disease the more he inhaled. Although the injury was imperceptible in the beginning, it was accepted that the resultant disease occurred as a result.
It is to be noted that in Favelle, McTiernan J (at 593) held that the worker "received an injury" when his brain was infected by a virus that resulted in the disease meningo-encephalitis. In other words, the injury was the infection to the brain caused by the entry of the virus into the body. Again, in Srdic, it was the entry of the toxic bacteria into the bloodstream causing a disease that constituted the injury. In Orica, it seems to me that it was the penetration of the lung by the first inhalation of asbestos fibres that constituted the injury.
In my opinion, the primary judge was correct when she found that the relevant injury was the cardiac arrhythmia that resulted from the ingestion of amphetamines at a toxic level. An injury can only occur if it causes a physiological or pathological change and/or disturbance to the normal physiological or pathological state. The mere ingestion of the amphetamines did not of itself constitute such a change or disturbance. Of itself it was not harmful. Harm only occurred when the physiological or pathological change occurred which, at the earliest, was when the drugs entered the bloodstream of the deceased at a level that was toxic thereby causing cardiac arrhythmia.
However, the appellant submitted that s 14(3) was satisfied in the present case by the deceased's deliberate ingestion of a substance which, to his knowledge, would result in physiological change and that the fact that that change went beyond what he intended was irrelevant.
The answer to this submission is that there was no evidence that the deceased was aware that his ingestion of the drug would result in physiological change. Furthermore, in my opinion, the relevant intention required by s 14(3) is an intention to injure. The word "intentional" in the phrase "intentional self-inflicted injury" governs "injury" rather than "self-inflicted". Death need not be intended but, as Bauer CCJ observed in Laing v Fridgmobiles of Australia Limited (1979) 53 WCR 116 at 119, the evidence must establish:
"that the nature of the act of intentional self-injury was such that the proper conclusion was that no other intention was reasonable except self-destruction."
Otherwise, the provision would be satisfied if, for example, a worker ingested a prescribed drug but suffered an anaphylactic reaction to the drug resulting in death or serious impairment. This could not have been intended. The context of s 14(3) requires the word "injury" where reasonably appearing to be construed as referring to harm: cf Interpretation Act 1987 s 6.
It was common ground that the deceased did not, by ingesting the drugs, intend to inflict any form of harm upon himself: quite the contrary. Again, there was no evidence to suggest that he did or that he appreciated, when he ingested the drug, that he was administering a dose at a level that was toxic. In these circumstances, the onus being upon the appellant to establish the defence under s 14(3), her Honour was correct when she found that there was no evidence to suggest that the deceased intended to inflict injury to himself by ingesting the amphetamines.
I would add two further comments. The first is that, in my opinion the decision in Manning is not authority for the proposition that cardiac arrhythmia can never constitute an injury within the meaning of par (a) of s 4. It is clear in the passage from the judgment of Sheller JA recorded in [72] above, that his Honour was of that view on the facts of that case. The second is that her Honour's identification of the injury was a finding of fact. As such it is unappealable. Accordingly, the appellant's challenge to her Honour's finding in respect of the defence under s 14(3) of the Act fails.
Was the deceased's employment a substantial contributing factor to his injury?
The primary judge answered this question in the affirmative. Her finding was as follows (at [56]):
"On the evidence before me I am satisfied his employment was a substantial contributing factor to his injury, accepting as I do, he worked long hours driving for the first respondent, and that in order to do so he regularly used amphetamines."
The appellant submitted that her Honour erred in three respects. Firstly, rather than focussing on the "employment concerned" of the deceased, she focussed on his occupation as a truck driver. Secondly, she wrongly relied upon the deceased's perception that in order to be able to perform his duties, it was necessary for him to ingest amphetamines for the purpose of keeping himself awake and alert. It was submitted that the test was objective and not subjective in the sense that the deceased's subjective perception was irrelevant unless it was objectively reasonable. Thirdly, it was submitted that her Honour misdirected herself as to the necessity of a causal link between the deceased's injury and his employment.
In my opinion, there is no substance in the first of these arguments. The appellant accepted that, in the present case, the "employment concerned" related to the actual performance by the deceased of his duties under his contract of service. Those duties related to his driving of his employer's truck relevantly from Wagga to Sydney and return. According to her Honour, his duties in this respect required him to work long hours with little or any opportunity to rest or sleep. In particular, she found (at [43]) that at the time of his injury he had been absent from home for some 24 hours, had spent 2-3 hours loading his vehicle in Wagga, 5 or more hours driving to Sydney, an indefinite period doing deliveries and then a further 3-4 hours driving back as far as Marulan. She concluded that in that time his opportunity to rest or sleep appeared to have been limited.
As to the meaning of the words "the employment concerned" in s 9A(1), in Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 at 746 [22], Mason P, with whom Meagher and Beazley JJA agreed, said (at 745 [13] omitting citations):
"It is common ground between the parties and well established by earlier authority that, when s 9A(1) speaks of 'the employment concerned' being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment. In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to the 'injury' as defined in s 4."
At 746 [22], his Honour reinforced this view when he said:
"The worker correctly submits that the words 'employment concerned' in s 9A reinforces the view that it is the work activity in which the worker was engaged at the time of the injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury…"
Again, in Dayton v Coles Supermarkets Pty Limited (2001) 21 NSWCCR 46 at 52 [22], Giles JA observed that
"it is 'the employment concerned' which must be a substantial contributing factor, meaning not the fact of being employed but what the worker was doing in his employment."
In my opinion, the primary judge had in mind the work activity in which the deceased was engaged at the time he sustained the relevant injury. By the time he stopped at Marulan, he had been awake for 24 hours and his duties required him to drive from there to Wagga to arrive by 7am. It is clear that her Honour properly directed herself to the "employment concerned" as explained in Mercer when considering the application of s 9A(1).
In my opinion, the second submission of the appellant should also be rejected. It proceeds upon the basis that the deceased's perception as to what was necessary to enable him to continue with his duties was irrelevant unless his conduct was objectively reasonable.
In my opinion, there are three answers to this contention. The first is that I do not regard the primary judge's finding that the deceased's employment was a substantial contributing factor to his injury as being based wholly upon subjective considerations, being the deceased's perception of what was necessary to enable him to complete his journey. Her Honour found that the deceased worked long hours driving and that, to enable him to perform his employment, he regularly used amphetamines in order to remain awake and alert. On the expert evidence, this was certainly a known phenomenon in the industry. Given her Honour's finding that the deceased had had little or any opportunity to sleep or rest within the period of 24 hours prior to his death in the light of the matters referred to in s 9A(2)(a), (b) and (c) of the Act, it was open to her Honour to find that not only did the deceased perceive that in order for him to maintain the requisite degree of alertness to enable him to complete his journey it was necessary for him to ingest amphetamines but also that the evidence objectively justified such a course.
Secondly, and this is an aspect of the first answer, there is no reason to believe that in ingesting the drugs the deceased's conduct was, in all the circumstances, other than reasonable when considered from his particular perspective. Certainly, it could not be said that his conduct, in the particular circumstances, was irrational.
Thirdly, her Honour's determination as to whether or not the deceased's employment was a substantial contributing factor to his injury involved a question of fact: see [93] below. As such, it is unappealable.
The appellant's third submission was that her Honour misdirected herself as to the necessity of a causal link between the deceased's injury and his employment. Reference was made to passages in the judgment of Mason P in Mercer at 747 [27] and [32] where his Honour, referring to the word "substantial" as qualifying "contributing factor", observed that it was the extent of the causal link which, in that case, was at issue. His Honour considered that the requirement that employment be a contributing factor to the "injury" was not equivalent to the expression "arising out of … the employment". It is also to be noted that his Honour observed (at 748-749 [37]) that the construction he had adopted of s 9A(1)
"leaves a broad area within which the personal judgment of the individual judge as to what is 'substantial' may be determinative."
In Dayton, Giles JA (at 52 [22]) observed that
" 'substantial' qualifies 'contributing factor', indicating that it is the strength of the causal linkage that is in question."
After referring to what Mason P said in Mercer, at 748-749 [37] to which I have already referred, his Honour further considered (at 54 [29]) that a finding as to relative contributing factors is a finding of fact, being a question of impression and degree.

100 In the same case, Davies A-JA (at 56 [37]) opined that the words "substantial contributing factor" require

"that compensation be paid only when the employment can be said to have contributed to the injury in a manner that is real and of substance".

His Honour also observed (at 56 [39]) that a
"decision as to what is or what is not substantial is a judgment which will not readily be set aside by an appellant court, particularly one whose jurisdiction is limited to errors of law."

101 The appellant submitted that there were considerations of policy which inhibited against a finding of a causal link in the present case. Reference was made to the negative aspects of ingesting amphetamines referred to by Professor Starmer and which I have recorded in [18] above. However, I do not think that those considerations should be permitted to negative her Honour's finding that the requirement for the deceased to drive long hours and his use of amphetamines to enable him to do so, was other than a substantial contributing factor to his injury. Accordingly, I would reject the appellant's third submission.

Conclusion

102 For the foregoing reasons, in my opinion the appeal should be dismissed with costs.

103 McCLELLAN AJA: I agree with the orders proposed by Tobias JA and substantially with his reasons. I agree with the reasons of Hodgson JA.

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LAST UPDATED: 29/06/2004