Kennedy, Timothy Frederick v Telstra Corp [1995] FCA 888

CATCHWORDS

ADMINISTRATIVE LAW - Appeal from Administrative Appeals Tribunal - Safety Rehabilitation and Compensation Act - whether injuries sustained in the "course of employment" - whether nexus broken by visit to hotel - "but for" test considered - whether employee on "an ordinary recess" - whether employee on "interlude" or "interval" in overall work period - whether employee on "frolic of his own".

Safety Rehabilitation and Compensation Act 1988 (Cth)

subs 62(5), s 4, s 5, s 6, s 14, subs 24(5)

March v E & M Stramare Pty Ltd (1991) 171 CLR 506

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529

Commonwealth v Oliver (1962) 107 CLR 353

Comcare v McCallum (1994) 19 AAR 142

Inverell Shire Council v Lewis (1992) 8 NSWCCR 562

McCurry v Lamb (1992) 8 NSWCCR 556

Comcare v Mather (1995) 21 AAR 297

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

Between:

TIMOTHY FREDERICK KENNEDY and

TELSTRA CORPORATION

No NG 921 of 1994

Tamberlin J

Sydney

6 November 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 921 of 1994

GENERAL DIVISION )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY

MR M D ALLEN, SENIOR MEMBER;

PROFESSOR G A R JOHNSTON, MEMBER; and

MR G D STANFORD, MEMBER

BETWEEN: TIMOTHY FREDERICK KENNEDY

Applicant

AND: TELSTRA CORPORATION

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 6 NOVEMBER 1995

MINUTE OF ORDERS

THE COURT:

1. Declares that the applicant was injured in the course of employment.

2. Orders that the decision of the Administrative Appeals Tribunal be set aside.

3. Orders that the matter be remitted to the Administrative Appeals Tribunal to be decided in accordance with the law.

4. Orders that the respondent pay the applicant's costs of this appeal and the proceedings before the Administrative Appeals Tribunal.

NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG 921 of 1994

GENERAL DIVISION )

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION

OF THE ADMINISTRATIVE APPEALS TRIBUNAL

CONSTITUTED BY

MR M D ALLEN, SENIOR MEMBER;

PROFESSOR G A R JOHNSTON, MEMBER; and

MR G D STANFORD, MEMBER

BETWEEN: TIMOTHY FREDERICK KENNEDY

Applicant

AND: TELSTRA CORPORATION

Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 6 NOVEMBER 1995

REASONS FOR JUDGMENT

This is an appeal from an Administrative Appeals Tribunal ("AAT") decision made on 2 December 1994.

A claim was made by the applicant in respect of various injuries sustained as an result of an assault at 12.05 am on 12 June 1992.

The applicant was hit on the forehead by a "solid blow" with a house brick and punched and kicked by a group of strangers whilst walking to his room at a motel from the motel car-park. He was hospitalised overnight.

The short question for determination is whether the applicant's injuries arose out of or in the course of his employment.

On 12 November 1992, a delegate of the respondent determined that the respondent was not liable to pay compensation to the applicant in respect of his injuries.

After a request for a reconsideration was lodged by the applicant's solicitors, on 16 December 1992, another delegate of the respondent reconsidered the determination of 12 November 1992 and on 11 May 1993 affirmed that decision pursuant to subs 62(5) of the Safety Rehabilitation and Compensation Act (1988), ("the Act").

Questions of law raised in the Notice of Appeal are:

"(i) At the time he received his injuries was the applicant in the course of his employment.

(ii) At the time he received his injuries was the applicant in the course of his employment under the provision of s 6(1)(a) of the Safety Rehabilitation and Compensation Act 1988.

(iii) At the time he received his injuries was the applicant in the course of his employment under the provision of s6(10)(b) of the Safety Rehabilitation and Compensation Act 1988."

Factual Background

The facts on which the AAT made its decision are as follows:

On the night of 11 June 1992 the applicant and a companion, a Mr Stephenson, whilst within the curtilage of the Adelong Motel, Narrabri, in North Western New South Wales, were set upon and assaulted by a group of Aborigines.

As a result of this assault the applicant received injuries in respect of which he has claimed workers compensation including a payment for permanent impairment resulting from the said injuries.

The applicant's claims were rejected by the Respondent and the matter came on for hearing before the AAT on 9 November 1994.

The applicant's normal place of residence is Tamworth. However, as a Senior Technical Officer in the employ of the Respondent he is required to travel to other places within NSW, particularly Northern and North West NSW. At the time in question the applicant, together with other employees, had been engaged in installing communications equipment in the Telephone Exchange at Wee Waa, some 40 to 50 kilometres from Narrabri.

In 1991 the applicant had been assigned to work in the Narrabri area. There was uncontradicted evidence that he always stayed at the Adelong Motel when he was in the area and that it was one of the hotels that "had an arrangement with Telecom employees". There was also evidence that on at least one occasion a manager from Telecom had visited the motel and that the applicant had been invited to have a drink with the manager after 5.00 pm. The applicant travelled with co-workers to Narrabri by private vehicle and then used the Respondent's vehicles for work.

There was no requirement by his employer that the applicant stay at any particular premises whilst in the Narrabri area for work. Reimbursement of expenses was by way of a travelling allowance.

Other evidence suggests that the Adelong Motel at Narrabri was popular with staff of the Respondent and officers senior to the applicant stayed at that motel when they had occasion to visit Narrabri.

On the night of 11 June 1992 the applicant and his co-workers finished work at Wee Waa at or about 7.30pm. They then travelled back to Narrabri arriving at around 8pm. That night there were no restaurant facilities available at the Adelong Motel.

The applicant, his supervisor, Mr McAndrew, and co-workers, Messrs Stephenson and Grills, decided to go the Telegraph Hotel in Narrabri for their evening meal as that night, a Thursday, the Telegraph Hotel offered a mixed grill.

All four set off for the Telegraph Hotel, which was a short distance away, on foot and arrived at between 8.15 and 8.30pm. There they had a meal and during the course of that meal the applicant consumed two 15oz full strength beers.

At about 9.30pm, at the conclusion of their meal, the four men decided to leave the Telegraph Hotel and go to the Clubhouse Hotel. That hotel, as was the Telegraph Hotel, was in Maitland Street, the main street of Narrabri and again within walking distance of both the Telegraph Hotel and the Adelong Motel. The reason for the change of venue was that the Clubhouse Hotel had Sky Channel and they wished to watch the dog racing. In addition, Mr Grills had recently had a birthday and was offering to buy the drinks. The applicant agreed in cross-examination that the decision to go the Clubhouse Hotel was made so they could have "a few beers and watch the dogs on Sky Channel."

The applicant and his companions remained at the Clubhouse Hotel until 12 midnight and during that period the applicant stated that he consumed four 15 oz glasses of full strength beer. He conceded that on leaving the hotel, the level of alcohol in his blood would have exceeded 0.05 grammes (ie the prescribed blood/alcohol concentration for motor vehicle drivers in the State of NSW, namely, .05 grammes of alcohol in 100 millilitres of blood).

In order to return to the Adelong Motel, the applicant and his companions had to walk back along Maitland Street. Close to their motel they had to pass the Commercial Hotel and it was whilst doing so that Mr Stephenson and the applicant were confronted by a group of Aborigines who had issued forth from that hotel.

Mr Stephenson was spat upon by the Aboriginals and, as a result, made some provocative remarks that inflamed the situation. The applicant and Mr Stephenson, who had become separated from their companions, then crossed Lloyd Street and were entering the Adelong Motel when they were again confronted by a group of Aborigines in the car park of the motel and the assaults took place.

It was submitted for the applicant that at all times whilst at Narrabri, he was within the course of his employment and thus the injuries received in the assault were compensable.

The Statutory Provisions

The provisions of the Act relevant for present consideration are as follows:

Section 14 imposes liability on Comcare to pay compensation in respect of an injury suffered by an employee if the injury results in impairment.

"Employee" is defined in s 5 to mean a person who is employed by the Commonwealth or by a Commonwealth Authority.

"Injury" is defined by s 4 to include:

" ......

(b) An injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, an employees' employment; or ..."

"Place of work" is defined by s 4, in relation to an employee to include any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.

The expression "arising out of or in the course of employment" is given an extended statutory meaning of s 6 of the Act as follows:

"6. (1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:

(a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or

(b) while the employee:

(i) was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; ...

(3) Subsection (1) does not apply where an employee sustains an injury:

(a) while at a place referred to in that subsection; or

(b) during an ordinary recess in his or her employment;

if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury."

Decision of the Delegate on Reconsideration

Mr Polverino, the Delegate (Reconsiderations), in his statement of reasons of 11 May 1993, affirming the earlier decision to reject the claim, sets out in paragraph 14 through 26 the basis for his decisions as follows:

"14.There is no specific mention of a journey between seeking a meal in connection with employment and returning to an officer's residence, temporary or otherwise, apart from Subsection 6(1)(b)(i) which deals with temporary absences from a persons place of work during an ordinary recess.

15. In the circumstances I do not consider that any such absence was temporary nor could it be said to be an ordinary recess. Notwithstanding, any recess by ordinary interpretation would to my mind, indicate a break of temporary duration with an intent to resume the broken activity whatever it may be, within a reasonably short time.

16. As indicated I believe that there is no specific coverage under Section 6 of the Act but regard must be had to the words "without limiting the circumstances".

17. The expression "arising out of" signifies a causal relationship between the injury and the employment. It is clear to me that there was no such relationship, hence the claimant's injuries did not arise out of his employment.

18. The expression "in the course of" however, is said to involve a temporal relationship, that is, the injury would need to have occurred whilst the employee was employed or doing something reasonably incidental to his employment.

19. As stated above it is not disputed that the claimant's employment requires him to travel away from his normal residence and to reside in temporary residence (sic) at such times. What is disputed however is, that such attendance would deem that every activity undertaken by the claimant would attract compensation coverage. Notwithstanding the fact that the claimant was being paid travelling allowance I do not believe that such is the case nor was it implied in the relevant legislation.

20. In dealing with the question of whether an activity can be said to belong or arise out of the employment, the High Court has said, "(it is a question whether the activity in question was 'so far removed from the employment contemplated by the employer as to exclude it from the course of (his) employment ... (and it is material that) it was a natural thing for any worker to do and not altogether foreign to the employer's interest'"(South Maitland Railways Pty Ltd v James (1943) 67 CLR at 504 per Starke J).

21. I conclude that the activities of conversing, consuming alcohol and watching Sky Channel Television are so far removed from the employment contemplated by the employer as to exclude it from the course of his employment. Notwithstanding that the worker may not see it as excluded, it cannot be said that such activities are a natural thing for a person to do but the test, I consider, lies in whether that person is acting in a capacity as a worker. I do not believe such is the case. It is certainly completely foreign to the employer's interest.

22. I consider that the claimant:

- was not on duty,

- was not performing any task at the time of the injury that was reasonably incidental to his employment,

- at the time of the injury was not on a journey for the purposes of the Act,

- voluntarily removed himself from the scope of the Act at the point in time that he severed his journey from the Telegraph Hotel by entering the Clubhouse Hotel. At and from such time, the claimant was performing activities of a social nature (though it is noted that work discussion may have taken place) and that he was in pursuit of a leisure activity unrelated to his employment,

23. I note that the term "place of work" has been extended in Potts v/s the Commonwealth (1971) 18 F.L.R. 128 to places where an employee is required to be, and that exposes him to a risk which is additional to those which in normal circumstances he might be expected to encounter.

24. Nevertheless though the claimant was required to be on temporary transfer and it is a normal occurrence for an employee to seek refreshment from his work in the form of a meal, it was the claimant who freely chose of his own volition to extend that "break" and to continue on for purposes of his own that were unrelated to his employment. As stated, at and from that point in time I believe that the claimant had severed any employment connection.

25. In deciding the question of liability, I consider it inappropriate to single out any one factor out of a range of relevant factors previously mentioned and then placing that one factor ahead of all the others.

26. Each factor must be measured and weighed against the totality of all the other factors and upon doing so, I can only conclude there are insufficient factors to alter the bulk of the evidence which points to there being no entitlement to compensation."

AAT Reasoning

After reviewing a number of relevant authorities, the members of the AAT reasoned as follows:

The present case was distinguishable from other cases where employees had been injured whilst away from their actual place of employment, but whilst "still on duty" or "in employer provided accommodation". The employer in the present case had no attitude as to how the employees spent their time. They were not required to reside at any one place, nor were any quarters or rations provided for them. They were provided a living away from home allowance and how that allowance was expended was at the discretion of the employee. Section 6(1)(a) of the Act, which refers to the "but for" test was considered not applicable. The walk back to the Adelong Motel from the Clubhouse Hotel had nothing to do with the applicant's overall period of employment. The AAT agreed that, in one sense, but for the employment the applicant would not have been in Narrabri and therefore he would not have been assaulted but considered this to be a fallacious line of reasoning in the light of the statement by Mason C J in March v E & M Stramare Pty Ltd (1991) 171 CLR 506 at 516. They considered that s 6(1)(a) did not extend the ambit of liability to cover all incidents occurring to an employee whilst he is away from home.

The AAT did not accept that consistent with paragraph 6(1)(b)(i) of the Act, the applicant was temporarily absent from his place of work during "an ordinary recess". The applicant had finished work at 7.30pm that evening and his place of work was the Wee Waa Telephone Exchange. In their view, it was entirely consistent with the decision of the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 that a point arrives where the employer can no longer be said to be inducing or encouraging the employee to spend an interlude between discrete periods of work in a particular way.

They considered that:

"... once the Applicant and his companions left the Telegraph Hotel after their meal and turned right to go the Clubhouse Hotel to watch the dogs and have a few beers, instead of turning left in order to return to the Adelong Motel where they were staying, they were on a frolic of their own the consequences of which are not ones for which the employer could be held responsible."

Accordingly, they decided to affirm the decision of the Delegate on Reconsideration.

The AAT noted that it was agreed between the parties that the permanent injury occasioned to the applicant resulted in a degree of impairment calculated at 10% under the Guide for the Assessment of Permanent Impairment approved pursuant to subs 24(5) of the Act.

The Case Law

In Hatzimanolis v ANI Corporation Limited (supra), which is the relevant leading authority, the majority (Mason CJ, Deane, Dawson and McHugh JJ) said:

"Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen" (Danvers v Commissioner for Railways NSW) (1969) 122 CLR 529 at 537"."

In Hatzimanolis the majority saw their decision as being "a reformulation" of the principles which determine whether or not an injury occurring between periods of actual work is within the course of employment so that the application of these principles would accord with "the current conception" of the course of employment as demonstrated by cases such as the Commonwealth v Oliver (1962) 107 CLR 353 and Danvers (supra).

In Comcare v McCallum (1994) 19 AAR 142, the Full Federal Court held that a respondent, who was required by her employer to travel to a country town in New South Wales and stay overnight for the purpose of her employment, was in the course of her employment when she sustained injuries while having a shower in the hotel. The accident occurred in the morning before the employee proceeded to her place of work. Lockhart J gave the leading judgment with which the other members of the Court agreed.

In that case, the respondent lived at Orange and she was required by the Department to travel to Young "to conduct a visiting service for the Department" on 21 July 1992 and to stay away from home during the night of 20 July. The distance between Orange and Young required her to travel to Young on 20 July in order to commence duties at 9.00 am the following day. She was paid a travel allowance by the Department and she had to book her own accommodation. At pp 146-147. Lockhart J said:

"Her injury was sustained during an interval or interlude in this overall period or episode of work. In my opinion, this must be seen as part of the course of her employment, because the Department induced or encouraged her to spend the interval or interlude at an hotel of her choice, thus constituting the spending of an interval or interlude at her particular place or in a particular way within the meaning of that expression in the reasons for the judgment of the High Court in Hatzimanolis at 484.

The fact that the respondent was not required to stay at a specific place of accommodation by the Department whilst in Young does not diminish this conclusion. If she had been required to stay at the Empire Hotel, there would be an even plainer case of an injury sustained during an interval or interlude in a an overall period or episode; but the relevant nexus with the course of her employment is plain enough on the facts of this case."

His Honour went on to observe:

"It does not follow that the place where injuries were sustained by the respondent and the circumstances in which they were sustained are irrelevant to the conclusion whether they occurred during the course of her employment. The fact that she was required to stay overnight somewhere in Young and fell whilst in the shower in the hotel where she chose to stay (and for which she was provided with a travel allowance) is what provides the relevant nexus between her injuries and the course of her employment. If, for example, the respondent had chosen to spend the night of 20 July at a cinema or club and sustained injuries there a question would arise whether they were sustained during a relevant interval or interlude which would be seen as part of the course of her employment,... She may (I do not say would) then be engaged in an activity at a particular place or in a particular way which did not have the relevant nexus with the course of her employment."

The above case provides useful guidance for resolution of the present question in two respects. First, an overnight stay away from the place of usual residence, in order to perform employment duties can be within an interval or interlude in an overall period of work which must be seen as part of the course of employment. Second, the fact that an employee selects the accommodation and receives a travel allowance does not take the stay out of the course of employment.

The principles in Hatzimanolis were applied by the New South Wales Court of Appeal in Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 and McCurry v Lamb (1992) 8 NSWCCR 556.

In the Lewis case the employee was temporarily resident at a caravan park while attending a practical training course organised by the employer. During an evening social activity when attending another caravan within the park, the worker was shot and injured by a stranger, The trial judge found the injury arose in the course of the employment and awarded compensation. The appeal was dismissed by the Court of Appeal.

Central to the reasons for decision of Handley JA, who delivered the main judgment, was the statement that:

"In this case the worker was injured whilst he was at "the particular place" where his employer had encouraged him to stay and while he was doing something that was reasonably incidental to his temporary residence there." (Emphasis added)

Sheller JA after setting out relevant considerations from Hatzimanolis expressed the view that the case should not be decided simply on the basis that the worker was at the time of injury within the caravan park. While that was a factor which must be taken into account it was not determinative. He considered it relevant to also take into account the employer's attitude to the way in which the worker was spending his time during the period he was injured and whether the employer encouraged, induced or merely permitted the
worker in general terms to be where he was, namely on the caravan-park site, or to take part in social activities with other people.

In McCurry V Lamb (1992) 8 NSWCCR 556 the Court of Appeal followed the decision in Lewis. In Lamb the worker was a shearing contractor who was sleeping with a female employee in lodgings provided by the employer. He was shot and seriously injured by a drunken fellow employee. The Court of Appeal held that the worker sustained his injuries at a particular place, namely the camp where the employer had induced or encouraged him to stay, and while he was doing something that was "reasonably incidental" to his temporary residence there, namely "sleeping". There was in that case, no question of gross misconduct. The fact that the worker's injuries were caused by the deliberate and criminal conduct of a fellow employee, did not affect his right to compensation. His Honour went on to observe that the result "... may seem to some anomalous or even bizarre." Nevertheless, he concluded that the Court was compelled to reach this result because of the interpretation which the High Court in Hatzimanolis and earlier decisions had placed on the language of the Workers Compensation Act.

In Comcare v Mather (1995) 21 AAR 297, Kiefel J of the Federal Court applied Hatzimanolis in circumstances where a soldier was injured while returning to the camp at which he was stationed as a part of a large scale military training
exercise. The soldier had been drinking and socialising during a period of authorised local leave. He had been encouraged by his supervisor to take the local leave. Attendance at hotels in the area was within the contemplation of the Army as a potential, if not likely, activity during leave. The AAT found that the soldier was within the course of employment and the appeal to the Federal Court was dismissed by her Honour.

The Present Case

I now turn to the application of the above principles to the instant case.

The applicant was at the time of the injury, within the curtilage of and indeed within the boundaries of the Adelong Motel. There is no suggestion that he was engaged in any misconduct at the time when the injury occurred. Nor had he played any part in misconduct leading up to the assault. The material furnished to the Court indicates that at the time of the incident he was proceeding to his room from the car-park of the motel. Shortly prior to the injury occurring, while he was outside the grounds of the motel, he and his friends encountered a group of Aborigines. Prior to the applicant's return to the Adelong Motel he had a meal at the Telegraph Hotel, and then went to the Clubhouse Hotel with fellow employees for some beers and recreation in the form of watching television. It is not suggested that he acted at any
time in a provocative or confrontational way in relation to his assailants.

He was staying at the Adelong Motel with co-employees. The reason he left that motel with his fellow employees was simply to obtain a meal which was not available at that time at the Adelong Motel.

There is no single determinative factor which operates in the present circumstances but it is necessary to carefully weigh all relevant matters, including the visit after dinner to the Clubhouse Hotel.

In my view, it is important that the injury occurred within the boundaries and the curtilage of the Adelong Motel, at a time when the employee was in the course of returning to his room.

This is not a case where the employee was injured at a cinema or club or on other premises away from the place of accommodation which he selected. He stayed at the motel for the purpose of carrying out the duties his employment. It is true that it was not necessary for him to stay at Narrabri, but it was not unreasonable for him to do so.

Having regard to the nature and duration of his work which required him to be away from his normal place of residence and to find accommodation closer to his place of work, I consider that the injury occurred during an interval or interlude within in an overall period or episode of work. The evidence indicates that the employer had impliedly encouraged the employee to spend that interval or interludes at a place of accommodation within reasonable travelling distance of his place of work. I do not think that the principles laid down in Hatzimanolis should be construed narrowly but rather they should be applied in a common sense and practical manner to accord with the realities of human behaviour. Accordingly, the fact that the employees left the Adelong Motel where they could not obtain an evening meal and went to the Telegraph Hotel where they had dinner did not take the applicant outside the course of employment. So much was accepted by the AAT decision when it said that "once the Applicant and his companions left the Telegraph Hotel after their meal and turned right to go to the Clubhouse Hotel to watch the dogs and have a few beers,instead of turning left, ... they were on a frolic of their own" (Emphasis added)

I do not share this characterisation of the applicant's behaviour in going to the Clubhouse Hotel. A determination of the question whether an employees is within the course of employment, in the circumstances of the present case, does not depend on the accidental fact that they went on to the Clubhouse Hotel to watch television and have a few more beers, rather than stay at the Telegraph Hotel and drink or watch television. The evidence does not disclose whether the Telegraph Hotel had television. The approach taken by the AAT that they turned right to the Clubhouse Hotel and returned to the motel from there, instead of turning left and returning to the Adelong Motel and in doing so left the course of employment, is too rigid. There is no suggestion that the visit to the Clubhouse Hotel in any way caused or provoked the assault which led to the confrontation and assault resulting in the injury. The altercation commenced on the street.

In any event, I do not think that the excursion to the Clubhouse Hotel took the applicant outside the interval or interlude of employment. The injury occurred at the premises where the employee was staying for the purpose of attending and carrying out his work and at a time when he was simply returning to his room. I do not think that the intervening altercation which took place outside the Motel premises and in which the applicant played no provocative part, can be said to diminish the force of this consideration.

For the above reasons, I am of the view that the injury occurred in the course of the applicant's employment and that at all times on the night and early morning in question he was in the course of his employment.

For the sake of completeness I will refer to two further submissions made on behalf of the applicant.

Firstly, it was submitted that the injury was the result of an act of violence that would not have occurred but for the employee's employment, or the performance by the employee of the duties or functions of his employment within the meaning of s 6 (1)(a) of the Act.

I do not think that the requirement of this provision has been met in the present circumstances. On a common sense and practical application of the "but for" test, there is no causal nexus between the employment or the performance by the employee of the duties or functions of his employment and the assault. The assault arose from the confrontation of two groups late at night which was not related in any way to the performance by the applicant of the duties or functions in his employment.

The second submission was that the employee sustained the injury while he was temporarily absent from the place of work "during an ordinary recess" in that employment.

Pursuant to the authority of Hatzimanolis, I have come to the view that the applicant was on "an interlude or interval in the course of his employment". I do not think that at 12.05 am on the night in question he could be described as being "temporarily absent" from his place of work during an "ordinary recess" in that employment. His place of work was at Wee Waa, some forty to fifty kilometres away.

Conclusions

At the time when he received his injuries the applicant was in the course of his employment.

Further and in the alternative, the applicant was not "on a frolic of his own" in going to the Clubhouse Hotel and the nexus with his employment was not broken by this visit. Nor was the nexus broken by the confrontation and altercation in the street or at the motel.

Neither s 6(1)(a) or (b)(i) of the Act apply in the present circumstances.

Accordingly, I order that the decision of the Administrative Appeals Tribunal be set aside. I make a declaration that the applicant was injured during the course of his employment. I order that the matter be remitted to the Administrative Appeals Tribunal to be decided in accordance with law and that the respondent pay the applicant's costs of this appeal and the proceedings before the Administrative Appeals Tribunal.

I certify that this and

the preceding twenty-two (22)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 6 November 1995

Counsel for Applicant: Mr Bruce McManamey

Solicitor for Applicant: Mr Jeremy Kennedy

Masons Solicitors

Counsel for Respondent: Mr John Wallace

Solicitor for Respondent: Mr John Cox

Eakin McCaffery Cox

Date of Hearing: 20 October 1995

Date Judgment Delivered: 6 November 1995

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