Davies v WRCC No. Scgrg-97-1711 Judgment No. S6757

[1998] SASC 6757

DAVIES  v  WORKERS REHABILITATION AND COMPENSATION CORPORATION

Full Court:  Duggan, Williams and Bleby JJ

Bleby J

The appellant was seriously injured whilst riding his motor cycle to work between 6.15 and 6.30am on 14 March 1995.  It was dark and the weather was fine.  The collision occurred on a straight stretch of road when the appellant collided with the rear of a stationary vehicle.  He claimed compensation under the Workers Rehabilitation and Compensation Act 1986 (“the Act”). Not every injury that occurs in the course of a journey to work will be the subject of compensation. Section 30(5) of the Act relevantly provides:

“(5).. A disability that arises out of, or in the course of, a journey arises from employment only if -

(a) ...

(b)... the journey is between -

(i).... the worker’s place of residence and place of employment; or

(ii)... ...

and there is a real and substantial connection between the employment and the accident out of which the disability arises.”

........................... The appellant’s claim for compensation was rejected by the respondent.  A Review Officer on review of that decision determined that there was a real and substantial connection between the employment and the accident, and allowed his claim for compensation.  The Workers Compensation Appeal Tribunal (“the Tribunal”) allowed an appeal against that determination, holding that the evidence did not justify the conclusion that there was a real and substantial connection between the employment and the accident.

........................... The appellant appeals by leave to this Court, alleging errors of law on the part of the tribunal.

........................... The appellant lived at Old Noarlunga.  His place of employment was at Ottoway.  He therefore had a substantial distance to travel to work.  His case before the Review Officer and the Tribunal was that during the weeks preceding the accident he had been working relatively long hours and on weekends, and that the most probable cause of his accident was fatigue brought about by those working conditions.  That constituted, he argued, a real and substantial connection between the employment and the accident.

........................... When giving evidence before the Review Officer, the appellant could not recall how he felt that morning when he woke up (AB52).  He drove to work by his usual route.  He had his headlight on.  When asked to recall the moments immediately prior to the collision he said (AB53):

“A.... I remember it - like, it happened so quick, but yet it happened really slow as well.  It’s probably something that you can’t explain unless you’ve experienced it.  I can remember thinking to myself - I knew that I didn’t even have enough time to divert or to put my brakes on even, you know, it was that close when I - it was just all of a sudden it was just there.

...

A...... I can remember, as I said before - like, I don’t have bad reflexes, but I - it was just there and I just didn’t have time to even put the brakes on.  It just happened so fast.

Q...... Before that moment when you looked up and saw the vehicle in front of you, do you recall anything before that.

A...... No, I’m afraid not.

Q...... Do you remember now how much traffic there was on the road in terms of whether it was light or medium or heavy.

A...... No, I don’t recollect that at all.

Q...... Did you notice anything unusual on your way to work that morning, or can you not remember.

A...... No, there was nothing unusual, I don’t think.”

In cross-examination he gave answers which suggested that he only saw the car when it was immediately in front of him.  Tapleys Hill Road, on which he was travelling at the time, had two marked lanes for traffic travelling in the direction he was travelling.  He said he was in the right‑hand lane, although he usually drove in the left‑hand lane.  He could not explain why he was travelling in the right‑hand lane.  In general terms his evidence was consistent with inattention on the appellant’s part to the road conditions immediately ahead of him.  What was not explained by his evidence or the evidence of any other eye witness was what caused that inattention.

Before the Review Officer, two experts were called.  Dr McLean was a Director of the National Health and Medical Research Council Road Accident Research Unit at the University of Adelaide.  That unit undertakes research into the causes of motor vehicle accidents, as well as research into the injuries which are sustained as a result.  His evidence was that rear end collisions were usually the result of a combination of factors, a frequent one being the following vehicle travelling too close to another vehicle.  Other factors relate to colour of vehicles, conditions of visibility, lighting on the vehicle and many other factors.  He concluded that there was a large number of possible factors, and it would the exceptional accident where only one of them contributes or is the main contributor.  When asked about fatigue as a contributor, he stated that a study some twenty years before had failed to yield any evidence of a causal nexus between the road accidents studied and fatigue, but that in a more recent study, in relation to rural accidents, two out of eighty studied were almost certainly predominantly fatigue related.

Dr Dawson was an Associate Professor of psychology at the University of South Australia and the Director for Sleep Research at the University.  He had reviewed the working patterns and commuting time of the appellant, and in a written report which was before the Review Officer, considered that the appellant was “likely to have suffered severe and chronic sleep depravation at the rate of up to 2 hours per day.  The effects of such sleep depravation are profound and equivalent in many respects to the effects of alcohol or other sedative medications.  That is there would be reduced attention, delayed response latencies and an increased tendency to fall asleep.  These functional changes are likely to be accompanied by a significant increase in the incidence and duration of episodes [of] inattention and/or sleep”.  He considered that the combination of long hours and an inadequate recovery period “would inevitably predispose (the appellant) to a significantly increased tendency to fall asleep even while driving or riding his motor cycle”.  His written conclusion was expressed as follows:

“In my opinion, work‑related fatigue is the most likely explanation of the accident.  According to the hours of work provided to me for the six weeks prior to the accident and particularly the one week prior, it is very likely that work‑related fatigue significantly contributed to, or was causal in, [the appellant’s] motor accident.”

In his oral evidence Dr Dawson disavowed any expertise in accident research or the causes of accidents, and admitted that he had not been made aware of any of the conditions surrounding the appellant’s accident, other than that the other vehicle was stationary.  The following seems to represent the highest point of Dr Dawson’s evidence (AB112):

“I think it’s very difficult to get me to comment on accident (sic) - I’m not an accident expert.  What I have been asked to comment on and what I’m quite happy to say is that the levels of fatigue in this individual could contribute to inattention or a micro sleep that would render that individual unaware of their external circumstances and that in that situation, having an accident is a reasonably common occurrence.  If you’re driving along unaware, then it is possible to have an accident, and I think given that there was no corrective action taken from what I understand from the information that I was given and that Andrew just drove straight into the back with no attempt to brake, none of the normal things that you would see which would indicate that the person was aware of the accident, then I think those two facts put together are quite consistent with fatigue, but that’s all I’m prepared to say; that they are consistent with that.”
(My emphasis)

On the evidence there seemed little doubt that the accident was due to inattention or a lapse in concentration on the part of the appellant, and the Review Officer seems to have so held.  It was a finding plainly open to the Review Officer.  However, one’s own experience indicates that inattention can be caused or contributed to by a number of factors.  Fatigue is one.  Visual distraction from the road ahead is another.  A simple failure to keep a proper lookout is another.  Mental distraction - thinking about something quite different, rather than the function of driving - is yet another.  Some form of physical discomfort may indeed be another.  There are many possible factors which may give rise to inattention or a failure to concentrate whilst driving.

It was impossible to conclude from the appellant’s evidence, or that of any eye witness, what caused the appellant’s inattention on this occasion.  There appears to have been nothing unusual about the course taken by his motor cycle.  Dr Dawson’s evidence merely demonstrated that, given the appellant’s recent work pattern, fatigue could not be excluded.  But his evidence did not go, and could not have gone, as far as to show that fatigue was the cause or the major cause or even a contributing cause of the appellant’s inattention.

The Review Officer made the following finding:

“There seems to be no apparent reason for the accident, for the lapse I believe in concentration, until we see the evidence of Prof Dawson, and although that evidence in itself I don’t think can be seen as entirely conclusive it nevertheless points to a reason for the accident.  I accept the evidence that he’s given that - and I believe that he has the expertise to determine that Mr Davies was suffering fatigue from the long hours that he had worked prior to the accident.”

I doubt whether it can be said Dr Dawson had the expertise to determine that the appellant was in fact suffering fatigue at the relevant time or that it was from the long hours that he had worked prior to the accident.  He did say that statistically he was in a class of persons who on the balance of probability would suffer such fatigue.  I shall return to this topic later.

The Review Officer continued with the following findings:

“I accept the evidence of Prof Dawson in that the accumulative effect of working long hours without breaks gives an accumulative fatigue situation.  I find that on the morning of Tuesday, 14 March Mr Davies was suffering the effects of fatigue, and there was a real and substantial connection between his employment and his fatigued condition.”

That passage is liable to the same criticism.  However, the Review Officer continued:

“I believe that on the balance of probabilities, there being no other explanation for the events, and the most startling evidence to me is that he did have - he was suffering the effects of fatigue directly connected with his employment and that undoubtedly one of the side effects of fatigue would be - and the evidence was lapses in concentration, lack of attentiveness and I find that they are the most likely causes of the accident occurring.”  (My emphasis)

The difficulty I have with this passage is that even accepting for present purposes that Dr Dawson’s evidence could properly lead to a finding that the appellant was in fact suffering from fatigue on the morning in question (a finding which I believe that the evidence does not support), it requires an impermissible leap to say that on the balance of probabilities that was the cause of the appellant’s inattention.  It has the effect of reversing the onus of proof.

The Tribunal was critical of a number of aspects of Dr Dawson’s evidence and of the conclusions based upon it by the Review Officer.  It is not necessary to analyse those criticisms.  Some of them were justified.  One of the criticisms is relevant for present purposes, and it does not depend upon any rejection of Dr Dawson’s evidence.  In summary, the Tribunal observed that there was no direct evidence of the appellant’s state of fatigue before the accident or that he was in fact suffering from the effects of fatigue.  Dr Dawson’s evidence therefore remained only at the level of a theory.  Therefore while the statistical model may demonstrate a likelihood of fatigue, there was no evidence that the appellant fitted the statistical model.  That did not constitute proof that he was in fact fatigued or that that condition contributed to the accident.  Although the Tribunal did not refer to such cases, such a conclusion is amply justified by reference to SGIC v Laube (1984) 37 SASR 31 per King CJ at 33 and Prior J at 39‑40; SGIC v Whyatt (1984) 37 SASR 454 per Jacobs J at 465‑466.

What the Tribunal was saying in effect was that the appellant had failed to discharge the onus of proof that fatigue, assuming for present purposes that it was work‑induced, was a causative factor in the accident.  It would be necessary to prove that in order to establish that there was a real and substantial connection between the employment and the accident.  That connection is insufficient if it is merely that he was travelling to work at the time.  Compare TransAdelaide v Karanicos (Unreported, Full Court, 3 April 1996, Judgment No S5536).

Although there were other reasons given, that was the principal basis on which the Tribunal allowed the appeal against the determination of the Review Officer and dismissed the appellant’s claim for compensation.

The appeal before the Tribunal was by way of re‑hearing on the documents, with the appellant Corporation bearing the onus of establishing that the Review Officer had erred: Simpson v Arcipreste (1989) 53 SASR 9 per Cox J at 13 and Duggan J (Mullighan J concurring) at 22. The failure to discharge the onus of proof identified by the Tribunal did not depend on the acceptance or rejection of any disputed evidence or on the respondent’s failure to lead any evidence to contradict that of Dr Dawson. That position was reached, and could properly be reached, by accepting in its entirety the evidence of the appellant and Dr Dawson. That evidence merely left fatigue as a possible cause of the inattention. The fact that certain aspects of Dr Dawson’s evidence were criticised by the Tribunal was not necessary for or relevant to what I regard as the crux of the Tribunal’s decision. The Tribunal’s determination was therefore not only open but it was required on the material presented.

An appeal to this Court is limited to a question of law (s101(3) of the Act, now repealed, but still applicable to this appellant). In my opinion there was no error of law on the part of the Tribunal which could be said to vitiate its determination. I would dismiss the appeal.

Duggan J

I agree that this appeal should be dismissed for the reasons given by Bleby J.

Williams J

I agree.