Hills v Brambles Holdings Ltd

[1987] TASSC 31

TASSC A20/1987

CITATION:             Hills v Brambles Holdings Ltd [1987] TASSC 31; A20/1987

PARTIES:  HILLS
  v
  BRAMBLES HOLDINGS LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  WC 89/1985
DELIVERED ON:  10 April 1987
DELIVERED AT:  
HEARING DATE:  
JUDGMENT OF:  Green CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Plaintiff:  
           Defendant:  
Solicitors:
           Plaintiff:  
           Defendant:  

Judgment Number:  TASSC A20/1987
Number of paragraphs:  11

Serial No A20/1987
  File No WC 89/1985

HILLS v BRAMBLES HOLDINGS LTD

REASONS FOR JUDGMENT  GREEN CJ

10 April 1987

1. This is a claim for workers' compensation. On 6 July 1984 the plaintiff was employed by the defendant as a pallet repairer at 30 Chapel Street, Glenorchy. At some time between about 6 pm and 6.20 pm on that day the plaintiff was injured in a motor accident which occurred whilst he was travelling between his place of employment and his place of residence. I find that for the purposes of s5(1) of the Workers’ Compensation Act 1927 the plaintiff suffered personal injury by accident which by virtue of s5(3A)(d) of the Act was deemed to have arisen out of and in the course of his employment.

1. The defendant contends that the plaintiff is disentitled to compensation by virtue of s5(2)(a)(i) of the Act which provides as follows:

"5 – (2) No compensation shall be payable under this Act in respect of –

(a)      any injury which is proved to be –

(i)Attributable to the serious and wilful misconduct of the worker, unless the injury results in the death or serious and permanent disablement of the worker; ..."

1. By its defence the defendant alleges that the serious and wilful misconduct consisted of the plaintiff driving a motor vehicle "contrary to the direction or instruction given to him by his employer and when his ability to do so had been adversely affected by the consumption of intoxicating liquor". It is conceded that the injury did not result in the death or permanent disablement of the plaintiff.

1. I find that between about 2.30 pm and 6 pm on Friday, 6 July 1984 the plaintiff attended a barbecue at the defendant's premises which had been organised and paid for by the defendant. It is admitted that at 7.20 pm on that day the plaintiff had a concentration of .21 grams of alcohol in 100 mls of his blood. I find that the plaintiff did not consume any alcohol between the time when the accident occurred and 7.20 pm and that it is probable that the concentration of alcohol in his blood, both at the time of the accident and at the time when he left the barbecue, was about the same as it was at 7.20 pm I find that the plaintiff drank at least nine or ten cans of ordinary strength ale during the afternoon. I find that as a result of the consumption of liquor, at the time when the accident occurred the plaintiff would have had muscular inco–ordination, delayed reflexes and responses to external stimuli, impairment of his appreciation of time, distance and speed, restricted field of vision and a slowing of thought processes and that as a result the plaintiff's capacity properly to drive and control his motor vehicle would have been very substantially impaired. I find that at a point about 3 or 4 kms from the defendant's premises the plaintiff drove across, rather than within, a merging lane and drove his car so that it wandered between lanes and mounted a median strip along which it travelled for some distance. Shortly thereafter the plaintiff's vehicle travelled across double white lines on to its incorrect side of the road and a multiple collision occurred as a result of which the plaintiff sustained injuries. On the balance of probabilities I am satisfied that the plaintiff's injuries were attributable to his conduct in driving his motor vehicle whilst his capacity to do so was substantially impaired by the consumption of liquor. In reaching that conclusion I am fortified by the reasoning employed by the High Court in Girlock (Sales) Pty Ltd v Hurrell (1982) 40 ALR 45 and by the fact that counsel for the plaintiff did not, and indeed conceded that he could not, submit that I should reach any other conclusion.

1. It is clear that self–induced intoxication brought about by the excessive consumption of liquor is capable of constituting serious and wilful misconduct: Murray v Moppett [1958] SR (NSW) 59; Richards v Faulls Pty Ltd [1971] WAR 129; Girlock (Sales) Pty Ltd v Hurrell (supra). But whether or not conduct can be so characterised will depend upon the circumstances of each case. For conduct to amount to serious and wilful misconduct it must be such as to give rise to an immediate risk of serious injury, it must be deliberate and not merely a thoughtless act done on the spur of the moment and it must be accompanied by an appreciation of the risk which is involved in it; Johnson v Marshall Sons & Co Ltd [1906] AC 409, 411, 415; Richards v Faulls Pty Ltd (supra); Quill v Ross Bros Pty Ltd (1959) 77 WN (NSW) 94, 96.

1. Counsel for the plaintiff submits that in considering whether the plaintiff's conduct could be regarded as serious and wilful misconduct I should take into account that the defendant organised the function, provided the intoxicating liquor and did not provide any transport for the employees so that they would not have to drive themselves home. Counsel relied upon a passage in Hill and Bingeman, Principles of the Law of Workers' Compensation at 139 in which it is said that there may well be circumstances in which being under the influence of intoxicating liquor at the time when an injury is sustained will not amount to serious and wilful misconduct and an example is given of "workers who become intoxicated at parties, entertainment and lunches provided by employers and in circumstances where the consumption of alcohol is condoned, encouraged or promoted by the employer". No authority is cited for that proposition. I accept that the existence of such circumstances is capable of being relevant to the determination of the question of whether conduct is serious and wilful misconduct, but I do not accept that the existence of such circumstances would necessarily preclude a finding that an employee had been guilty of serious and wilful misconduct.

1. I find that on 6 July 1984 the defendant's manager, Mr Gray, who organised the barbecue, spoke to the defendant's employees during the morning break and said that drivers of company cars were required to make arrangements to ensure that they did not drive company cars home after the barbecue. He said that he felt he could not direct other employees not to drive, but he did "advise them very strongly" that if they were going to consume alcohol at the function they should make arrangements which would ensure that they did not drive. Mr Gray gave evidence that the plaintiff was present at the time when he gave that advice. Although at one stage in his evidence the plaintiff asserted that that was not said, he later said in response to a specific question that although he could not recall Mr Gray speaking in those terms at the morning break, he did not deny that he did so. It was not put to Mr Gray in cross–examination that he did not speak in those terms to the plaintiff and his fellow employees. I accept Mr Gray’s evidence.

1. I find that as Mr Gray was about to leave the defendant's premises after the barbecue he saw the plaintiff driving his motor vehicle, apparently with the intention of driving himself home. Mr Gray alighted from the car in which he was a passenger and suggested "very strongly" to the plaintiff that he should not drive, that he should leave his car at the premises and that Mr Gray would arrange for him to be driven home. I find that there would have been no practical difficulty about the plaintiff complying with that suggestion: the premises were locked at night and there would have been no difficulty about the plaintiff gaining access to his car the next morning. The plaintiff refused the offer and declined to follow the advice and drove home. As Mr Gray had no lawful right to forcibly restrain the plaintiff or to direct him not to drive I am not satisfied that he could have done any more than he did to prevent the plaintiff driving himself home. Although it is correct to say that the defendant condoned or encouraged the plaintiff's consumption of some liquor on that day, the plaintiff's misconduct consisted of his driving his motor vehicle after consuming an excessive amount of liquor which misconduct the defendant not only did not condone but actively discouraged.

1. I am satisfied that the plaintiff intentionally and deliberately consumed an excessive amount of liquor and intentionally and deliberately drove his car. Earlier in the day before the barbecue started the plaintiff thought that in view of the fact that he would be drinking it would be "safer" to share a taxi with a fellow employee and made arrangements to do so, but later he abandoned that plan. Having had his mind directed to the question of whether he ought to drive by Mr Gray's suggestion that he should not drive and by his offer to give him a lift, the plaintiff made a deliberate decision to drive himself home. The dangers of driving after consuming as much alcohol as the plaintiff had consumed are so notorious that in the absence of any evidence to the contrary I would be prepared to infer that the plaintiff must have realised that driving that night would expose him to a real risk of serious injury. But, in addition, the plaintiff conceded in evidence that had he drunk 10 cans of beer he would have been drunk and unsteady on his feet and unable properly to drive a motor vehicle.

1. I find that the plaintiff's injury was attributable to his serious and wilful misconduct.

1. The plaintiff's claim is dismissed.