May v ICM Farm Products Australia Pty Ltd
[2005] VSCA 204
•16 August 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 3702 of 2004
| ANTHONY WAYNE MAY | |
| Appellant | |
| v. | |
| ICM FARM PRODUCTS AUSTRALIA PTY. LTD. | Respondent |
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JUDGES: | EAMES and ASHLEY, JJ.A. and HOLLINGWORTH, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 August 2005 | |
DATE OF JUDGMENT: | 16 August 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 204 | |
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Accident compensation – Injury sustained during authorised recess – Whether appellant had discharged onus of showing that he had not during that absence voluntarily subjected himself to any abnormal risk of injury – No misdirection alleged – Whether no evidence to support particular findings adverse to appellant – Whether appellant denied opportunity to meet particular adverse findings – Evidence to support impugned findings – No denial of procedural fairness – Appeal dismissed.
Accident Compensation Act 1985, s. 83(1)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S. McCredie | Mark M. Morgan |
| For the Respondent | Mr J.H.L. Forrest, Q.C. with Mr P. Solomon | Dibbs Abbott Stillman |
EAMES, J.A.:
I invite Ashley, J.A. to give the first judgment.
ASHLEY, J.A.:
Statement of the Case
This is an appeal from a judgment entered in the County Court on 15 August 2003 by which the appellant’s claim for compensation under the Accident Compensation Act 1985 (“the Act”) was dismissed.
The appellant, Anthony May, was employed by the respondent, ICM Farm Products Pty Ltd, as a slaughterman/labourer at its Yarrawonga meat processing works. On 27 January 1999, he was injured when his motorcycle collided with a motorcar at the intersection of the Murray Valley Highway and White’s Road, Yarrawonga. The collision occurred during his lunch break, and whilst he was riding home. All this was common ground. It was also common ground that the appellant had injured his right leg in the accident. But the extent of the injuries and their effect upon him was in dispute.
By its Amended Defence the respondent denied the appellant’s allegation that the latter had suffered injury “in the course and scope of his employment with [it] and/or in the course of (sic) scope of an authorized recess from [its] premises”.[1] It alleged also:
[1]Para. 2 of respondent’s Amended Defence dated 3 February 2003.
“7.Further, at the time of injury, the Plaintiff was travelling upon a journey from work to home within the meaning of s. 83(2)(b) of the Accident Compensation Act 1985 (‘the Act’).
8.At the time, the Plaintiff was then driving a motorcycle, which driving constituted serious and wilful misconduct within the meaning of s. 82(4) of the Act.
9.Further, the Plaintiff at the time he sustained injury was not within the course or and/or scope of his employment nor was he within an authorised recess within the meaning of s. 83(1)(a) of the Act.
10.If the Plaintiff was within an authorised recess (which is denied) then the Plaintiff voluntarily subjected himself to an abnormal risk of injury.
PARTICULARS
The Plaintiff was driving at the time of injury, a motorcycle within the meaning of the Road Safety Act (Vic) 1986 when he was unlicensed and disqualified from so driving. Further, the Plaintiff travelled at a speed excessive in all the circumstances and failed to give way at an intersection.”
By his Reply the appellant admitted that he was “driving” his motorcycle at the pertinent time. He otherwise put in issue the matters alleged by paragraph 8 of the Amended Defence. He further alleged that:
“2.If the injury was attributable to his serious and wilful misconduct (which is specifically denied), the injury has resulted in serious and permanent disablement pursuant to s. 82(5) of the Act by reason of which s. 82(4) does not apply.”
The respondent delivered a Notice to Admit. The appellant admitted, in substance, that he had been an unlicensed rider at the pertinent time, and that he had pleaded guilty and had been convicted on charges of driving whilst disqualified and failing to yield right of way.
At trial, as appears from the reasons of the learned trial judge, the appellant abandoned reliance upon s. 82(1) in its primary sense as founding his entitlement to compensation. He rather relied upon s. 83(1)(a), which reads:
“(1) An injury to a worker is deemed to arise out of or in the course of employment for the purposes of s. 82(1) and 82(2) if the injury occurs –
(a)while the worker on any working day that the worker attended at the place of employment having been present at the place of employment is temporarily absent on that day during any authorised recess and does not during that absence voluntarily subject himself or herself to any abnormal risk of injury.”
There being no dispute between the parties that 27 January 1999 had been a working day, that the appellant had attended his place of employment, that he was temporarily absent therefrom and that he suffered injury during such temporary absence, the judge framed the critical issues this way:
“The dispute between the parties is in respect of whether that temporary absence was during an authorised recess and whether or not during that absence the plaintiff voluntarily subjected himself to any abnormal risk of injury.”[2]
[2]Reasons of the trial judge “the Primary Reasons” at [8].
He did so in the context that the parties had agreed that the question “whether the plaintiff had been injured in compensable circumstances should be determined as a preliminary point before moving on to the question of the quantum of any compensation...”[3]
[3]Primary Reasons at [9].
The learned judge held that –
· The appellant had been injured whilst temporarily absent from his place of employment during an authorized recess.[4] It mattered not that injury had been suffered, as it turned out, in the course of a journey between place of employment and place of residence, injury in the course of such a journey being no longer compensable in terms[5].
[4]Primary Reasons at [10] (p).
[5]Primary Reasons at [10] (n).
· The injury was not rendered non-compensable by reason of the fact that the employment had not been a significant contributing factor to such injury[6].
· The critical question was whether the appellant had established – that is, he carrying the onus - that he had not voluntarily subjected himself to an abnormal risk of injury. The answer to compensability of injury lays within s. 83(1)(a). Section 82(4) was not in point.[7]
The propositions of law contained within each of those findings do not fall for consideration on this appeal, save for the question of onus, in respect of which his Honour was plainly correct.[8]
[6]Primary Reasons at [10] (r).
[7]Primary Reasons at [10] (r).
[8]Taylor v Stapley (1954) 90 CLR 1 at 8 per Dixon, C.J. and Taylor, J.
Upon what he isolated as the crucial question the learned judge said, and I agree[9], that the fact that the appellant had been unlicensed at the time of the collision was irrelevant; as was the appellant’s overall driving record.[10] His Honour rightly rejected submissions for the respondent which contended that the first of those matters was determinative against the appellant.
[9]At least in the circumstances of this case.
[10]Primary Reasons at [11].
Further with respect to that issue his Honour found that:
·The route which the appellant took that day was one with which he was familiar. He was aware that when travelling north along White’s Road he would be faced by a Give Way sign at the intersection of that road with the Murray Valley Highway[11].
[11]Primary Reasons at [12](f), (i), (n).
·The appellant’s view of the Murray Valley Highway looking both east and west as he approached the intersection from the south was impeded by high crops and/or grass on the south east and south west corners of the intersection to the extent that traffic on the highway could not have been seen until his motorcycle was at the point of entering upon that highway.[12]
[12]Primary Reasons at [12](j).
·The appellant rode his motorcycle past the Give Way sign without stopping. He entered the carriageway of Murray Valley Highway, and his motorcycle collided with a motor vehicle travelling west along the highway[13].
·The speed of the appellant’s motorcycle immediately before reaching the intersection was excessive in the circumstances, being at least 80 kph[14].
·The appellant’s
“... motorcycle entered and attempted to cross the intersection at about that speed, despite the requirement that he should give way pursuant to the sign facing him, and despite the fact that his vision of oncoming traffic either from the east or the west was obstructed by either high grass or crops growing on the south east and south west corners of the intersection”[15].
·The manner in which the appellant rode his motorcycle at and across the intersection equated to “Russian roulette”. It “constituted a total indifference to his own safety and the safety of others”. It did not involve just an error of judgment. It was “far more” than such an error. The appellant had voluntarily subjected himself to abnormal risk of injury because, though being familiar with the intersection and the presence of the Give Way sign, he “rode his motorcycle at an excessive speed straight into the intersection while his vision was obscured both to left and right”. His knowledge of the intersection and other circumstances revealed deliberation and intention in respect of the risk which he assumed[16].
[13]Primary Reasons at [12](k).
[14]Primary Reasons at [12](o).
[15]Primary Reasons at [13].
[16]Primary Reasons at [14], [15] (a), (b), (c), (d).
In determining that the appellant had not discharged the onus of showing that he had not voluntarily subjected himself to any abnormal risk of injury the learned judge evidently found guidance in the judgment of Dixon CJ and Taylor J in Taylor v Stapley[17] where their Honours said:
“The words ‘voluntarily subject himself’ require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury.”
His Honour referred also to the observation of Judge O’Meally in Gallard v State Rail Authority (NSW)[18] that –
“To voluntarily submit to an abnormal risk of injury, a worker must have knowledge of the risk and a determination to proceed in disregard of its consequences. An error of judgment is not sufficient.”
[17]Citation footnote 9, at 9.
[18](1992) 8 NSWCCR 280.
It is not in dispute that those passages were pertinent to his Honour’s task; as was the statement of Dixon CJ and Taylor J in Taylor v Stapley that:
“The word ‘abnormal’ seems to mean no more than unusual and a risk may be said to be abnormal where the doing of the act is, in particular circumstances, attended with an unusual degree of risk.”[19]
[19]At 8.
The Grounds of Appeal
By his Notice of Appeal the appellant relies upon the following grounds:
“1.There was no evidence upon which the learned judge could find, as he did, that the appellant:
(a)was travelling at a speed of at least 80 km per hour as he entered the intersection at which the collision occurred;
(b)was riding his motorcycle with total indifference to his own safety and the safety of others;
and he was thereby constrained to find that the appellant had not voluntarily subjected himself to abnormal risk of injury within the meaning of s.83(1)(a) of the Accident Compensation Act 1985.
2.The learned judge in finding that the appellant voluntarily subjected himself to abnormal risk of injury by travelling at a speed of at least 80km per hour as he entered the intersection at which the collision occurred and riding with total indifference to his own safety and the safety of others, denied procedural fairness to the appellant as –
(a)no allegation that the appellant voluntarily subjected himself to abnormal risk of injury in that manner was put to the appellant;
(b)no submission was made by counsel for the respondent in support of findings on that basis; and
(c)no opportunity was given by the learned judge to the appellant to make any submission to the contrary.”
Each of the grounds, most obviously ground 1, was no doubt so framed because of the statutory inhibition on appeals effected by s. 52(1)(9) of the Act.
Resolution of the Appeal
Ground 1
The speed of the applicant’s motor cycle at the time of the collision and the failure of the appellant to give way were in issue before and at trial. As to the former, see the particulars to paragraph 10 of the Amended Defence. As to the latter, relevant evidence was given viva voce by the appellant at trial. Other than that, a police record of interview and a police collision report went into evidence.
There is no doubt that the appellant’s motorcycle failed to yield right of way. The key issue from the judge’s perspective, as I perceive it, was the speed of the appellant’s motorcycle at the critical time. Had the appellant’s only default been failure to yield right of way, it is implicit in his Honour’s reasons that he would not have found that the appellant had voluntarily subjected himself to any abnormal risk of injury[20]. That is, the posited default was the appellant’s approach to and passage through the intersection of White’s Rd with the highway at high speed, despite the appellant being aware of the Give Way sign, despite the highway being the major thoroughfare in the vicinity, despite the appellant having limited visibility to right and left along the highway during his approach to the intersection, and despite the consequential inability of the appellant to do much if anything in those circumstances to avoid collision with a vehicle travelling along the highway.
[20]See Primary Reasons at [15] (e).
Once his Honour found the combination of circumstances just mentioned, his observation that the appellant’s conduct “constituted a total indifference to his own safety and the safety of others” readily followed. I reject the submission that, given those circumstances, the conclusion was unsupported by evidence. His Honour’s observation simply encapsulated the cumulative effect of the circumstances which his findings established.
The appellant contends, of course, that there was no evidence upon which his Honour could find that the appellant’s motorcycle “entered and attempted to cross the intersection at about – not ‘at least’ – 80km per hour.” But in my opinion there certainly was evidence upon which the judge could reach the relevant conclusion.
There was evidence before his Honour, by way of a police record of interview, that the appellant had said he was travelling at 80km per hour “before the intersection.” Viva voce, the appellant did not deny that before the intersection he had been travelling at such a speed. It was well open to his Honour to conclude that such had been the case. In that connection there was evidence that the applicable speed limit was 100 km per hour, that the motorbike was well capable of attaining 100km per hour, and that the appellant had travelled four kilometres or so by the time he reached the intersection.
Then there was evidence that the appellant had not seen the other vehicle until very shortly before impact, and when a very short distance from the point of impact, at which time he had applied the brakes.[21] The judge was entitled to conclude, having regard to the extent of visual obstruction disclosed by the evidence, that the appellant had not seen the other vehicle until it was very close by, and that application of brakes thereafter would have had little if any effect. The appellant gave evidence that he had brought his motorcycle to a stop, or nearly so, after seeing the other vehicle only shortly before entering the intersection. The fact that he gave such evidence did not oblige its acceptance. The diagram which formed part of the police collision report served to emphasise the shortness of the distance between the point at which the appellant claimed to have first seen the other vehicle and the point of impact. The shortness of such distance could reasonably deny the appellant’s account that his motorcycle had stopped, or nearly so, at point of impact. Moreover, the report, including the diagram, suggested no change in the direction of travel of the motorcycle before impact; nor any observation of brake marks by the investigating police officer. The report was thus consistent with the appellant having either not seen the other vehicle at all – in which case there had been no occasion to brake, or at least brake heavily – or else having seen the other vehicle so late in the piece that there had been no time to take any evasive action – whether by application of brakes, or by swerving.
[21]T 28 lines 23-28, T 29 lines 10-16, T 59 lines 10-11, lines 22-28.
There was evidence, on the other hand, which could have led the judge to conclude that the appellant had approached the intersection with caution. Although the appellant did not suggest in his evidence in chief that he had commenced to brake his motorcycle before seeing the other vehicle[22], and although this was consistent with his admissions to the investigating police officer on 24 March 1999,[23] he did tell the police officer he supposed that his motorcycle was travelling at 10 kms per hour at collision; and he gave evidence at trial that he believed he had stopped when the collision occurred.[24] It is also the case that, questioned by the learned trial judge, the appellant gave evidence that he “had slowed down to go through the intersection”.[25] Again, the police collision report suggested that the damage to the other vehicle was not great. But the judge was by no means obliged to accept the appellant’s account that he had approached the intersection with caution. The appellant’s evidence to that effect was given belatedly, and at least arguably was inconsistent with his earlier evidence and things which he said in his police interview. Moreover, questions as to the extent of damage to the other vehicle, to the motorcycle, and what if anything was to be gleaned from such damage, seem not to have loomed large at trial.
[22]See T 28 line 23; T 29 line 18; see also cross examination at T 60 lines 22-24.
[23]Exhibit 1 at trial, pp. 2-3.
[24]T 29 lines 22-25.
[25]T 77 lines 26-31; see also T 78 line 9, and lines 16-18.
This also should be said. The appellant told untruths to the investigating police officer, as he admitted at trial. Further, his evidence generally was considerably probed in cross-examination. The judge had a much better opportunity than does this Court of assessing the appellant’s reliability as a witness. It is perfectly apparent that his Honour did not accept the reliability of the appellant’s evidence upon the key issue. I cannot see that there was anything which compelled its acceptance.[26]
[26]Cf Fox v Percy (2003) 214 CLR 118 at [30]-[31] per Gleeson, C.J, Gummow and Kirby, JJ; see also at [138] per Callinan, J.
Ground 1 of the Notice of Appeal proposes that the learned judge was constrained to find that the appellant had not voluntarily subjected himself to abnormal risk of injury because there was no evidence to support two particular conclusions. It is not suggested by the Notice that his Honour misdirected himself as to the relevant test, whether as pertaining to abnormal risk or to voluntary assumption of such risk.
There was evidence to support the particular findings. The judge’s task was then to consider “questions of degree” which “are usually to be decided as matters of fact.”[27] Absent misdirection, it was not contended, and it would have been hopeless to contend, that the judge’s conclusion that the appellant had not discharged the negative onus cast upon him was insupportable upon the facts as he found them to be.
[27]Taylor v Stapley at 9 per Dixon, C.J. and Taylor, J.
Ground 2
The allegedly excessive speed of the appellant’s motorcycle at time of collision and the failure of the appellant to yield right of way were relied upon in the Amended Defence, as bearing upon voluntary assumption of abnormal risk of injury. That aspect of the defence was never abandoned.
Each of the speed of the motorcycle and the appellant’s failure to yield right of way were addressed in evidence. Evidence was led from the appellant in examination in chief. Those issues, particularly that of speed, were addressed in cross-examination and in questions asked by the trial judge. In particular, his Honour fairly asked questions[28] which gave the appellant an opportunity to meet a particular view which the judge might ultimately take of the evidence – a view bearing squarely upon findings which his Honour did in fact make as to the speed of the motorcycle as it entered the intersection and as to the proper characterisation of the appellant’s conduct.
[28]The questions were as follows –
“The impression I get, though, from your evidence, Mr May, is that your vision was obscured both to the left and the right? . . .
And that in driving across the Murray Valley Highway, as you did, it’s some sort of, like Russian Roulette, you just hoped there wasn’t a car there?”
The judge was not bound, of course, to accept the appellant’s answers to those questions insofar as those answers were exculpatory.
So also, questions were asked, both in evidence in chief and in cross-examination, which led to evidence of the short duration of the appellant’s lunch break, and as to his awareness of -
· The character of White’s Rd.[29]
[29]Assenting to its being described as “a narrow bituminized country road”: T 58.
· The fact that the Murray Valley Highway was a main thoroughfare in the area.
· The extent of visibility along the highway to east and west when approaching from the south in White’s Rd at the time.
· The presence of the Give Way sign.
No objection was taken to any question which addressed those various topics. Yet the matters enquired after must have been irrelevant unless they were pertinent to the defence of voluntary assumption of abnormal risk of injury.[30] This course of events strongly suggests to me that it was well understood at trial that one aspect of the respondent’s defence was that the manner of the appellant’s approach to and entry into the intersection, in all the circumstances, meant that he could not discharge the onus cast on him by s. 83(1)(a).
[30]And/or to the issue of serious and wilful misconduct which was then alive.
Counsel for the appellant submitted, however, that the respondent had not addressed issues of speed or total indifference to safety in written submissions at trial and that the learned judge had not given his client an opportunity to meet a case dependent upon those findings. Counsel for the respondent conceded in this Court that the overwhelming burden of the pertinent submissions below had been directed to the fact that the appellant was an unlicensed driver at the pertinent time. That concession was fairly made, although the submissions did at one point refer to an authority to the effect that what was to be looked at was the claimant’s driving, not whether the claimant had been a licensed driver.[31]
[31]Submissions for respondent in the County Court, paragraph 38.
The fact that the burden of the respondent’s submissions below addressed an irrelevant point does not mean, however, that the appellant was denied procedural fairness. That might have been the case had the appellant’s counsel seized on the submissions made for the respondent and submitted simply that his client’s status as an unlicensed driver was irrelevant to s. 83(1)(a); and had the judge then decided the case on the basis which he did. But in fact counsel for the appellant made substantial submissions which addressed the manner in which his client rode the motorcycle. Then he made the forensic point that the respondent had not addressed that issue in its submissions.
The point of the appellant’s substantive submissions was that the appellant’s driving revealed an error of judgment, not more; and that “the requirement that the worker voluntarily subjects himself to an abnormal risk requires more than an error of judgment.”[32] The learned judge evidently took heed of those submissions, but rejected their factual content. As I have said earlier, he found that the appellant’s conduct did not involve just an error of judgment. It was, he said, “far more” than
such an error.
[32]Submissions for appellant in the County Court, paragraph 7.4.
In the event, it seems to me that the appellant’s submission below addressed a live issue, an issue particularly brought into focus by questions asked by the learned trial judge. The issue had two elements. The speed of the appellant’s motorcycle as it entered the intersection; and the proper characterisation of the appellant’s conduct. It was suggested today that something more could have been said for the appellant, but in my view the submissions made below comprehensively addressed the matters which were at the heart of the two adverse findings upon which the appellant focussed in this appeal.
I decline to conclude, in the circumstances described, that the appellant was denied procedural fairness in the manner complained of.
In the event, I would dismiss the appeal.
EAMES, J.A.:
I agree that the appeal should be dismissed and I do so for the reasons given by Ashley, J.A.
HOLLINGWORTH, A.J.A.:
I also agree that the appeal should be dismissed for the reasons put forward by Ashley, J.A.
EAMES, J.A.:
The order of the Court will be that the appeal be dismissed with costs.
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