Mechanical Advantage Group Pty Ltd v George

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Mechanical Advantage Group Pty Ltd v George [2003]  NSWCA 121

FILE NUMBER(S):
40240/02

HEARING DATE(S):               17/03/03

JUDGMENT DATE: 21/05/2003

PARTIES:
Mechanical Advantage Group Pty Ltd (Appellant)
Neil George (Respondent)

JUDGMENT OF:       Spigelman CJ Handley JA Young CJ in Eq   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):          CC 41431/01

LOWER COURT JUDICIAL OFFICER:     Neilson CCJ

COUNSEL:
L King SC and MFG Batten (Appellant)
JP Gormly SC and BG McManamey (Respondent)

SOLICITORS:
Goldrick Farrell Mullan (Appellant)
Turner Freeman (Respondent)

CATCHWORDS:
Workers Compensation- Personal injury- Workers Compensation Act 1987, s 10- Journey provisions- Detour- Deviation- Interruption- Material increase in the risk of injury- Onus of proof to disprove material increase in risk on worker- Prima facie case that no material increase in risk then onus shifts to employer to prove there was an increase- Injury in NSW on return journey to place of abode in Queensland- Areas of knowledge in which the Workers Compensation Court has "expert knowledge"- Rules of evidence for Workers Compensation Courts. (D)

LEGISLATION CITED:
Compensation Court Act 1984, s 32
Workers Compensation Act 1987, ss 10(1), (2), (3)(e)
Workplace Injury Management Act 1998, s 112(3)

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40240/02

SPIGELMAN CJ
HANDLEY JA
YOUNG CJ in EQ

Wednesday 21 May 2003

MECHANICAL ADVANTAGE GROUP PTY LTD v GEORGE

Judgment

1. SPIGELMAN CJ:  I agree with Handley JA.

2. HANDLEY JA: This appeal arises out of the journey provisions in s 10 of the Workers Compensation Act 1987. The section occupies nearly three pages in the print copy of the statute, but the relevant provisions are ss 10(1), (2) and (3)(e). Section 10 (1) provides that a personal injury received by a worker on any journey to which the section applies is for the purposes of the Act an injury arising out of or in the course of the worker’s employment. The relevant journeys include in sub s (3)(e) a journey between a place where the worker is required by the terms of his employment to work and his normal place of abode.

3. This worker and his brother had been required by their employer to work at Young in New South Wales. When the job they had been working on was finished they set out to drive back to their home in Brisbane. This journey fell within sub s (3)(e), and prima facie was covered by s 10(1).

4. The appellant and his brother drove along the Hume and Pacific Highways.  They deviated from their direct route to the Pacific Highway to meet their sister at Coogee and stayed with her in Kensington overnight.  The following day they left Sydney and drove north along the Pacific Highway and then 11 kms off the Highway to Bellingen where they stayed overnight at a hotel.  During the night the worker fell off the balcony at the hotel and was seriously injured.

5. The employer’s appeal turns on s 10(2) which provides:

   “Sub section…