Raines v Bayebb Pty. Limited

[2002] NSWCA 197

CITATION:	Raines v. Bayebb Pty. Limited [2002] NSWCA 197
FILE NUMBER(S):	CA 40773/01
HEARING DATE(S):	17 May 2002
JUDGMENT DATE:	27 June 2002
PARTIES :	Richard Percy Raines by his tutor Stephen John Raines - appellant Bayebb Pty. Limited - respondent
JUDGMENT OF:	Sheller JA at 1; Heydon JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC1261/98
LOWER COURT JUDICIAL OFFICER :	Davidson J

COUNSEL:	J. Graves SC with C. Thompson for appellant W.K. Dodd SC with R.A. Standon for respondent
SOLICITORS:	Harris McHugh Lawyers, Tamworth for appellant Leigh Virtue & Associates, Sydney for respondent
CATCHWORDS:	WORKERS COMPENSATION - Injury on journey - Fault of worker - Whether risk of injury materially increased for a reason connected with the worker's employment - APPEAL AND NEW TRIAL - When appeal lies - Question of law - Whether finding available on the evidence.
LEGISLATION CITED:	Workers Compensation Act 1987 s.10
CASES CITED:	Ambulance Service of NSW v. Daniel (2000) 19 NSWCCR 697 Azzopardi v. Tasman UEB Industries Ltd. (1985) 4 NSWLR 139 Commissioner of Police v. Tuck (1996) 12 NSWCCR 682 McPhee v. S. Bennett Ltd. (1935) 52 WN(NSW) 8 Soulemezis v. Dudley (Holdings) Pty. Ltd. (1987) 10 NSWLR 247
DECISION:	1.Appeal allowed. 2.Judgment below set aside, and in lieu thereof award in favour of the appellant in an amount to be determined by the Compensation Court. 3. Respondent to pay appellant's costs of the appeal, and to have a suitors fund certificate if otherwise entitled. 4.Respondent to pay appellant's costs of the proceedings below. 5. Matter remitted to the Compensation Court for determination of quantum.

CA 40773/01
CC 1261/98

SHELLER JA
HEYDON JA
HODGSON JA

Thursday 27 June 2002

Richard Percy RAINES by his tutor Stephen John RAINES

v. BAYEBB PTY. LIMITED

Judgment

1 SHELLER JA: I agree with Hodgson JA as set out below.

2 HEYDON JA: I also agree with Hodgson JA.

3 HODGSON JA: On 14 July 2000, Davidson J in the Compensation Court made an award for the respondent Bayebb Pty. Limited in proceedings under the Workers Compensation Act 1987 brought against it by the appellant Richard Raines. Mr. Raines appeals to this Court from that decision.

4 The claim in the Compensation Court arose from severe injuries suffered by the appellant in a motor accident on 11 December 1996. At the time, the appellant was employed by the respondent, and it was not at issue that the injuries occurred on his journey home from a place of employment. Accordingly, the appellant was entitled to compensation under s.10(1) of the Workers Compensation Act, subject to the disentitling provision in s.10(1A) as affected by s.10(1C). As at 11 December 1996, the relevant parts of s.10 were as follows:

10(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

(1A) Subsection (1) does not apply if the personal injury was caused, partly or wholly, by the fault of the worker,

(1B) A personal injury received by a worker is to be taken to have been caused by the fault of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Traffic Act 1909), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.

(1C) If the risk of injury on a daily or other period journey to which this section applies, compared with the risk of injury on the worker's normal journey, is materially increased for a reason connected with the worker's employment (including the distance travelled, the time of day or night, the method of travel or the route of the journey), subsection (1) is not excluded merely because the injury was caused by the fault of the worker.

(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
…
(6) In this section-
educational institution means-
(a) a trade, technical or other training school; or
(b) a university or other college or school providing secondary or tertiary education;

fault includes-
(a) negligence or other tort; and
(b) any failure to take reasonable care for the worker's own safety; [def insrt Act 214 of 1989 s 3 and Sch 11]

night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker's employment;

place of abode includes-
(a) the place where the worker has spent the night preceding a journey and from which the worker is journeying; and
(b) the place to which the worker is journeying with the intention of there spending the night following a journey.

5 It was common ground that the respondent bore the onus of proof in respect of s.10(1A), and that the appellant bore the onus of proof in respect of s.10(1C).

6 The respondent’s case below was that the injuries were caused by the fault of the appellant because they were caused by the appellant driving at an excessive speed, or by the appellant driving whilst he was fatigued and affected by alcohol, or alternatively by application of res ipsa loquitur.

7 The primary judge found that the injuries were caused by the appellant driving at an excessive speed, and therefore were partly or wholly caused by his fault, so that s.10(1A) applied. He also found that the risk that injury would happen as a result of the appellant driving too fast was not a reason connected with his employment, so that s.10(1C) did not apply.

8 The appellant originally appealed on one ground only, as follows:

1. His Honour erred in that there was insufficient evidence to find that the Appellant’s injuries were caused by the Appellant driving his vehicle at an excessive speed.

However, at the hearing, he sought to add a second ground:

2. His Honour misinterpreted the meaning of Section 10(1C) of the WCA:
a) by finding that the subsection took effect only if the "risk" found proved for the purposes of the subsection materially contributed to the occurrence of a “fault” found proved for the purposes of Section 10(IA) of the WCA.

b) Alternatively by finding (in obiter dictum) that where there is more than one "risk" found proved for the purposes of the subsection, at least one of those "risks” must have materially contributed to the “fault” found proved for the purposes of Section 10(1A) of the WCA.

9 By virtue of s.32(1) of the Compensation Court Act 1984, appeals from that court are limited to asserted errors “in point of law or on a question as to the admission or rejection of evidence”. One substantial point at issue in this appeal is whether any errors alleged by the appellant amount to an error of law. In order to deal with this question, and with the appeal generally, it is necessary to outline the circumstances and the submissions of the parties.

CIRCUMSTANCES

10 The accident occurred at approximately 1.00am on 11 December 1996, when the appellant was driving his Toyota Prada four-wheel drive vehicle home from a Christmas party for stock and station agents held at the Sons of the Soil Hotel in Coonamble, New South Wales. The vehicle was proceeding along the Old Gular Road towards Gulargambone when, in the course of negotiating a right-hand curve in the road, it went into gravel on the left side of the road, and then crossed back to the other side of the road, left the road, and rolled, ending up on its roof about 12 metres from the right side of the road. The applicable speed limit for this section of road was 100 kilometres per hour.

11 Evidence before the primary judge included evidence by Senior Constable Hoath, John Jamieson a consulting engineer, Tom Gibson another consulting engineer, and Ann Williamson a psychologist.

12 Senior Constable Hoath noted in a report made at the time that the accident was speed-related and also alcohol-related; and in his evidence before the Compensation Court he estimated that the vehicle was travelling at least 80 kilometres per hour when it left the bitumen and went onto the gravel on the left side of the road.

13 Mr. Jamieson’s evidence was that the vehicle was travelling in the range of 80-100 kilometres per hour when it left the bitumen, and he conceded that this was less than the critical speed of 100-120 kilometres per hour after which one would expect a normal vehicle would commence to slide. He also gave evidence that falling asleep or momentary inadvertence was unlikely to be the cause of the accident, because of the appellant’s success in driving to this point and in particular in following a left-hand curve immediately prior to commencing the right-have curve.

14 Mr. Gibson estimated the speed at which the appellant’s vehicle was travelling at the time of the accident was in the range 65-85 kilometres per hour, and he gave evidence that the right-hand bend could be safely negotiated at 80 kilometres per hour; and that in his opinion the accident was not caused by excessive speed.

15 Dr. Williamson gave the following evidence:

I think in Mr. Raines’ case, he had been awake for 19 or 20 hours. We know from the research that we have done and Dawson and Reid research, which show exactly the same as what we did, that after about 17 to 19 hours of sleep deprivation our capacity to perform is about as good as we are at .05 alcohol level.

…

We would have to say that he was at significant risk of having an error whilst he was driving.

…

Q. In suggesting that a person suffering sleep deprivation would suffer in performance capacity equivalent to someone with a blood alcohol content of 0.05 do you include in that that there would be impairment of psycho motor performance.
A. One of the aspects of the functional change, yes.

Q. That would lengthen reaction time and decision making time.
A. Yes, it appears to be.

Q. It would impair motor co-ordination.
A. To some extent yes.

Q. It could impair the judgement of speed and distance.
A. That seems to be so yes.

Q. It would distort the perception of the external environment.
A. We have to be a bit careful about how far we can go with these statements. Certainly it seems to impair your ability to pick up information on which you may even be focussing that happens irregularly.

Q. Does it decrease your vigilance.
A. Yes.

…

Q. Does sleep deprivation affect a driver’s capacity to correctly estimate their driving capability.
A. Unfortunately yes, as we get more tired I think we tend to under estimate our tiredness. If you've got some other motivators, people weigh these things up and our judgment of our fatigue level is not perfect.

Q. Does sleep deprivation also lead to an under estimate of the level of impairment.
A. Yes, we seem to think that is the case.

Q. No doubt, as my learned friend put to you, the combination of sleep deprivation and some alcohol magnifies the impairments I have been asking you about.
A. As I said previously, it's difficult to say exactly how the two interact, but it’s likely to be the case, yes.

JUDGMENT OF PRIMARY JUDGE

16 The critical passages in the primary judge’s judgment are the following:

Not without some degree of difficulty, I have come to the conclusion that the proposition advanced by the respondent in its first submission is the more probable. I believe that the finding gives account to the evidence that I am persuaded by. That included quite definite evidence of Senior Constable Hoath. There was no doubt in my mind that he considered the accident was the result of the applicant driving his vehicle too fast in the prevailing circumstances. Constable Hoath has been stationed in the area for something in the order of 16 or 19 years, I cannot recall exactly which, and has traversed that very part of the road thousands and thousands of times, I found his evidence to be very direct and convincing. He did not waver in his view, which he obviously formed right from the outset, despite cross-examination by senior counsel. It is also, I believe, the overall view of Mr Jamieson, the expert called by the respondent, whose evidence I found convincing, He was prepared to entertain possibilities and was not dogmatic when cross-examined, but at the end of the day, consistent with Constable Hoath's conclusion, I find that he considered the cause of the action was excessive speed. I also believe the evidence of Mr Gibson on behalf of the applicant, is consistent with much of the evidence of Constable Hoath and Mr Jamieson. In cross-examination by Mr Dodd I believe Gibson was painted into a corner in respect of this aspect of the case.

I find, therefore, that the injury was caused partly or wholly by the fault of the worker and it remains to be considered whether or not, despite that, the worker should succeed by virtue of subs(I)(c). I do not believe the applicant can succeed in view of my findings. I have given deep consideration to the alternative finding that the injury was caused by the fault of the worker, not only in driving at an excessive speed, but as a result of a combination of that fact and fatigue, and perhaps the effect of the alcohol that he drank that night.

Even if one had considered the cause of the injury was a combination of those three factors, I believe the applicant would still have failed. I advert to that alternative proposition so that it will not be thought that I have ignored it or overlooked the quite relevant evidence as to it. As I have already mentioned, there was quite a bit of evidence which was relevant to the question of fatigue, if not to the question of alcohol, in so far as it might contribute to the cause of injury. I have no hesitation in coming to the view that the applicant was a hardworking, decent, relatively young man, committed to his family, and that, as Dr Williamson said, after being up for 19 to 20 hours he would be reasonably tired, and would be, to some small degree, affected by the alcohol that he had taken. Nevertheless, if I had taken that into consideration, I would still have come to the view that he was at fault, within the meaning of this section, more particularly on the basis that he failed to take reasonable care for his own safety in driving his vehicle at speed and at a time when he had been up for 19 to 20 hours and had been drinking.

In considering subs (1)(c), critical to the case for the applicant is the fact that the risk of injury on this particular journey, compared with the risk of the injury on the applicant's normal journey, has to be shown to have been "materially" increased for a reason connected with the worker's employment. Having found that the cause of the injury was excessive speed, as submitted by Mr Dodd on behalf of the respondent, I do not consider that subs (1)(c) is brought into play. The risk that the injury would happen as a consequence of the applicant driving too fast could not be found to be for a reason connected with his employment. Upon my findings that puts an end to it. However, I add that, again, I considered the question of whether, if one found the cause of the injury to be the combination of the speed and the fatigue and some alcohol, the applicant could succeed by virtue of subs (1)(c). Again, I do not believe he could have. So far as the attendance by the applicant at the hotel is concerned, I would have been prepared to find that the risk in the circumstances had been increased for a reason connected with his employment, I would have found that was reasonably incidental to his employment. That is borne out by the evidence of Mrs Raines to whom he said he probably should go because of his position as a co-director of the respondent company and from the evidence of Mr Shead his other co-director, who said it was part of this duty to do so as it was important for business. I would have little difficulty in concluding that the work of a stock and station agent, particularly a principal of a firm, included going to the Christmas party, That would not have concluded the matter, however, as I would not have been convinced that the contribution of the fatigue which resulted from that reason which was connected with his employment of going to the party and extended the length of his work day, materially increased the risk of the injury in this particular instance. The determination of this question would involve a comparison of the risks or the part which the risks played in increasing, the risk on the comparative journeys and I would have come to the conclusion that the fatigue caused and/or the alcohol ingested at the party during an extension of his employment, did not materially increase the risk. Rather, I would have found the speed was the materially increasing factor.

SUBMISSIONS

17 Mr. Graves SC for the appellant submitted that the primary judge made an error of law in making the finding that the appellant’s injuries were caused by excessive speed, and that alone. He submitted that, on every estimate of speed at the time the wheels of the vehicle left the bitumen surface, the speed was less than the speed limit for the road, and less than the critical speed at which the vehicle was at risk of sliding off the road. In Senior Constable Hoath’s P4 report, it was noted that the view was clear, the roadway dry, and there was no suggestion of anything about the conditions which would have made the speed limit unsafe. Only Senior Constable Hoath suggested that the accident was caused by excessive speed, and he did this only in a report in which he said the accident was speed-related and also alcohol-related.

18 In response to a submission of the respondent, based on Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139, that the ground of appeal did not involve a question of law, Mr. Graves submitted that the challenged finding was one concerning which the respondent bore the onus of proof, and it was a question of law whether the material before the primary judge was sufficient as a matter of law to prove the fact in question: Ambulance Service of New South Wales v. Daniel (2000) 19 NSWCCR 697.

19 In support of the second ground, Mr. Graves submitted that s.10(1C) did not specify that the material increase of risk must itself contribute to the injury which actually occurs. He referred to Commissioner of Police v. Tuck (1996) 12 NSWCCR 682, where it was submitted for the employer that, simply because the risk was materially increased, it did not follow that the worker was entitled to an award when at fault. It was submitted that a balancing exercise was required, so that in effect the worker should not recover if the worker’s fault outweighed the risk in question. That argument was rejected by the Court of Appeal.

20 Mr. Dodd SC for the respondent submitted that the appeal was on a question of fact, not a question of law, and so it could not succeed: Azzopardi, McPhee v. S. Bennett Limited (1935) 52 WN(NSW) 8 at 9. It was not a mixed question of fact and law: Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247 at 281.

21 Mr. Dodd submitted that there was evidence on which the primary judge could find that the accident was caused by excessive speed. This included the observations and opinions of Constable Hoath, the opinion of Mr. Jamieson, and the concession in cross-examination by Mr. Gibson that there was excessive speed. On this last matter, I would interpolate that the full answer given by Mr. Gibson was as follows:

Well can I change that around and say that for him driving on the asphalt surface the speed he was travelling at was reasonable but something occurred that meant he diverted from that surface. He actually put himself into a situation where he was travelling at excessive speed, but in normal circumstances his speed on that section of road would have been reasonable.

22 Mr. Dodd submitted that, in relation to s.10(1C), the onus was on the appellant. Even if the onus had been on the respondent to show that there was no deficiency in the control of the vehicle, other than excessive speed, this was supported by the circumstance that the accident occurred after the appellant had successfully driven three kilometres and had successfully negotiated most of the s-bend.

23 As regards ground 2, Mr. Dodd did not submit that there was any prejudice in granting the amendment, that could not be cured by the opportunity to make further submissions, which was granted, and by appropriate orders as to costs.

24 Mr. Dodd submitted that the asserted finding in the proposed ground 2(a) was not actually made. The primary judge summarised why the appellant asserted the injury was not caused by some element of fault on his part, namely the vehicle was not driven at an excessive speed, the worker was not knowingly fatigued, the worker was not suffering from the effects of alcohol, the accident occurred as a result of the appellant momentarily falling asleep, and a reasonable person in the position of the appellant would have done the same thing, i.e. embarked on the short trip home. The primary judge found that the cause of the accident was that the appellant drove at an excessive speed, and that for that reason the injury was caused partly or wholly by his fault. Although it essentially fell outside the appellant’s arguments, the primary judge went on to consider whether, despite that, the appellant should succeed by virtue of subs.(1C). That provides that fault will not disentitle the worker from benefits under the Act if the risk of injury on the journey in question is materially increased in comparison to the worker’s normal journey for a reason connected with the worker’s employment. The primary judge considered s.10(1C) at length, and this Court should not interfere with the factual findings. The case of Tuck was distinguishable.

DECISION

25 In my opinion, the evidence before the primary judge did support a finding that the appellant was driving at an excessive speed, and that this was a cause of the accident. However, in my view the evidence could not support a finding that excessive speed was the sole cause of the accident, in the sense that there was no material contribution from any other deficiency in the management of the vehicle.

26 The applicable speed limit was 100 kph. The respondent’s expert gave evidence that the s-bend could have been negotiated without sliding at speeds of up to 100 kph. There was no other evidence as to what a safe speed for the curve was. The evidence did not support a finding that the speed was more than about 80 kph or at the very most 85 kph. Although the successful negotiation of the s-bend to the point at which the vehicle left the road could support a finding that this was not due to falling asleep or to momentary inattention, neither this material nor any other evidence in the case could support a conclusion, on the balance of probabilities, that there was no other deficiency in the management or control of the vehicle, apart from driving at an excessive speed, that materially contributed to the accident.

27 The primary judge could have found fault in the appellant through excessive speed and/or other unspecified deficiency in the management of the vehicle, or on the basis of res ipsa loquitur; in which case the onus would then have been on the appellant to satisfy the test in s.10(1C). However, the primary judge did not do this, but, in relation to a question as to which the onus of proof was on the respondent, made a finding which was not open on the evidence, namely that excessive speed was the sole cause of the accident, and that there was no material contribution to the accident from any other deficiency in the management and control of the vehicle. In my opinion, that was an error of law.

28 The primary judge did accept that the appellant’s attendance at the function at the hotel, with any associated alcohol consumption and additional fatigue, was a reason associated with the appellant’s employment. However, he found that, even if there was some deficiency in the appellant’s management and control of the vehicle through fatigue and/or alcohol, he was not satisfied that attendance at the hotel, with any associated alcohol consumption and additional fatigue, materially increased the risk.

29 Had this finding been a finding of fact, on a matter on which the appellant had the onus of proof (that is, a matter requiring proof under s.10(1C), Azzopardi would preclude an appeal against such finding. However, the question was dealt with by the primary judge as a purely hypothetical question, on which a decision did not have to be made, because of his prior error of law. Furthermore, it was infected by the prior error of law, because the finding was supported by the assertion that “the speed was the materially increasing factor”, that is, the only “materially increasing factor”.

30 Accordingly, in my opinion, an error of law is made out. The question then is whether there should be a new trial, or whether this Court can decide the questions arising under s.10(1A) and s.10(1C).

31 Dealing with the question under s.10(1A), in my opinion there can really be no doubt that, on the balance of probabilities, the accident was caused, partly or wholly, by the fault of the appellant. There being no suggestion of any mechanical defect in the vehicle, I think it is clear that, on the balance of probabilities, there was some fault in the driver of the vehicle which caused it to leave the road and ultimately overturn.

32 Turning to the question under s.10(1C), in my opinion the only reasonable finding on the evidence, including the evidence of Dr. Williamson, is that fatigue and alcohol materially contributed to the risk of injury, and in fact were causative factors in this accident. The evidence of Dr. Williamson, which was not effectively challenged, was that the appellant’s performance capacity would have been affected by tiredness in the various ways put to her in cross-examination, and in my opinion the inevitable conclusion is that it was the combination of these deficiencies with a speed that was excessive, particularly having regard to these deficiencies, that caused the accident. The deficiencies may well also have prejudiced the appellant’s judgment as to what speed was safe and appropriate in the circumstances.

33 In my opinion, this Court should allow the appeal and substitute its own decision, to the effect that s.10(1C) applies so that the appellant is not precluded by his fault from entitlement to the benefits under the Act.

34 Turning to the second ground, the point at issue is whether, if the risk of injury is increased, is it also necessary to find that this increase of risk in fact contributed to the injury that occurred. For example, suppose that a worker who was required to work until late in the night, and who then set off walking home, had an increased risk of injury because of the prevalence of assaults occurring in that area at that time; but in fact was injured because he carelessly walked onto the road in front of a motor vehicle.

35 Having regard to my decision on the first point, a decision on this question is not necessary for the determination of this case. However, my view is that, for s.10(1C) to be satisfied, what must be materially increased is the “risk of injury”, and the injury that was caused by the fault of the worker is the injury in respect of which the risk must be materially increased.

36 Accordingly, I would not have allowed the appeal on this ground.

CONCLUSION

37 For the reasons I have given, I would propose the following orders:

1. Appeal allowed.
2. Judgment below set aside, and in lieu thereof award in favour of the appellant in an amount to be determined by the Compensation Court.
3. Respondent to pay appellant’s costs of the appeal, and to have a suitors’ fund certificate if otherwise entitled.
4. Respondent to pay appellant’s costs of the proceedings below.
5. Matter remitted to the Compensation Court for determination of quantum.
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