Taylor v Stapley [1954] HCA 12

High Court of Australia Dixon C.J. Webb and Taylor JJ. Taylor v Stapley [1954] HCA 12

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 13 Dixon C.J. and Taylor J.

The question upon which this appeal depends arises upon s. 7 (1) (e) of the Workers' Compensation Act 1926-1951 N.S.W.. That provision, which was inserted in the Act by the Workers' Compensation (Amendment) Act 1951, is in the following terms: "(e) Where a worker on any day on which he has attended at his place of employment pursuant to his contract of service or apprenticeship—(i) is temporarily absent therefrom on that day during any ordinary recess; and (ii) does not during such absence voluntarily subject himself to any abnormal risk of injury; and (iii) during such absence receives an injury without his serious and wilful misconduct, the worker (and in the case of the death of the worker, his dependants) shall receive compensation from the employer in accordance with this Act." What is to be determined is whether upon the circumstances of this particular case it could be found that the worker did not voluntarily subject himself to any abnormal risk of injury.

The worker was a youth nearly seventeen years of age who was drowned in the Nepean River on 11th January 1952. During his annual holidays from his ordinary work he had taken temporary employment with the appellant, a building contractor, who was doing some work at Agnes Banks near Richmond. The building at which the deceased was at work was several hundred yards from the bank of the river. During the intervals for lunch the deceased and two other youths had several times gone to the river and bathed. He was anything but a good swimmer. He had learned to swim only during the Christmas holidays that had just passed. He was taught by a friend who said in evidence that he was learning very well, he was a fair swimmer, but able to swim at most thirty yards. One of his two companions described his capacity to swim as very slight and said that he was only a learner. His brother said that the deceased "could swim, just dog paddle." The evidence does not suggest that on the day when he was drowned the deceased meant to go into deep water. On previous occasions the youths had crossed the main stream in shallow water where the river broadens out forming a sand bank and a gravel island. The depth was described as up to the deceased's thighs. On the day of the drowning the three youths repeated this proceeding but on returning they recrossed lower down where the river was deeper. There had been some rain and the river had risen about eight inches and was flowing more swiftly. The deceased got into difficulties and was carried beyond his depth. His companions were unable to save him and he was drowned.