BABCOCK AUSTRALIA LTD v PROUDFOOT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and CRIPPS JJA 14 September 1993, 29 September 1993 [1993] NSWCA 15 The appeal was brought pursuant to s32 Compensation Court Act from the decision of the Compensation Court dismissing an application for review of a determination made by a Commissioner. The Commissioner had found that the respondent suffered injury on a daily or periodic journey from his place of employment to his home and as a result became totally incapacitated for work. Moroney CCJ determined that the Commissioner's findings were open and no reason had been shown why it should be interfered with. The respondent after work had stopped first at a nearby hotel and then at a friend's house. Held: Moroney CCJ did not err in confirming the Commissioner's decision that the respondent was on a journey to which s10 applied. Moroney CCJ did err in upholding the Commissioner's decision that the respondent had discharged the onus of proving that his actions did not materially increase the risk. Clarke JA I agree with Cripps JA. Handley JA I agree with Cripps JA. Cripps JA This is an appeal from a decision of Judge Moroney of the Compensation Court on 2 April 1993 dismissing an application for review of a determination made by Commissioner Cross on 9 December 1992. Commissioner Cross determined that the respondent suffered injury on a daily or periodic journey from his place of employment to his home on 21 May 1988 as a result of which he became totally incapacitated for work. It is common ground that the worker had a car accident and that, as a result, became quadriplegic. The appeal is brought pursuant to s32 of the Compensation Court Act 1984. The appeal is not confined to questions of law. The order the subject of the appeal was made by Moroney CCJ pursuant to s36 of the Compensation Court Act 1984. The nature and scope of the "review jurisdiction" contemplated by s36 was discussed extensively by Kirby P in Watson v Hanimex Colour Services Pty Ltd (Court of Appeal, 28 November 1991, unreported). It is unnecessary to dwell on the matter further because the review was conducted as if the question to be determined by Moroney CCJ was whether Commissioner Cross was right (and, if not, what order should he have made) on the material before him. Neither party sought to adduce further evidence. Because Moroney CCJ did not see and hear witnesses, it was assumed he would acknowledge the dominant position of Commissioner Cross in his assessment of the credibility and reliability of witnesses (see Owners of Steamship Hontestroom v Owners of Steamship Sagaporack (1927) AC 37, Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 and Abalos v Australian Postal Commission (1990) 171 CLR 167). Where facts were undisputed or, if disputed, were found, it was assumed Moroney CCJ would determine what proper inferences should be drawn (Warren v Coombes (1979) 142 CLR 531 and Chambers v Jobling (1986) 7 NSWLR | at 8). 2 UNREPORTED JUDGMENTS Moroney CCJ determined, in effect, that Commissioner Cross's findings were open and no good reason had been shown why they should be interfered with. It will be, therefore, necessary to refer to the findings of Commissioner Cross. Before this Court, however, the appellant has argued that Moroney CCJ failed properly to exercise his review function by adopting the approach I have referred to. Ido not think that ground is open to the appellant. Moroney CCJ adopted the course he did upon the invitation, implied at least, of both parties. The stated grounds of review were that Commissioner Cross erred in law in finding the respondent suffered an injury on a daily or periodic journey and that he erred in finding that the respondent had discharged the onus of establishing the interruptions to or deviations from the journey did not materially increase the risk of injury. It was also said that his findings were "against the evidence and the weight of the evidence" but those allegations really added nothing to the function to be discharged by Moroney CCJ because, as I have said, he was asked to determine the matter on the record. Background Facts The respondent, a rigger, was seriously injured when driving along the F4 Freeway at about 6.45 pm on Saturday, 21 May 1988. It was common ground before Commissioner Cross that if the respondent was entitled to compensation, he was entitled to the maximum amounts prescribed by s36, s37 and s66 of the Workers Compensation Act 1987. The respondent had ceased work at the respondent's premises at Regents Park at about 2.30 on 21 May. Immediately after work he and two co worker friends, Mr Ackroyd and Mr Smith, went to a nearby hotel where they remained for approximately two hours. They then went to Mr Smith's home at Chelmsford Road, South Wentworthville where the respondent remained for about an hour or an hour and a half. Mr Ackroyd left shortly after he arrived. The respondent left Mr Smith's house shortly after 6 pm. The accident happened in the vicinity of the Walgrove Road exit ramp. The respondent had no recollection of the accident. However, it was witnessed by Mr Lockhart who said that the respondent's car had moved, without warning, from the near side lane to the offside lane. He said: "T didn't notice an indicator and then all of a sudden for some reason the car seemed to just go sideways down the highway and then as the white car speeded past him (a reference to a car between Mr Lockhart and the respondent) the car that had the collision just went across one lane one and hit the railing. Smashed the railing." He said the car hit the railing on the nearside, "bounced back at and hit the railing about three or four times and sort of came to a halt at an angle". The respondent was taken to hospital in a serious condition. A blood sample was taken on admission. It was analysed by the Department of Health on 14 June 1988. A certificate was tendered stating that alcohol was present in the sample being 0.183 grams of alcohol per hundred millilitres of blood. Another sample was taken at 1.57 am the day following the accident. It was analysed at the Institute of Clinical Pathology and Medical Research at Westmead Hospital at about 3.30 pm on the same day. Properly read, the analysis recorded a blood alcohol concentration of.096 grams per 100 millilitres. S10 of the Workers Compensation Act 1987 relevantly provided: "(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. (2) Subs(1) does not apply if URJ BABCOCK AUSTRALIA LTD v PROUDFOOT (Cripps JA) 3 (a) the injury was received during or after any interruption of, or deviation from, any such journey; and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation. (3) The journeys to which this section applies are as follows: (a) the daily or other periodic journeys between the worker's place of abode and place of employment." Commissioner Cross found, and Moroney CCJ confirmed, that the respondent was on a journey to which the section applied, ie a daily journey between his place of abode and his place of employment, that he interrupted or deviated from his journey but that neither the interruptions nor the deviations materially increased the risk of injury. Before Commissioner Cross, Moroney CCJ and this Court, the appellant argued that the respondent was not on a journey but that, if he was, he had not discharged the onus upon him of establishing, on the balance of probabilities, that his admitted interruptions or deviations did not materially increase the risk of injury. Did Moroney CCJ err in confirming Commissioner Cross's determination that the respondent was on a journey to which s10 applied? Mr Poulos QC, on behalf of the appellant, has submitted that the deviation to the hotel in Amy Street, Regents Park (about | kilometre from his place of work) and the deviation to Chelmsford Road (again, about kilometre from the F4 Freeway just west of Mays Hill) and the socialising and drinking that took place at both places had the consequence that, at the time of the accident, the respondent was not on a journey to which s10 applied. I am of the opinion that Commissioner Cross was correct in his conclusion and that Moroney CCJ was correct in confirming his decision. Not only, in my opinion, was it open for him to make the finding he did, a contrary finding would have amounted to an error on the undisputed facts before Commissioner Cross. $10 does not mandate that to be within its purview a worker must take the shortest most direct route home. Furthermore, a journey once started does not cease to be one because of deviations or interruptions. What the section provides is that an injury arising during or after a deviation or interruption unconnected with work will not be one arising out of or in the course of the worker's employment unless the worker discharges the onus of establishing the proviso. The respondent's intention at all relevant times was to return home. He intended to journey home when he left work and that intention continued up to the time of his accident. After he left the hotel he made two small deviations each resulting in a significant interruption. Mr Poulos has relied upon Young v Commissioner for Railways (1960) 34 WCR 84. However, in my opinion, the facts in Young's case were quite different from the facts in the present case. In Young's case, compensation was denied to the widow of a deceased worker because, in the context of provisions similar to s10, the High Court concluded that it was not open to the Workers Compensation Commission to say that the deceased was on a journey home when he left work. The deceased ordinarily left work at about 4 pm and usually arrived home a little after 6 pm. However, on the day in question he left work at about 2.30 pm after telling the foreman he had "business to attend to". Nothing was known of his movements from that time until about 5.05 pm when he met a fellow workman, Mr Quinn, in a hotel where they usually drank. He and Mr Quinn remained in the 4 UNREPORTED JUDGMENTS hotel for about 40 minutes and the worker was killed shortly after leaving the hotel in a car accident. At 86 Dixon J said: "Was the Workers Compensation Commission justified in saying, on the facts as I have stated them, that when he left the works he was then commencing the journey home? In my opinion, they were not. All that was known was that he was proceeding upon some business that he had to transact, that he was attending to some business. Where, or what it was, in which direction it led him is just simply unknown. And it seems to be impossible to say that when he left the works or factory he commenced a journey which was a journey to his home. It is, of course, plainly true that ultimately on that day he intended to reach home. That intention was no doubt present with him when he left to go to the works in the morning; it was probably an intention which he entertained day after day. But it does not follow that he was on the journey between the factory, the place of employment, and his abode. He had had some other destination which doubtless was intermediate, but was a destination at which he was going to transact business. The time is long. It is not a short time. It is true that you can calculate that to get to the hotel must have occupied him some time and you can deduct, if you feel disposed, some twenty to twenty five minutes as accounting for the journey towards the hotel from wherever he was, but it still leaves a considerable interval of time to be accounted for in which he was occupied at the place to which he had proceeded, and it seems to me not right or in accordance with any probability of fact to treat that interval of time as a mere interruption of a journey which he commenced to go home. He commenced the journey to transact whatever business it was. " I can see no support in Young's case for the proposition that a worker who leaves work intending to visit a hotel for a drink before going home is not on a journey to which s10 applies. In Young it was not the deceased's presence in the hotel that denied his widow her entitlement. As Dixon J pointed out, it was impossible to say when he left the factory that he was commencing a journey home. I am of the opinion, therefore, that the submission that Moroney CCJ erred in declining to reverse Commissioner Cross' finding must fail. Was Moroney CCJ in error in failing to reverse Commissioner Cross's determination that the respondent had discharged the onus of establishing that his deviations and interruptions did not materially increase the risk of injury? The respondent does not dispute that he has the onus of establishing the proviso. I have already referred to the blood alcohol readings concerning samples of blood taken shortly after the respondent was admitted to hospital and later in the early hours of the next day and to the recorded amount of concentration of alcohol in the respondent's blood in each sample. The appellant called Professor Starmer who gave the following evidence "The only way you can overcome [ever come?] at this is via the academiology (sic) statistics and they were derived from very large scale surveys where they looked at the blood alcohol concentration for people who had crashes and compared them with the blood alcohol concentration of a similar person at that time and application who didn't have a crash, so that when you get maybe 40 or 50,000 data pairs you can construct a crash risk blood alcohol concentration relationship, at.05 your risk of having a crash is approximately doubled. At.08 it's multiplied by 4 and at.183 it is multiplied by about 50." URJ BABCOCK AUSTRALIA LTD v PROUDFOOT (Cripps JA) 5 He gave evidence, without objection, that assuming the description of Mr Lockhart to be correct, the accident sounds "a bit like a nodding off at the wheel to me." He was asked to assume that the respondent drank three schooners at the hotel and later "one further beer and two standard bourbons and coca cola" between the hours referred to by the respondent and his witnesses. He was asked: "What do you say about the blood alcohol reading that would result over that period of time in a man that weighed 70 kilos at the date of the accident? A: What time would you like me to calculate the blood? Q: At 6.30. A: OK PII do that -.088. Q: Point 088? A: Yes. Q: I want you to assume a different scenario. A: Yes. Q: Three middies of beer between 2 o'clock and 3 o'clock and two standard bourbons between 3.30 and 6 and a blood alcohol reading in a 70 kilogram man at 6.30? A: Point 036." The respondent did not deny he had been drinking or that he had been drinking at the hotel and later at Mr Smith's house. He said that he had stayed at the hotel for about an hour and a half but "couldn't be quite sure" about how much he consumed. He said: "T think I only had two". A: Two middies. Q: Of beer. A: Yes. Q: Full strength. A: Full strength." Later he said he had about two "Jim Beams" with coca cola at Mr Smith's house. In cross examination he said that Mr Smith poured the whisky. It was suggested to him that at the hotel he drank at least three schooners. He said: "Well I don't know if I did or not." : This is a very crucial matter in this case. You know that do you not? Yes. Are you able to tell the court what size drinks you were drinking. I'm positive I was drinking middies. What is positive about it? What makes you certain? Because when I go out for dinner or somewhere I always drink a middie. So you are reconstructing on what you usually do, is that right? Yes." He remained unshaken that he had only drunk two Jim Beams at Mr Smith's house. Mr Smith said that he was drinking at the hotel with the respondent. He was asked: "How many did Mr Proudfoot have to your recollection. A: I'm not - I'm really not sure. I'd say three. Three drinks, but I'm not sure." With respect to his consumption at Mr Smith's house, he was asked the following questions: FOPOPOPO 6 UNREPORTED JUDGMENTS "You thought he (the respondent) had three drinks, three bourbons, is that right? A: Yes I think so, yes. Q: He could have had maybe one more. A: He could have, yes. I'm not sure." He was asked the following questions about the hotel: "You were drinking schooners, were you not at this hotel? A: Yes, I think so yes. Q: There (w)as a shout of three really was it not? A: I'm not too sure if we did have three." Mr Ackroyd said he thought that he and the respondent drank about three schooners at the hotel during the one and a half hours that they were there and that both had had another drink of beer at Smith's house shortly before he, Mr Ackroyd, left. Commissioner Cross took the view that he was faced with a "familiar choice, to accept one [the witnesses who gave evidence] and reject the other [the documentary material], they being completely incompatible". He said: "T have come to the conclusion that I should prefer that body of evidence given by the applicant and Messrs Ackroyd and Smith for the reason that they have been subjected to a rigorous test in open court of examination and cross examination, which neither the business records tendered (nor have the persons who caused them to be made) have undergone." He later said: "Doing the best I can on the evidence, including the expert evidence of Professor Starmer, on the balance of probability the applicant had five standard drinks between 2.45 pm and 5.45 pm on the afternoon of 21 May 1988. It is unlikely that he would have had six drinks in this time. The alcoholic content of his blood would have been either.05 or a little under that." In terms he accepted Professor Starmer's conclusion that the epidemiological research led to the conclusion that a driver having a.05 alcohol concentration per millilitre of blood would have twice the risk of injury as a person who had none. Professor Starmer, in cross examination, said: "Tf I, for example, tested say an individual, a single individual, sober, raised his blood alcohol concentration to.05 and tested him again, he may - his performance may deteriorate or it may not or it may even improve." Commissioner Cross accepted the respondent's perceived ability to drive better if he had two or three drinks because, as he said, he "just felt relaxed a lot better". He then concluded that "it is improbable that he would fall into the category of a driver whose performance would deteriorate". Commissioner Cross wholly disregarded the readings referred to above because, with respect to the first blood sample, the test took place some three weeks after it was collected and, as I would read his judgment, he was not satisfied that the sample was properly kept or properly analysed and, with respect to the second, that he did not know "to what extent these figures are owed to computer testing and what to human testing" and he did not know who conducted the tests. The documents recording the concentration of alcohol in the blood were tendered by consent. It was not disputed that the blood that was tested was the blood taken from the respondent. Before Commissioner Cross, the respondent conceded the documents were admissible pursuant to the provisions of s14CE of URJ BABCOCK AUSTRALIA LTD v PROUDFOOT (Cripps JA) 7 the Evidence Act 1898 and the appellant was informed by counsel for the respondent prior to the tender that it was not required "to prove the chain". With the greatest respect to Commissioner Cross, his reasons for disregarding the analyses are quite unsatisfactory. He drew inferences adverse to the appellant from what he understood to be (without any evidence) the practice and procedures of the staff at Westmead Hospital. He appeared to think it relevant that the taking of the blood sample constituted an assault as well as being unethical. He even referred to the circumstance that the legislation authorising the taking of blood required part of the sample taken to be made available to the person from whom it was taken and that failure to do so would be fatal to a prosecution for driving over the prescribed limit. It must be steadily borne in mind that the respondent bore the onus of negativing material increase of risk. The documents that were wholly disregarded by Commissioner Cross were tendered by consent and the appellant was told it need not call the people who handled and analysed the samples. Bearing in mind those concessions, the circumstances referred to above are, in my opinion, irrelevant and certainly did not justify Commissioner Cross disregarding the analysed samples of blood. Commissioner Cross also referred to the period of time between the taking of the first sample and its analysis in June 1988. The sample taken from a locked Security Box from the Westmead Medical Centre at 9.30 on 23 May was received at the blood sampling unit and placed in a locked refrigerator a little over half an hour later. The sample was sent to the Department of Health - Breath Analysis Section on 7 June 1988 and placed in a locked refrigerator. The blood detecting certificate was issued on 14 June 1988. The second sample was analysed at Westmead Hospital at 3.30 am on the day it was taken. Commissioner Cross said he did not know what chemicals might have been added to the sample taken upon admission, whether it was dropped or shaken or subject to extremes of heat or "any one of a multitude of things". He said he did not know, for example, whether it was properly refrigerated. He said that because the Blood Sample Register showed that a number of samples from different persons had been sent to the Department of Health, "errors in such a system I think would be endemic". So far as the second sample is concerned, he noted that there was no acceptable evidence "commenting upon the validity of the Hospital's analysis". It must be steadily borne in mind that this was not a case where scientific testing was at odds with evidence given by witnesses. Such a case might arise where, for example, a number of reliable witnesses swear no alcohol was consumed within a particular period but the scientific analysis suggests heavy drinking. If a judge believed the witnesses, he would be entitled, in those circumstances, to conclude that something, albeit unidentified, must have gone wrong with the analytical process. But even in that case a problem might arise if the person tendering the scientific material was told he or she need not call the people involved in the process. However, the present case is a far cry from that. It was common ground that the respondent had been drinking during the afternoon. On the evidence of Mr Smith and Mr Ackroyd he had drunk more than five standard drinks. How much more was, perhaps, a matter for some debate bearing in mind the imperfect recollections of the respondent and his two witnesses some years after the event. In my opinion, Commissioner Cross could not have been satisfied on the material before him that the interruptions and deviations did not result in material increase of risk. The consumption by the respondent of three schooners at the hotel (and 8 UNREPORTED JUDGMENTS it is hard to see how Commissioner Cross could have found otherwise) and a further beer and two "standard bourbons and coca cola" at Mr Smith's home would have had the result that, at the time of the accident, his blood contained an alcohol concentration of.08 with the result that when driving he was four times more likely to have an accident than had he not been drinking. I do not think it was "pure speculation" that the respondent's consumption of alcohol was related to the accident. In my opinion, more probably than not it was. However, the finding that more probably than not it was not, was, in my opinion, not open. Moroney CCJ said he was not prepared to interfere with the findings under review because of Commissioner Cross' "dominant position". But Commissioner Cross accepted the evidence of Mr Smith and Mr Ackroyd. The acceptance of their evidence, together with the scientific evidence, should have led Commissioner Cross to the conclusion that the respondent had not discharged the onus of establishing the proviso. In my opinion, Moroney CCJ erred and should have concluded that Commissioner Cross ought not to have found that the respondent had discharged the onus of establishing the proviso to s10, viz that the interruptions did not materially increase the risk of injury. It was submitted on behalf of the respondent that Moroney CCJ's decision should not be set aside because the appellant had the opportunity, on the review, to call witnesses who handled and analysed the two samples and did not do so. The issue posed before Moroney CCJ was whether the decision of Commissioner Cross was correct. That is clear from Moroney CCJ's judgment. In my opinion, Moroney CCJ erred. He should have held on the issue posed for determination that it was not open to Commissioner Cross to find the respondent had discharged the onus of establishing the proviso to s10. In my opinion, the appeal should be upheld. The decision of Moroney CCJ should be set aside and an award entered in favour of the appellant. The respondent to pay the costs of the appeal and to receive a certificate under the Suitor's Fund Act. The decision of Moroney CCJ should be set aside and an award entered in favour of the appellant. The respondent to pay the costs of the appeal and to receive a certificate under the Suitor's Fund Act. Counsel for the Appellant: J Poulos QC/C Hoeben Instructed by: Curwood and Partners Counsel for the Respondent: P Webb QC/C Armitage Instructed by: McClellands