TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC [1994] NSWCA 313

TOOTH and CO LTD T/AS MONA VALE HOTEL v INJAC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and POWELL JJA 7 June 1994, 16 August 1994 [1994] NSWCA 313

WORKERS COMPENSATION ACT S11 — ORDINARY RECESS — ABNORMAL RISK OF INJURY

WORKERS COMPENSATION ACT s11 — meaning of "ordinary recess" — was a two hour break an ordinary recess — did worker voluntarily subject himself to any abnormal risk of injury.

Facts: The employee's working hours were from 9 am to 3 pm and from 5 pm to 9 pm each working day. He suffered an injury when he was knocked down by a car during the period between 3 pm and 5 pm while on his own business away from his place of employment. He subsequently applied for worker's compensation.

Held: (1) (per Mahoney JA and Powell JA) The evidence established that the worker worked not for a continuous period each day but for two distinct periods of work or shifts. The period of two hours between "shifts during which the worker was free to do as he wished does not come within the phrase "ordinary recess" in sl1(a) of the workers compensation Act. (2) (per Priestley JA dissenting) In the circumstances of this case it is quite appropriate to describe the two hour interval as an "ordinary recess" in the worker's day and within the meaning of s11(a). (3) (per Priestley JA) Assuming, without deciding, that the worker displayed contributory negligence in crossing the road, this conduct cannot be raised to the level of "voluntarily subjecting himself to abnormal risk" as specified in s11(b).

ORDERS Appeal allowed with costs.

Mahoney JA The facts and the issues are detailed in the judgment of Priestley JA which I have had the advantage of reading.

This appeal is an appeal by way of rehearing. It is accordingly for this Court to make its own assessment of the facts. It has not been suggested that the learned judge was in a position of advantage or that otherwise his findings are such that this Court must defer to them.