MEDIDA PTY LTD v TOBIN [1995] NSWCA 289

MEDIDA PTY LTD v TOBIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY JA and ROLFE AJA 18 August 1995, 20 December 1995

[1995] NSWCA 289 Workers Compensation Act 1987 — fault in s10A

WORKERS COMPENSATION ACT 1987, s10 — worker catches usual train on way to work — at usual station, train slows but does not stop — worker steps off and is injured — trial judge finds injury not partly or wholly caused by fault of the worker — appeal dismissed (Gleeson CJ and Priestley JA, Rolfe AJA dissenting).

FAULT IN s10(1A) — trial judge's view on facts that worker's action in stepping off train was momentary inadvertence not falling into category of fault — majority on appeal do not interfere with trial judge's findings and inferences of fact.

Gleeson CJ I have had the benefit of reading in draft form the judgments of Priestley JA and Rolfe AJA.

Like Priestley JA, I consider that the appeal should be dismissed with costs. I would, however, add some brief observations of my own.

As to the construction of s10(1A) of the Workers Compensation Act, I agree with the substance of Priestley JA's analysis. However, I am unwilling to substitute a term such as "reckless" for the statutory language. My primary reason is that it is the language of the Act itself which is to be applied. My secondary reason is that there are different shades of meaning in the word "reckless". For example, the Shorter Oxford English Dictionary gives its meaning as: "careless of the consequences of one's actions;... lacking in prudence or caution". The Macquarie Dictionary gives the meaning as: "utterly careless of the consequences of action; without caution".

I am content to rest my decision upon the distinction, recognised and applied by the judge at first instance, between a negligent act and an act done, in the agony of the moment, and in response to a situation of unexpected danger, which, although it may have been seen to be imprudent if there had been adequate time for reflection, does not, in the circumstances, involve fault. I agree with Priestley JA that there is no occasion for this court to interfere with the primary judge's application of that distinction to the facts and circumstances of the present case.