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. Priestley JA This appeal concerns an injury suffered by a worker on 6 June 1990. I have had the benefit of reading Rolfe AJA's draft reasons, in which he sets out the salient matters relevant to the decision of the appeal. Ihave reached a different conclusion from his Honour. This is because of two aspects of the appeal in regard to which I have formed a different opinion from him. The first concerns the interpretation of s10 of the Workers Compensation Act 1987 (the Act). The second concerns the approach to the trial judge's conclusions of fact. THE INTERPRETATION OF s10. The words in the present Act. When the Act commenced in 1987, s1l0 contained six subsections. 2 UNREPORTED JUDGMENTS Subs10(1) provided, in a form that had been the subject of much judicial decision in earlier times, that, putting it generally, on a journey to or from work, "a personal injury received by a worker" was for the purposes of the Act "an injury arising out of or in the course of employment". By Act No 214 of 1989 six additional subsections were added to s10. These were subs(1A), subs(1B), subs(1C), subs(1D), subs(SA) and subs(6). s10 has not since been amended. $10(1 A) says: "subs(1) does not apply if the personal injury was caused, partly or wholly, by the fault of the worker." subs(6) says: Fault' includes: (a) negligence or other tort; and (b) any failure to take reasonable care for the worker's own safety;" I will not set out the other added subsections, but they are relevant to an extent to the construction of subs(1A), and I take them into account in arriving at the construction stated later in these reasons. The general idea that appears in subsection (1A) has been manifested, by different forms of words, in earlier workers compensation legislation. The words in the 1926 Act in 1926. In the 1926 New South Wales Acts the relevant words appeared in s7: "7(1) A worker who receives personal injury - (a)... OF (b) without his own default or wilful act, on the daily or other periodic journey... shall receive compensation..." The words "without his own default or wilful act" were kept when s7 was amended in 1942 (Act No 13, 1942, s3(a)). In The Commissioner for Railways (NSW) v Bagot (1944) 18 ALJ 31, Latham CJ considered the meaning of the words "default or wilful act" when dealing with a question whether there had been evidence before the Workers Compensation Commission upon which a finding against a worker of "default or wilful act" could have been made. The particular factual matter in question appears in the following passage, reported in indirect speech, in which Latham CJ stated his view of the construction of the words: "Was [the worker] guilty of any default in that he failed to observe a standard of conduct which was reasonable in the circumstances? 'Without default' in the context in which it appears does not mean without breach of a duty owed to some other person. The provision would be almost entirely inoperative if the words were so interpreted. If a man fails to take reasonable care for his own safety, he is guilty of default within the meaning of the section, though he does not fail in the performance of any duty, contractual or other, owed to another person. There is default if the worker does (or omits to do) some act which a prudent man in the circumstances would not have done (or, in the case of omission, would have done), and such act or omission contributes to an injury. In his Honour's opinion it would be most unreasonable to hold that driving off the bitumen surface of a formed road on to a side strip was in itself negligence. So to hold would be to lay down a proposition in conflict with every-day experience. The evidence was that loose gravel on clay would be likely to deceive a driver. Such evidence does not support a finding that the appearance of the loose gravel would suggest the possibility or probability of deception so as to put a driver on his guard against deception. The evidence was that the ground on the side of the road deceptively URJ MEDIDA PTY LTD v TOBIN (Priestley JA) 3 appeared to be safe, not that it appeared to be unsafe. In the opinion of his Honour the evidence showed that there was no default in any sense on the part of B. Upon this view no question of onus of proof arose." (at 32) McTiernan and Williams JJ agreed with Latham CJ. Rich J and Starke J each gave separate reasons coming to the same conclusion. Starke J commented that what the worker had done "could not... be described as imprudent or unusual in ordinary circumstances..." (at 32). The words in the 1926 Act from 1951 to 1960. In 1951 s7(1)(b) was amended to commence: "Where a worker has received injury without his serious and wilful misconduct on any of the daily or other periodic journeys..." (Act No 20, 1951, s2) The position from 1960 to 1989. In 1960, by s3(1)(b) of Act No 58 of that year, the words "without his serious and wilful misconduct" were omitted. The position reached in 1960 remained unchanged until the amendments in 1989 already mentioned. So far as I am aware, the cases decided m this court which involve the 1989 amendments are Aardvark Security Services Pty Ltd v Ruszkowski (Court of Appeal, 19 March 1993); Molloy v Hobday (Court of Appeal, 1 December 1994); WorkCover Authority of NSW v Billpat Holdings Pty Ltd (Court of Appeal, 14 July 1995); A and B Conlon Cleaning Services Pty Ltd v Clavell (Court of Appeal, 17 August 1995); Port Kembla Coal Terminal v James (Court of Appeal, 17 August 1995); and Gibbons v Merimbula RSL Club Ltd (Court of Appeal, 12 September 1995). I do not think that in any of these cases there has been direct consideration of the meaning of "fault" in subs10(1A) or subs10(6). Considerations relevant to the interpretation of the present words. It seems that the definition of "fault" in s10(6) is based on what Latham CJ said in Bagot; in particular, the words of para(b) appear to be almost identical to those used by Latham CJ in Bagot. The 1989 provision however, although apparently adopting Latham CJ's interpretation of the relevant statutory text as it stood from 1927 to 1951, did not reintroduce the words on which that interpretation was based but used somewhat different words. The reason for this is not apparent on the face of the Act nor from any materials I have seen relating to the Act. The sequence of provisions from 1926 to the present shows the legislature seeking to adjust the rights of workers on the one hand and employers on the other in regard to injuries suffered by a worker when travelling to and from work. All the provisions have taken it for granted that since a worker is bound to travel to and from work in order to be able to do it, it is appropriate that the employer should, in general, compensate a worker for injuries suffered during such travel as if the injury happened at work. That primary idea was qualified from 1926 to 1960, and has again been qualified since 1989, by the balancing idea that there are some injuries a worker may suffer during work related travel for which it is not appropriate that the employer should be liable. The three different ways in which this balancing qualification has been expressed are those set out in s7(1) of the 1926 Act in its first form, then in the 1926 Act as it was from 1951 to 1960 and now in s10(1A) of the present Act, together with associated subsections. The changes in the formulation of the qualification in the periods 1926-1960 and 1989 to date show different emphases being given to the degree of the unmeritorious (to use a non-statutory word) behaviour which will take a worker out of the operation of the otherwise covering provision. In addition to showing 4 UNREPORTED JUDGMENTS that different degrees of unmeritoriousness were sought to be described in the different provisions, those provisions also illustrate the difficulty, whatever formulation is used, of giving any precise content to what will and will not disqualify a worker from travel coverage. Notwithstanding this difficulty, all the provisions at least show two things. The first is the intention that the worker be covered on work related travel. The second is that the first is qualified: the employer not to be liable for certain injuries suffered by a worker on work related travel; these being injuries resulting from something done or omitted by the worker such that the injury can be seen to be not something primarily springing from the necessity of the particular travel but from something over and above that necessity, for which the worker and not the employer should be held responsible. It seems to me to follow from this that it is proper to read the word "fault" in subs10(1A) as connoting an element of deliberateness or recklessness in the act or omission causing the injury. Taking that together with the fact that subs10(6) says that "fault" includes "any failure..." I think that element of deliberateness or recklessness, in the overall context of the subsection should be taken to be applicable to the two paragraphs in the subsection. One consideration that seems to me to be relevant to this understanding of "failure" in subs(6) is that in Ingram v Ingram (1938) 38 SR 407, Jordan CJ pointed out (at 410) that the meaning of the word "fail" in a statute depends upon the context in which it is found: the meaning it carried in some contexts was "an omission to do the thing by reason of some carelessness or delinquency" (at 410). In the context of the present Act, particularly bearing in mind the other subsections inserted in s10 at the same time as subs(1A), a meaning of this kind seems to me to be appropriate. That is, "fault of the worker" in subs(1A) includes negligence or other tort on the part of the worker and any act or omission done deliberately or recklessly without reasonable care for the worker's own safety. THE TRIAL JUDGE'S CONCLUSIONS OF FACT. The evidence before the judge. Rolfe AJA has in his reasons set out most of the relevant evidence given before the trial judge, and has drawn his own conclusions from that evidence. It seems to me that the first thing to do in an appeal such as this is to try and see how the evidence appeared to the trier of fact. For this purpose the section of the appellant worker's evidence set out in Rolfe AJA's reasons is pertinent. Mr Pool's evidence is also important on the central question whether the facts before the judge were such that he should have found that the worker's personal injury was caused partly or wholly by her own fault. As I think it is important for this purpose to have in mind Mr Pool's evidence in the sequence in which it unfolded before the judge, I set out the relevant parts, at the expense of partly repeating what Rolfe AJA has already done. (I have emphasised certain parts which seem to me important for purposes of the appeal and which I particularly refer to or take into account later.) "(Examination in chief...) Q. Sir, were you on Chatswood Station on 6 June 1990? A. Yes, I was. A. I saw the train approaching Chatswood Station from the north. Q. When you saw the train approaching, was there an announcement over the PA system. A. Just as it started to enter the station itself. URJ MEDIDA PTY LTD v TOBIN (Priestley JA) 5 Q. Do you recall what that announcement was. A. Along the lines that the train was not going to stop at Chatswood and would the intending passengers please go back from the side of the platform. Q. Then what occurred. A. As the train came through, it decreased in speed.... Q. I think you said that you observed the train to be decelerating, is that correct. A. That's correct. Q. Around that time, did you observe the applicant in these proceedings. A. Yes, as the train slowly slowed down, I noticed the applicant holding on to one of the pole bars or stanchions - "Now, point by point, sir, the train was decelerating, how far did it slow down to, in your estimate. A. PROBABLY BETWEEN 10 TO 15 KILOMETRES AN HOUR. Q. In terms of the physical position of the train, when did you first observe Mrs Tobin; in other words, where was the front of the train when you first observed her. A. The front of the train would have just slowly passed me. Q. You have told the Court that you observed her holding on to a steel stanchion or bar. A. Yes. Q. To clarify this, the train was a red rattler, I think they are known as. A. Correct. Correct. Q. The red rattlers, do they have automatic doors. A. No. Q. Were the doors open when you observed - A. The doors were fully open. Q. As you observed her, what did you observe her to do, did she approach the side of the carriage. A. SHE HESITATED AND THEN - YOU SEE, BECAUSE AT THE SAME TIME THE TRAIN STARTED TO ACCELERATE THROUGH THE STATION. Q. What did you observe her to do, detail by detail, sir. A. I observed her alighting Q. When you say 'alighting', did she at one point have both feet in the carriage. A. Both feet in the carriage - I would say it was one foot, she came out with one foot as far as I know, IT WAS A FAIRLY INSTANTANEOUS - Q. She came out; did she put one foot on the platform. A. Yes, and then both her legs went from under her. Q. As her legs went from under her, what happened to her physically. A. She hit the bottom - Well, her bottom hit the platform, and fortunately she was wearing a thick jumper because it was cold and a raincoat, and she physically slid on the raincoat for about 8 to 10 metres right to where I was standing. Q. After that, I think you assisted her and she was - A. Immediately. Q. Sir, when she was standing at the carriage and you say she went to alight, you say she put one foot out, is that correct. A. IT'S VERY HARD TO SAY, BECAUSE IT HAPPENED VERY QUICKLY. 6 UNREPORTED JUDGMENTS Q. Sir, did it look to you, as an observer, that she fell. OBJECTION HIS HONOUR I reject the question. DISCUSSION RE HIS HONOUR'S DECISION - REJECTION SUSTAINED MR JUDD I withdraw that. HIS HONOUR Q. Your observation, what did it appear to you happened. A. YES, SIR. I BELIEVE THAT SHE HESITATED INITIALLY AND THEN MADE A DELIBERATE ATTEMPT TO - Q. YOU THOUGHT SHE WAS STEPPING OFF, not falling. A. Stepping off the train, yes, but not falling. ... (Cross-examination) A. A fairly densely populated platform at that stage. Q. Were many of the doors in the train as it came in open. A. most Q. Which carriage was this lady in. A. The second or the third from the end I think the second from the end. Q. So it is coming towards you. A. Yes. Q. It is moving, you say, 10 to 15 kilometres an hour. A. And then rapidly picked up. Q. IT ALL HAPPENED IN A SECOND. A. VERY QUICKLY. Q. You said that she put one foot out. A. Yes. Q. Then what, she just come out of the train. A. Well, she followed with the other foot, and then they both went from under her. Q. Whereabouts was she in relation to you at that stage. A. As she - here she immediately came off the train? Q. Yes. A. IT WOULD HAVE BEEN ABOUT 8 TO 10 METRES AWAY FROM ME. Q. Away from you. A. Yes. Q. To the north of you. A. To the north of me. Q. Was she standing, as it were, on the southern side of the H-frame. A. The northern side. Q. The northern side of the H-frame. A. Mmm. Q. She was standing back - A. About a metre. Q. Was she partly obscured from your vision. A. No. I was looking directly at her all the way. Q. YOU WOULD ONLY HAVE SEEN HER FOR AN INSTANT, THOUGH, WOULD YOU NOT. A. Yes, but it was indelible, because I saw the accident happening, or whatever, I don't what it was, but Q. But it happened in an instant. A. It happened very quickly, hut it's like seeing something happen, an accident about to happen and you know it's going to happen. " Considerations open to the trial judge. Going through this evidence as the judge heard it develop, Mr Pool first described the approach of the train, then his sighting of the worker, as the front of the train slowly passed him, slowing down. Then, the first matter particularly material to the issue in the appeal, Mr Pool was asked to estimate the speed of the train at the point where it changed from slowing down to speeding up (the first emphasised part of the evidence above). This question was not objected to. Witnesses are commonly allowed to give estimates of speed of motor vehicles, probably because most people have sufficient experience of such speeds to be able to give estimates, which, within rather wide ranges, may have some evidentiary value. I doubt whether the same URJ MEDIDA PTY LTD v TOBIN (Priestley JA) 7 considerations apply to the speed of trains. Whatever the technical position may be about such evidence, however, the trier of fact can not be bound, unless perhaps by agreement between the contending parties, to accept such evidence from a witness as being absolutely accurate. The judge here was, in my opinion, entitled in approaching his findings of fact, to bear this in mind. That is, although Mr Pool's evidence has at all stages of this case been accepted, the judge, in accepting it, was entitled to remember that the evidence of speed was an estimate, and that the context in which the estimate was made was that the witness was watching a train coming towards him, it was slowing down, the incident came out of the blue, and before it happened the witness had had no particular reason for paying attention to the speed of the train or the actions of the worker. The next material matter in Mr Pool's evidence was that he then saw the worker hesitate at the same time as the train started to accelerate through the station. He was then rather oddly asked whether at one point the worker had both feet in the carriage. Mr Pool's answer to this question was interrupted as he was saying "It was a fairly instantaneous -". He then described her legs going from under her after she put one foot on the platform. What the judge had heard, in substance, to this point was that the train had been slowing, that the worker was about to get off, and that then, just as the train began to pick up speed, the worker hesitated and stepped off. What would have been an important matter to the judge so far as deciding the subs10(1A) issue before him was the extent to which the train had slowed before it began to pick up speed. The employer's onus of showing that the worker's injury was caused partly or wholly by her own fault would be more easily discharged if the train, at its slowest, was going at a pace at which any reasonable person would realise it would be dangerous to step off; it would be more difficult for the employer to discharge the onus if the train had slowed almost to a stop. The judge may well have gained (and properly gained, if that was the way it struck him) the impression from Mr Pool's interrupted answer using the words "fairly instantaneous" that the incident happened within what must have been both to the worker and to Mr Pool's observation a couple of eye-blinks. Then counsel for the employer asked the question which was objected to and rejected. ("... did it look to you... that she fell?"; see p 8 above) What counsel was trying to bring out was whether the worker stepped or fell off the train. Presumably the question was rejected because it was leading. There was discussion about it. The judge then tried to shorten the argument by asking a non-leading question aimed at finding out whether the worker stepped or fell from the train. That was something the judge was interested in, as his reasons later showed. He was asking the witness what his observation was about that (see emphasised portion at foot of p 8 above). The witness however apparently thought he was being asked a question at large about what happened. He began to answer with his view generally about the reasons for the incident. The judge interrupted to bring him to the point of the judge's question. I doubt whether the interrupted and incomplete answer commencing "I believe that she hesitated initially and then made a deliberate attempt to - " yielded material which should be treated as being within Mr Pool's accepted evidence. That the judge was interrupting an answer by the witness not directed to the question the judge was interested in, in order to get him to answer the question responsively would, in my opinion, have been obvious to counsel both for the worker and the employer. 8 UNREPORTED JUDGMENTS In cross-examination, the first part I have emphasised is where counsel, in reminding Mr Pool of what he had said about the speed of the train, in passing indicated he was not accepting the precise figures of Mr Pool's estimate of speed. The other emphasised parts of the cross-examination all go to reinforce what I have already said about the speed with which everything happened. These were all matters available for consideration by the trial judge in deciding what conclusions he should draw from the entirety of Mr Pool's evidence about the question critical to the case, namely whether the worker at the moment she stepped off the train was at fault, in the sense I have earlier explained. Matters relevant to his reaching of this conclusion would be his impression both of the worker and of Mr Pool. The worker had no memory of what happened to her from the moment she went to step off the train. Thus no question of any evidence from her concerning what actually happened to her from that moment can arise. However, it seems to me that if the judge formed the view, from what he saw of her as a witness and learned of her generally in the case, that she was a sensible person and one who did not convey to him the impression that she would take unnecessary risks, then he would be entitled to take that impression into account in making his findings concerning the actual circumstances in which the worker suffered her injury. In regard to Mr Pool, as I have said, the judge accepted his evidence, and the case was argued in this court on that basis. I do not think that means that the trial judge had to treat his estimate of the train's speed as more than that, an estimate; and as to the estimate, it had been prefaced by "probably". The judge then had to form an opinion, based on all the evidence, on the "fault" question. In doing this a further question which would have been material to forming his ultimate conclusion was: why did the worker step off the train? His impressions of the worker and Mr Pool, although only indirectly helpful in answering this question are of the kind influenced by what has been called in the High Court "the subtle influence of demeanour" (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 per McHugh J). My view of the trial judge's factual conclusions. In what I have said above I have tried to look at the evidence before the trial judge in the way it appeared to him. The materials available for this task are the evidence itself and the judge's reasons. After considering them 1 have reached the conclusion that the trial judge was entitled to find the facts as he set them out in his reasons. In particular, it seems clear to me from everything said by Judge Burke that he took the view that the worker stepped off the train, believing (wrongly as we all now know) that it was safe, or not realising that it was not safe, to do so. An element in that view must have been the judge's impression of the worker, whether the judge formed it consciously or not, (which as Abalos shows does not matter) and implicit in that must have been the thought that she was not a person who would deliberately have stepped off the train had she thought that its speed at that moment made it unwise to do so. My conclusion is that I can see no reason why this court should change the trial judge's factual findings. CONCLUSION. I am further of the opinion that on the basis of his factual conclusions the trial judge was right to make orders in favour of the worker and to reject the employer's contention that subs10(1A) deprived the worker of compensation. URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 9 My opinion that the trial judge's factual findings justified his orders has two separate bases. First, on the view I have expressed about the construction of subs10(1A), and subs10(6), the worker was not at fault in the necessary sense. Additionally, I think that the basis on which the trial judge reached his conclusion was also right. That basis did not involve consideration of the precise meaning of "fault" in subs10(1A) but relied on a line of cases in which it is recognised that an accident can happen because of inadvertence and without negligence. Rolfe AJA has considered these cases in detail in his reasons. In his view they were not applicable to the present case because he thought the worker had fully appreciated the danger of stepping off the train and stepped off it "in both conscious and deliberate disregard of her own safety". The trial judge came to a different factual conclusion. For the reasons I have given I do not think this court should disturb the trial judge's findings of fact. On those findings I think he was right in concluding that the factual situation fell into the category of case identified in the decisions discussed both by him and Rolfe AJA, of which possibly the best known are Sungravure Pty Ltd v Meani (1964) 110 CLR 224 and Commissioner of Railways v Ruprecht (1979) 142 CLR 563. In my opinion the appeal should be dismissed with costs. Rolfe AJA Introduction On 6 June 1990 the applicant/respondent, Mrs Tobin, resided at Normanhurst and was employed by the appellant at Chatswood. She travelled to work by train, catching a train from Normanhurst to either Hornsby or Waitara station, alighting there and then catching a train to Chatswood station. On 6 June 1990 she alighted at Waitara and boarded a train to travel to Chatswood. It was not in issue she was on a daily or periodic journey. Before boarding the train she looked at the indicator board, which showed her that it was scheduled to stop at Chatswood. She entered either the second last or last carriage, which was described in evidence as "a red rattler train" and did not have automatic closing doors. Prior to an accident to which I shall refer in a moment she remembered standing beside the exit doors as the train was "coming into Chatswood" station. She recalled standing near to the doors, but she did not remember what happened thereafter until she found herself in Royal North Shore Hospital. Her inability to recall was attacked in cross-examination. She said she did not remember, when she gave instructions to her solicitor to commence the claim, that she told the solicitor she was alighting from a train at Chatswood Station and: "Q. What I suggest you told your solicitor who has filed this document, that you lost your footing as you were alighting from a train, would that be correct? A. Yes. Q. That is in fact what happened, was it not? A. I think so, but I don't remember, sir, I am not in a position to say. HIS HONOUR: Q. You reckon you bailed out of a train that was not going to stop? A.... No, I didn't. Q. It might have slowed down. MR JUDD: I think I should formally put that, your Honour, because that is the nub of my case. Q. What I suggest, madam, is on 6 June 1990 you sought to leave or exit from a train that was moving at Chatswood Station. 10 UNREPORTED JUDGMENTS A. I came to the doors, but I didn't alight because I was... Q. What I'm suggesting to you is on that day, 6 June 1990, you consciously decided to alight from a moving train. Objection by Mr Batten as to ability of witness to answer last question. HIS HONOUR: I will allow it, perfectly proper question. MR JUDD: Q. Do you recall what I said? A.... No. 'What I am suggesting...' Q. What I am suggesting to you is that on 6 June 1990, at Chatswood Station, you consciously elected to alight from a moving train. A... No. I didn't.. Q. Do you deny that or do you say you have no recollection of it? A. T have no recollection." What occurred at Chatswood Station was observed by Mr Barry Leslie Pool, who was an independent witness and gave very precise evidence. He was waiting to catch a train to the City when an announcement was made that the approaching train, on which Mrs Tobin was travelling, would not be stopping and intending commuters were requested to stand back from the edge of the platform. As the train came through the station it decreased speed and, as it slowed, he noticed Mrs Tobin holding on to one of the pole bars or stanchions at a time when the train was travelling "probably" between 10 to 15 kilometres an hour. The doors were fully open in the vicinity of where Mrs Tobin was standing, which was approximately one metre inside the carriage holding a bar or rail, he thought, with her left hand. Her body was facing towards the station at an angle of about 45 degrees. Mrs Tobin was looking forwards. Mr Pool said: "She hesitated and then - you see, because at the same time the train started to accelerate through the station." He was asked what he observed and he said he saw her alighting and: "Q. When you say 'alighting', did she at one point have both feet in the carriage? A. Both feet in the carriage - I would say it was one foot, she came out with one foot as far as I know, it was a fairly instantaneous.. Q. She came out; did she put one foot on the platform? A. Yes, and then both her legs went from under her." Mr Pool saw her fall and skid on the platform and he rendered assistance. He said, AB21: "Q. Your observation, what did it appear to you happened? A. Yes, sir. I believe that she hesitated initially and then made a deliberate attempt to.. Q. You thought she was stepping off, not falling? A. Stepping off the train, yes, but not falling." In cross-examination, AB22, Mr Pool said the train was travelling at 10 to 15 kilometres an hour and then "rapidly picked up" and what happened occurred "very quickly", and: "Q. You said that she put one foot out? A. Yes. Q. Then what, she just come out of the train? A. Well, she followed with the other foot, and then they both went from under her." URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 11 Although it was obvious, and Mr Pool conceded this, that things happened quickly there was no doubt he had a good view of what happened and his evidence in this regard was not really challenged. As a consequence of the incident Mrs Tobin sustained personal injuries and, on 14 August 1991, she made an Application for Determination to the Compensation Court. The application asserted she was injured on 6 June 1990 at Chatswood Railway Station whilst travelling to work, the cause of injury being that "she fell and injured herself". By an Answer filed on 4 November 1991 the appellant denied its liability to pay compensation on the bases that she did not sustain injury as alleged; that she was not incapacitated or disabled from earning; that the incapacity, if any, was not the result of personal injury arising out of or in the course of her employment; and that her injuries "were caused wholly or partly by her own fault and that the applicant is not thereby entitled to the benefit of the provisions of s10 of the Act". The matter came on for hearing before Burke CCJ on 23 October 1992 and, on 2 November 1992, his Honour made an award in favour of Mrs Tobin. The appellant appeals from the whole of his Honour's decision, the grounds being: "1. That his Honour erred in law in rejecting the evidence of Mr Barry Leslie Pool as to his observations of the worker alighting from the train. 2. That his Honour erred in finding the onus of proof had not been discharged in relation to the question of fault when all available evidence was that the worker was at fault in so far as she intentionally alighted from the moving train. 3. That his Honour erred in finding that the personal injuries sustained by the worker were not caused partly or wholly by the fault of the worker. 4. That his Honour erred in finding that s10(1A) did not apply to the circumstances of the worker's accident." There is no ground of appeal challenging the amounts his Honour awarded. The first ground of appeal was not pressed, and it was not in issue that the appellant bore the onus of establishing that Mrs Tobin's injuries were caused partly or wholly by her fault. $10(1) and S(1A) provide:- "(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) subs(1) does not apply if the personal injury was caused, partly or wholly, by the fault of the worker." "Fault" is defined as including: "(a) negligence or other tort; and (b) any failure to take reasonable care for the worker's own safety." HIS HONOUR'S REASONS His Honour noted the principal arguments concerned whether the injury was caused wholly or partly by Mrs Tobin's fault such as to disqualify her, by dint of the provisions of s10(1A), from recovering compensation. He continued: "The definition is probably not exclusive and would seem to include any conduct that would be considered as a misdeed or transgression implying culpability or blameworthiness. That would be in contrast to such things as mere accident on the one hand or misjudgment, momentary inattention, inadvertence on the other, though the latter could also in some circumstances be culpable suggesting failure to care for one's own safety. 12 UNREPORTED JUDGMENTS The disqualifying provision has in many circumstances, if not most, much in common with the concept of contributory negligence at common law." His Honour referred at length to the decisions of the High Court in Sungravure Pty Ltd v Meani (1964) 110 CLR 224, McLean v Tedman (1984) 155 CLR 306 and Bankstown Foundry Pty Ltd v Braistina (1986) 60 ALJR 362, and set out the facts in some detail. He found, and this finding was not challenged, that it was not announced at Waitara Station that the train Mrs Tobin boarded would not stop at Chatswood. He found Mrs Tobin left her seat and moved to a position adjacent to the exit doors as the train approached Chatswood station, at which time it was slowing, and that she had no further recollection of events until regaining consciousness in hospital later that day. His Honour considered the evidence of Mr Pool and found he saw Mrs Tobin standing "there", ie near the exit doors, "obviously prepared to exit, facing slightly forward". He continued:- "As the train proceeded slowly through the station he observed the applicant hesitate, the train began to accelerate, the applicant stepped out, her legs went from under her and her bottom hit the platform." His Honour referred to a suggestion in the evidence that she said at the hospital "that she was injured jumping from a train", which appeared in the records of the hospital, but which was immediately followed by the comment that she did not remember the accident. He said:- "The inference of jumping from the train seems to be a conclusion drawn by the author of the statement from general knowledge, general information, hearsay, but certainly, I would think, not from the applicant. Indeed, that very fact is contradicted by Mr Pool in his observations of what transpired." Tam not certain what this is intended to mean because the evidence of Mr Pool established that she stepped from the train whilst it was travelling at 10 to 15 kilometres per hour. It may be his Honour was only negating any suggestion that Mrs Tobin "jumped", rather than "stepped". His Honour's subsequent findings support this view. His Honour said:- "From the applicant's point of view as the train was entering Chatswood Railway Station nothing was different from the numerous occasions on which she had made that same journey on prior occasions. The train was slowing, she had risen from her seat, she had positioned herself a little back from the exit doors. As the second last carriage in which she rode was entering the platform the train was still proceeding slowly, as she would rationally expect. In my view at that stage she could not reasonably apprehend danger or any change in circumstance. Her mind may have been in neutral or perhaps she was thinking of any one of those thousand and one things that go through people's mind while the world proceeds in its routine pattern and is assumed that it is going to continue to follow exactly that course. I would believe she had arrived abreast of about the spot on the platform where she would usually alight when there was a realisation that the train was not stationary. Such would be compatible with Mr Pool's observation of a momentary hesitation by the applicant. One wonders whether consciously she accepted the sensory input that the train was really continuing to move. In any event, she stepped out; that is the clear observation of Mr Pool. Perhaps the account of Mr Pool suggests some momentary confusion in the applicant, he just saw her step out. URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 13 He did not suggest what would be the more usual manoeuvre when alighting from a moving vehicle of facing forward, stepping forward but thrusting the trunk backwards to maintain balance and compensate for the forward inertia provided by the moving vehicle. He describes the applicant as stepping out in much the same manner as one would alight from a stationary train though the train had actually then commenced to gather speed. Is such an action by the applicant properly categorised as failure to take care for her own safety or consciously put her own welfare in jeopardy or is it to be regarded as an error of judgment, a thoughtless act, an act done in confusion; a situation where the will did not go with the deed?" His Honour's statement that from Mrs Tobin's point of view "nothing was different from the numerous occasions on which she had made that same journey" is not correct. There was a critical difference. The train did not stop to allow her to alight and this, his Honour found, she realised. Whatever may have been going through her mind this simple fact must have impacted on her thinking, as his Honour found, and what she did was contrary to what she had, on the evidence, done on other occasions, viz alighted from the train after it had stopped. If, on the other hand, she had given no attention to whether the train had stopped that, in itself, bespoke default on her part in my opinion. His Honour catalogued eight "factors and inferences", which he considered to be relevant. Firstly, he said that "until the very last moment" Mrs Tobin would reasonably accept "that a routine activity would be repeated in the manner in which it occurred frequently before". Secondly, there was "but a momentary apprehension that on this occasion something was amiss, something had gone wrong". Thirdly, the interval between such an awareness and the injury was extremely short. Fourthly, in that brief period "with the mental inertia as it were of the normal expectation that the train would stop clouding her mind, she was confused". Fifthly, in that confused state she did what she had done time and time again and alighted. Sixthly, the familiarity "of this oft repeated sequence of actions distorted her judgment on this isolated occasion" when there was an unexpected and unpredictable departure from the normal routine. Seventhly, the time between any reasonable awareness of the departure from that routine and the ultimate act of stepping forth "was so very brief as to virtually preclude a rational evaluation of all the relevant circumstances", and eighthly, the accident occurred at or about the place where she would normally have alighted compatibly with the applicant being confused and to a degree disoriented". None of these conclusions, in my respectful opinion, are consistent with the uncontradicted evidence that as the train entered the station Mrs Tobin was standing back from the doorway, holding on to a rail and, obviously enough, waiting for the train to stop before alighting. The hesitation observed by Mr Pool was as clear an indication as there could be that she should not try to alight before the train stopped, which showed an appreciation, in my opinion, and contrary to the view to which his Honour came, of what was happening. Her attempt to get off whilst the train was moving at a not inconsiderable speed, accordingly, cannot be explained, if this is what was sought to be done, by a belief that it had stopped, or by her not considering whether it had stopped. His Honour then considered that many accidents occur when a worker is "Julled into a sort of mental torpor by the very familiarity of the events" and fails, in the brief time available, to make an evaluation of the changed circumstances. He said he believed that was the situation when Mrs Tobin received her injury and:- 14 UNREPORTED JUDGMENTS "T think that such is more properly categorised as an excusable misjudgment or misapprehension than any conscious failure to care for one's own safety. In those circumstances I do not regard the evidence as establishing more probably than not that Mrs Tobin's injury was caused partly or wholly by the fault of the worker." His Honour's conclusions must be measured against the statutory test, namely whether Mrs Tobin's injuries were caused either partly or wholly by her fault, ie by her failure to take reasonable care for her own safety. A question arose during the hearing as to whether "failure" meant an omission to do something or the commission of an act. In my view it can have either meaning. In the present case, for example, the "failure" may be either the stepping from the moving train, or it may be not waiting for the train to stop before stepping from it. In either circumstance the question must be asked whether that conduct was a failure to take care for one's own safety. Further, that failure need not be the sole or "whole" cause, it is sufficient if it was partly the cause. As Kirby P. observed in Aardvark Security Services Pty Ltd v Ruszkowski (Court of Appeal - 19 March 1993 - unreported), it was clear the legislature had considered that the "minutest" fault would deprive a worker or his or her dependants in the case of death of any benefits. His Honour suggested that a legitimate judicial response to what he perceived to be the injustice of the section was to define "fault" "to ensure that mere momentary inadvertence on the part of the worker is not encompassed within 'fault' as there provided". His Honour noted that this was a course being followed in some cases in the Compensation Court and referred to the decision of Burke CCJ in Brame v Woolworths Limited (14 October 1991 - unreported). However his Honour made it clear that a Court could not refuse to give effect to the expressed will of Parliament, if the facts fell within it. His Honour offers no explanation of the misjudgment Mrs Tobin made or the misapprehension under which he thought she laboured. She could hardly have misjudged or misapprehended that the train had not stopped, which was the relevant matter so far as her leaving it was concerned. This finding that Mrs Tobin realised the train was not stationary negates any misjudgment or misapprehension. AN ANALYSIS OF THE EVIDENCE The evidence established various matters which, in my opinion, point strongly away from the conclusions to which his Honour came favourable to Mrs Tobin. Firstly, she alighted from a moving train. Presumably there can be no suggestion that her routine involved so dangerous a step. The expectation she had was that the train would stop, but it did not. Secondly, although the train slowed as it passed through the station the evidence was it was travelling at between 10 to 15 kilometres per hour, which is a not inconsiderable speed. In these circumstances it can hardly be said that the speed was such as to make it appear appropriate to seek to alight. Thirdly, Mr Pool gave evidence, which was not challenged, that whilst Mrs Tobin hesitated momentarily he believed she hesitated initially "and then made a deliberate attempt to..". It is obvious from the next answer that he was intending to convey she made a deliberate attempt to step off the train. Even if his conclusion that she acted "deliberately" may have been open to some objection, (although none was taken), all the objective facts point to her having stepped from the train deliberately. There was no suggestion she lost her footing as a result of some movement of the train or was jostled by other passengers or URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 15 slipped, such that her leaving the train was in some way accidental. She simply stepped off a moving train and it is clear she did so of her own volition, ie deliberately. Against the background of these findings it is necessary to examine the "factors and inferences" his Honour felt to be relevant. The first cannot, in my opinion, be relevant once it is accepted that the train did not slow below 10 kilometres per hour. At that speed it was still necessary for the train to slow far more before there could be any suggestion that the routine activities of its stopping and the passengers alighting were to be performed. The fact Mrs Tobin had "a momentary apprehension", which no doubt manifested itself in her hesitation detracts substantially, in my view, from the suggestions of her having "mental inertia", "confusion" and distortion of judgment, if, by that it is intended to mean that she believed the train was going to stop or it was safe to alight from it. So far as his Honour concluded that she did not have time to make "a rational evaluation of all the relevant circumstances" I think it suffice to say that the only circumstance to which she had to have regard was that the train was moving at the stated speed which, on any view, must have been too fast to justify her seeking to alight from it if she was taking care for her own safety. This was in circumstances where she positioned herself standing back from the door and holding a rail. She was thus in a place of safety and taking reasonable care for her own safety by holding on awaiting the time when the train stopped so that she could alight with safety. The eighth matter upon which his Honour relies does not, in my respectful opinion, carry the matter any further, because she would only have alighted at that point if the train had stopped. The reference to a degree of disorientation is not substantiated. His Honour's reliance upon the accident's occurring because Mrs Tobin was doing that which she had always done and was lulled into "a sort of mental torpor" by the very familiarity of the events is totally negated, in my opinion, by the fact that the train not only did not stop, which I assume would be the time she would normally alight from it, but was moving at the stated speed. The finding of "an excusable misjudgment or misapprehension" rather than "any conscious failure to care for' her own safety is totally at odds with the evidence of Mr Pool as to the deliberateness of her action, by which I mean his evidence that she stepped from the train. THE AUTHORITIES UPON WHICH HIS HONOUR RELIED In Sungravure Pty Ltd v Meani the injured worker was employed as a brake hand at the appellant's printing works. His duty was to attend to a machine called a "spider" upon which was mounted a large heavy reel of newsprint, the paper being drawn from the "spider" by mechanical means to a printing press and, in the process, the reel rotated at a high speed. It was necessary that an even tension was maintained and, to make an adjustment, it was necessary to apply manual pressure as the reel revolved. The worker was required to undertake part of this task and, because of the way in which he did it, it was impossible for his forearm to be cleared and it was fractured. The declaration contained a count based on common law negligence to which the employer pleaded that the worker had been guilty of contributory negligence, not because he had placed his hand on the butt of the reel to break its movement, but because he had braced his elbow against a stanchion thus making it impossible for his forearm to be thrown clear or pulled away if his hand 16 UNREPORTED JUDGMENTS or the cloth which he held in it was thrust upwards by the rotation of the reel. The issue of contributory negligence was left to the jury, who found there had been contributory negligence. The Full Court ordered a new trial on the ground that there was no evidence on which a finding of contributory negligence could be made. Kitto, Menzies and Owen JJ noted, at 33, a submission that the worker had merely acted thoughtlessly or inadvertently and not negligently and that, in those circumstances, a finding of contributory negligence could not be made. Their Honours said:- "The argument seemed to proceed upon the basis that there was a clear line of distinction to be drawn between an act done without reasonable regard for one's own safety on the one hand and an act done inadvertently or without thought on the other. But we are unable to agree that this is so. An inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for or consideration of the consequences that may follow from the doing of it, and whether it is so or not is a matter for the consideration and determination of the tribunal of fact." At 34 their Honours said:- "Tt was said also that his Honour had fallen into error in a direction which he gave to the jury in response to a request by counsel for the respondent. Counsel asked him 'to direct the jury that a heedless or inadvertent act is not necessarily negligent'. To this his Honour replied 'yes, I will give that direction' and proceeded to tell the jury that a heedless or inadvertent act, which was what I attempted to put before, is not negligent. It has to show a lack of reasonable care for his own safety. It is a question for you whether you think a heedless or inadvertent act shows a lack of reasonable care for his own safety'. The only criticism that might be made of this direction is that it omitted the word 'necessarily' an omission of which the respondent cannot complain." At 37 Windeyer J said:- "But I quite fail to see how considerations of setting and circumstances can produce any rule of law or any general principle applicable to activities in factories that is not applicable to activities elsewhere, in a coal mine, a musterers' camp, a shearing shed, upon a highway or anywhere else. In the press of affairs anywhere a need to act promptly may sometimes lead to something being done, which has unfortunate results, but which is attributable to an error of judgment rather than a blameworthy want of due care. These things were for the consideration and evaluation of the jury. Negligence is, in every case, a question of fact. In no case can the answer to that question be found in words, however eloquent, uttered by judges, however eminent, about the facts of some other case." Of course in the present case there was no need for Mrs Tobin to act promptly. Contributory negligence cases are one's in which the person alleged to have been guilty of that conduct has been called upon to react or respond to a situation of danger or potential danger caused by another. But Mrs Tobin was not required to react or respond. She, as I have indicated, was in a place of safety. The reasonable inference is that she would remain there until it was safe to alight from the train. Because the train did not stop it was never safe to leave her position of safety, which must have been obvious to her. At 38 his Honour drew attention to the requirement that questions of negligence or contributory negligence must be judged "by external and objective standards". He continued:- URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 17 "The law of negligence is concerned with acts, with conduct that is negligent rather than states of mind. The accompanying mental processes of the individual are circumstances, not the fact in issue." Before saying that his Honour observed that it was not possible to define "inadvertence". He continued:- "Moreover, in ordinary parlance, a thoughtless act when a reasonably prudent man would take thought, an inadvertent act when he would be vigilant, an act done in forgetfulness of something that if he were careful he would not overlook, may amount to negligence on his part. What Lord Wright said is that MERE thoughtlessness or inadvertence is not necessarily negligence. That is indisputable. The mental processes of the plaintiff and of the defendant in a negligence action, although relevant in so far as they are related to their actual knowledge of the risks of what they were doing, are not decisive of the question whether there was negligence or contributory negligence, for that has to be judged by external and objective standards." (His Honour's emphasis.) In so far as his Honour placed reliance on what he thought were the reasoning processes of Mrs Tobin he seems to me to have failed to have regard to the conduct of her stepping from a place of safety on a moving train off the moving train, and to have judged that conduct by reference to external and objective standards, all of which would, in my opinion, call for the answer that she failed to take reasonable care for her own safety, either partly or wholly. In McLean v Tedman, Mason, Wilson, Brennan and Dawson JJ approached the issue of contributory negligence on the footing that the employer had failed to discharge its obligation to provide a safe system and, at 315, their Honours said:- "The question is whether that failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognised distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact." Their Honours considered the observations of Windeyer J in Sungravure concerning "inattention bred of familiarity and repetition, the urgency of the task, the man's pre-occupation with the matter in hand, and other prevailing conditions". They continued:- "Tt is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man'. His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to injuries elsewhere, specifically referring to activities upon a highway." Their Honours said:- "In concluding that the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, the following factors have impressed us as being significant: (a) the prevailing condition of poor light unquestionably diminished his ability to pick out the vehicle and locate its speed and position accurately; (b) performance of his task necessarily involved pre-occupation with the matter in hand; 18 UNREPORTED JUDGMENTS (c) at the relevant time he was carrying on his right shoulder a humper whose capacity ranged between 4 and 8 household garbage deposits; (d) the carrying of this humper on his right shoulder when running across the road would very considerably restrict his capacity to observe an oncoming vehicle and assess its speed accurately; and (e) in order to retain his employment as a garbage collector he was expected to run across the road and keep up with the truck as it moved forward." Each of these matters militated against a finding of contributory negligence in circumstances where the employer had failed to provide a safe system of work. But no equivalent circumstances operated in the present case. Mrs Tobin was waiting in an appropriate place for the train to stop so she could alight. She was able to see what was happening. The evidence disclosed nothing to detract her from the task in hand and no supervening event, of the type I have described, occurred to change the situation. In Bankstown Foundry Pty Ltd v Braistina Mason, Wilson and Dawson JJ said, at 366: "A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. BUT HIS CONDUCT MUST BE JUDGED IN THE CONTEXT OF A FINDING THAT THE EMPLOYER HAD FAILED TO USE REASONABLE CARE TO PROVIDE A SAFE SYSTEM OF WORK. THEREBY EXPOSING HIM TO UNNECESSARY RISKS. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or - misjudgment, or to negligence - rendering him responsible in part for the damage." (My emphasis.) Once again, and for obvious reasons, the conduct was measured against the background of a finding that the employer was guilty of negligence in consequence of the which the employee reacted in a certain way. But in the present case there can be no suggestion that the appellant in any way contributed to the situation in which Mrs Tobin found herself. So far as the appellant was concerned she could have travelled to work in any way she chose. The issue for determination is stated by the Act as being whether the appellant is exculpated from this statutory liability because her injury was caused partly or wholly by her own fault. The three decisions upon which his Honour relied were all cases of workers injured in the course of their employment, thereby posing for decision the question whether they had failed to act reasonably, so that their conduct, which was a response or reaction to negligence on the part of the employer, constituted a departure from the standard of care of the reasonable man, or whether, because of the particular circumstances, there was "mere inadvertence, inattention or misjudgment". There are two other cases to which I wish to refer. In The Commissioner of Railways v Ruprecht (1978-1979) 142 CLR 563 a railway yard foreman was injured by a wagon being shunted in the yard because he stepped on to a track in the path of the wagon at a time when he did not expect it to be there and was pre-occupied with his duty. Gibbs, Stephen and Murphy JJ held the foreman had not been guilty of contributory negligence. Mason and Wilson JJ dissented. The whole Court held the employer had been guilty of negligence. At 568 Gibbs J referred to the judgment of Windeyer J in Sungravure and said:- URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 19 "In my opinion, in the circumstances which I have mentioned, the respondent's inadvertence was not such as to amount to a failure to take reasonable care for his own safety. In reaching this conclusion I particularly rely on the circumstances that the employment demanded, and obtained, the respondent's concentration upon it, and involved a risk of danger to which the respondent had become habituated, and that the respondent had reasonable grounds for thinking that Caddies would not dispatch the wagon on the Mid Road at the time when he did and that he should accordingly direct his attention to the train bound from the north yard. It was correct to conclude that the respondent was not guilty of contributory negligence." Stephen J agreed with Gibbs J. Murphy J, at 577, said:- "An employee should not be held guilty of contributory negligence unless when he acted (or failed to act) this was done with full appreciation of the danger. Even then, it should not be regarded as contributory negligence if it was done to advance the employer's interests. This means that there must be an element of wilful misconduct by the employee. This approach is reflected in cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or pre-occupation in what he is doing, is not to be regarded as contributory negligence..." In the present case there is no evidentiary basis for concluding that Mrs Tobin did not appreciate the danger of stepping from a moving train. All the evidence points to the contrary. Nor does the evidence support the other exculpatory matters suggested by his Honour. His Honour concluded, at 578-579:- "Tt is clear that when Mr Ruprecht crossed the lines, he did not fully appreciate the danger he was oblivious to it. There was no conscious deliberate disregard of safety. He was, therefore, not guilty of contributory negligence." It cannot be said Mrs Tobin did not fully appreciate the danger. She was in a position of safety because she did. She left it in both conscious and deliberate disregard of her own safety. Mason J held there was contributory negligence. His Honour acknowledged, 570-571, that in applying the standard of care to contributory negligence on the part of employees the Courts have taken into account a variety of factors "which have a tendency to excuse the employee for inattention to his personal safety". He quoted from the speech of Lord Wright in Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152 at 178-179 and noted that the decision in Sungravure "was a distinct departure from this restricted thinking". After quoting, with approval, from the judgment of Windeyer J, his Honour continued, 571-572: "Tt is therefore settled law that this approach to contributory negligence is not limited to employees in factories or to cases in which there is a breach by the employer of a statutory duty the performance of which is designed to protect the employee from injury, whether in consequence of his own inadvertence or otherwise. Nor, in my opinion, is it limited to cases of negligence in which the employer has failed to provide a safe system of work as in the Sungravure case, though it is peculiarly appropriate to cases of this kind because the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence. There is nothing in the court's exposition to suggest that the principle has no application to cases in which the defendant employer is held liable in negligence for the casual act or omission of the plaintiff's fellow employee." 20 UNREPORTED JUDGMENTS At 573 his Honour said:- "As the law presently stands we should proceed on the - footing that the standard of care that applies in the case of contributory negligence on the part of an employee is no lower than the standard of care that applies in the case of negligence on his part, cf Commissioner for Railways v Halley. Consequently, in the words of Windeyer J, the question which we must decide is: was the omission of the respondent to look in the direction of the shunting straight before stepping on to the Mid Road incompatible with the conduct of a prudent and reasonable man?" His Honour determined it was. So also did Wilson J: pp579-580. At 581 his Honour rejected the submission that the failure to look was as a result of some temporary inadvertence or some lapse of attention or otherwise within the description provided by Windeyer J at 531 in Sungravure. This Court had to consider the matter in WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd and Ors (14 July 1995 - as yet unreported). The particular significance of this case is that it was concerned not with contributory negligence but with whether there was fault within the meaning of s10(1A). Whilst there were a number of issues I shall confine myself to the question of fault, which was said to arise by virtue of the worker allowing a motor vehicle he was driving to run off the roadway. At 9 Kirby ACJ said:- "At about 12.30 am on the Sunday morning of Saturday, 13 March 1993, thirty kilometres east of Inverell on the Gwydir Highway, the vehicle carrying the worker Mr Gellie went off the road. It rolled twice. It returned on to its wheels. It then came to a stop. At the time the accident occurred, the vehicle had been travelling at about 80 to 90 kilometres an hour. The maximum permitted speed limit in the vicinity is 100 kilometres per hour. The worker gave evidence that the vehicle veered off the road for no apparent reason. He assumed that there had been a blowout or a tie rod end had become disconnected." The passenger did not receive significant injuries, the weather conditions were fine and dry and there was no suggestion the worker had been drinking. The roadway at the scene of the accident was straight. There was an issue as to whether the worker was wearing his seat belt at the time. At 32 Kirby ACJ commenced his consideration of s10 and he referred to the history of the amendments and passages from the Ministerial statement accompanying them in his reasons in Aardvark Security Services Pty Ltd v Ruszkowski. The provisions, he said, had been described as "Draconian". He referred to statements he made at 7 in that decision constituting "two responses to the apparent injustice of the deprivation provided for in the section", and continued: "The first is to give meaning to 'fault' in s10(1A) in such a way as to ensure that mere momentary inadvertence on the part of a worker is not encompassed within 'fault' as there provided. There is a long line of authority, developed by the courts of the common law at a time when contributory negligence was a complete bar to recovery, upon which workers,.. can rely to diminish what would otherwise be the extreme cases for the application of the section.. This involves an entirely legitimate judicial function of statutory construction.. There is a second, but impermissible approach which a Judge may take. It is to react so unfavourably to the perception of the gross unfairness to the worker.. as to set about by (however unconscious}y) approaching the evidence and submissions of the parties so antagonistically as to frustrate a fair trial of the issue. URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 21 In Billpat his Honour warned against falling into the second approach, notwithstanding the gravity of the injuries received by the worker and other circumstances adversely affecting him or her. His Honour noted that it had been established by Aardvark and accepted in Billpat that the onus of proving the matters referred to in s10(1A) rested upon the employer. On the question of fault his Honour referred to the submission that the mere fact of the vehicle's running off the roadway bespoke an inference of fault, and he then considered a number of hypotheses to explain the occurrence. He referred to the trial Judge's finding that it was probable that momentary inattention, particularly in a vehicle of the age being driven by the worker, caused it to leave the road, and continued:- "There is no doubt that momentary inadvertence, of the kind that can occur without fault, will escape the prohibition of recovery which s10(1A) sets up." His Honour referred to Sungravure and Podrebersek v Australian Iron and Steel Pty Ltd (1985) 55 ALJR 492. After referring to a number of matters which would excuse fault on the part of the worker, his Honour tested the matter by considering whether, had Mr Gellie, a passenger, been injured, "the Court would seriously have denied him recovery on the basis that there was no evidence of 'minutest fault' on the part of the worker". He responded that such a proposition had only to be stated to provide its own answer. Mr Gellie would have recovered damages. His Honour continued:- "T do not believe that the Court should indulge in double standards - presenting one for plaintiffs who claim recovery of damages for negligence and another to employers who defend a claim for workers' compensation on the basis of proof of fault. The proper way to remove the clear injustice in s10(1A) of the Act is to modify its terms, as was proposed during its passage through Parliament. Whilst it stands in its present, clearly unjust state, it is the duty of this Court to give it full effect. Although the exact cause of the worker's loss of control of his vehicle is not clear my conclusion would be that the proper inference is that that measure of 'fault of the worker' to which the statute is referring was established by the evidence in this case. Clearly, not much 'fault' is necessary. In the absence of some clear material which gives rise to a countervailing acceptance of the absences of fault, the mere fact that the vehicle left the road would be sufficient to provide the foundation for the finding of 'fault'. When it is complained that this has a drastic and unreasonable consequence, the answer must be given: that is precisely what is intended by Parliament." His Honour went on to consider fault in relation to the failure, or alleged failure, to wear a seat belt. His Honour was in the minority, Priestley and Clarke JJA being of the view that the appeal should be dismissed. Priestley JA disagreed with the formulation of Kirby ACJ that one should test the matter by reference to the entitlement of Mr Gellie to recover damages. He said, p2:- "The precise question in the present case is whether on the materials that were before the Compensation Court that Court should have held, and now this Court should hold, that the employer had discharged the onus of proof that the worker's accident was due to the 'fault' of the worker. Had the worker's passenger been injured and subsequently sued the worker for damages for negligence, the question for the relevant tribunal would have been whether the passenger had discharged the onus of showing that his injuries were caused by the worker's 22 UNREPORTED JUDGMENTS negligence. The two questions involve a number of considerations which would be very close to identical, but they nevertheless remain different questions, each, in my opinion, quite a difficult one. It seems to me that the Court should answer the question raised by the case, rather than look to a very similar question, not raised by the case, assume what the answer would be, and then say for the sake of consistency the answer to the question in the present case should be me same." His Honour stated that it was well established that the happening of a motor vehicle accident did not of itself "conclusively establish negligence by the driver" and referred to the decision of Windeyer J in Sungravure, to which I have referred. He also noted the approval of that passage in Ruprecht at 570-572 in the judgment of Mason J and p.581 in the judgment of Wilson J. His Honour said he thought the same observations applied to "fault". He continued:- "The other mater was that the worker was an experienced driver, did not feel tired, had broken his journey at sensible intervals, was not driving at an unsuitable speed, had stopped twenty minutes before the accident, denied he had fallen asleep momentarily and was not found by the trial Judge to have fallen asleep. A further matter, also recognised by the Acting Chief Justice, is that the onus of establishing relevant fault rested on the employer. In the circumstances it is my opinion that O'Toole CCJ was entitled to find in the worker's favour, as she did, that the probability was that it was momentary inattention, not amounting to fault, which caused the worker's vehicle to leave the road." His Honour continued that a number of possibilities may have explained the accident, including "fault", but that the evidence did not establish it was fault. Although I appreciate that if the passenger had sued slightly different issues would have arisen, it seems to me the matter is analysed properly by asking firstly whether, in circumstances where a motor vehicle is being driven in the way the worker was, his running off the road did not lead, prima facie, to an inference of negligence. In my view the answer could only be that it did. At that moment an evidentiary burden was cast on the worker to dispel that inference e.g. by establishing mechanical fault for which he was not responsible. Clarke JA came to the same conclusion as Priestley JA. His Honour's reasons proceeded very much upon the basis that there was an acceptance that the trial Judge found "momentary inattention", which finding the appellant accepted, and, from that, it was sought to be argued on behalf of the appellant that "momentary inattention" equated to negligence. His Honour rejected that analysis for the detailed reasons he gave, but the significance of the way in which the case was presented, so far as his Honour was concerned, appears at 4 of his reasons. where he said:- "In the circumstances that the appellant has accepted the finding of momentary inattention I am unable to discern any basis upon which her judgment should be reversed. In my opinion the submission that momentary inattention predicates negligence is not supportable. I should add that I do not find it helpful to speculate on the prospects that the passenger would have had of recovering damages if he had been injured in the accident. Different legal issues would arise and the evidence would almost certainly be different." If I may say so with the greatest respect to Priestley and Clarke JJA whilst it is undoubtedly correct that different legal issues would arise in determining whether Mr Gellie was entitled to recover damages the unexplained, if it remained unexplained, running of a vehicle off the roadway in the circumstances URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 23 which existed in that case would be, in my respectful opinion, potent evidence of negligence on the part of the driver. I have referred to the issue of the shifting onus. When one analyses the three judgments in Billpat they seem to me to proceed on three different bases. Kirby ACJ was of the view that the circumstance of the vehicle running off the road bespoke fault. Priestley JA was of the view that on the evidence before O'Toole CCJ the employer had not established "fault" as opposed to "momentary inadvertence", which his Honour distinguished from "fault". Clarke JA, whilst agreeing essentially with Priestley JA, added that the concession that there had been "momentary inadvertence" was a further reason for dismissing the appeal, his Honour reasoning that "momentary inadvertence" may not equate to fault. In the end the matter remains one of fact, the question being whether, on the facts of the present case, the personal injury was caused, partly or wholly, by the fault of Mrs Tobin. In the course of submissions Priestley JA drew attention to the decision of the Full Court in Bagot v The Commissioner of Railways (1943) 44 SR 73. The Court was required to consider whether, in the course of a periodic journey, the death of an employee, who was killed when a motor vehicle he was driving collided with a pole, arose in circumstances where he "received injury without his own default or wilful act". Jordan CJ was of the view that "default" connoted "something which is wrong in a legal sense" and "wilful act" connoted "something which is not". His Honour equated default to negligence, and described it as "failure by the worker to be careful, the failure being of a kind inherently likely to cause disabling physical injury to himself, and in fact causing or contributing to the injury in question. I do not think that carelessness amounting to no more than failure to take all the care that an ideally cautious and prudent man would take for his own safety would of itself amount to default as here used...". I do not understand his Honour to be imposing a test different from that demanded by the words of the present Act. WAS THERE FAULT ON THE PART OF MRS TOBIN? These circumstances it becomes necessary to determine whether the personal injury suffered by Mrs Tobin was caused partly or wholly by her fault. In my view, on the facts of this case, that question must be answered in the affirmative. The evidence established that as the train entered the vicinity of Chatswood station she was standing about one metre back from the doorway and holding on to a rail. Her position, at that stage, was quite secure. Thereafter, before attempting to alight from the moving train, she hesitated which, in my opinion, indicated a consideration of the situation confronting her, namely the prospect of leaving a moving train. That hesitation gives rise to the inference that she appreciated the risk involved. Notwithstanding she continued to try and alight from the train and, as Mr Pool said, she "made a deliberate attempt" to step off it, which I take to mean that she did not alight in consequence of any accident or unforeseen event. The totality of the evidence, in my opinion, can only lead to the conclusion that Mrs Tobin was guilty of fault in the manner defined. A question, which has concerned me, is whether the finding of fact of the trial Judge, which is entitled to full respect, can be interfered with by this Court. This is not a case where there is any necessity to resolve a conflict of evidence or where the subtle influence of demeanour must be allowed full rein. The evidence as to what happened was not relevantly in dispute, and no question of credibility or demeanour arises. The issue is whether his Honour was correct in drawing the inferences he did. In these circumstances I do not consider the 24 UNREPORTED JUDGMENTS decisions of the High Court in Abelos v Australian Postal Commission (1988) 171 CLR 167 and Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472 preclude me from giving effect to the inferences I consider flow from the uncontested evidence. I have had the advantage of reading, in draft form, the judgment of Priestley JA. His Honour, in considering the facts, deals at length with the evidence of Mr Pool. He refers, firstly, to his evidence of the speed at which the train was travelling, which was given without objection, upon the accuracy of which there was no cross-examination, and about which the learned trial Judge made no adverse comment. Indeed, I consider, a fair reading of his judgment shows an acceptance of Mr Pool's evidence and the problem it posed to explain why Mrs Tobin acted as she did. Priestley JA states:- "Whatever the technical position may be about such evidence, however, the trier of fact cannot be bound, unless perhaps by agreement between the contending parties, to accept such evidence from a witness as being absolutely accurate. The Judge here was, in my opinion, entitled, in approaching his findings of fact, to bear this in mind. That is, although Mr Pool's evidence has at all stages of this case been accepted, the Judge, in accepting it, was entitled to remember that the evidence of speed was an estimate, and that the context in which the estimate was made was that the witness was watching a train coming towards him, it was slowing down, the incident came out of the blue, and before it happened the witness had had no particular reason for paying attention to the speed of the train or the actions of the worker." The matters to which Priestley JA has referred could all have been the subject of cross-examination, but they were not and that should have been the primary matter for consideration by the trial Judge. Whilst the trial Judge may not have been obliged to find that the evidence was "absolutely accurate", in the absence of any objection or relevant challenge to it, which in my opinion there was not, I do not consider he was entitled to qualify or reject it, nor do I consider this Court is entitled to do so. The cross-examiner, in effect, accepted Mr Pool's evidence of speed: AB22 line P. It was never put to Mr Pool that his assessment was in error and, without a challenge, Mr Pool may have been precluded from giving the most cogent evidence as to his ability to estimate speed, which the lack of objection to the giving of the evidence in chief had rendered unnecessary, and the absence of cross-examination made unnecessary thereafter. The tacit acceptance of Mr Pool's ability to estimate speed may well have been made, for all this Court knows, for a very good reason. But whether it was or was not the way in which the case was conducted does not now lay it open to any criticism or doubt. The trial Judge expressed none. The importance of the issue of speed, and the way in which it was conducted at the trial, is made clear by Priestley JA's reference to the discharge of the onus depending upon the speed at which the train was travelling. Priestley JA refers to the possibility that the learned trial Judge "may well have gained (and properly gained, if that was the way it stuck him) the impression from Mr Pool's interrupted answer using the words 'fairly instantaneous' that the incident happened within what must have been both for the worker and to Mr Pool's observation a couple of eye-blinks". His Honour then refers to certain questions asked by the trial Judge, and he concludes:- URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 25 "The judge interrupted to bring him to the point of the judge's question. I doubt whether the interrupted and incomplete answer commencing 'I believe that she hesitated initially and then made a deliberate attempt to' yielded material which should be treated as being within Mr Pool's accepted evidence. That the judge was interrupting an answer by the witness not directed to the question the judge was interested in, in order to get him to answer the question responsively would in my opinion, have been obvious to counsel both for the worker and the employer." With great respect to his Honour I do not consider there is any basis for these observations. The questions were asked by the trial Judge and they sought Mr Pool's belief or opinion. His Honour asked Mr Pool what it "appeared" happened, and what "you thought". I do not consider his answers were in any way unresponsive to the judicial request for such information. Further, the evidence having been given and neither the questions eliciting it nor the answers having been objected to or struck out, counsel calling Mr Pool was entitled to assume it would be given proper weight. His expectation in this regard can be measured by the fact that after those two questions were asked by his Honour and answered, he asked no more. If his Honour had taken the view that the answers were unresponsive he no doubt would have said so and/or had them struck out, and counsel calling Mr Pool would then have been entitled to ask further questions. In the light of the evidence, and the way in which it was given, there must have seemed to him no need to do so and he was entitled, as a matter of procedural fairness, to proceed on the basis that the evidence given, to which no objection had been taken, would be given appropriate weight. If the answers were not to be so treated by the learned trial Judge, as Priestley JA suggests, counsel should have been told. For the trial Judge not to have done so would, in my opinion, constitute procedural unfairness at the hearing. I am not prepared to infer procedural unfairness on his part. For this Court to accept such a thesis, without its having been raised on the appeal, would have the same effect. A trial Judge must, of course, deal with the evidence. This evidence was central to the case. If it was to be given little weight or, as Priestley JA suggests not to be accepted notwithstanding the circumstances in which it was given, that should have been articulated by the trial Judge so that it could have been dealt with at an evidentiary or submission level. As I have said procedural fairness demanded as much. I shall consider now the precise evidence given. It was:- "His Honour Q. Your observation, what did it appear to you happened? A. Yes, sir. I believe that she hesitated initially and then made a deliberate attempt to - Q. You thought she was stepping off, not falling? A. Stepping off the train, yes, but not falling. Mr Judd I have nothing further." Priestley JA interprets the interruption as being "to bring him to the point of the judge's question" and then makes the assumption that the interruption of the answer was to obtain a responsive answer, and the further assumption that the assumed unresponsiveness of the answer "would" in his Honour's opinion "have been obvious" to counsel. In these circumstances he bases a finding that he doubted that the interrupted and incomplete answer yielded material, which should be treated as being within Mr Pool's accepted evidence. 26 UNREPORTED JUDGMENTS Ihave dealt with why, as a matter of basic procedural fairness, it was not open for this approach to be adopted. However, I would add that the questions and answers do not yield this result on my reading of the transcript. Far from the interrupting question showing any criticism of the interrupted answer it elucidated what happened in the light of that answer. Mr Pool referred to "a deliberate attempt". Had his Honour responded:- "No did she stop or did she fall. What did you see?" Priestley JA's criticism would be justified. But he did not. The interrupting question picked up Mr Pool's answer by starting "You thought', i.e. you came to the conclusion, and then expanded on the conclusion in a leading way, which must have been obvious to everyone in the Court, that she stepped, a deliberate act, rather than fell, a not deliberate act. I repeat that in the absence of any objection to the questions or answers, or any indication by his Honour that he was not accepting the answers as responsive, or internal evidence within the questions and answers to show that they were not being accepted, the conclusion as to their probative value, as to which Priestley JA opines, is one with which I disagree entirely. Mr Judd's response after the questions were asked and the answers were given shows that his expectation, which entirely reasonable, was the evidence would not be treated in the way for which Priestley JA contends. All this is confirmed by the trial Judge's failure to criticise Mr Pool's evidence in this, or in any other, respect. Priestley JA then refers to the question of speed, and to the fact that the cross-examiner "was careful to make it clear that the worker was not accepting the precise figures of Mr Pool's estimate of speed". In my opinion the intrusion of the words "you say" into the question, without more, can hardly give rise to any appropriate denial in relation to speed. This is made the more apparent when no evidence was proffered to contradict that evidence. Priestley JA points to evidence which, in his Honour's opinion, goes "to reinforce what I have already said about the speed with which everything happened. These were all matters for consideration by the trial Judge in deciding what conclusions he should draw from the entirety of Mr Pool's evidence about the question critical to the case, namely whether the worker at the moment she stepped off the train was at fault, in the sense I have earlier explained". Although Mr Pool may not have had any particular reason to make the observations, he said he did make them, and this was barely challenged in the conduct of the case, and the observations were not called into question by the trial Judge. One may understand why when one notes the challenge towards the end of his cross-examination by reference to the time Mr Pool had to make the observations. The inherent credibility of Mr Pool is obvious in the evidence he gave at AB23 and, in so far as this Court should take into account the fact trier's perception, with which I basically agree, it is clear from his Honour's question at AB23 line F. That question can only be read as reinforcing the reasons Mr Pool gave for having the events "'so clearly or indelibly (AB23 line B), in his mind". Priestley JA concludes that the trial Judge did not have to treat the estimate of the train's speed as more than that and his Honour notes it was prefaced by "probably". However, in the absence of any other evidence and, essentially for the reasons to which I have referred, I see no reason to reject it and the case was fought essentially before the trial Judge and before this Court on the basis that Mr URJ MEDIDA PTY LTD v TOBIN (Rolfe AJA) 27 Pool's evidence was accepted. Therefore even allowing for an estimate the uncontradicted evidence was that the train was travelling at no less than ten kilometres per hour. Priestley JA continues: "The Judge then had to form an opinion, based on all the evidence, on the 'fault' question. In doing this the further question which would have been material to forming his ultimate conclusion was: why did the worker step off the train? His impressions of the worker and Mr Pool, although only indirectly helpful in answering this question are of the kind influenced by what has been called in the High Court 'the subtle influence of demeanour' (Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 per McHugh J).' I do not understand how it can be said that the evidence of Mr Pool was only "indirectly helpful". His was the only evidence as to what occurred and it was evidence upon which his Honour relied. He accepted it as supportive of Mrs Tobin's case. At AB57 line G he recorded his evidence of speed without reservation or criticism. Thereafter he set out Mr Pool's observations, and he negated the inference of jumping because "that very fact is contradicted by Mr Pool in his observations of what transpired". He accepted the inference that Mrs Tobin stepped as "the most likely inference available from Mr Pool's account of his observations of the occurrence". In critical respects, at AB58, he accepted Mr Pool's evidence. In my respectful opinion it cannot be said, in these circumstances, that the evidence was "only indirectly helpful". In my opinion once the inferences drawn by the trial Judge are disposed of the true question is whether, in stepping off the train moving at the speed of not less than ten kilometres per hour in consequence of which she suffered injury, Mrs Tobin was guilty of any failure to take reasonable care for her own safety partly or wholly. That, in my opinion and for the reasons I have given, must be answered in the affirmative, with the legal consequences which flow therefrom. However, even if one adopts the approach taken by Priestley JA it does not exculpate Mrs Tobin from the duty imposed upon her, the onus of course being on the employer to establish fault. There is no explanation as to why Mrs Tobin believed, albeit wrongly, that it was safe, or did not realise that it was not safe, to step off the train. As I have pointed out in my reasons she was in a position of safety from which she chose to move for no explanation other than that proffered by Mr Pool which was accepted by the trial Judge. As I have said there is no suggestion she was pushed or jostled or fell. She stepped off the train whilst it was moving at a not inconsiderable speed. Nothing, in my view, could bespeak more clearly her failure to take reasonable care for her own safety. CONCLUSIONS In my opinion the learned trial Judge was in error in concluding that the personal injury sustained by Mrs Tobin was not caused, either partly or wholly, by her fault. Accordingly, I would propose that the appeal be allowed and that respondent pay the appellant's costs. The respondent should have a certificate pursuant to the Suitors Fund Act if she is otherwise entitled thereto. ORDERS Appeal dismissed with costs. Counsel for the Appellant: P Greenwood Counsel for the Respondent: M Holmes QC/M Batten Solicitors for the Appellant: Dunhill Madden Butler 28 UNREPORTED JUDGMENTS Solicitors for the Respondent: Letherbarrow and Associates