GIBBONS v MERIMBULA RSL CLUB LTD [1995] NSWCA 172

GIBBONS v MERIMBULA RSL CLUB LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, CLARKE and MEAGHER JJA 14, 15 August 1995, 12 September 1995 [1995] NSWCA 172

WORKERS COMPENSATION ACT, 1987 s10 — DEFINITION "CONNECTED WITH EMPLOYMENT" — CONSUMPTION OF ALCOHOL AT PLACE OF EMPLOYMENT

FACTS: The worker, employed as a security officer at Merimbula RSL Club Ltd, was involved in a serious car accident at about 4:30 am on 17 March 1991, on a homeward journey from work. The worker had finished work at 1:16 am and retired to the back of the club and commenced drinking with his supervisor. By 7:30 am his blood-alcohol reading was 0.204.

The worker claimed compensation from his employer under s10 of the Workers Compensation Act 1987, which provides that journeys to and from work are made in the course of a worker's employment. S10 also provides that if at the time of injury a worker was under the influence of alcohol, the worker is deemed to be at fault, unless the risk of injury is materially increased by some job-connected reason. The trial judge found that the car left the road because the driver was too drunk to keep it in control, and dismissed the claim.

HELD:

(1) (By Meagher JA, Gleeson CJ and Clarke JA agreeing) The legal question is whether the worker's drinking was connected with his employment. It is impossible to see how one can say that this connection could be made. (2) (By Gleeson CJ, Clarke JA agreeing) The fatigue associated with the time which the appellant left the club was a matter touched upon very lightly in evidence. There was no basis for finding that fatigue materially increased the risk of his journey home as compared with the risk of injury on his normal journey.

ORDER

(1) Appeal dismissed with costs.

Gleeson CJ I agree with the judgment of Meagher JA, which I have read in draft form.