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. I would add the following brief observations. The appellant kept hours appropriate to a shift worker. He regularly worked until the early hours of the morning, driving home after work. He would then sleep until well into the day. The fatigue associated with the time which the appellant left the club on the evening in question was a matter touched upon very lightly in the evidence. There was no attempt, for example, to prove how long the appellant had been awake by that time. There was no basis for finding that, putting aside the matter of drink, fatigue materially increased the risk of his journey home as compared with the risk of injury on his normal journey. What materially increased the risk of injury was the appellant's state of intoxication together with his decision (over the protest of a companion) to drive whilst in that state. 2 UNREPORTED JUDGMENTS This, it was argued, was connected with his employment, for two reasons. First, it was said, the appellant's duties required him to remain at the club until everyone else left. Second, the club authorised employees to stay behind and socialise after the club closed. The appellant's employment did not require or authorise him to drink to excess, or to drive whilst drunk. The most that can be said is that, in one sense, the appellant's employment provided the occasion of his intoxication. In the circumstances of this case, that does not establish a relevant connection between the employment and the increased risk for the purposes of s10(1C) of the Act. Clarke JA I agree with both Meagher JA's judgment and the observations of the Chief Justice. Meagher JA Mr Charles Patrick Gibbons was an employee of Merimbula RSL Club Ltd. He was its security officer. Part of his duty was to observe the locking up of the Club premises after everyone had left. To this end, after the departure of the patrons he would have a few drinks with the supervisor and then observe the latter gentleman lock his premises. On the evening 16-17 March 1991 he "bundied off' at 1:16 am and then retired to the back of the Club and commenced drinking with his supervisor, a Mr Manson. They were still drinking between 2:00 am and 2:30 am. It was not suggested that at this time they were discussing business. This was the time when they were joined by two women, Club employees, who joined in the jollity. These women did not come as part of their work. By 4:17 am Mr Gibbons was very drunk; or, as he said, "completely pissed". He had consumed about 10 schooners, or two gallons, of beer. He got into his motor car to drive to Tathra, some few miles away, where he lived. The car at about 4:30 am ran off the road and he had a serious accident which rendered him quadriplegic. By 7:30 am _ his blood-alcohol reading was 0.204. He claimed compensation from his employer. He said he was on his homeward journey. He said the car had departed from the road because of a defective stud. Maguire CCJ found that the car left the road because he was too drunk to keep it in control and that he was not entitled to compensation. He dismissed the claim. This case involves a consideration of s10 of the Act. Subs(1) provides that journeys to and from work are made in the course of a worker's employment. Subs(1A) provides that subs(1) does not apply if an injury received on a journey is caused wholly or partly by the worker's fault. Subs(1B), inter alia, provides that if at the time of the injury the worker was "under the influence of alcohol", the worker is deemed to be at fault. Subs(1C), which is critical here, provides: "Tf the risk of injury on a daily or other periodic journey to which this section applies, compared with the risk of injury on the worker's normal journey, is materially increased for a reason connected with the worker's employment (including the distance travelled, the time of day or night, the method of travel or the route of the journey), subs(1) is not excluded merely because the injury was caused by the fault of the worker." In the present case one must ask oneself, as his Honour did, whether, on the fateful night, Mr Gibbons's risk of injury was materially increased by some job-connected reason. There can be no doubt that what materially increased his risk, that is what made it riskier than usual, was the heroic amount of alcohol he consumed. The legal question is whether his drinking bout was "connected with" his employment. I do not think it was. His employer, the Club, certainly provided both the alcohol and the venue. Further, as Mr Wall QC, learned senior counsel URJ GIBBONS v MERIMBULA RSL CLUB LTD (Meagher JA) 3 for the appellant, kept pointing out to us, it was his business to observe the supervisor locking up the premises, an event which did not take place until just before he got into his motor car. Nor did his employer limit or prohibit his drinking. However, he did not drink reluctantly or unwillingly, but solely because he wanted to. His employer did not press him to get drunk, much less order him to do so. His supervisor did not make him stay two or three hours. It was not his business to indulge in drinking bouts, nor was it part of his employer's business that he should do so. He could have drunk lemonade if he wanted to. I find it impossible to see how one can say, in any rational sense, that his behaviour was in any way "connected with" his employment. I would dismiss the appeal with costs. (1) Appeal dismissed with costs. COUNSEL: Appellant: P WEBB QC/TM ROWLES Respondent: JE MACONACHIE QC/AS BELL SOLICITORS: Appellant: McCLELLANDS Respondent: HICKMAN LAKEMAN AND HOLCOMBE