PORT KEMBLA COAL TERMINAL v JAMES [1995] NSWCA 374

PORT KEMBLA COAL TERMINAL v JAMES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 17 August 1995 [1995] NSWCA 374

The appellant, Port Kembla Coal Terminal, challenges the decision of Chief Judge Campbell QC of the Compensation Court to make an award in favour of the dependant wife and children of a deceased worker, Rodney Francis James, who died on 21 November 1992 as a result of injuries received whilst on a periodic journey between his place of employment with the appellant and his place of abode.

Before his Honour the appellant relied upon allegations that

. the worker, at the time of the motor vehicle accident, was under the influence of alcohol;

. the worker was driving at an unsafe speed in the circumstances known to him;

. the worker drove unsafely in the condition of water on the road, of which he should have been aware; and

. the worker was driving with defective rear tyres.

His Honour was not satisfied on the balance of probabilities that the matters relied upon by the appellant established that the accident, as a result of which Mr James dies, was partly or wholly caused by his fault. (see s10 (1A) of the Workers Compensation Act 1987)

Held: There is no reason to interfere with his Honour's conclusion that the driver was not partly or wholly at fault.

Sheller JA. This is an appeal from a decision on | July 1994 of Chief Judge Campbell QC of the Compensation Court in which his Honour made an award in favour of the dependant wife and children of a deceased worker, Rodney Francis James, who died on 21 November 1992 as a result of injuries received whilst on a periodic journey between his place of employment by the appellant, Port Kembla Coal Terminal Limited, and his place of abode. There was no issue as to journey or dependants.

On the 21st of November 1992 at about 2.20 pm the worker was driving himself home from work when the motor vehicle became out of control on the Springhill Road, Coniston and collided with a telegraph pole. The issue was whether his death was caused partly or wholly by his fault (see section 10 (1A) of the Workers Compensation Act 1987).