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). Before Chief Judge Campbell the appellant relied upon allegations: (a) that the worker was at the time of the motor vehicle accident under the influence of alcohol, so that s 10 (1B) of the Act applied; (b) that the worker was driving at an unsafe speed in the circumstances known to him; (c) that the worker drove unsafely in the condition of water on the road, of which he should have been aware; (d) that 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 or any combination of them established that the accident, as a result of which Mr James died, was partly or wholly caused by his fault. Accordingly, he held that the applicant was entitled to an award. 2 UNREPORTED JUDGMENTS As I have said, from that award the employer appeals. The appellant puts no submission inconsistent with his Honour's finding that the deceased was driving 60 to 65 kilometres per hour immediately before losing control of the motor vehicle and puts no submission in relation to the defective rear tyres of the deceased's vehicle. The appellant submits that his Honour's finding, in which he said that he did not consider that the deceased was driving at an unsafe speed in the circumstances known to him, was wrong. His Honour found that the worker was not at any relevant time affected by alcohol. Prior to the accident at the intersection in Springhill Road before the intersection with Masters Road, the deceased was driving in the left-hand gutter lane on Springhill Road towards Port Kembla at about 60 kilometres an hour. The area is one in which the speed limit was 80 kilometres an hour. A witness, Mr Holz, was driving beside the deceased in the outside lane. They proceeded to go side by side to the top of a hill, still at 60 kilometres an hour. As they descended the hill, Mr Holz prepared to turn right at the Masters Road intersection and decelerated accordingly. At that point there were three lanes in Springhill Road in the direction the deceased and Mr Holz were travelling. Shortly before the intersection, a fourth lane was added. Two of the lanes went ahead, two of the lanes were for turning to the right. It had been raining very hard but this had, to some extent, eased off. Mr Holz slowed as he came down the hill to the intersection. The deceased continued on. His Honour found that at no time did his speed exceed 65 kilometres an hour. As the deceased's vehicle was going through the intersection, it swung violently to about right angles to the gutter, where it caught the gutter and went for about 20 or 30 metres at that angle, parallel to the gutter, then it turned a bit further, hit the gutter and jumped the gutter and was heading into the scrub. It changed direction and hit the telegraph pole. What I have recited is substantially the evidence of Mr Holz, which his Honour accepted. There was a sheet of water coming around the deceased's car on the driver's side. It was described as running across the intersection below the grate and running diagonally away from the grate. It occupied about three-quarters of the width of the inside lane over a distance of about 5 to 6 metres in length. Mr Thompson gave evidence that the whole of the inside lane was covered in water and even the next lane had water across it. He said that water often gathered in that part of Springhill Road but then added, 'I've never in my life seen as much water on the road as that day'. His Honour said in the passage of which the appellant complains that he did not consider that the deceased was driving at an unsafe speed in the circumstancesknown to him. He then referred to an argument put by the appellant at the trial that the deceased should have known of the collection of water at that point. His Honour said: A driver may or may not remember the collection of water at particular points in a roadway, as Mr Holz said he "hoped" he would remember it; but the point in this case is that, from the evidence of Mr Thompson, I accept that the accumulation of water was far more than it normally was at that point. One might speculate that the work, of which there is evidence being done upon the footpath, had caused some event to lead to a greater accumulation of water than usual, but, whether that was so or not, I accept there was a greater accumulation than usual. His Honour then turned to a second argument put by the appellant at the trial, that the deceased should have moved into the second lane. His Honour said: URJ PORT KEMBLA COAL TERMINAL v JAMES (Meagher JA) 3 There is some conflict, which I do not think important, between Mr Holz and Mr Thompson as to whether the water also went into that lane. In any event, the fact was that, under the prevailing circumstance knowing there was a car to his right, to move into that lane would have had its own hazards. This particularly so as, although Mr Holz was turning right and did move into one of the turning lanes, his normal course, to go to his home, would have been to carry on straight ahead. It is a clear inference that the deceased would have known that and reasonably considered that he had a car on his right, in the adjoining lane, proceeding in the same direction as he was. I agree in both cases with what his Honour said about those two arguments. Having dealt with some other matters, which are now not in issue, and recited the standard to be applied in considering whether or not the worker in this case was partly or wholly at fault, his Honour reached the ultimate conclusion which I have referred to. The appellant challenges the finding, of which it complains, substantially on the basis that the deceased should have been aware that there was a considerable quantity of water in the lane along which his vehicle wasproceeding and taken some action, the action suggested being either to reduce speed or to stop. In this regard, it is said that the worker was at least partly at fault. For my part, I find this argument impossible to accept. It seems to me that the driver was in a situation where it had been raining heavily and, to some extent, the rain had eased. No doubt this reduced visibility. The driver came upon a situation proceeding at what, in the circumstances, seemed not to have been an immodest or unsafe speed and found himself in a position where there was water on the road at a level described by Mr Thompson as something greater than he had ever previously seen there. From the evidence of Mr Holz, it was at or at about the time that the driver entered into a situation where the car went out of control. From that moment on, it seems that the situation was out of the driver's hands. His Honour was not satisfied that the driver was partly at fault. In the circumstances, as I have described them, I can see no reason for interfering with his Honour's conclusion. I agree with it and the reasons that he gave for arriving at it. Accordingly, I would propose that the appeal be dismissed with costs. Meagher JA. I agree. Powell JA. I agree with the orders proposed by Mr Justice Sheller and his reasons for so doing. I would not wish to add anything to them. Meagher JA. Therefore, the order of the Court is that the appeal be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: MJ McAuley/BM Ross Solicitors for the appellant: Heath Workers Compensation (NSW) Pty Ltd Counsel for the respondent: MJ Joseph SC Solicitors for the respondent: Daly Bussoletti and Co