A AND B CONLON CLEANING SERVICES PTY LTD v CLAVELL [1995] NSWCA 2

A AND B CONLON CLEANING SERVICES PTY LTD v CLAVELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 17 August 1995, 17 August 1995,

[1995] NSWCA 2

Workers Compensation — For what injuries compensation is payable — "Journey claims" — Whether injury caused partly, or wholly by the fault of the worker — Fault — Negligence or other tort — Failure to take reasonable care for the workers own safety — Agony of moment or momentary inadvertence did not involve fault.

Powell JA This is an Appeal from an Award made in the Compensation Court by Moran CCJ on 29 November 1993 when dealing with an application to review an Award made by Ashford C when dealing with part of an application which had been brought by the Respondent and, as well, when dealing with the balance of that application which had been referred by Ashford C into the Compensation Court to be dealt with by a Judge.

In his application, the Respondent, whose principal employment was as a plant operator/leading hand with the Prospect County Council, but who had a second job working as a cleaner for the Appellant, sought compensation - both weekly and lump sum - in respect of an injury which he had suffered on his way home from his employment with the Appellant.

On the day when he suffered that injury, the Respondent left his employment with the Appellant a little earlier than usual - at about 7.45pm - and was proceeding towards his home, riding his motorbike along Kildare Road at Blacktown, when, as he approached, or when he had just reached, a corner in the road near an establishment called "The Sportsman's Hotel", he came upon a motor vehicle which was stationary, but unlit, in front of him, apparently waiting to turn right into the exit drive from the hotel. The Respondent then swerved hard to his left and, having struggled to regain control of his bike so that he could proceed, continued driving along the road.