Myers Stores Limited t/as Grace Bros v Johnston [1996] NSWCA 377

Myers Stores Limited t/as Grace Bros v Johnston SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

5 Coie JA, BEAZLEY JA and ABADEE AJA 27 November 1996

[1996] NSWCA 377 Workers Compensation — Deceased Worker crossing road at marked crossing against "Don't Walk" sign — Whether he had voluntarily subjected himself to an abnormal risk of injury — Workers' Compensation Act 1987 s 11

Cole JA. It was not contested in the Workers Compensation Commission or on

5 appeal that at approximately 1pm on 28 November 1989, Scott Paul Dunne, (the

deceased worker), walked from his place of employment at the Grace Bros

Market Street store to the north-western corner at the intersection of Market

Street and Elizabeth Street Sydney.

He intended to cross into Hyde Park. A 'Don't Walk' sign was illuminated on

20 the Hyde Park side of Elizabeth Street facing him and his friend Mr Paddy.

Approximately twenty to thirty pedestrians were waiting on each side of Elizabeth Street for the lights to change.

There was no traffic approaching from the south in Elizabeth Street and the

deceased worker and Mr Paddy crossed uninjured against the 'Don't Walk' sign

25 to the median strip in the centre of the road. Beyond the median strip were two stationary lanes of south-bound traffic, stopped because a red arrow prevented their right turn into Market Street.

Two of the vehicles in the centre lane close to the median strip were found by the trial judge to be government buses. It may well have been that there was one

30 bus in each of the two lanes adjacent to the median strip.

Mr Paddy paused when he reached the median strip. The deceased worker did not. He continued walking at a reasonably brisk pace. He walked between, or perhaps in front of, the two stationary buses and into the path of a motor vehicle travelling some fifty to sixty kilometres per hour south in Elizabeth Street in the