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 35 Jane adjacent to the buses. That vehicle had a green light in its favour. The deceased worker was hurled some distance and died from his injuries. Sarah Lee Johnston lived in a defacto relationship with the deceased worker and claimed workers compensation. 40 Section 11 of the Workers Compensation Act 1987 provides; If a worker on any day in which the worker has attended at the worker's place of employment pursuant to the workers contract of service or apprenticeship(a) is temporarily absent from that place on that day during any ordinary recess or absence; (b) does not during the absence voluntarily subject himself or herself to any abnormal risk of injury; and 45 (c) received a personal injury during that absence, the injury is for the purposes of this Act an injury arising out of or in the course of employment and compensation is payable accordingly. The only question in issue on appeal is whether the deceased worker 'voluntarily subjected himself to an abnormal risk of injury'. Unsurprisingly 50 Acting Judge Curtis held that the deceased worker had subjected himself to an abnormal risk of injury. The Acting Judge said; 2 UNREPORTED JUDGMENTS Once there (at the median strip) he performed an act which was it self inherently dangerous when he walked blindly between the buses into the path of southbound cars. In so doing he assumed an abnormal risk of injury. That finding was plainly correct. As Dixon CJ and Taylor J said in Taylor v Stapley (1954) 90 CLR 1 at p 8; The word abnormal seems to mean no more than an unusual and a risk may be said to be abnormal where the doing of an act is, in particular circumstances, attendant with an unusual degree of risk. But to say this is not to deny that a risk should also be regarded as abnormal where it is a risk which is ordinarily incidental to the performance of some act which is itself inherently dangerous. Clearly to step from an unsighted position between or in front of two buses into a lane of traffic contrary to traffic lights is to do an actattendant with an unusual degree of risk; it is also to do an act which is inherently dangerous. The finding of Curtis ACCJ has not been challenged by either party on appeal. This appeal is limited to questions of law in consequence of the Workcover Legislation Amendment Act 1995. However, Curtis ACCJ found that the deceased worker did not assume the abnormal risk of injury voluntarily. The process of reasoning which attracted his Honour was expressed as follows: While the Applicant bears the onus in this regard, she may rely upon an assumption that before an action may be considered voluntary the mind must go with the act. If when he reached the median strip a hand had been laid on his sleeve, he may have collected his thoughts and paused. If a voice had pointed out the risks posed by his progress it is inconceivable that he would have continued. Given the emotional upheaval of the previous night, his new-found resolution, and his desire to share these insights with his friend, it is probable that his mind was abstracted from his physical situation and from his peril. His Honour then adopted the remarks of O'Meally J in Gallard v State Rail Authority of New South Wales 1992 8 CCR p 80 as follows: In order to remove himself from the application of the section it is not sufficient that (the deceased) committed an error of judgment. He must have had knowledge of that risk and a determination to proceed in disregard of its consequences.'"'Curtis ACCJ in referring to emotional upheavals, a newfound resolution, and a desire to share insights with his friend, was referring to the circumstance that the previous evening the deceased worker had had a reconciliation with the applicant, had resolved to abandon all other women in her favour and intended to tell Mr Paddy during their lunch in the park that he no longer wished to see other women. His Honour had also noted that when the deceased worker walked out from the median strip between the buses or in front of the buses and into the path of an oncoming vehicle, a witness described him as having 'his eyes skyward, staring, and a happy smile on his face'. None of the above, in my judgment, constitutes any evidence at all to support a finding that the deceased worker, stepping from a median strip and walking between or in front of two buses and into a stream of traffic, all contrary to traffic signals, did so other than voluntarily. It was patent that some forty to sixty people other than Mr Paddy and the deceased worker stopped at the lights. Those two obviously chose not to. It seems to me to be quite fanciful to hold that a decision whether to stop on a pavement or a median strip or to proceed to cross a roadway is other than a voluntary act. To suggest that the deceased worker was 'abstracted from his physical situation and from his peril' is pure speculation. Further, URJ Myers Stores Limited t/as Grace Bros v Johnston (Abadee AJA) 3 'voluntarily' does not mean 'undistractedly'. A person can voluntarily decided to cross a street, thereby taking a risk, whilst at the same time thinking of other matters. In Taylor v Stapley Dixon CJ and Taylor J said at 9: The words "voluntarily subject himself" require that he shall have acted on his own free choice and intentionally done what involves the abnormal risk of injury. It is an element that in this case has a peculiar importance in that the distinction between on the one hand bathing in the river, which the deceased intentionally did, and on the other re-crossing the river in a route which took him into proximity to deep flowing water, a thing that there was no reason to suppose was anything but an error of judgment. The action of the deceased in crossing the river in a way that in fact exposed him to greater peril may for this reason be put on one side as not a voluntary subjection of himself to the risk. The ultimate question of fact would therefore be whether in going to bathe in the river though it had risen and though he was so poor a swimmer, he subjected himself to an abnormal risk of injury. That was a case in which a worker drowned when he crossed a river at a location which he did not expect to be excessively deep. There was thus a basis for finding that any abnormal risk thus encountered was not voluntarily assumed because it was unknown. That cannot be said in relation to a man in his twenties who worked in the city crossing contrary to red lights when most other pedestrians waited for the light to change and who walked out from between or in front of two buses obscuring his vision into the path of oncoming traffic. Here, there was no evidence at all the deceased did not appreciate or understand the risk he was taking which plainly was an obvious one. It is said, correctly, that the question whether the deceased worker voluntarily subjected himself to the abnormal risk is a question of fact. Taylor v Stapley makes clear that it is. It is clear that if there is no evidence to support a particular fact that gives rise to a question of law. See Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155. There was no evidence that the act of crossing the street was other than voluntarily. The presumption regarding crossing a street must be that it was voluntary. To avoid that presumption or inference the trial judge assumed that because the deceased worker placed himself into a position of foolish gross danger, it must be assumed that he did so involuntarily. In my opinion there is no basis for that assumption. Further, that position cannot be achieved by speculating about the deceased worker's state of mind by building upon circumstances that occurred the preceding night. In my judgment there was no evidence upon which it was open to be found that the deceased worker assumed the abnormal risk of injury other than voluntarily. Accordingly an error of law has been demonstrated. I would propose that the appeal be upheld that the orders and award of Curtis ACCJ of 8 February 1966 be set aside and that in lieu thereof there be an award in favour of the respondent at first instance. In my opinion the respondent should pay the appellant's costs of the appeal but should have if qualified, a certificate under the Suitors Fund Act. Abadee AJA. This appeal is brought by the employer against an award of compensation of $93,920 in favour of the applicant. The appeal is restricted to matters of law. The respondent claimed compensation pursuant to s 26 of the Workers Compensation Act, 1987 in consequence of the death of Scott Paul Dunne (the deceased worker) on 28 November 1989 from injuries he received when on that 4 UNREPORTED JUDGMENTS day he was struck by a motor vehicle in Elizabeth Street, Sydney, whilst temporarily absent from his place of work during an ordinary recess. The respondent claimed compensation upon the basis that she was partially dependent upon the deceased to whom she was not married but with whom she lived as husband and wife on a permanent and genuine domestic basis. The respondent denied liability to pay compensation on a number of grounds. The relevant ground 1(f) relied upon was that at the time of his injury the worker was absent from his place of employment during an ordinary recess or authorised absence and during that time had voluntarily subjected himself to an abnormal risk of injury. The provisions of s 11 of the Workers" Compensation Act are set forth of the judgment of the presiding judge and there is no need to repeat them. His Honour found that Mr Dunne died as a result of personal injury received while absent during an ordinary recess from his place of employment on 28 November 1989. He further found, that he had not, during that absence voluntarily subjected himself to any abnormal risk of injury. The respondent was found to be partially dependent upon the deceased worker for support. Section 11 of the Act reflects the provisions of the earlier s 7(1)(e) of the 1926 Act. Before the Compensation Court both parties submitted that the present case fell to be determined on its facts. It is appropriate thus to turn to the facts as found by the trial judge. The deceased worker and the respondent defacto spouse were childhood friends. They subsequently commenced to live together in 1985. At the time of the deceased's death they were living in the house of the respondent's grandmother in Newtown. In July 1989 they publicly announced their engagement to be married. At the time of his death the deceased worker was employed as a storeman with Grace Bros in Market Street Sydney. Some few weeks before his death the relationship between the respondent and the deceased worker came under some strain. There had been some dispute about his fidelity. On the Monday night before his death a meeting took place and the deceased worker was genuinely remorseful. There was discussion about marriage and children. The circumstances of Mr Dunne's death were described as being common ground. I take those circumstances from the trial judge's judgment. His Honour said at appeal book 65: He worked as a storeman with Aaron Paddy at Grace Bros Market Street Store. On the morning of 28 November 1989, the day following his passionate reconciliation with the Applicant the deceased told Mr Paddy that he did not wish to further see a girl with whom he had formed some liaison and suggested to Mr Paddy that they should lunch together in Hyde Park to talk about it. At lpm they walked together up Market Street to the intersection of that street with the Elizabeth Street on the north-west corner outside the David Jones Store. A "Don't Walk" sign was illuminated on the Hyde Park side of Elizabeth Street facing them, and perhaps 20-30 pedestrians waited on each side of Elizabeth Street for the lights to change. No traffic approached from the south in Elizabeth Street and the pair continued safely against the "Don't Walk" sign to the median strip in the centre of the road. Beyond the median strip two stationary lanes of south-bound traffic waited before a red arrow preventing their right turn into Market Street. Two of these vehicles in the centre lane closes to the median strip were government buses. When Mr Paddy reached the median strip he paused. The deceased continued walking at a reasonably brisk pace where there's one witness described it, his eyes skywards staring in a happy smile on his face. Suicide is not suggested. URJ Myers Stores Limited t/as Grace Bros v Johnston (Abadee AJA) 5 Unfortunately the deceased's next few steps took him between the stationary buses and into the path of a motor vehicle travelling confidently southwards in Elizabeth Street in the next lane at approximately fifty to sixty kilometres per hour towards a green light in its favour. Mr Dunne was struck by this vehicle and hurled some distance suffering injuries from which he died later that day. It was common ground at the trial that it was apparently when the deceased stepped into the third lane from the median strip on the eastern side that he was struck by a vehicle heading south in Elizabeth Street. The appellant accepts that the respondent established all relevant matters provided for in s 11 but submits that the respondent, who carried the onus failed to establish the conditions of liability laid down by s 11(b): Taylor v Stapley (1954) 90 CLR 1 at 8. In Taylor, the High Court held that going swimming did not of itself represent the taking of an abnormal risk of injury. The majority of the High Court held at 8-9 that: The word "abnormal" seems to mean no more than unusual and a risk may be said to be abnormal where the doing of an act is, in particular circumstances, attended with an unusual degree of risk. But to say this is not to deny that a risk should also be regarded as abnormal where it is a risk which is ordinarily incidental to the performance of some act which is itself inherently dangerous. As the majority also said, '[iJ]n truth all the circumstances of the particular case must be considered'. In the instant case his Honour considered that it could not have been the intention of parliament to deprive a worker or his dependents of the benefits of legislation upon the basis that mere disobedience to traffic signals creates an abnormal risk of injury. His Honour said at 70-71: Some risk may thereby be assumed but to my observation it is a risk regularly and normally assumed by hundreds of pedestrians daily in this city who, unbowed by the Tyranny of Automation, walk safely against "Don't Walk" signs in the absence of oncoming vehicles to pause at median strips. To my mind the deceased assumed no abnormal risk when he left the kerb and proceeded, contrary to the traffic lights, but in the absence of north-bound traffic, safely to the median strip. Once there he performed an act which was itself inherently dangerous when he walked blindly between the buses into the path of south-bound cars. In doing so he assumed an abnormal risk of injury. The appellant challenges the validity of these remarks in several respects. However, it does appear to me that the cases dealing with common law negligence of drivers who ignore pedestrians crossing roads suggest that it is common knowledge that pedestrians cross roads at pedestrian crossings both with and against traffic lights: see for example, Government Insurance Office v Ergul (1993) ATR 62 , 633 per Meagher JA at 62, 641 in the passage recently considered by me in Yu v Yu (Court of Appeal 16 October 1996 unreported at 12). Pedestrians sometimes act carelessly and in breach of traffic regulations. In my view his Honour was entitled to find that a simple breach of a traffic signal of itself did not create an abnormal risk of injury in all the circumstances of this case, see Taylor at 9. The question of what constitutes an abnormal risk is a question of fact. In the instant case the trial judge found that the deceased worker assumed an abnormal risk of injury upon another basis. This was at the time after he had arrived safely at the median strip. Once there the trial judge found that the deceased had performed an act which was inherently dangerous. 6 UNREPORTED JUDGMENTS In any event, it probably does not matter whether the risk arose at the time the deceased left the kerb or at the time of or after he left the median strip having regard to his Honour's finding, to which I have made reference. In my opinion his Honour was entitled to find the deceased worker assumed an abnormal risk of injury by reference to his movement from the median strip towards the eastern side of Elizabeth Street. Indeed so much is not challenged by Mr Joseph SC on behalf of the respondent to this appeal. Upon the assumption that this was a finding of fact open to his Honour the employer submitted that there was no evidence to support his Honour's finding that the deceased did not voluntarily subject himself to that risk. Again in Taylor the majority observed at 9: The words "voluntarily subject himself" require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury. Complaint has been made in this case by the appellant that his Honour did not in fact apply this meaning to the word voluntarily but gave it perhaps somewhat of an unusual meaning. However I do not consider that it could be suggested that his Honour reversed the onus since at the beginning of his Honour's judgment his Honour clearly acknowledged that it was the respondent who carried the onus to establish the conditions of liability laid down in the section. Before a worker can voluntarily subject himself or herself to an abnormal risk of injury he or she must know that an abnormal risk exists. The question of voluntary subjection rather points to the state of mind accompanying the relevant act constituting the abnormal risk of injury. One needs to identify the risk to which the worker voluntarily subjected himself or herself of his or her own free choice or intentionally. This too is a question of fact, see Taylor at 9. In the instant case the appellant submitted that it was not open to his Honour to conclude that what he did the worker did not do so voluntarily. The appellant challenges as being a matter of speculation or conjecture, as opposed to being a matter of inference his Honour's view at appeal book 71 that: Given the emotional upheavals of the previous night his [the deceased worker's] newfound resolution, and desire to share these insights with his friend it is probable that his mind was obstructed from his physical situation, and from his peril. I agree that such is no more than speculation or conjecture. However his Honour did not stop there. His Honour referred to the decision of O'Meally ACJ in Gallard v State Rail Authority of New South Wales (1992) 8 NSW CCR 280 upholding the claim for compensation by the dependents of a worker who stepped off a kerb with his head down. In that case his Honour said at 287-288: In order to remove himself from the application of the section it is not sufficient that [the deceased] committed an error of judgment. He must have had knowledge of the risk and determination to proceed in disregard of its consequences. In my view, the insertion by his Honour of the bracketed words 'the deceased' would suggest that the trial judge considered the deceased worker had committed in this instant case was at most an error of judgment. I do not see why when one is speaking of an error of judgment which may expose a person to a greater peril that it follows that there has been a voluntarily subjecting of himself or herself to an abnormal risk of injury. Nor does Taylor support such view. URJ Myers Stores Limited t/as Grace Bros v Johnston (Cole JA) 7 At this stage I would pause to observe that I am not to be taken as suggesting that what O'Meally ACJ said in the second sentence of the quoted passage is a correct statement of what the law is. Indeed, the second sentence in the quoted passage would rather suggest that it is in fact not a reflection of what the High Court had to say in Stapley's case. In this case where the worker is dead, intention can only be proved by inference. In such circumstances it is open to the tribunal of fact to draw the inference from the whole of the evidence. I do not see any error of law in the finding that there was an error of judgment only, nor do I see any error in the finding by the trial judge that the deceased worker did not voluntarily subject himself to an abnormal risk of injury. Despite Mr Hoeben SC's reliance upon Hope v Bathurst City Council (1980) 144 CLR | in my view his Honour's finding was a finding of fact which is not open to review by this Court, see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Further or alternatively, it would seem to me that it was open to hold the deceased worker did not of his own free choice and or intentionally subject himself to the risk of being struck by a vehicle on the eastern side of the median strip. In my view, the ultimate result in Gallard is a correct one. The whole question of voluntary subjection to abnormal risk of injury is left as one of fact and degree for the compensation court, see Sayers & Co (NSW) Pty Limited v Riley (1960) NSWR 513 per Sugerman J at 520. It seems to me that it is going too far to ask this Court to say that as a matter of law his Honour was bound to come to the conclusion that the worker voluntarily subjected himself to the identified and found abnormal risk of injury. Accordingly, no error of law has been demonstrated. I would propose that the appeal be dismissed with costs. Beazley JA. I agree with Justice Abadee. Cole JA. The order of the Court by majority will be that the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: C Hoeben SC Solicitors for the appellant: Hickson Lakeman and Holcombe Counsel for the respondent: M Joseph SC; V Hartstein Solicitors for the respondent: Holman Webb