HERRMANN v CAMMERAY GOLF CLUB [1996] NSWCA 245

HERRMANN v CAMMERAY GOLF CLUB SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE and BEAZLEY JJA and ABADEE AJA 26 November 1996, 26 November 1996 [1996] NSWCA 245

WORKERS' COMPENSATION — deviation or interruption to a journey from work — whether risk materially increased by visit to nightclub — s10(2) Workers Compensation Act 1987

Beazley JA This is an appeal from a decision of Maguire J of the Workers Compensation Court in which his Honour held that the appellant had not discharged the onus which he bore under s10(2) of the Workers Compensation Act to establish the risk of injury after a deviation or interruption to a journey from work was not thereby materially increased.

The relevant facts are set out in the appellant's narrative of facts which should be read as part of these reasons for judgment. In addition I would refer to the following further facts.

The appellant said in his evidence that it was dangerous to walk from his home to Kings Cross Station, that it was more dangerous to walk home after midnight, and that it was more dangerous to walk home at 2.30 am or 3 am than earlier in the night "because there is less people at that time of the morning especially on a Sunday morning". It was less dangerous to walk from the Tunnel Nightclub to his home at midnight than it was at 3 o'clock also because there were less people around at that time in the morning. He also said that "maybe" it was more dangerous to walk the street to go home, the longer he stayed at the club and that he was more tired when he left the club than when he went in.

There is no issue in the case that the appellant's visit to the Tunnel Nightclub involved an interruption to or deviation from the appellant's journey from work. The critical question for his Honour's determination was whether, notwithstanding that interruption or deviation, the risk of injury was not thereby actually increased. The appellant bore the onus on that issue.