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. His Honour, after reciting portions of the appellant's evidence, the salient aspects of which I have referred to, held the appellant had not discharged that onus. Counsel for the appellant submitted that for his Honour to form any view whether there was an increase in the risk, he had to engage in a four part exercise: (1) to identify the risk or risks; (2) to assess the nature and extent of that risk immediately prior to the deviation or interruption of the journey; (3) to assess the nature and extent of the risk immediately after the interruption and at the time when the appellant continued his journey; and (4) to compare the two and determine whether there was a material increase. It was submitted that his Honour had failed to engage in that analysis and had made no attempt to analyse the basis for his finding that the onus had not been discharged. 2 UNREPORTED JUDGMENTS Counsel for the respondent agreed that s10(2) requires a comparison of the risk attending the usual journey and those attending it after the interruption or deviation: see Scobie v KD Welding Company Ltd (1959) 103 CLR 314 at 321. Further he submitted there was no evidence available to establish that issue. I agree. Notwithstanding that the appellant's evidence was imprecise as to the time he arrived at and left the nightclub, the best evidence being that he arrived at the nightclub at about 2 am and left some time before 3 am, there was no doubt that he was there for a sufficient period to drink 4 to 5 middies and to chat to and buy a drink and roses for two females. The appellant gave evidence about the risks at the time he usually walked home compared to the time he left the nightclub. As was said in this Court in Tucker v WD and HO Wills (Aust) Ltd (1969) 43 WCR 14 at 19 (in respect of earlier but sub stantially similar legislation): ",... it must be borne in mind that the applicant was bound to prove a negative, namely, that the risk of injury was not materially increased by reason only of the substantial interruption or substantial deviation. This negative could not in the nature of things be exhaustively proved, because the number of elements of which account might be taken was practically exhaustible. The applicant could not negative all elements, but could only point to those of them that seemed to be the most important.....". However, in this case for the reasons which I have already given, the appellant did not give any evidence of the difference in the risk at the two relevant times. Accordingly, he did not discharge the onus cast upon him by s10(2). Counsel for the appellant further submitted that even on the evidence recited by his Honour, his Honour erred because (1) he failed to identify how and whether the tiredness of the appellant could have affected the outcome of the assault, if it was such; (2) the appellant gave uncontradicted evidence that it was his usual practice to walk home; and (3) the danger about which the appellant was concerned was Kings Cross Station. He did not expect anything to happen to him particularly as it was 20 steps to his home from the nightclub and he was not affected by alcohol. None of these matters assist the appellant. Even if the appellant's tiredness did not materially increase the risk it is sufficient to deny a party a right to compensation if one factor of two or more materially increases the risk. The difference in time may have involved a material increase in risk and that matter was not addressed on the evidence in any event. The appellant knew that at least to a certain extent he had to be alert at the time he was walking home. Secondly, the court was not concerned with the risk of the appellant walking home. The critical question was whether walking home at the time of leaving the nightclub involved a material increase in the risk over the risk of walking home at the usual time. Thirdly, the appellant was not only concerned with danger at Kings Cross Station, he was also concerned with the danger of walking between the station and his home. It was further submitted that the trial judge had failed to give adequate reasons for his decision and thus had contravened the prescription to give reasons which this Court dealt in some detail in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In this case, and his Honour identified the statutory provision with which he was dealing, the issue in the case and what was, in this case, the very important matter of where the onus lay in respect of the satisfaction of the URJ HERRMANN v CAMMERAY GOLF CLUB (Abadee AJA) 3 sub-section with which he was dealing. His Honour referred to the evidence and concluded, in a way which would leave no one in doubt as to his reasoning process, that on the evidence, which was after all uncontroverted, the appellant had failed to discharge the onus and therefore had not established that the interruption or deviation did not materially increase the risk of injury. In my opinion when one has regard to what was said by this Court in Soulemezis particularly by the President at 258 to 259, I am of the opinion that his Honour's reasons were adequate in the circumstances. It follows that the appeal should be dismissed with costs. Cole JA I agree. Abadee AJA I agree. Cole JA: The orders will be as indicated by Beazley JA. Appeal dismissed with costs. Counsel for the appellant: M Cranitch SC/S York Solicitors for the appellant: Messrs Doherty Partners Counsel for the respondent: C Hoeben SC Solicitors for the respondent: Messrs Dunhill Madden Butler