BORAL SGB PTY LTD v WHITE [1996] NSWCA 55

BORAL SGB PTY LTD v WHITE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, COLE JJA and HUNTER AJA 4 March 1996, 11 March 1996

[1996] NSWCA 55

WORKERS COMPENSATION ACT — s10(1C) — periodic journey — material increase in risk of injury — matter not raised at first instance

Boral SGB Pty Ltd appealed against an award of compensation made pursuant to s10(1) of the Workers Compensation Act 1987 by Moroney CCJ in favour of the respondent for a personal injury received by him while on a journey from his place of employment. The injury was found to have been received on a periodic journey and was partly due to the fault of the respondent. The question, therefore, was whether the respondent could avail himself of s10(1C) which provides that, if the risk of injury on the periodic journey, compared with the risk of injury on the worker's normal journey, is materially increased for a reason connected with the worker's employment, the entitlement to compensation is not excluded merely because the injury was caused by the fault of the worker.

The appellants appealed on the basis that his Honour erred in finding that s10(1C) of the Workers Compensation Act 1987 applied, and in failing to find that the respondent's fault precluded him from obtaining compensation. The substantial question raised on appeal was whether there was sufficient evidence to justify a finding that there was a material increase in the risk of injury on the periodic journey on the day in question when compared with the risk of injury on the respondent's normal journey.

Held:

(1) The finding by Moroney CCJ that there was a material increase in the risk of journey on the periodic journey was justified. There was no reasonable basis for the appellant to contend that the respondent would have encountered the same or similar weather conditions with like effect in the course of his normal journey home that day, and his Honour was correct in his reliance on and assessment of various factors in determining that there was a materially increased risk.