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. (2) The appellant was not entitled to rely on the argument that the respondent's activities were not "for a reason connected with the worker's employment", as this was in effect a submission that that part of the respondent's journey was a deviation or interruption within the meaning of s10(2), a position which had been abandoned in the proceedings before Moroney CCJ. (3) Even if that position was not correct, then Moroney CCJ was correct in finding that the activities of the respondent (banking wages) as being connected with his employment having regard to the specific circumstances that existed on the day in question. (4) Moroney CCJ did not err in having regard to the activities of the respondent at the time of the accident as being some "fortuitous and unforeseeable further occurrence": Scobie v K D Welding Company Pty Ltd (1959) 33 ALJR 397. ORDERS Appeal dismissed with costs. Clarke JA I agree with the orders proposed by Hunter AJA and the reasons which led him to those orders. Cole JA I agree with Hunter AJA. Hunter AJA This is an appeal by Boral SGB Pty Ltd from an award of compensation by Moroney CCJ in the Compensation Court in favour of the respondent to this appeal for a personal injury received by him on 5 April 1990 2 UNREPORTED JUDGMENTS while on a journey from his place of employment, which injury, by virtue of s10(1) of the Workers Compensation Act 1987 (the Act), was deemed to be an injury arising out of or in the course of his employment with the appellant. By its answer in those proceedings the appellant raised several defences, including a defence based on s10(2) of the Act which excludes recovery of compensation under s10(1) if, inter alia, the injury was received during or after any interruption of or deviation from a journey to which s10(1) applies. It is clear from the identification of the issues by Moroney CCJ that the defence under s10(2) was not pressed. At 44.P of the Appeal Book the issue was identified as follows: "in paraS of the application there is a very accurate pleading of the issue involved in this matter. It reads - "On the 5 April of 1990 the applicant was on a periodic journey wherein the risk of injury was materially increased for a reason connected with the worker's employment when he was hit by a motor vehicle". Further, having found that the injury to the respondent was received on a periodic journey to which s10(1) applied and that the injury was partly due to the fault of the respondent, Moroney CCJ identified the only remaining question as being "whether the applicant (could) avail himself of the provisions of s10(1C)". (Appeal Book at 53.8). It is accepted by both parties that the proceedings before Moroney CCJ were so conducted and that the hearing proceeded upon certain factual bases notwithstanding the absence of an evidentiary basis for them. The primary facts were as follows: At the time of the receipt of his injuries the respondent was employed at a construction site in King Street Sydney to which he travelled mainly by train from his home in Bateau Bay. The return journey was to walk from King Street to George Street and then on to Town Hall Station (incorrectly referred to as St James in the evidence) where he would travel by train to Central Station and then on to Bateau Bay to his home. On occasions he would vary that journey by walking from the construction site to Central Station along George Street. On the day of his injury he attended at the King Street work site at around 6:45 am where he waited in a work shed with other employees of the appellant, unable to work due to inclement weather. At approximately 8:00 am with no improvement in the weather it was decided by the employer that there would be no work available for him that day. It being a pay day, an arrangement was made for the respondent and the other employees to collect their pay at the appellant's Belmore depot. Normally the appellant's pay officer would attend the work site to pay the employees' wages. The wages due to the respondent amounted to approximately $2,500 representing the amount of his current weekly entitlement and the amount unpaid in respect of an earlier period. The respondent and the other employees travelled from King Street to Belmore by motor vehicle where they arrived at approximately 9:30 am. They were detained at Belmore awaiting the commencement of bank hours and the compilation of their wages. On payment they returned by motor vehicle to Elizabeth Street in the city where the respondent alighted on the western side with the intention of depositing his wages in an account kept by him with the Commonwealth Bank which had a branch situated in Elizabeth Street on the eastern side. After he had deposited his wages into that account, the respondent filled in time drinking coffee in a nearby shop waiting for the rain to ease. He estimated he was about 10 minutes walk from Central Station for his journey URJ BORAL SGB PTY LTD v WHITE (Hunter AJA) 3 home. Because of continued rain, he decided to catch a taxi in Elizabeth Street to transport him to Central Station. The taxi that he hailed was one travelling north. The respondent at that time was still on the eastern side of Elizabeth Street. He was in the process of crossing Elizabeth Street to hire this taxi when he was struck by a motor vehicle travelling south. Upon those primary facts Moroney CCJ made the following findings: "Firstly I am satisfied that the applicant was on a periodic journey. There had been a deviation in journey and an interruption in it. that journey being from his place of employment to his home. but the deviation and the interruption had been to visit the employer's depot at Belmore for the necessary reason of collecting two weeks outstanding pay. Secondly... the injury was received in circumstances where the applicant was at least partly at fault..." (53.J) "On the facts in this matter I am satisfied that the applicant has shown that the risk of his injury on this periodic journey compared with the risk of injury on his normal journey was materially increased for a reason connected with his employment. The circumstances of his journey were dramatically altered by reason of the detour to the Belmore depot to collect the pay. The collection of his pay particularly in the circumstances where there was 2 weeks outstanding, certainly in my view was incidental and for a reason connected with his employment. Because of that deviation to Belmore to collect that pay, the applicant was place in the wet situation, in the raining situation in Elizabeth Street south, where he otherwise would not have been, and the route of the journey was altered to place him in that situation. The method of travel was altered in that the applicant saw it as necessary to take a taxi to protect him from the rain and the distance travelled was different, all of those things being matters - but some of the instances of increase of risk mentioned in sl0(1C). As Mills savs the subsection does not require it to be shown that there has been a material increase of risk of the kind which in fact has contributed to the injury and it is sufficient that it be demonstrated that there was a material increase of risk. To me for a person as opposed to his normal situation to be required on a rainy day to negotiate a busy city road such as Elizabeth Street south as the worker had to do, certainly was amounted to a material increase in the risk, and I am satisfied that that was for a reason connected with the worker's employment, namely to collect his pay and bank some of it before he returned to Central Railway Station to take his commuter train home to the Central Coast." (55.A - 56.L) His Honour proceeded to an award in favour of the respondent to this appeal. The original grounds of appeal were as follows: "1. That His Honour erred in finding that the Respondent/Applicant was on a daily or periodic journey at the time of his accident. 2. That His Honour erred in holding that sl0(1C) of the Workers Compensation Act, 1987 applied. 3. That His Honour erred in failing to find that the Respondent/Applicant's fault precluded him from obtaining compensation in the circumstances of the accident." On the hearing of the appeal ground one was abandoned. 4 UNREPORTED JUDGMENTS Given that no case was sought to be made before Moroney CCJ that the activities of the respondent in Elizabeth Street represented an interruption of or deviation from the respondent's journey the substantial question raised on this appeal is whether there was sufficient evidence to justify a finding that there was a material increase in the risk of injury on the periodic journey of 5 April 1990 when compared with the risk of injury on the respondent's normal journey. Moroney CCJ treated the periodic journey of 5 April 1990 as one between the respondent's place of employment in King Street to Belmore and then on to Elizabeth Street en route to his home. The appellant contended that so much of that journey from King Street to Belmore was in the course of the respondent's employment being a journey to the appellant's depot for the purpose of collecting his wages. As submitted by counsel for the appellant the effect of that submission is to treat the periodic journey within the meaning of s10(1C) as commencing at the Belmore depot and so excluding any consideration of the distance to be travelled from King Street to the Belmore depot in evaluating the risk of injury on the journey of 5 April 1990. For the purpose of this submission the appellant does not rely upon the provisions of s10(3)(g) of the Act but relies upon Ward v Jackson [1949] WCR 17, Maurer v Cyclone Fence and Gate Co Pty Ltd [1932] WCR 43 and the review of cases in para2015.36 of Mills Workers Compensation. In my opinion it is unnecessary to determine that question on this appeal. In so far as it was legitimate to take into account the greatly increased distance of travel of the periodic journey of 5 April 1990 in assessing the risk of injury to the respondent, I think much the same considerations arise whether there is taken into account the fifteen or so kilometres from Belmore to the city or thirty kilometres for the round trip. The comparison is with the risk of injury on the "normal journey" namely from King Street to Town Hall Station as a pedestrian and then by train for a couple of stations. The view I have formed is that, whether or not the section of the journey between King Street and Belmore is taken into account, the finding by Moroney CCJ of a material increase in the risk of injury on the periodic journey is justified. I think that view accords with the approach adopted by his Honour. In that approach the significance of the detour lay not so much in the distance of travel which it involved but in the fact that "the circumstances of (the respondent's) journey were dramatically altered" (Appeal Book 55.H). His Honour explained what was meant by that finding in the following passage: "Because of that deviation to Belmore to collect the pay, the applicant was placed in the wet situation, in the raining situation in Elizabeth Street south, where he otherwise would not have been, and the route of the journey was altered to place him in that situation. The method of travel was altered in that the applicant saw it as necessary to take a taxi to protect him from the rain and the distance travelled was different.... to me for a person as opposed to his normal situation to be required in a rainy day to negotiate a busy city road such as Elizabeth Street south as the worker had to do, certainly was amounted to a material increase in the risk...." (Appeal Book 55.M - 56.) It was submitted on behalf of the appellant that none of the factors to which his Honour had regard in assessing the risk of injury in that part of the journey in Elizabeth Street could be legitimately taken into account. It was argued that whether the respondent received his wages at King Street or at Belmore he would still have been submitted to whatever the risk of injury may have been in attending in Elizabeth Street in inclement conditions to perform his banking. I URJ BORAL SGB PTY LTD v WHITE (Hunter AJA) 5 think there are a number of difficulties in that proposition. It is clear from the conduct of the respondent in marking time in Elizabeth Street after conducting his banking and in hailing a taxi to take him the short distance to Central Station that the rain must have been heavy at that time. It is equally clear, I think, that the respondent would not have been in that area at that time had he remained at his work throughout the normal working hours. In my view there is 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 on that day. Although one may infer from the respondent's evidence in chief that his bank account was at the Elizabeth Street branch of the Commonwealth Bank, there is no evidence that, ordinarily, he would have conducted that banking on the day of the receipt of those wages. That would depend partly on the respondent's hours of work, including any overtime, and on the amount of wages to be banked. There was no cross-examination to support the assertions that the appellant now makes from the bar table. Indeed the only cross-examination concerning the respondent's normal journey was as follows: "Now, on a normal day that you had gone home would you have gone anywhere near Elizabeth Street? No." (Appeal Book 16.H) In my opinion Moroney CCJ was correct in his reliance on those factors which affected the Elizabeth Street portion of the periodic journey of 5 April 1990. It was further submitted on behalf of the appellant that there was no evidence before Moroney CCJ which would permit a comparative evaluation of a risk of injury related to the increased distance and mode of travel of the periodic journey of 5 April 1990. I think this submission mistakes the way in which his Honour evaluated the risk. While having regard to the distance of travel involved in the periodic journey, his Honour's emphasis was on the "dramatic" alteration to "the circumstances of (the respondent's) journey", particularly referring to circumstances of the Elizabeth Street segment. In so far as reliance was placed upon the increased distance and mode of travel on the periodic journey as a discrete factor in the assessment of risk, I think his Honour was entitled to do so. The comparison is between many kilometres by motor vehicle in wet conditions in city traffic and walking very short distances then travelling by train. I think as a matter of common experience the periodic journey could be regarded as carrying an increased risk of injury when compared to the risk associated with the normal journey. It was also submitted on behalf of the appellant that the respondent's activities connected with his banking in Elizabeth Street could not be described as being "for a reason connected with the worker's employment" within the meaning of s10(1C). However, I think the appellant is precluded from raising that issue as it is, in effect, a submission that that part of the respondent's journey was a deviation or interruption within the meaning of s10(2) - a position abandoned in the proceedings before Moroney CCJ. If I am wrong in that view, then I would be prepared to treat the banking activities of the respondent, as did his Honour, as being connected with his employment, having regard to the specific circumstances of his journey to Belmore and to the unusual amount of the wages which he received in cash that day. Finally, it was submitted that Moroney CCJ erred in having regard to the Elizabeth Street activities of the respondent in evaluation of the risk of injury of the periodic journey of 5 April 1990, they being some "fortuitous and 6 UNREPORTED JUDGMENTS unforeseeable further occurrence" as that phrase was employed by Windeyer J in Scobie v KD Welding Co Pty Ltd (1959) 33 ALJR 397 at 404 in the following passage: "The policy of the enactment becomes, I think, evident. A worker is disentitled to compensation if, but only if, a material increase in the hazards of the journey can in the circumstances existing when the interruption, deviation or break is made, be then predicated as its necessary consequence. The worker by making such an interruption, deviation or break forthwith deprives himself of the benefit of the Act and his employer is discharged from liability. But a worker does not suffer if the interruption, deviation or break would not, without some fortuitous and unforeseeable further occurrence, have materially increased the risk." I do not agree. Once it is accepted that the Elizabeth Street movements of the respondent were part of the periodic journey and not a deviation from it, then I think the approach to the assessment of risk by Moroney CCJ was correct in principle. In my opinion there was ample evidence to support the finding by Moroney CCJ that the periodic journey of 5 April 1990 represented a material increased risk of injury. I would dismiss the appeal with costs. Appeal dismissed with costs. Counsel for the Appellant: BMJ Toomey QC/W Palmer Solicitors for the Appellant: Moray and Agnew Counsel for the Respondent: JS Coombs QC/M Herschderfer Solicitor for the Respondent: Taylor and Scott