THE LEO McCARTHY MEMORIAL SMITHFIELD RSL SUB BRANCH CLUB LTD v BAYLISS [1996] NSWCA 523

THE LEO McCARTHY MEMORIAL SMITHFIELD RSL SUB BRANCH CLUB LTD v BAYLISS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 28 May 1996, 19 July 1996 [1996] NSWCA 523

WORKERS COMPENSATION — s10(1) and s10(2) Workers Compensation Act — factors giving a journey the statutory character — whether risk of injury materially increased by interruption or deviation — Babcock v Proudfoot (1993) 9 NSWCCR 525 dist

On 6 April 1991, after finishing work, the respondent left the appellant club where he was employed as a barman and cellarman. About two hours later, around 3.30 am, he was found badly injured in an alleyway next to a tavern where he had been drinking with friends. He made an application for compensation pursuant to s10(1) and s10(2) of the Workers Compensation Act 1987. Judge Geraghty found that the injury was sustained during a journey to which s10 applied, that it was sustained during or after an interruption or deviation, but that the deviation did not materially increase the risk of injury.

HELD

1. His Honour erred in concentrating only on whether the respondent's intention, when he left his place of employment, was to commence the journey home. Other factors such as the length of the interruption and the extent of the deviation should be taken into account.

Babcock v Proudfoot (1993) 9 NSWCCR 525 distinguished. Scobie v KD Welding Co Ltd (1959) 103 CLR 314 at 321 per Dixon CJ; Pitt v George Ford Pty Ltd (unreported) Court of Appeal, 18 April 1980.

ORDERS

1. Appeal allowed;

2. Set aside the orders and awards made on 30 August 1995;

3. In lieu thereof dismiss the application;

4. The respondent to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951.

Handley JA I agree with Sheller JA.

Sheller JA

INTRODUCTION

After finishing work in the early hours of 6 April 1991 the respondent, Steven Bayliss, between 1.30 and 2.15 am, left the Smithfield RSL Club, where he was employed as a barman and a cellarman, with two friends and work mates. At or after 3.30 am he was found badly injured and unconscious in an alley way between a shop which sold pizzas and a tavern or night club called "Headquarters", where he and his two friends had been drinking for an hour or more. The questions for determination on this appeal were whether the respondent was injured on a daily journey between his place of abode and his place of employment and, if so, accepting the injury was received during or after an interruption of or deviation from the journey, whether, in the circumstances of the case, the risk of injury was not materially increased because of the