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 2 UNREPORTED JUDGMENTS interruption or deviation. S10(1), s10(2) and s10(3) of the Workers Compensation Act 1987 (the Act) so far as relevant provides: "(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. (2) Subs(1) does not apply if: (a) the injury was received during or after any interruption of, or deviation from, any such journey; and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation. (3) The journeys to which this section applies are as follows: (a) the daily or other periodic journeys between the worker's place of abode and place of employment; " COMPENSATION COURT JUDGMENT Judge Geraghty heard the worker's application in the Compensation Court and in a judgment of 30 August 1995 found that the respondent sustained an injury in a journey to which s10 of the Act applied, that the injury was sustained during or after an interruption or deviation and that, in the circumstances, the risk of injury was not materially increased. The employer Club appeals from this decision. His Honour set out the way the respondent put his case as follows: "... that he was on a journey home, that it was interrupted, and that the interruption did not materially increase the risk of injury. The onus rests on the [respondent] - and that was conceded. The [respondent] submitted that the onus was satisfied by these facts -- Firstly there was a doorman on the door; secondly, there was no evidence anyone was drunk; thirdly, it was only a minor deviation anyway; and finally, the premises were peaceful, and the assault was sudden and unexpected. On the other hand, the [appellant] submitted that when the [respondent] left his work, he intended to go to a club, not to go home, that this was really a two-journey case where the [respondent] had abandoned his journey home to go to a tavern, to spend an indefinite amount of time there, and when ready, to wander home from the club. The [appellant] also alleged that because of the circumstances, the environment, and the excessive delay, the [respondent] had materially increased the risk of injury. The central point in the appeal arose out of what his Honour next said: "This difficult matter is resolved by the details of Babcock v Proudfoot (1993) 9 NSW CCR 525. Babcock v Proudfoot had factual similarities to the present case. The worker had ceased work at his employer's premises at Regents Part at 2.30 pm on 21 May and had gone with two co-worker friends to a nearby hotel where they remained for approximately two hours. From there they drove to the home of one of his companions where the worker remained for about an hour or an hour and a half. He left this house shortly after 6 pm and was injured at 6.45 pm driving along the F4 Freeway. On the appeal to this Court one of the conclusions challenged was a finding by Commissioner Cross, followed by Moroney CCJ, UKE LEO McCARTHY MEMORIAL SMITHFIELD RSL SUB BRANCH CLUB LTD 3 BAYLISS (Sheller JA) (Sheller JA) that the worker was on a journey to which s10 applied. Cripps JA, who delivered the principal judgment with which the other members of the Court, Clarke and Handley JJA, agreed, said at 529-530: "Not only, in my opinion, was it open to him to make the finding he did, a contrary finding would have amounted to an error on the undisputed facts before Commissioner Cross. S10 does not mandate that to be within its purview a worker must take the shortest, most direct route home. Furthermore, a journey once started does not cease to be one because of deviations and interruptions. What this section provides is that an injury arising during or after a deviation or interruptions unconnected with work, will not be one arising out of or in the course of the worker's employment unless the worker discharges the onus of establishing the proviso [namely that the risk of injury was not materially increased]. The [worker's] intention at all relevant times was to return home. He intended to journey home when he left work and that intention continued up to the time of his accident. After he left the hotel he made two small deviations, each resulting in a significant interruption. Cripps JA went on to distinguish what had been said by Dixon CJ in Young v Commissioner for Railways (1960) 34 WCR 84 at 86 on the basis that in that case it had not been shown that when the worker left his place of employment he had intended to commence the journey home. Judge Geraghty said of Babcock v Proudfoot: "In many respects it is a surprising judgment, but I feel compelled, of course, to follow it, and therefore I look now to the question of the applicant's intention when he left work." His Honour then referred to various passages in the transcript, said that the issue of the applicant's intention when he left work was a question of fact and found as follows: "On the facts, it seems to me, on the balance of probability, that the [respondent] did have an intention to go home from work with his two friends. In any event, he was a passenger in someone else's car, and that person had undertaken, if not agreed, to convey the [respondent] to his home after they had been down to Smithfield Shopping Centre to check out the tavern. Nor surprisingly, Judge Geraghty thought that the worker's intention in Babcock v Proudfoot was treated in a not dissimilar factual context as decisive. Cripps JA referred to the intention continuing up to the time of the accident. Although Judge Geraghty made no mention of this, his ultimate finding suggests that he was satisfied that the respondent's intention to go home from work continued up to the time of the accident. Cripps JA did not appear to weigh the worker's intention with other factors, such as the extent of the deviation and the length of the interruption, to determine whether the journey was one journey broken by substantial interruptions or an expedition not of the statutory character. Nor did Judge Geraghty. Whatever may have been the position in Babcock v Proudfoot I think that, with respect, in the present case his Honour erred in concentrating on the respondent's intention to the exclusion of other circumstances. FACTORS GIVING A JOURNEY THE STATUTORY CHARACTER In Pitt v George Ford Pty Ltd (unreported) Court of Appeal 18 April 1980, Samuels JA said: "87 [of the 1926 Act] provides for three possibilities so far as relevant to the present case. The first is a continuous journey from the place of employment to the place of abode; the second is a journey between the same points, but one which is broken by a substantial interruption; and the third is an expedition 4 UNREPORTED JUDGMENTS which, although it may commence at the place of employment and ultimately end at the place of abode, is not one which enjoys the statutory character of a daily or other periodic journey within the terms of s7 (1) (b). Since in the ordinary course of events most workers when they leave their place of employment intend ultimately to go to their place of abode, the critical question is likely to be the nature of any interruption, and the question whether, if one occurs, it merely interrupts a journey which remains of the statutory kind, or bisects what would otherwise be a continuous journey into two separate Journeys. In that case a worker was injured on the way from work to his daughter's home, a journey which involved a substantial deviation from his ordinary route home. The worker's intention on leaving his place of employment was to go to his daughter's home, where his wife was, have a meal and spend about two and three quarter hours there. When that time had elapsed the worker's intention was to go, with his wife, home. The intention was clearly expressed. There was no question of any competing intention. Samuels JA said: "That being the case, it was for his Honour to decide whether, bearing in mind what the worker intended to do and the length of time during which he estimated he would be engaged upon it, the finding ought to be that there was one journey with a substantial interruption or two journeys. In the latter case the consequence would be that the journey upon which the worker was engaged when he met with his injury was not a journey whose terminus was his abode but one whose terminus was his daughter's house and one outside the reach of the Act. In my view the solution of that issue raised only a question of fact. Obviously, I would have thought, in circumstances such as this, where everything turns upon the length of the break (to use a neutral term) its purpose the place where it is to take place, the deviation involved from the direct route and matters of that kind, these considerations can involve only questions of fact or degree." In my opinion what Samuels JA said, in the passages I have quoted, correctly sets out the approach the Court should take in deciding whether the worker was injured on a journey to which s10 of the Act applied; compare Minchinton v Homfray (unreported) Court of Appeal 9 December 1994. What the respondent in this case had to show is succinctly and accurately stated in the following passage from Mills, Workers Compensation (New South Wales), 2nd ed, at 197-8: "Apart altogether from questions of interruption, deviation and breaks in the journey, the applicant is required to show that the journey on which the injury was received was in fact a single journey between the points alleged, and that it retained this character up to the time of the injury; it is not sufficient that a man leaves home with the intention of visiting a friend for several hours, and then going on to work (Purcell v Colonial Sugar Refining Co Ltd (1953) WCR 77), or that he leaves work with the intention of going off to transact some business which takes a considerable time and involves considerable divergence from his ordinary route, and only then going home; Young v Commissioner for Railways. Such an interlude may be more than a mere interruption of a single journey; it may create two separate journeys, neither of which fits the description in the Act." The appellant submitted that this Court should decide for itself whether in this case, the respondent had established that he was injured on a journey to which s10 applied. The onus is on the applicant worker to show that the journey was a single journey and, if there was an interruption or deviation, that this did not UKE LEO McCARTHY MEMORIAL SMITHFIELD RSL SUB BRANCH CLUB LTD & BAYLISS (Sheller JA) (Sheller JA) materially increase the risk of injury. However this appeal can be disposed of on the ground that his Honour should not have found that the risk of injury was not materially increased because of the interruption or deviation. MATERIAL INCREASE IN RISK OF INJURY I have quoted the passage from Judge Geraghty's judgment in which he summarised the parties' submissions. The respondent's recollection of the events of the night in question was hazy. He could not recall the circumstances of his injury. There is no doubt that he began his shift at the Club on 5 April 1991 at 3 pm working with his supervisor, Peter Keogh, and with Colin Parker. Ron Fowler was the overall supervisor of the Club on the night in question. The respondent was very busy and thought his meal break took place for about half an hour at 9 pm when he telephoned his wife to inform her that he was going to bring home a pizza for dinner. He did not eat during the meal break because the Club bistro was closed at about 8.30 pm. His evidence was that his wife would be waiting at home to share the pizza. He arranged with Mr Keogh and Mr Parker to come home with him to share the meal. After work finished at about 1 am the staff cleaned the Club and had some drinks together. The respondent left the Club in Mr Keogh's car with Mr Parker and the three drove to Horsley Drive Shopping Centre to pick up the pizza. The respondent's home was about half a kilometre from the Club in the opposite direction to the shopping centre which was also about half a kilometre from the Club. From time to time the respondent travelled between his home and the Club on foot. Often he was driven home. The ordinary route home either on foot or by car was different to the route followed to the Horsley Drive Shopping Centre. However the respondent said it was a route which he often followed. On arrival at the shopping centre the respondent thought he and the others consulted the menu in the pizza shop. His Honour found they did not order a pizza. They went to the tavern and had three drinks each. The respondent observed there was a large crowd in the tavern, that the patrons were dancing and some were vaulting on trampolines against a wall. The tavern was supervised and there was a doorman. The respondent could not remember any trouble or problem associated with the establishment. After leaving the tavern by the entrance, a person or persons unknown assaulted the respondent causing him serious injury. The evidence of Mr Fowler, whom the appellant called, and the appellant's records. which were more precise, persuaded the trial judge that the respondent had his meal break between 7.30 and 8 pm and that the bistro regularly closed at 9.30 pm. If employees were not able to eat at the bistro during their meal break, they could order food which was kept hot for them in the oven and could be eaten after their shift had been completed. Naturally his Honour was troubled as he said by the fact that neither Mr Parker nor Mr Keogh, the respondent's companions on the night in question, were called to give evidence, nor was the respondent's wife. His Honour found: "That in the circumstances, the risk of injury was not materially increased." He expressed no reasons for this conclusion. One can perhaps infer that his Honour accepted what the respondent said about the situation in the Club while he was there. His Honour had stated that he concluded the respondent was honest in giving his evidence. NO EVIDENCE TO SUPPORT FINDING ON RISK In Scobie v KD Welding Co Ltd (1959) 103 CLR 314 at 321 Dixon CJ made some observations about the proviso to s7(1)(b) of the 1926 Act which was to the same effect as s10(2). His Honour said: 6 UNREPORTED JUDGMENTS "The proviso supposes that there is a break, deviation or interruption in the journey and that it is substantial. Subject to the clause introduced by the word 'if, any injury received during the interruption, deviation or break is compensable. So is any injury received after the interruption, deviation or break. Whether the injury must have any further connection with the journey and what the character of the connection is may perhaps be a question: compare Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13. It is the 'if? clause which creates the qualification. The injury cannot be compensable if it occurs during or after the substantial deviation, interruption or other break if there is an increased risk of injury of the kind contemplated by the clause introduced by the word 'if'. The word 'increase' suggests that there must be an increase over a risk otherwise existing. Plainly the risk otherwise existing must be the risks of the journey without substantial interruption, deviation or other break. The word 'only' seems to be introduced in no very correct sense. It is difficult to believe that the intention was that if the risk was materially increased by the interruption, deviation or break the injury was to be compensable simply because some additional reason for increasing the risk could be found. What seems to have been intended is that if the substantial interruption, substantial deviation or other break considered alone was enough to cause an increased risk of injury then the substantial interruption, deviation or other break should be fatal to the worker's claim. Of course the mere prolongation of the period of time during which the worker was occupied between the two termini of his journey must in a logical sense cause an increased risk of injury; for it lengthens the time during which injury may occur. But that element is necessarily put out of account. The more important question, however, is whether the increased risk of injury must itself be the cause of the actual injury suffered. There are no words to justify such an interpretation of the proviso. It is an inference only drawn from the supposed policy of the provision; but there is nothing unreasonable in a policy of treating the substantial interruption etc as fatal to the right of a worker to claim if the interruption is fraught with the consequence of increased danger even though the actual injury cannot be traced to the particular increase of danger involved. The latter is the policy which the words are apt to express and we are not justified in implying any limitation of their natural meaning. But in any case, on the facts of this case it is impossible to eliminate the darkness as one of the causes of the accident. It was a condition in which it occurred and it would be rather artificial to say that it had nothing to do with the sudden appearance of the pedestrian causing the motor cyclist to strike the bridge and overturn the cycle. Nor is it easy to suppose that the road surface had no influence on the result." On this night, but for the deviation to the Horsley Drive Shopping Centre, the respondent's journey by car would have taken him along a completely different route to his home. He would have arrived there after departure from the club in a matter of minutes. Instead the respondent travelled with his friends to the shopping centre where the journey was interrupted for over an hour by drinking in a crowded tavern. The patrons were dancing and some were vaulting on trampolines against a wall. The respondent's evidence was as follows: "Q. What did you do when you went into the tavern? A. We purchased a drink and stood and talked. Q. Do you remember what kind of activity was going on in the tavern? A. There was dancing and at the other side of the club they had some sort of contest where people with velcro suits on were bouncing up against the wall. UKE LEO McCARTHY MEMORIAL SMITHFIELD RSL SUB BRANCH CLUB LTD ¥ BAYLISS (Sheller JA) (Sheller JA) Q. So it came off a vaulting arrangement, is that right? A. Some form of trampoline. Q. And they stuck to the wall? A. Yes, that's right. Q. When you went to the tavern how many people would have been there? A. It was a fairly large crowd. Q. Did you notice any person sort of fulfilling the role of security at that place. OBJECTION MR POULOS I will withdraw the question, your Honour, I will ask it another way. Q. When you walked into the tavern did you see any persons were near the door? A. Yes, there was a doorman. Q. When you went into the tavern was there any indication of any trouble or aggravation that you say? A. No, everything seemed quite normal. Q. Quite normal might be [sic] that there would be fights or - A. No, there was no - it seemed quite peaceful. Q. Did you talk to anybody in the tavern beside Mr Parker and Mr Keogh? A. Just the bartender to order the drink. Q. Do you remember what you drank? A. I drank a bourbon and coke. Q. Do you remember how many drinks you had? A. I recall we had a round each. it would have been three. Q. Do you remember what Mr Keogh was drinking? A. Bourbon. Q. Did you leave the tavern? A. Yes. Q. What happened when you left the tavern? A. We got to the door, I opened the door and was waiting for Colin to come through, and that's all I recall of the incident. Q. At the time you left the tavern where were you intending to go? A. Back to the pizza shop. Q. What time did you leave the tavern? A. I'm not sure. Q. Were people still at the tavern at the time you left? A. Yes. Q. Were drinks being still served at the tavern? A. Yes. Q. Do you have any idea how long you were standing around and how long it took for you to drink these three drinks? A. Could be probably 45 minutes, I suppose." According to his Honour the respondent submitted that the onus was satisfied by there being a doorman on the door, there being no evidence that any one was drunk, its being only a minor deviation and the premises being peaceful and the assault sudden and unexpected. The respondent's evidence was that there was a doorman near the door and the place was quite peaceful when he walked in. There was no evidence of any other security presence and no evidence of the presence of the doorman or the state of the premises when the respondent left. It may be correct that there was no evidence that any one was drunk but equally there was no evidence that they were not. It seems to me that satisfaction of the onus, which the respondent carried, of showing that the deviation to the tavern and the interruption there for over an hour between two and four in the morning, required more convincing evidence that there was not a material increase in the risk of injury than that which the respondent proffered. That this is so is demonstrated by the parties suggesting to the Court, on the one hand, that human experience teaches that gratuitous violence sometimes erupts in the vicinity of night clubs at such hours and, on the 8 UNREPORTED JUDGMENTS other, that what happened could have happened to the respondent anywhere on the way home and that the respondent was extremely unlucky. Absent any evidence about these matters I do not think that either of those inferences is open and this throws up a gap in the evidence which the onus was on the respondent to fill. The respondent's memory was hazy. But there were two friends available to give evidence who, according to him, were present throughout. It is significant that they were not called without any explanation. In this case it seems to me, as his Honour thought, that the uncalled evidence would not have assisted the respondent's case; Jones v Dunkel (1959) 101 CLR 298 at 308. Accordingly, in my opinion, the evidence was not such as to leave it open to his Honour to find that the risk of injury was not materially increased because of the interruption and deviation. Absent such a finding s10(1) of the Act did not apply and the respondent was not entitled to compensation. I propose the following 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. Powell JA I agree with Sheller JA. Appeal allowed; Set aside the orders and awards made on 30 August 1995; In lieu thereof dismiss the application; The respondent to pay the appellant's costs of this appeal but to have a certificate under the Suitors' Fund Act 1951. RYNE Counsel for the appellant: L King SC/S Campbell Solicitors for the appellant: AP Ellison and Co Counsel for the respondent: J Poulos SC/JW Dodd Solicitors for the respondent: Marsdens