THURN v IRELAND [1997] NSWCA 319

THURN v IRELAND

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMPENSATION COURT

MASON P, BEAZLEY JA and GROVE AJA 8 April 1997, 5 August 1997

[1997] NSWCA 319

WORKERS COMPENSATION - Compensable injuries — Scope of employment — Daily or periodic journey — no evidence — error of law

Recess journey — Voluntary subjection to abnormal risk of injury — diabetic worker driving motor vehicle — no evidence to support finding — Workers Compensation Act 1987, s10, s11(b)

The appellant, a diabetic, was seriously injured when he suffered a hypoglycaemic attack whilst driving, causing his motor vehicle to collide with a semi-trailer. He sustained a closed head injury and severe orthopaedic injuries.

Prior to the accident, the appellant had been at work on a building site. Evidence given by a witness who saw and spoke with the appellant just before the accident, indicated that he was going to have lunch when he got into his car and drove in the direction of his home, rather than having finished work for the day. The trial judge found that the appellant had completed his work for the day and that he was on a periodic journey to his home when the accident occurred: s10 Workers Compensation Act 1987. His Honour held that the accident was attributable to the fault of the appellant, disentitling him to compensation. Alternatively, the judge considered that if the appellant was on a recess journey within s11, the appellant exposed himself to an abnormal risk of injury.

The appellant appealed against the trial judge's findings on the basis that they were unsupported by evidence.

HELD:

(1) The finding that the appellant was on a periodic journey was vitiated by error of law as there was no evidence upon which to base that finding.

(2) There was no evidence to support the finding, or from which the trial judge could infer, that the appellant had "voluntarily subjected himself to any abnormal risk of injury " and that he was aware of the risk he was exposing himself to in driving his car.