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. Mason P I agree with Beazley JA. Beazley JA This is an appeal from a decision of Egan AJ in the Compensation Court of New South Wales in which he disallowed the appellant's claim for compensation on the basis that, being on a periodic journey from his workplace to his home, the motor vehicle accident in which the appellant was injured was due to the appellant's fault: s10 Workers Compensation Act 1987 (NSW). His Honour found alternatively that if the accident occurred during a recess period, the appellant exposed himself to an abnormal risk of injury: s11 Workers Compensation Act. The appeal is on a question of law only. The principal basis of the appellant's challenge to his Honour's determinations was that they were not supported by any evidence. Background The appellant, who was born on 25 January 1959, is a diabetic. He is a carpenter by occupation and was employed by the respondent on a casual basis. He was seriously injured at about 1.50 pm on 18 August 1994 when he suffered 2 UNREPORTED JUDGMENTS a hypoglycaemic attack and the motor vehicle he was driving collided with a semi-trailer on the Great Western Highway, near Bathurst. The appellant sustained a closed head injury and severe orthopaedic injuries. He is permanently totally incapacitated for work. He has no memory for a period of about five years before the accident and no memory of the accident itself. Facts The appellant had been an insulin dependent diabetic since he was 18 years of age. In 1990, the appellant's insulin medication was changed from porcine to human insulin. He required two injections of insulin per day. In addition to insulin, the appellant was required to take care with his diet and to eat regular meals. He had his own blood testing machine and tested his blood sugar level two to four times a day. The appellant was prone to hypoglycaemic attacks. In the usual course of events, there are a number of warning signs of hypoglycaemia, various combinations of which the appellant would suffer: he would get confused, become vague, become sweaty, his pupils would dilate, he would stumble around and he would look unwell. The appellant gave evidence, however, that since being on human insulin he had had a number of attacks without any warning signs. This was supported by evidence of the appellant's wife. The uncontradicted medical evidence as well as the medical literature on the subject accepted that this could be the case. At the time of the accident the appellant was employed by the respondent at a building site at Piper Street, Bathurst, about 14 kilometres from his home. His usual working hours were from approximately 7.30 am to 4.00 pm or 4.30 pm, although his actual working hours were a matter for his own discretion. The evidence relating to the question whether the appellant was on a periodic or recess journey was that of two witnesses, Mr Baker and Mr Brown. Mrs Thurn also gave evidence relevant to this issue. Mr Baker occasionally worked for the respondent. He knew the appellant also worked for the respondent. At about 1 o'clock on the day of the accident, Mr Baker, who was unemployed at the time, went to the Piper Street building site to get some nails. He saw the appellant there. He described his meeting with the appellant as follows: "Well when I got there I walked inside and Peter was just standing around the room. Looked like he was just finished renovating the wall. And I asked him if he had any panel nails and he bent down to the toolbox to check if there was any nails. And he said there wasn't any. I asked him how the walls were going He moved away and he was moving really slowly and he opened the closet door and then closed it and took me into the bedroom. And we had a look at the walls and then I said, Oh well, I'm going And Peter said, Yeah, he was going for lunch. And I walked out, Peter come out behind me. I hopped in my car and when I drove off Peter was still sitting in a ute, in the front of the premises " Mr Baker said that the job was not complete, as there was still plastering to do in one of the rooms he inspected. He also saw a wheelbarrow of concrete on the verandah. He described the appellant's movements as "very slow moving", speaking "kind of slurish", not "focussing on what he was doing". He said that as he was leaving, the appellant said "I'm going to get some lunch". This was at about 1.30pm. The appellant's wife gave evidence that he had not taken lunch with him to work on the day of the accident, and that on occasions he would go home for lunch, but that she had not expected him to go home for lunch on the URJ THURN v IRELAND (Beazley JA) 3 day of the accident. The trial judge found that the nearest shops where the appellant could buy lunch were about three to four blocks or approximately 300 metres away from the building site. The next account of the appellant's movements was given by Mr Brown who saw the appellant whilst he, Mr Brown, was at an intersection waiting to turn onto the Great Western Highway. He said the appellant was travelling slowly along the highway at about 40 kilometres per hour. Mr Brown turned onto the highway and followed the appellant's car. He saw the appellant's car travelling an erratic course, veering to the left off the highway and then back onto the roadway. The appellant's vehicle then came to a stop. Mr Brown stopped to assist but before he reached him, the appellant had driven off again. Mr Brown saw the appellant's vehicle veer onto the incorrect side of the road and collide with the semi-trailer. An ambulance attended the scene of the accident at 1.55 pm. The appellant's blood sugar level was recorded by the ambulance officers and found to be 2 millimols (being the unit of measurement for blood sugar levels). His Honour found, and it was not disputed, that the accident was caused as a result of the appellant suffering an attack of hypoglycaemia. Evidence of Periodic Journey The first question raised on the appeal is whether the trial judge erred in law in finding that the appellant had completed his day's work and was on a periodic journey to his home. It was submitted that there was no evidence upon which to base this finding. There was no dispute that there will be an error of law if there is no evidence to support an ultimate finding of fact: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. That proposition is undoubted. Arguably, a different question arose in this case, namely whether there was evidence upon which his Honour could have based his finding that the appellant was on a periodic journey if the only reasonable view of the evidence was that he was not. Had that question been raised, the application of Azzopardi to this case might have been in issue: see Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Collector of Customs v Agfa Ltd (1996) 186 CLR 389. However, as the matter was not argued on that basis, the only question on the appeal is whether there was any evidence to support the findings whereby his Honour determined that the appellant was not entitled to compensation under either s10 or s11 of the Workers Compensation Act. The first relevant factual finding challenged by the appellant was that he was on a periodic journey within the meaning of s10 as at the time of the accident. The only evidence which potentially related to this question was that the appellant was driving in a direction which was both towards the shops where the appellant could have bought his lunch and his home. The other evidence in the case was as follows. The appellant said he was going for lunch. His work was unfinished and he did not clean up his equipment before leaving. There was no other person on the job to clean up for him. His wife had not expected him to go home for lunch on the day of the accident but expected that he would buy his lunch at the nearby shops. Mr Brown, who saw the appellant driving along the highway, said that when he first saw him, the appellant was at or almost at Kelso, about 3 kilometres, or 5 to 10 minutes drive from the building site in Piper Street. He said that depending upon which route was taken from Piper Street, Kelso was the first place where the appellant could have bought his lunch. 4 UNREPORTED JUDGMENTS The evidence established, therefore, that the appellant was travelling in the direction of his home. That evidence was neutral in the sense that it was also the direction in which there was a shop at which the appellant could have purchased some lunch. The evidence that the appellant was travelling in the direction of his home would, of course support a finding that he was going home. That, however, was not the matter for determination. The matter for the trial judge's determination was whether the appellant was on a periodic journey. The evidence in relation to the character of his journey was that he was going to get his lunch. This was not evidence that he was on a periodic journey. There was no evidence that he had finished work for the day so as to support such a finding. The trial judge thereby erred in law in so holding. Because his Honour erred in law in this regard, and as the only conclusion which follows is that the appellant was on a recess journey within the meaning of s11, it is not necessary to determine whether his Honour erred in law in determining that the appellant had failed to take reasonable care for his own safety so as to disentitle him to compensation under s10. The trial judge also considered the alternative case as to whether the appellant was entitled to compensation under s11. That section provides: "11. If a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service or apprenticeship: (a) is temporarily absent from that place on that day during any ordinary recess or authorised absence; (b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury; and (c) receives a personal injury during that absence, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly." The trial judge held that the appellant had exposed himself to an abnormal risk of injury so as to be disentitled to compensation. Counsel for the respondent accepted that the employer bore the onus of proof on this issue, and the matter was argued on that basis. This concession would appear to have been wrongly made: See Taylor v Stapley (1954) 90 CLR 1 per Dixon CJ and Taylor J at 8 and Webb J at 10; Parasiliti v Dimiakos (1993) 9 NSWCCR 518; Myers Stores Ltd t/as Grace Broslf ' v Johnston unreported Court of Appeal 27 November 1996. In Taylor v Stapley, Dixon CJ and Taylor J considered the meaning of "abnormal" - which they held meant "unusual" or "excessive" and "voluntarily subject himself" in the phrase "voluntarily subject himself to any abnormal risk of injury". Their Honours stated at 9: "The words 'voluntarily subject himself' require that [the worker] shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury". Their Honours drew a distinction between a person voluntarily subjecting himself to an abnormal risk or injury and an "error of Judgment". In Gallard v State Rail Authority of New South Wales (1992) 8 NSWCCR 280, O'Meally J referred to this distinction, finding at 287-8, that an error of judgment by a worker was not sufficient to place an applicant outside the provisions of s11. Rather, a worker "must have had 'knowledge of the risk and a determination to URJ THURN v IRELAND (Beazley JA) 5 proceed in disregard of its consequence", for the section not to apply. Similarly, Priestley JA observed in Tooth & Co Ltd v Injac (1994) 10 NSWCCR 437 at 450, that: "the words 'voluntarily subject himself' taken together convey the idea of a degree of deliberation in the worker getting into the position of risk". The appellant had been involved in an earlier motor vehicle accident in 1992. The appellant had also been involved in an incident in March 1994 when the motor vehicle he was driving ran off the road. On 13 April 1994 he attended for a driver's licence review at the general medical practice where he had been a patient since 1987. He was seen by Dr Kleinig. Dr Kleinig was of the view that, having regard to the Road Traffic Authority's guidelines, it was appropriate to give the appellant a clearance to drive, notwithstanding the incident a month or two previously, because his blood sugar levels had been stable since then. There was no issue in this case as to the adequacy of the RTA guidelines, nor as to Dr Kleinig's interpretation or application of them. Dr Kleinig also referred the appellant for review by a dietician and an ophthalmologist. He decided to follow this course as he had not seen the appellant previously, although he was a longstanding patient of the practice. As Dr Kleinig said, he thought it was appropriate to "give him a going over which included just reviewing his diet, reviewing his eyes and having a general overview". He said there was no particular significance in referring him to a dietician, "it was just a further education thing" and that he believed that the appellant and his wife knew the appellant's dietary requirements and that the appellant's wife was very particular about the appellant's diet. The appellant's wife believed that he had been to see the opthalmologist. In his oral evidence Dr Kleinig stated that with the appellant's type of diabetes, both insulin and diet control were important. He said that hypoglycaemia is a variable condition. Some patients could get down to a blood sugar reading of 2 millimols before they started to feel symptoms. Others would be aware of symptoms at a higher level of 3 or 4 millimols. On average, patients with a reading of blood sugar level of 3 millimols felt symptoms, such as feeling sweaty, faint and having palpitations. He said that he would recommend that a patient test blood sugar levels before driving if that patient was shortly or immediately beforehand aware of symptoms. If a patient with a diabetic condition such as the appellant's was aware that his blood sugar level was low, he should not have insulin to adjust, but rather have oral glucose or complex carbohydrate, for example jelly beans or orange juice. He noted that the appellant's blood sugar level as measured by the ambulance officers at the scene of the accident was 2 millimols, which he accepted was a very low reading. He said that it was not possible, with that reading, that the appellant had not had his insulin that morning. Had he not had his insulin, his blood sugar level would have been high. Dr Kleinig said that the reading suggested that he had had too much insulin, or not enough breakfast, or had engaged in excessive physical work or that a combination of any of these had caused the hypoglycaemic attack. He also said that the trauma of the accident itself could have had an affect on the appellant's blood sugar level but that if anything, the trauma would have increased it. Having given that evidence he then added "but don't quote me on that". Prior to the change to human insulin, the appellant had been under the care of Dr Dutton, specialist physician. At that time, the appellant's diabetes had been poorly controlled. He had failed to attend for reviews on two occasions, as 6 UNREPORTED JUDGMENTS requested by Dr Dutton. In evidence, Dr Dutton said he was concerned about the appellant's condition at that time but he had not seen him since 1990. Dr Dutton also stated that hypoglycaemia can be caused by too much insulin, inadequate or late carbohydrate intake, excessive physical workload or any combination of these. Dr Dutton gave evidence that the symptoms reported by Mr Baker - that the appellant was incoherent at about | pm, was acting inappropriately and said he was going to get lunch - were highly suggestive of hypoglycaemia and that "one cannot say whether Mr Thurn had an awareness of his problem at the time". There was no other medical evidence on this issue. The appellant had no memory of the accident and could give no evidence on the matter. Nor did Mr Baker's evidence touch on it. Dr Dutton further stated that Mr Thurn's impression that he had less warning of a hypoglycaemic event after changing to human insulin had been noted in others. Rather than dealing with that question in his report, he enclosed an article entitled Hypoglycemia Without Warning: A Dangerous but Reversible Phenomenon by Stephanie Amiel which he described as an "excellent review article... which may assist... in understanding that this is nor a simple problem". Relevantly, the article contained the following information: "Hypoglycemia [is] low blood glucose concentration.... Normal physiology maintains a blood glucose concentration between 4.0 and 7.0 mmol/L. Hypoglycemia that is low enough to cause clinically significant cerebral dysfunction virtually does not occur in health.... Ultimately, with very low blood glucose concentrations, drowsiness, confusion and coma ensue. Apart from prolonged starvation and excessive exercise, clinical hypoglycemia is common only in cases of pharmacologically treated diabetes mellitus. The symptoms of hypoglycemia fall into two categories..... Autonomic symptoms include shakiness, palpitations, anxiety, sweatiness, hunger, and angling and may be associated with signs such as sweating, tremor, pallor, tachycardia, and widening of the pulse pressure... The neuroglycopenic symptoms of hypoglycemia are those attributed directly to a slowing of higher brain function, including drowsiness, confusion, inability to concentrate and/or speak clearly, and irritability... Traditionally, it is assumed that the autonomic symptoms occur at a slightly higher blood glucose concentration (ie earlier) than the neuroglycopenic symptoms and are thus the classic 'early warning symptoms of hypoglycemia However, many diabetic patients depend on the latter symptoms to alert them to the situation. As long as some of these symptoms are generated at a time when sufficient cognitive and motor ability remain for the patient to recognise them and take appropriate action, he/she is protected against the more profound fall in blood glucose that causes clinically serious loss of brain function (less than 3mmol/L)... [T]he danger lies in the failure to generate symptoms in response to relatively mild hypoglycemia. If symptoms are absent, there is an increased risk of plunging into profound hypoglycemia with cortical dysfunction that is evident to observers but not to the patient. Severe hypoglycemia is often embarrassing and socially disabling because the patient may behave illogically and uncharacteristically. At worst, injury and even death can result, either from loss of concentration while doing something URJ THURN v IRELAND (Beazley JA) 7 dangerous or (probably very rarely) from prolonged and/or very severe hypoglycemia Severe hypoglycemia with substantial cognitive impairment is much less common, affecting between 4% and 40% of the insulin treated population. Such severe hypoglycemia probably only occurs in association with defects in the normal symptomatic neurohumoral response to early hypoglycemia.... We have learned most about hypoglycemia without warning symptoms from recent studies of intensified treatment of insulin dependent diabetes mellitus (DDM).... The terms 'hypoglycemia without warning' and "severe hypoglycemia' are not synonymous, but patients experiencing episodes of hypoglycemia without warning are more prone to severe hypoglycemia. The primary cause of a hypoglycemic episode in diabetes is excessive insulin action. Any patient injecting endogenous insulin or using medication artificially to increase insulin secretion risks intermittent overdosage when circulating insulin levels exceed requirement. A proportion of diabetic patients will also develop defects in [their counter regulatory responses]. These patients are then at risk for asymptomatic and severe hypoglycemic episodes. Systematic investigation of patients with a history of severe hypoglycemia reveals defective neurohumoral responses to insulin infusion. Nevertheless, in general, patients with diabetes mellitus have good symptomatic responses to hypoglycemia. Lack of warning symptoms in hypoglycemia becomes more common as disease duration increases. About one quarter of patients with disease duration of more than 15 years experience a loss of warning symptoms. A similar loss of awareness hypoglycemia is more common in patients with IDDM [insulin dependant diabetes mellitus] who are attempting to maintain strict long term normoglycemia using intensified insulin therapy and this is irrespective of disease duration. [I]t was initially hoped that improved diabetes control might actually improve responsiveness to hypoglycemia (perhaps by restoring glucagon responses), this did not prove to be the case. Simonson et al found that the hormonal response to a fixed moderate hypoglycemic challenge was diminished. Later, it was shown that tightly controlled diabetic patients were less able to counter regulate (ie, spontaneously arrest or reverse a glucose fall) during low-dose insulin infusion. This was due, in part, to increased insulin sensitivity of both hepatic and peripheral tissues but was mostly due to a lowering of the glucose level at which the various neurohumoral responses to hypoglycemia started. It is important to note the glucose level used as the 'damaging' hypoglycemia in tlhese studies (3mmol/L in one study and just over 2.8mmol/L in another). The hypothesis that loss of awareness (and protection) to subsequent hypoglycemia is induced by a previous experience of recurrent mild to moderate hypoglycemia becomes credible. Patients using therapy designed to keep blood glucose levels between 4 and 7 mmol/L before meals and less than 10 mmol/L after meals are more likely to experience blood glucose levels of less than 4 mmol/L (an unexpected burst of exercise, a slightly delayed or reduced food intake, etc) than patients whose blood glucose concentrations are usually above 10 mmol/L. 8 UNREPORTED JUDGMENTS Nocturnal hypoglycemia, which is very often asymptomatic... may be a particular culprit. These intermittent mild hypoglycemic episodes may induce defective counter-regulation and may result in a loss of awareness of subsequent episodes and an increased risk of profound hypoglycemia It provides a common pathogenesis for hypoglycemia unawareness in diabetes, whether associated with intensified therapy, previous severe hypoglycemia, or even increased disease duration. [S]tudies support the hypothesis that hypoglycemia itself induces defects in symptomatic responses to subsequent episodes and that there may be a similar etiology of unawareness in all patients who experience hypoglycemia There is no doubt that abnormalities of brain function are detectable at 2.8 mmol/L and that exposure to such levels is enough to impair responses to subsequent hypoglycemia acutely. The same research group was also concerned that a higher proportion of patients admitted with severe hypoglycemia were using human insulin than of those admitted to hospital for other reasons (including poor diabetic control). In one group, reaction times were slower suggesting that recurrent or very prolonged exposure to either extreme of glucose abnormality may be deleterious. Doctor Dutton did not give oral evidence. Accordingly, there was no explanation of e or cross-examination on the material contained in the article. However, Dr Dutton's evidence and the contents of the article clearly indicate that the maintenance of safe blood sugar levels is a complex matter and one which can easily be disturbed without any fault by a patient. This material also demonstrates that a person can suffer a hypoglycaemic attack without having or without being aware of the symptoms. The evidence on the question whether the appellant was aware that he was at risk of suffering a hypoglycaemic attack, may be summarised as follows. At the time that Mr Baker saw the appellant at the building site, he was exhibiting features of a person suffering, or commencing to suffer a hypoglycaemic attack. The attack could have been caused by a number of factors. Doctors Kleinig and Dutton suggested three possible causes: too much insulin, delayed food intake or excessive physical activity, or any combination of them. It is possible for an insulin dependent diabetic to suffer a hypoglycaemic attack without being aware of experiencing the symptoms or signs of an attack. An attack may also occur without a patient having any symptoms at all. A blood sugar level of less than 3 millimols is considered to involve a "profound fall in blood glucose that causes clinically serious loss of brain function". With any insulin dependent patient, there is always a risk of "intermittent overdosage when circulating insulin levels exceed requirement". Lack of warning symptoms in hypoglycaemia is more common as the disease duration increases, with about one quarter of patients with a disease duration of 15 years experiencing loss of warning symptoms, and is more common with patients on human insulin. In this case, the appellant had been diabetic for approximately 17 years and was on human insulin. Previous attacks of hypoglycaemia themselves may induce loss of awareness (and URJ THURN v IRELAND (Beazley JA) 9 therefore protection) to subsequent hypoglycaemia. Nocturnal hypoglycaemia, which is often asymptomatic, may be a particular cause of a patient losing awareness of subsequent episodes. Mr Baker's description of the appellant when he saw him at about 1pm appear to fit the description of a person suffering the neuroglycopenic symptoms of hypoglycaemia - that is, those attributed directly to a slowing of higher brain function. According to the information contained in the article Hypoglycemia Without Warning, it is possible for a patient to experience those symptoms but not be aware of them. In this case, there was no evidence: (1) that the appellant was aware that he was experiencing a hypoglycaemic attack the only evidence on this issue being that it could not be said that he was aware of the problem when seen by Mr Baker; (2) that the symptoms observed by Mr Baker were symptoms of an hypoglycaemic attack at a tune when the appellant still had sufficient cognitive function to recognise that he was in danger and to take appropriate steps to prevent the attack from developing. (3) as to how long it takes, after the onset of symptoms, for a hypoglycaemic attack to develop to a stage where a person no longer has sufficient cognitive function to engage fin activity, such as driving to a shop to purchase some food so as to prevent or reverse the onset of the attack; (4) whether the fact that the appellant put his car in motion indicated that he had sufficient cognitive function to be aware that he was suffering or about to suffer a hypoglycaemic attack; or (5) whether by putting his car in motion a second time, he had sufficient cognitive function to be aware that he was suffering or about to suffer a hypoglycaemic attack. Against the background of this evidence and absence of evidence, the trial judge made the following findings: (1) That the probabilities were: (a) the appellant did not consume lunch and worked on until about 1.30 pm; (b) that when the appellant spoke to Mr Baker, having disposed of what he was doing that morning, the appellant was aware of the warning signs appropriate to hypoglycaemia; (c) that notwithstanding this, he took the view or made the election that he should knock off or go home. (2) During the course of the journey, the appellant suffered a severe attack of hypoglycaemia, which caused him to run onto the side of the road. He corrected that error, but shortly after, stopped, started again and then had the accident. (3) The appellant, in electing to drive home, had not exercised reasonable care for his own safety. (4) The decision to drive home was deliberate. (5) He took the risk that he would "get home all right". (6) Having regard to his erratic driving and his previous histories of having run off the road, the appellant should have stopped when he ran off the road the first time and sought assistance. He should also have sought assistance when he stopped just before he had the accident. (7) His failure to seek assistance meant that he failed to take reasonable care for his own safety and elected to continue either or both journeys and was therefore "at fault" within the meaning of s10 relating to periodic or daily journeys. 10 UNREPORTED JUDGMENTS (8) Alternatively, if he was on a recess journey, it was probable the appellant was quite aware that he had not had any food as he should have had and was at risk of an attack of hypoglycaemia. (9) It was probable that he was aware he was beginning to show the early symptoms of an attack. (10) He thereby exposed himself to an abnormal risk of injury. His Honour held that the relevant time for determining either 'fault" for the purposes of s10 or "voluntarily subject[ing] himself...to any abnormal risk of injury" for the purposes of s11, was at the point of undertaking the journey. In light of my conclusion in respect of journey, the findings set out in items 8 and 9 and the conclusion in 10 are the relevant manners for consideration. The findings in 8 and 9, however, encompass in summary form the earlier findings to the extent that there is a necessary or obvious overlap between matters relevant to s10 and those relevant to s11. His Honour correctly understood that in order to establish that the appellant voluntarily exposed himself to an abnormal risk of injury, it was necessary to find that the appellant was aware he was exposing himself to such a risk. His Honour made findings to that effect. However there was no evidence to support those findings or any evidence from which any such inference could be drawn. It seems that the trial judge reached his findings based on assumptions. If, on the basis argued, the respondent bore the burden of establishing "fault" under s10 or "voluntarily subjecting himself to an abnormal risk of injury " under s11, the appellant did not have to prove that he was not aware of his symptoms or alternatively that he was aware that as he had not had food at a critical point on that day, or had been working excessively hard, he was at risk of a hypoglycaemic attack. The evidence on such matters was absent. As there was no other evidence to support the trial judge's findings of fact, he erred in law. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-341 per Mason CJ; Minister for Immigration v Karas (1992) 42 FCR 349; Allen v Kerr (1995) Aust Torts R81-354; Driver v The War Service Homes Commissioner (No 1) [1924] VLR 515. Alternatively, if, as appears to be correct, the appellant bore the onus of demonstrating that he bad not voluntarily subjected himself to an abnormal risk of injury, there was no evidence that the appellant had knowledge of the risk he was undertaking by getting into his car and driving. His Honour thus also erred in law on this approach. Counsel for the respondent also submitted that the trial judge's decision should be affirmed on another basis, raised at trial, namely that because the appellant had delayed in having his meal he was putting himself at risk. No notice of contention had been filed as was required if this point was to be raised. However, as counsel for the appellant did not object, it is appropriate to deal with it, although it can be dealt with shortly. In my opinion, there was no evidence to support this contention. The only evidence was that at about 1pm or shortly thereafter, the appellant said he was going for lunch. There was no evidence that his meal at that point was delayed or that, being delayed, he was putting himself at risk. Further, it would have to be proved, for the purposes of s11, that the appellant was aware of both matters - that is, that he had delayed in having lunch and secondly, that he was thereby putting himself at risk. The evidence was silent on both these matters. It follows that the appeal must be allowed with costs. I propose the following orders: 1. Appeal allowed. URJ THURN v IRELAND (Grove AJA) 11 2. Pursuant to s11 of the Workers Compensation Act, the respondent to pay the appellant weekly compensation in the sum of $547.00 per week from 18 August 1994 until 17 February 1995, and thereafter, at the statutory rate for himself and two dependent children and continuing together with interest on the arrears of payments at 3 per cent per annum. 3. That the respondent pay the appellant's expenses pursuant to s60. 4. Respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors Fund Act if so entitled. 5. That the respondent pay the appellant's costs of the hearing before the Compensation Court. 6. Matter be remitted to the Compensation Court for determination of the s66 and s67 entitlements, in accordance with these reasons for judgment. A stay of these orders is granted for a period of 21 days from today. Grove AJA I agree with Beazley JA. Appeal allowed. Counsel for the appellant: P Menzies QC/M Cummings Solicitors for the appellant: McIntosh McPhillamy & Co Counsel for the respondent: B Toomey QC/G Swinton Solicitors for the respondent: Leitch Hasson & Dent