Yl GANG YING v PETER J DOYLE PTY LTD [1997] NSWCA 352

YI GANG YING v PETER J DOYLE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER JA and GROVE AJA 2 May 1997

[1997] NSWCA 352

WORKERS COMPENSATION — periodic journey — motor traffic accident — dangerous behaviour of worker's vehicle — inference of fault in part or whole for injury — rejection by trial judge of suggested alternative causes

The appellant was driving home from work upon a six lane freeway by-pass. The road was wet. His car moved across an adjacent traffic lane, a median strip, two oncoming traffic lanes and collided with another car approaching in a third lane. At the time a worker on a periodic journey was disentitled to compensation if injury was caused wholly or partly by his own fault. The trial judge inferred fault from the circumstances of the behaviour of the appellant's car. He rejected arguments asserting that the accident might have been caused by factors other than the appellant's fault.

Held: No error by the trial judge has been demonstrated and his findings should not be disturbed.

Mason P I agree with Grove AJA. Meagher JA I agree with Grove AJA

Grove AJA This is an appeal by an applicant worker against an award by Burke CCJ in favour of the respondent given on 16 August 1996. Matters of common ground can be mentioned. First, the appellant sustained relevant injury on a periodic journey between his places of employment and abode shortly after 10.30 pm on 28 April 1993; second, that the respondent employer bore the onus of demonstrating (if it could) that the injury was wholly or partly the fault of the appellant and thereby disentitled him to benefit under the Workers Compensation Act 1987 and, third, that this appeal is not limited exclusively to error of law. The appellant left work driving a Mitsubishi motor car which he had purchased from a cousin shortly beforehand and at some time after certain repairs were made to it in about December 1992. I shall refer later to those repairs. The appellant was the driver and sole occupant of the car. He travelled west in Sydney Einfeld Drive, Bondi Junction which was described as a six lane freeway by-pass. Whilst negotiating a slow left curve the car moved to its right from the middle westbound lane and crossed in turn the adjacent lane, the median strip, two lanes allocated for eastbound traffic and then collided with a vehicle being driven by a Mrs Fraser in the third or northernmost eastbound lane. The appellant asserted that it was raining heavily at the time of the accident whereas Mrs Fraser said it was not raining at all. It was accepted that the roadway was wet.