ALCATEL AUSTRALIA LTD v GRIFFITHS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, BEAZLEY JA and GROVE AJA 11 April 1997, 24 November 1997 [1997] NSWCA 13 Worker's compensation — journey claim — liability of employer for injuries as a result of an assault outside restaurant — whether restaurant still place of employment when worker commenced journey to place of abode - Worker's Compensation Act 1987, s10. The respondent worker was injured as the result of an assault by a fellow employee outside a restaurant at Parramatta following a Melbourne Cup luncheon. The assault occurred at approximately 8pm that night. Following a hearing before Truss CCJ in the Compensation Court, the worker was found entitled to compensation in respect of brain damage, and loss of sight, hearing, and sense of smell, on the basis of a journey claim under s10 Worker's Compensation Act 1987(WCAct). The matter was stood over for further hearing on the worker's entitlement to weekly payments and lump sums under s66 and s67 WCAct. The employer appealed from the finding of liability. On appeal, the appellant argued that (i) the restaurant had ceased to be a place of employment at about 5pm and therefore there was not a statutory journey "between the worker's place of abode and place of employment" (cf s10(3)(a) WCAct); (ii) the worker failed to show that the risk of injury was not materially increased because of the interruption (cf s10(2) WCAct); and (iii) since alcohol can cause injuries to persons not driving motor vehicles it was unduly restrictive to confine the application of s10(1B) to that context. On the last point the appellant contended that because the worker was severely under the influence of alcohol the injury was caused by the worker's fault in the absence of evidence that the alcohol did not contribute to the injury. Held: Appeal allowed in part (1) The injury occurred on a statutory journey. (2) (Mason P dissenting) The judge failed to determine correctly whether the risk of injury was materially increased (cf s10(2)) because the interruption to the journey commenced at Spm. (3) S10(1B) is not confined to a worker who is driving or attempting to put a vehicle in motion. (4) Accordingly, the matter must be remitted for further hearing on the issues of the application of s10(1A)(1B) and (1C) as they stood at the relevant time. Mason P The appellant employer appeals from the decision of Truss CCJ in which she made findings in favour of the respondent worker which she summarised as follows: "1. On 3 November 1992 the applicant sustained injury in the course of an interruption of a periodic journey between his place of abode and place of employment. 2. The interruption was made for a reason unconnected with his employment or the purpose of the journey. 3. In the circumstances of the case the risk of injury was not materially increased because of the interruption. 4. The injury was not caused partly or wholly by the fault of the applicant." 2 UNREPORTED JUDGMENTS The worker claimed weekly payments from 3 November 1992 together with lump sums under s66 and s67 of the Workers Compensation Act 1987 for brain damage, loss of sight of both eyes, loss of hearing of both ears and loss of sense of smell. These impairments were the result of an assault by a fellow employee outside a restaurant at Parramatta following a Melbourne Cup luncheon on 3 November 1992. At trial the worker pleaded his case on three alternative bases, each of which was disputed by the employer: 1. A recess case (s11); 2. A claim that the injury arose out of or in the course of employment. The employer alleged serious and wilful misconduct pursuant to s14(2) and that the injuries did not result in serious and permanent disablement; 3. A journey case (s10). The employer alleged substantial interruption with material increase in injury and fault pursuant to s10(1A). Truss CCJ rejected the claim on the first two bases, but accepted it on the third. The employer appeals from the finding of liability. The appeal is restricted to questions of law. The worker was a maintenance and facility supervisor at the Alexandria plant of the employer. He was invited by Skilled Engineering, a firm that provided skilled labour to the employer, to attend a Melbourne Cup luncheon at Barnaby's Restaurant, Parramatta. The worker's immediate superior, Mervyn Chitty was also invited. Truss CCJ summarised the evidence in the following terms: 1. The applicant commenced work at around 6am on the date of injury. He sought and obtained Mr McKay's permission to attend the lunch. [Mr McKay was the plant engineering manager at Alexandria, a position superior to that held by the worker and Mr Chitty.] Mr McKay's permission was expressed to the applicant as being conditional upon his hours away from the plant being kept to a minimum, but there was no discussion as to how long the applicant should spend at the lunch nor was there any expectation that he would return to work thereafter. 2. The applicant left the plant at 12 noon according to his evidence and at 1.30pm according to Mr McKay and was driven to the restaurant by a maintenance vehicle. He had a cab-charge voucher to get home. He had one or two beers before the meal and believes he remembers the Melbourne Cup being run which would have been at around 2.30pm, but nothing thereafter and his next memory is talking to his wife in intensive care. The function commenced at around lpm and was attended by about 57 people of whom 12 were employees of Skilled Engineering and the rest client guests. 3. The function officially finished at around 5pm when Mr Fowler, the state manager [of Skilled Engineering], made his way round the tables, farewelled the guests, told them that the function was over and that he was settling the account. Most left at that stage although some guests had left earlier. Prior to the lunch Skilled Engineering had negotiated the cost with the restaurant which was based upon fixed amounts per head for food and alcohol for a four hour period. Mr Fowler handed over a cheque before he departed. 4. About a dozen people stayed on including Mr Foy who was then the assistant to the state manager. There were still bottles of wine on the table and Mr Foy said he paid for drinks consumed between 5 and 6pm but Miss Briers said she also observed some people paying for their own. When he left there were only four persons remaining, the applicant, Mr Chitty, Miss Briers and her URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Mason P) 3 boyfriend who had come to collect her. Miss Briers and her boyfriend left at about 6.30pm leaving just the applicant and Mr Chitty. 5. Mrs Robbins [the secretary of the company which operated the restaurant] arrived at the restaurant at around 5pm to dine with friends. Her attention was drawn to the applicant at around 7.30pm when she heard glass breaking and looked across towards the table where he was sitting. She went across and suggested to him that he leave and offered to call a taxi. 6. The applicant was clearly well affected by alcohol and Mrs Robbins described his demeanour as "meek and mild". She took him to reception to call a taxi. As she had difficulty ascertaining his name and address she asked him to take out his wallet and give her his driving licence. When he did so she observed a $50 note in his wallet. When she was preceding to remove the applicant from the restaurant Mr Chitty kept saying he did not wish him to leave. Mrs Robbins' and Mr Swaid's [the taxi driver] evidence establishes that Mr Chitty was also well affected by alcohol but not to the same extent as the applicant. 7. Mrs Robbins and another person then assisted the applicant down the three steps at the front of the restaurant and Mr Chitty followed. Within a couple of minutes a taxi arrived. Mrs Robbins handed to the driver the applicant's driving licence and told him that she believed he had sufficient money, but if not, invited the driver to return to the restaurant. She then went back inside. 8. The applicant got into the back seat of the taxi and Mr Chitty into the front seat. The taxi would not start and the driver called the company to request that jumper leads be brought. Whilst awaiting the assistance, the applicant get out of the taxi, followed by Mr Chitty and the driver who both requested him to get back in. The applicant was stumbling around the pavement near the taxi and punched a folding steel shop sign pushing it a few metres. When the taxi driver tried to get him into the taxi the applicant put his hand on his shoulder but removed it when told to by Chitty. The applicant then slapped Chitty on the face and pointed a finger at him which he proceeded to move up and down his chest. According to Mr Swaid the situation between the applicant and Mr Chitty remained amicable up to the time of the assault and he heard Chitty say to the applicant: 'T love you, Steven. Let's get in the car and go home. I wouldn't hurt you. It doesn't matter what you do'. 9. The taxi driver was about to enter the cab when he observed Chitty strike the applicant on the back of his neck with his open hand. The applicant then fell and landed face down on the footpath striking without having made any attempt to cushion his fall with his arms. Chitty then kicked him three or four times in the area of the buttocks as he lay on the ground unconscious. 10. An ambulance and the police were called. At 9.30pm the applicant's blood alcohol reading was.3." (The material in square brackets has been inserted by me.) JUDGMENT OF TRUSS CCJ Truss CCJ rejected the worker's claims that the assault injury occurred during a recess or in the course of his employment. However, she accepted the alternative "journey" claim, reasoning as follows: (a) Since the worker was at the restaurant with the authority of his employer, he was at a "place of employment" until Spm. (b) When the worker left the restaurant at 8pm he was to travel to his place of abode by taxi. 4 UNREPORTED JUDGMENTS (c) By virtue of the worker remaining at the restaurant from Spm to 8pm, the restaurant changed from being a place of employment to a place of entertainment. (d) However, the worker did not abandon his contemplated journey home. Importantly in light of this appeal, her Honour said: "Although the purpose for which he was on the premises ceased at Spm the activities in which he was engaged after that time namely socialising and probably drinking were similar to those in which he was engaged prior to 5pm with the result the nature of his stay at the premises did not change. I have come to the view he had not abandoned his journey which had therefore not lost its character as a daily or periodic journey." (e) The "activities between Spm and 8pm constitute[d] an interruption of the contemplated journey home" and such interruption was for a reason unconnected with the member's employment or for the purposes of the journey. Accordingly, it was necessary to consider whether the risk of injury was materially increased by virtue of such interruption (cf s10(2)). On this the worker bore the onus of proof. (f) The worker's intention had always been to travel home by taxi. None of the normal risks inherent in this activity were materially increased by virtue of the worker embarking upon the journey at 8pm rather than 5pm. (g) The worker's excessive consumption of alcohol was not in itself "fault" within s10. This finding accepted that the worker was severely affected by alcohol and that his physical and mental capacities were significantly impaired. However, the worker had not provoked the assault, and the injury was the result of a sudden and unexpected blow to the back of the worker's head with an open hand. Citing Priestley JA in Medida Pty Ltd v Tobin (1995) 12 NSWCCR 576, her Honour stated that "fault" as defined in s10(6) connoted an element of deliberateness or recklessness in the act or omission causing the injury. She concluded: "Accordingly, as fault connotes an element of deliberateness, in my view drinking what on any view was an excessive amount of alcohol during the course of an afternoon, does not, of itself amount to 'fault'." [The correctness of this view of s10(b) was not debated before us.] (h) Her Honour then addressed s10(1B) which provides: "A personal injury received by a worker is to be taken to have been caused by the fault of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Traffic Act 1909), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily." This "deemed fault" argument was rejected by her Honour in the following terms: Ҥ5(2) of the Traffic Act makes it an offence to drive a vehicle, attempt to put a vehicle in motion or, or being the holder of a licence, to occupy a seat next to a learner driver, whilst under the influence of alcohol or any other drug. S4E makes it an offence to do any of these things whilst there is present in the person's blood the prescribed concentration of alcohol. Subs(1A) and subs(1B) were inserted by Act 214 of 1989. It emerges from the Second Reading Speech (21 November 1989) that these subsections were added following submissions to the WorkCover review which recommended the removal of the periodic journey coverage from the Act because it was considered inappropriate to penalise employers for accidents beyond their control and that the motor accidents scheme covered most relevant cases. URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Mason P) 5 In my view, by virtue of the insertion in subs(1B) of a reference to the Traffic Act, the subsection only applies to a worker who is driving or attempting to put a vehicle into motion and has no application to a matter such as this where the injury has no connection with the use of a motor vehicle." ISSUES IN THE APPEAL The respective contentions of the parties may be summarised: (1) The appellant submitted that the finding that the restaurant had ceased to be a place of employment at about Spm meant that there could not be a statutory journey "between the worker's place of abode and place of employment" (cf s10(3)(a)) which was capable of commencement (let alone interruption) at 8pm. (2) Alternatively, the appellant submitted that the worker failed to show that the risk of injury was not materially increased because of the interruption (cf s10(2)). (3) An additional ground of appeal raised on the day of the hearing challenged what I have summarised as step (h) in Truss CCJ's reasoning. The appellant submitted that s10(1B) is not confined to persons injured whilst driving motor vehicles, and that because the worker was severely under the influence of alcohol the injury was to be taken to have been caused by the worker's fault in the absence of evidence that the alcohol did not contribute in any way to the injury. HAD THE WORKER COMMENCED A PERIODIC JOURNEY AT THE TIME OF THE ASSAULT? To be compensable as a journey claim, the personal injury must have been received "on" a journey to which s10 applies. In light of the facts, this means that the worker had to show (the onus being on him: see Andruschthak v Tubemakers of Australia Ltd, Court of Appeal, unreported, 12 November 1987) that he had embarked upon "the daily or other periodic journey... between the worker's place of abode and place of employment". It is a question of degree and fact whether a particular journey fits this statutory description. What is clearly established is that leaving the workplace with the intention of ultimately arriving at the place of abode will not necessarily ensure that, regardless of what intervenes, every stage of the journey will be one between the place of employment and the place of abode. Some interruptions or diversions may create two separate journeys, neither of which fits the description in the Act: see Minchinton v Homfray (1994) 10 NSWCCR 778. Thus, it is not sufficient that a worker leaves home with the intention of visiting a friend for several hours and then goes to work (Purcell v Colonial Sugar Refining Co Ltd [1953] WCR 77) or that the worker leaves work with the intention of going off to transact some business which makes a considerable time and involves considerable divergence for the worker's ordinary route, and only then goes home (Young v Commissioner for Railways [1961] ALR 258). Similarly, a journey fell outside the protection of the Act when the worker was arrested at work, taken to the police station and charged, and then sent home. In O'Meagher v Scott Henderson Pty Ltd (Dignam J, 13 December 1956 unreported, (noted in Churchill v Commissioner for Railways [1967] WCR 110 at 112-117)) it was held that, in the first part of the journey the destination was not home, and in the second part it was not from the place of employment. In Young v Commissioner for Railways [1961] ALR 258, the court held that the worker was not on a journey within the meaning of the predecessor of s10, because when the worker left his place of work he was not on his way home but 6 UNREPORTED JUDGMENTS "was attending to some business". The worker was killed in a motor vehicle accident over 3 hours after leaving his place of employment. Young's case was distinguished in Babcock Australia Ltd v Proudfoot (1993) 9 NSWCCR 525. Cripps JA at 531 stated that: "T can see no support in Young's case for the proposition that a worker who leaves work intending to visit a hotel for a drink before going home is not on a journey to which s10 applies. In Young it was not the deceased's presence in the hotel which denied his widow her entitlement. As Dixon J pointed out, it was impossible to say when he left the factory that he was commencing a journey home." A journey once started does not cease to be a journey within s10 because a worker has made deviations or interruptions to it, as s10(2) makes plain. Whether the worker is on a single statutory journey (which may be deviated from, or interrupted) or on a series of non-statutory journeys is a question of fact in which the worker's intention to arrive home as an ultimate destination is not the sole determinant. This was established in Andruschthak v Tubemakers of Australia Ltd, Court of Appeal, unreported, 12 November 1987. There Clarke JA, with whose reasons Samuels and McHugh JJA agreed, adopted with approval the following dicta of Samuels JA in Pitt v George Ford Pty Ltd, Court of Appeal, unreported, 18 April 1980: "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 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. I am unable to perceive that any question of law is involved or that it is necessary in determining these questions to construe any statutory provision other than to take account of the ordinary understanding of what is involved in the notion of a journey between two places." See also The Leo McCarthy Memorial Smithfield RSL Sub-Branch Club Ltd v Bayliss (1996) 13 NSWCCR 295. These cases, and Cross v Design & Interiors [1975] WCR 20 which I shall discuss below, establish that it was open to her Honour to have found that the worker was not involved in a statutory journey at the time of the assault. But they certainly do not compel such result. Indeed the cases (Andruschthak in particular) emphasise that a question of fact is involved. The critical part of her Honour's reasoning is that described as step (d) in my analysis of the judgment. According to the appellant, this conclusion was not open to the judge, in the light of her earlier finding that the restaurant had ceased to be a place of employment at about Spm. That was the time at which the function organised by Skilled Engineering came to an official ending, with the state manager of Skilled Engineering farewelling the guests, telling them that the function was over, and settling the account. Thereafter, for the few who remained at the restaurant, drinks had to be paid for by those who consumed them. URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Mason P) 7 It was irrelevant, so the appellant contended, that the activities that continued for those who stayed (drinking and socialising) were the same as those that took place before Spm. The similarity of activities were not in themselves sufficient to stamp the place where they occurred as the worker's "place of employment". I agree. The evidence of what occurred at about 5pm, which led to the finding that the restaurant had then ceased to be a place of employment and become a place of entertainment, negated any possibility of inferring this in fact. The worker's intentions about the matter (whatever they may have been at that time on the fateful day) were not determinative: see Andruschthak. Ultimately counsel for the respondent accepted that he could not challenge the finding that the restaurant had ceased to be a place of employment at Spm. In any event, the submission does not do justice to the use made by Truss CCJ of this finding. It was used solely in the context of addressing the later issue of journey interruption. In my view, she was entitled to do so, so long as it was open to her to conclude as a matter of fact that a statutory journey was merely interrupted. The respondent worker sought in two ways to meet the finding that the restaurant had ceased to be a place of employment at 5pm. One followed the path adopted by Truss CCJ, the other took a different tack. In supporting the trial judge's reasoning, the worker invoked Cross v Design & Interiors [1975] WCR 20. There the employer had contracted to do renovations to the Brighton RSL Club, and the worker was working there on the day of a motor accident as he drove home. The employer had arranged with the club for its workers to be supplied free with "a few drinks" in the members' bar before they went home. McGrath J held (at 21) that: "in this particular case, so long as what the applicant was doing after working hours was within the broad arrangement of having a few beers in the members' bar before the workmen left, the club premises would still be the place of employment. It seems to me that, provided what the applicant was doing was within the scope of the contemplated arrangement between the contractor and the club about the refreshment of his workers from time to time in the course of the job, he would still be at his place of employment." His Honour clearly indicated that this was a decision on the particular facts of the case. He distinguished the situation of a worker who had stayed on after the "few drinks" arranged by the employer and saw the club floor show before setting off for home; and continued: "Whilst to some extent the place of employment has been defined and considered in various cases, so far as it is a factual matter, I do not think there is any kind of legal model, if you like, that one can impose upon the particular facts of a particular case. As I have already said in relation to the example of the person staying on for the floor show, it is quite clear that a particular place, which is in fact a place of employment, can cease to be such even though the geography and topography and everything else is still the same, when other factors enter into the presence, if you like, of the worker at that particular place." The decision confirms the proposition earlier discussed, namely that a place may alter in its legal character so that it ceases to be a "place of employment" by virtue of a change in activities involving the worker. This will preclude it from being a terminus of a statutory journey. McGrath J's approach to the factual issues confronting him discloses that the matter turned upon the scope of the arrangements made by the employer and the RSL Club. It was those arrangements, rather than the mere continuation of the worker at the premises, that defined where and for how long the Brighton RSL Club was a place of 8 UNREPORTED JUDGMENTS employment on the day in question. Applied to the instant case, it would require analysis of the scope of arrangements contemplated by Mr McKay when he authorised the worker to attend the function at the restaurant. Truss CCJ might have construed those arrangements as permitting the worker to linger at Barnaby's Restaurant after the official function, so long as he departed hence by taxi. (This in effect is the alternative route that this court was invited to take.) However her Honour did not approach the matter this way, and I do not here suggest that she erred in so doing. The finding that the restaurant ceased to be a place of employment at Spm _ stands unchallenged and_ effectively unchallengeable. (This also disposes of the suggestion, faintly advanced in argument by counsel for the respondent, that the court could infer or find that Mr Chitty authorised the worker to prolong his stay until 8pm.) If this were all that Cross stood for, it would be fatal to the worker's case. However, McGrath J also addressed the claim before him on an alternative ground. He considered the situation on the basis that the worker had stayed longer than contemplated by the employer in the arrangement with the RSL Club, with the consequence that he had set off from a place of entertainment as distinct from a place of employment. Again emphasising the particular facts of the instant case, his Honour held that there would in that event not have been an abandonment of the journey. The relevant passage (at 22) should be set out: "Tf I am wrong in that, it would be necessary to deal with the matter on the basis that his stay at the club was beyond about one hour and was a stay in a place of entertainment. Even if I came to that view, I would think that the facts of this case would induce me to regard this as a journey to his home from his place of employment via an institution similar to an hotel. If one then regarded the change in the premises to be that from the place of employment to a place of entertainment, the question then is whether or not the daily journey was abandoned. On the facts the only thing that happened, if he did change from one to the other, was that he did remain having a few more beers for another couple of hours. These sorts of facts to me are more or less within what a layman might think would be the after-work drinking hours of a drinking worker. I would not think myself it would be in the same category as a person, who at the end of the day decided to go away from the Opera House at 11 0'clock and thence home. I would think in those circumstances you would obviously infer that that was not a daily journey at all because the journey had been abandoned by going to this quite different sort of activity. If this man had stayed for or dinner and had gone to the show after dinner I think that one would say the journey was abandoned. I do not think that in the present case the journey was abandoned. I think it was a journey home via a place of refreshment with a few beers. That was clearly a break. Because of the length of time I think it was a substantial break, so that the question of whether or not the risk of injury was materially increased by reason of the break arises. (The language reflects s7(1)(b) of the 1926 Act, the predecessor of the current s10(2).) In my opinion, this is the process of reasoning which Truss CCJ adopted in what I have identified as step (d). I would therefore reject the appellant's submission that the finding that the restaurant had ceased to be a place of employment at about 5pm required the rejection of the worker's journey case. The approach taken by McGrath J in Cross has been described as "generous": see Mills, Workers Compensation in New South Wales, para [WCA 10.5]. The same may be said about the judgment below. But one is dealing with an Act that URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Mason P) 9 is to be construed with liberality: see Wilson v Wilson's The Works Pty Ltd (1960) 104 CLR 328 at 335. I see no error of law in this part of the judgment. It is therefore unnecessary to address the worker's alternative argument, which proceeded down an entirely different path. This sought to treat the place of employment as the Alexandria premises left at about noon, with the prolonged function at the restaurant and its sequelae as an "interruption" in the homeward journey. There was no finding to support this conclusion. As already indicated, this approach would need to analyse the scope of the arrangements originally authorised by the worker's superior Mr McKay. WAS THE RISK OF INJURY MATERIALLY INCREASED BECAUSE OF AN INTERRUPTION IN THE JOURNEY? The appellant's attack on this part of the judgment repeats its challenge to the finding of non-abandonment (which I have already addressed). Alternatively, the appellant approaches the matter on the basis that the relevant journey commenced when the worker left the restaurant at about 8pm. The effect of s10(2) is that an injury arising during or after deviation or interruption unconnected with employment or the purpose of the journey will not be an injury arising out of or in the course of employment, unless the worker discharges the onus of establishing that the risk of injury was not materially increased by the interruption or deviation: see Babcock at 535. S10(2) only applies if the injury was received "during or after' any interruption of, or deviation from, a journey to which the section applies. The finding in para(e) of my summary refers to the activities between Spm and 8pm as constituting an interruption to a contemplated journey home. This correctly infers that the journey had not yet commenced. Its physical termini were clear, namely the restaurant and the worker's home. What were its temporal termini? The appellant submits that the reality must be that the journey began when the worker left the restaurant at 8pm. I agree. This was the approach of Truss CCJ who refers at a later point in the judgment to the worker "embarking upon the journey at 8pm rather than 5pm". The appellant concedes that there is no evidence that the worker drank more alcohol after he left the restaurant at about 8pm and thus no evidence that he drank more alcohol after getting out of the taxi. However, the appellant relies upon the evidence of Professor Starmer which demonstrates that virtually anything the worker did by that time was likely to involve so little self-control as to be attended by increased risk of injury. This is said to be borne out by his behaviour in the street and by the occurrence of the injury itself. If one simply characterised the risk which came home as the risk of injury inherent in travelling by taxi there would be no challenge, in fact or law, with her Honour's conclusion that such risk was not materially increased by virtue of the worker embarking upon the journey at 8pm rather than Spm. However, I do not think that the problem can be avoided by such an exercise in characterisation. The journey which started when the worker left the restaurant at 8pm was interrupted when the taxi he had got into would not start. The issue thus presents itself as one of determining (in accordance with s10(2)) first, whether that interruption was made for a reason unconnected with the worker's employment or the purpose of the journey; and secondly, whether the worker proved that the risk of injury was not materially increased because of the interruption. 10 UNREPORTED JUDGMENTS The reason for the interruption Here, the interruption in the (taxi) journey was caused by the failure of the taxi to start. During that interruption of uncertain duration the worker and his companion got out of the taxi. While they were standing in the street waiting for jumper leads to be brought, the assault occurred. It is clear from the facts in para8 of the Truss CCJ's summary of the evidence that the worker and his companion were still intending to use the particular taxi for the journey home. In my view it cannot be said that the interruption was made for a reason unconnected with "the purpose of the journey" (cf s10(2)(b)). The purpose of the journey was to get home by the taxi that had been called to the restaurant. The taxi's inability to start was the very interruption. This was not for any work-related reason. But neither was it the act of the worker (cf Scobie v KD Welding Co Pty Ltd (1959) 103 CLR 314 at 326 per Fullagar J). It was irrelevant that the worker got out of the car while waiting for it to be started, because (so long as the worker intended reasonably to travel home by the taxi which had come for him) that intent meant that the interruption continued, without changing its character. It would be fair to say that the worker was assaulted while waiting for the taxi to start: it follows that the injury occurred during the interruption. Since the interruption was for a reason connected with the purpose of the journey, ie the attempt to get the car to start, the appellant has failed to establish that subs(2) applies to displace subs(1). Material increase in risk? In any event, the risk of injury was not materially increased because of the interruption. Assuming, as I do, that the interruption led the inebriated worker and his companion to get out of the taxi and wait on the street, it does not follow that the risk of injury was materially increased because of the taxi breakdown. This was what Truss CCJ found when she held that the worker's intention had always been to travel home by taxi; and that none of the normal risks inherent in this activity were materially increased by virtue of the worker embarking upon the journey at 8pm rather than 5pm. It must be remembered that s10(2), like its predecessor, is not concerned with asking whether the increase in risk of injury resulting from the interruption or deviation materially caused the injury that happened: NRMA Smash Repairs Pty Ltd v Hoy (1995) 11 NSWCCR 326 at 334-8, applying Scobie. What must be considered is whether, by reason of the interruption, the journey become a more hazardous one, and more hazardous to a material extent than it otherwise would have been: Ibid. This requires a comparison of the risks likely to arise had there been no interruption or deviation and the risk that did in fact arise (regardless of whether the injury was caused by those risks). From this it follows that one must strive to keep focus on the interruption or deviation established. If, contrary to my earlier view, the breakdown of the taxi caused an interruption unconnected with the purpose of the journey, the risk of injury was not materially increased because of that interruption. In itself, the interruption caused no more than delay. Mere delay did not materially increase the risk of injury even to an inebriated passenger like the respondent. In Scobie Dixon CJ said (at 322): "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." URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Mason P) 11 WAS THE WORKER DEEMED TO BE AT FAULT BECAUSE HE WAS DRUNK? Truss CCJ found as a fact that the worker's consumption of an excessive amount of alcohol was not in itself "fault" within s10. She also absolved the worker of any suggestion that he provoked the assault: see para(g) of the summary. I do not understand any challenge to these findings to be pressed in the appeal. Rather, the appellant argued that fault was deemed to be present because of s10(1B). The respondent disputed this, and countered with reliance upon subs(1C). In 1989, s10 was amended by the Workers Compensation (Amendment) Act 1989. Relevantly subs(1A), subs(1B) and subs(1C) were inserted. They provide: "(1A) Subs(1) does not apply if the personal injury was caused, partly or wholly, by the fault of the worker. (1B) A personal injury received by a worker is to be taken to have been caused by the fault of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Traffic Act 1909), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. (IC) If the risk of injury on a daily or other periodic journey to which this section applies, compared with the risk of injury on the worker's normal journey, is materially increased for a reason connected with the worker's employment (including the distance travelled, the time of day or night, the method of travel or the route of the journey), subs(1) is not excluded merely because the injury was caused by the fault of the worker. [Subs(1A) was materially altered, and subs(1C) repealed by the WorkCover Legislation Amendment Act 1996. However, s10 in its earlier form continues to apply in respect to injury received before the amendment.] The Explanatory Note relevantly stated that the objects of the Bill were: "to exclude a claim for workers compensation for injuries received by a worker on a journey between the worker's home and place of employment (and certain other journeys) if the injury was caused wholly or partly by the fault of the worker." The Minister for Industrial Relations said, in his second reading speech: "The bill provides that workers' compensation will not be claimable if a periodic journey injury was caused, wholly or partly, by the fault of the worker. Fault is defined to include failure by the worker to take reasonable care for his or her own safety, and other circumstances involving negligence. Specific provision is made regarding alcohol and drug consumption. If the worker was under the influence of alcohol or another drug at the time, the journey injury is taken to have been caused by the worker's fault, unless the alcohol or drug did not contribute to the injury. The onus will be on the claimant to prove that the injury was not due to his or her fault because of such factors." Parliamentary Debates (Hansard), Legislature Assembly 21 November 1989 p12927-p12928. The general onus of proving the matters contained in s10(1A) (ie that the injury was caused, partly or wholly, by the fault of the worker) rests upon the employer: WorkCover Authority (NSW) v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565. At trial the appellant sought inter alia to discharge this onus by reliance upon s10(1B) which establishes a particular presumption if the worker is under the influence of alcohol at the time when the injury is suffered. 12 UNREPORTED JUDGMENTS The scope of s10(1B) In my view it is clear from the language of s10(1B) that the subsection is intended to deem an injury to have been caused by the worker's fault in certain circumstances. In this way, s10(1B) expresses a conclusion (cf Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation (1992) 173 CLR 450 at 468), subject of course to s10(1C), and rebuttable if the concluding words of subs(1B) are established by the worker. But this does not avoid the hard task of determining the scope of sl0(1B), and that determination requires an understanding of its context and function. Truss CJ held that subs(1B) only applies to a worker who is driving or attempting to put a vehicle into motion: see para(h) of my summary. I respectfully disagree. In the first place, the subsection does not say this. Words must not be read into a statute unless the implication is very clear: see Western Australia v Commonwealth (1975) 134 CLR 201 at 251; Bermingham v Corrective Services Commission (1988) 15 NSWLR 292 at 299, 302. The textual and contextual bases for such implication is lacking in the present case. The worker's argument is not assisted by extracts from the Explanatory Notes or the Second Reading speech from which I have quoted. Secondly, the argument ignores the context and structure of the Traffic Act itself. S5(2) of that Act creates an offence expressed as follows: "Any person who while under the influence of alcohol or any other drug: (a) drives a vehicle; (b) occupies the driving seat of a vehicle and attempts to put such vehicle in motion; or (c) being the holder of a driver's licence, other than a provisional licence or a learner's licence issued (under the regulations) occupies the seat in or on a motor vehicle next to the holder of a learner's licence who is driving the motor vehicle..." The composite phrase "under the influence of alcohol or any other drug" in s5(2) is only one part of the offence: see Molloy v McDonald (1939) 56 WN(NSW) 159 at 160. Cf also sSAB of the Traffic Act as to means of proof of the presence of a particular concentration of a particular drug. Thirdly, the conclusion is at odds with the well-established approach to definitional clauses in statutes. Such clauses are no more than an aid to the construction of substantive provisions: see Randwick Corporation v Rutledge (1959) 102 CLR 54 at 69; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635. For these reasons, s10(1B) was available as a means of establishing fault in the present case. I note that this view is in accord with that stated in Marks & McLean, Workers' Compensation Law and Practice in NSW, 3" ed, 1992, plz. In my view Truss CCJ erred when she held, in the passage quoted in s(h) of my summary, that subs(1B) is only engaged when the worker is driving or attempting to put a motor vehicle in motion. To conclude that s10(1B) was capable of applying is not to say it did. The respondent worker contends that the alcohol did not contribute in any way to the injury (cf subs(1B)); and that, in any event, the risk of injury was materially increased for a reason connected with the worker's employment (cf subs(1C)). URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Mason P) 13 Did alcohol contribute in any way to the injury? Unfortunately, Truss CCJ did not address the first issue, having concluded that subs(1B) was incapable of application. The closest she got was to reject the submission by the appellant that the worker provoked the assault by reason of his intoxication. Other matters would also need to be addressed in the context of s10(1B), especially whether, if the worker had not been extremely intoxicated, he would have been able to control the direction of his fall and thereby avoid injury. Professor Starmer expressed the opinion that: "if Mr Griffiths had been less intoxicated, he might not have fallen and, if he had fallen, he would probably have had some control over the direction and nature of his fall and might not have been injured so severely. Mr Griffiths' information-processing capacity would have been significantly disrupted by his intoxication. This means that the time taken to register that he had been slapped and then to take the appropriate action to prevent a fall would have been greatly extended. Secondly, as indicated above, Mr Griffiths' ability to maintain his balance and coordination would also have been significantly reduced and it is likely that very little force would have been needed to topple Mr Griffiths. It is quite possible that Mr Griffiths never realised why he had fallen." The worker may have difficulty in persuading the trier of fact to reject this evidence, especially since he bears the onus of establishing that the alcohol "did not contribute in any way to the injury". But the absence of any finding requires the matter to be remitted, unless the second issue resolves this aspect of the case. Unfortunately it does not. Was the risk of injury materially increased for a reason connected with the worker's employment? On the second issue the respondent worker may be on firmer ground, but I am unable to resolve the matter on the present state of the evidence. The worker relies upon subs(1C) in answer to the argument that s10(1B) bars the claim because the worker was under the influence of alcohol when the injury was received. It is contended that the worker's "fault" is to be disregarded because the risk of injury, compared with the risk of injury in the worker's normal journey, was materially increased for a reason connected with the worker's employment. The consumption of excessive alcohol before embarking on a journey obviously materially increases the risk of injury on that journey. This is the case even if the journey is to be by taxi, because of the risk of falling while getting to and from the taxi. Truss CCJ recognised this in holding that "the potential risks of injury in so travelling home in this matter would include falling over before he got into the taxi or the taxi being involved in an accident", albeit that she was satisfied that none of these risks materially increased by virtue of the worker embarking upon the journey at 8pm rather than 5pm. It was irrelevant that these were not the risks that came home: Scobie. The worker was at a function related to his employer's business at which the consumption of alcohol was a known incident. Drinks were paid for (until Spm) by Skilled Engineering. The appellant (through Mr McKay) permitted the worker to attend in the interests of improving relations between the two companies. More importantly, he provided the worker with a cab-charge voucher to get home doubtless in the knowledge that this was the safest way to address the risks of likely intoxication. Although the worker was not required or even pressed to consume alcohol during the function, the case is clearly distinguishable from 14 UNREPORTED JUDGMENTS Gibbons v Merimbula RSL Club Ltd (1995) 12 NSWCCR 308, where the worker's employment provided no more than the occasion for his intoxication. (Mr Gibbons was a security officer who spent three hours drinking with a supervisor and two other club employees after the club could have been shut. The fact that the Club provided the venue and the alcohol did not, it was held, establish a sufficient connection with his employment to engage s10(1C).) In the present case it may be a reasonable inference that the worker was encouraged to drink, if he chose, in the interests of inter-firm conviviality even though that would render him sufficiently inebriated to make it appropriate that he should go home by taxi. Even though it would not have been contemplated that he would drink to the level of a 0.3 blood alcohol reading, the issue thrown up by the subsection, in the light of Scobie, is merely one of determining whether it was a work-related reason that materially increased the risks inherent in the journey, when compared with the worker's normal journey home. An additional difficulty lies in the recognition that intoxication induced by alcoholic consumption between 5pm and 8pm cannot be laid at the employer's door. It seems likely that some part of the worker's level of intoxication at 83pm would be due to alcohol consumed before 5pm, when the restaurant was still a "place of employment"; but in the absence of evidence directed at this, I am unwilling to draw this conclusion. Nevertheless, it was a Melbourne Cup function at which a third party (Skilled Engineering) had paid for all drinks over the four hour period up to 5pm. Truss CCJ held that the drinking activities engaged in after Spm were similar to those engaged in before that time. By this, I infer she was holding that the level of consumption of alcohol was at a fairly constant rate over the whole period when the worker was at the restaurant. In those circumstances, the question becomes whether it could be inferred that the worker's condition at 5pm was such that (even if he had drunk nothing but soft drink after that time) the risk of injury would still have been materially increased had he delayed his departure until 8pm. The two questions raised in this section of the judgment should be determined by the Compensation Court. DISPOSITION OF THE APPEAL As to costs, the appellant has been partly successful, and only on the ground raised on the day of the hearing of the appeal. Whether it will ultimately succeed in resisting an award depends upon the further hearing of the matter in the Compensation Court. In these circumstances I would order the respondent to pay one half of the appellant's costs in the Court of Appeal, and to have a Suitor's Fund Act certificate if qualified. The only order made consequential upon the judgment appealed from was an order standing the matter over for further hearing before Truss CCJ on a date to be fixed to determine the worker's entitlement to weekly payments and lump sums under s66 and s67. I therefore propose the following orders: 1. Appeal allowed in part. 2. Set aside the order of Truss CCJ which stood the matter over for further hearing to determine the worker's entitlement to weekly payments and lump sums under s66 and s67. 3. Remit the matter for further hearing on the issues of the application of s10(1A), s10(1B) and s10(1C) of the Workers' Compensation Act as they stood at the relevant time. URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Beazley JA and Grove AJA) 15 4. The respondent is to pay one half of the appellant's costs in the appeal, and to have a Suitor's Fund Act certificate if qualified. Beazley JA and Grove AJA We have had the advantage of reading in draft form the judgment of Mason P. We agree with the reasoning of the learned President except in respect of his Honour's determination that no error of law has been demonstrated in respect of her Honour's finding that the periodic journey in which the respondent sustained injury on 3 November 1992 commenced at 8pm rather than Spm. Mason P has recited the factual circumstances in which the respondent sustained injury on 3 November 1992 and the trial judge's reasons for accepting the journey claim. It is not necessary therefore for us to set those matters out again. It is convenient to first refer to the relevant provisions of s10. "10(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. 10(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 10(3) The journeys to which this section applies area as follows: (a) the daily or other periodic journeys between the worker's place of abode and place of employment, (b) the daily or other periodic journeys between the worker's place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer to attend, (c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation, (d) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in s74(3). (e) a journey between any camp or place: (i) where the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to reside temporarily, or (ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker 's employment, and the worker's place of abode when not so residing, (f) a journey between the worker's place of abode and the place of pick-up referred to in cll4 of Schedule 1, (g) a journey between the worker's place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages of other money: (i) due to the worker under the terms of his or her employment, and 16 UNREPORTED JUDGMENTS (ii) which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment." The trial judge found that Barnaby's restaurant was, on the occasion in question, a place of employment until Spm when the state manager of Skilled Engineering, the luncheon host, announced that the function was over. As Mason P has stated, that finding "stands unchallenged and [is] effectively unchallengeable". The logical consequence of this finding, as her Honour found, was that, from 5pm onwards, the restaurant became a place of entertainment. Her Honour then posed the question: "whether the [respondent] had abandoned his contemplated journey home" (emphasis added). Her Honour resolved that issue as follows: "Although the purpose for which he was on the premises ceased at Spm the activities in which he was engaged after that time namely socialising and probably drinking were similar to those in which he was engaged prior to 5pm with the result the nature of his stay at the premises did not change. I have come to the view he had not abandoned his journey which had therefore not lost its character as a daily or periodic journey. However, in my view his activities between 5 and 8pm constitute an interruption of the contemplated journey home and that such interruption was for a reason unconnected with his employment or the purposes of the journey." Counsel for the appellant submitted that her Honour erred in law in posing the question whether the respondent had abandoned his contemplated journey as that issue did not arise on her Honour's findings of fact. He submitted that once her Honour determined that the restaurant had ceased to be a place of employment, no question arose as to whether he was on a periodic journey, which, upon the express terms of s10(3) requires that there be a journey between two places - a place of employment and a place of abode. Similar questions arose for determination in Cross v Design & Interiors [1975] WCR 20. That case involved a claim by a worker for injuries received in a motor vehicle accident which occurred after the worker had left an RSL club at which he was working for the respondent/employer, who had been retained by the club to carry out certain renovation works. After finishing the building work for the day, the worker consumed a number of beers in the members' bar before going home. McGrath J found that the employer had an arrangement with the club that his employees could use the members' bar to have a few drinks at the end of each work day. The question in issue in the case was whether the journey had started from the worker's place of employment to a place of refreshment and thence home, or whether the journey from the place of employment started at the club. If the latter, no question would arise about substantial deviation or interruption to the journey. His Honour concluded that the worker, in staying on at the club to have a few drinks, even though he did so for a longer period than the employer might have expected, was not outside the arrangement which had been arrived at between the employer and the club. Accordingly, his Honour held that the worker's journey from his place of employment did not commence until the worker left the club. In the course of his judgment, McGrath J referred to the questions which would have arisen had he come to various different conclusions as to the commencement of the journey. In particular, he considered the position had he URJ ALCATEL AUSTRALIA LTD v GRIFFITHS (Beazley JA and Grove AJA) 17 found that the place of employment had become a place of entertainment by the time the worker left the club premises to journey home. He stated at 22: "The question then is whether or not the staying on in the particular circumstances should be regarded as evidence of an abandonment of the worker's contemplated journey home that day in favour of the utilization of the club in such a way that his journey in fact would really be a journey home from a place of entertainment rather than from a place of employment via a place of entertainment, like an hotel or something like that, to his home. On the evidence... [t]he conclusion I have come to is that on this particularly in fact he started his journey home from his place of employment the moment he left the club premises, in fact. Iam wrong in that, it would be necessary to deal with the matter on the basis that his stay at the club was beyond about one hour and was a stay in a place of entertainment. ...[T]he question then is whether or not the daily journey was abandoned. ... Ido not think that in the present case the journey was abandoned. I think it was a journey home via a place of refreshment with a few beers. That was clearly a break. Because of the length of time I think it was a substantial break, so that the question of whether or not the risk of injury was materially increased by reason of the break arises. Looking at it prospectively, I think the question to answer is firstly was he under the influence of alcohol? I do not have to answer that question for the purpose of determining whether the specific injury that occurred was because of that factor, but I think it is an important factor to determine prospectively as to whether or not the risks of injury were materially increased. In my opinion if he had been shown to be under the influence of alcohol I think prospectively at the commencement of the journey, it would go without saying that the risk of injury had been materially increased." Theses passages were, of course, obiter statements, his Honour having determined that the club was still a place of employment at the time the worker left the premises. However, we agree with his Honour's obiter remarks. They apply directly to this case. In this case, her Honour, having found that the restaurant had ceased to be a place of employment and had become a place of entertainment, found that the appellant did not abandon his periodic journey and that the activities between 5pm and 8pm constituted an interruption of the contemplated journey home "for a reason unconnected with the [respondent's] employment or for the purposes of the journey". The question which then arose, as her Honour correctly identified, was whether the risk of injury was materially increased by virtue of such interruption: s10(2). Having posed the correct legal question, her Honour commenced upon the determination of that question from an incorrect premise. She identified the commencement of the journey as 8pm rather than Spm. Her Honour's finding that the restaurant became a place of entertainment from Spm, meant that in a notional sense, the periodic journey commenced at Spm. Her Honour found there had been no abandonment of the respondent's journey from his place of employment, that finding being a question of fact and therefore not subject to appellate interference. Thus, the question which her Honour was thereby required to 18 UNREPORTED JUDGMENTS determine was whether the risk of injury was materially increased because of the interruption to the periodic journey, being the interruption constituted by the respondent's activities in the restaurant from Spm until the time of injury. Her Honour did not consider this question. Rather, having considered the application of s10(2) on the wrong factual premise, she then posed the wrong question for determination - namely whether the interruption to the taxi journey materially increased the risk of injury. Her Honours' failure to consider the question which arose for determination having regard to her findings of fact constituted an error of law. It follows that the appeal should be allowed on this ground also. Accordingly, we agree with Mason P that the matter should be remitted to the Compensation Court for determination of the factual issues under s10(1a), s10(1B) and s10(1C). It should also be remitted for determination of the question which arose under s10(2), namely whether the risk of injury was materially increased because of the interruption to the journey between Spm and 8pm when he left the restaurant and the further interruption shortly thereafter since the appellant has substantially succeeded, the usual order as to costs of the appeal should be made. We therefore propose the following orders: 1. Appeal allowed in part. 2. Set aside the order of Truss CCJ which stood the matter over for further hearing to determine the worker's entitlement to weekly payments and lump sums under s66 and s67. 3. Remit the matter for further hearing on the issues of the application of sl0(1A), s10(1B) and s10(1C) of the Workers' Compensation Act 1987 as they stood at the relevant time and on the further issue of the application of s10(2) on the basis that the interruption to the journey commenced at Spm. 4. The respondent is to bear the appellant's costs in the appeal, but is to have a certificate under the Suitor 's Fund Act 1951, if so qualified. 1. Appeal allowed in part. 2. Set aside order of Truss CCJ which stood the matter over for further hearing to determine the s66 and s67 entitlements. 3. Remit the matter for further hearing on the issues of the application of s10(1A)(1B) and s10(1C) of the Workers' Compensation Act 1987 as they stood at the relevant time and on the further issue of the application of s10(2) on the basis that the interruption to the journey commenced at Spm. 4. The respondent is to pay the appellant's costs in the appeal, and to have a Suitor's Fund Act certificate if qualified. Counsel for the appellant: L King & G Niven Solicitor for the appellant: Duffield & Duffield Counsel for the respondent: J Glissan QC & C Murtough Solicitor for the respondent: Williams Hussain Davidson