R AND D SECURITY PTY LTD v NEALE [1998] NSWCA 179

R & D SECURITY PTY LTD v NEALE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and STEIN JJA 7 May 1998, 25 May 1998

[1998] NSWCA 179

Workers Compensation Act, 1926, journey case — exercise by trial judge of discretion on finding of fact.

Facts

The respondent worker was injured when shot accidently by a fellow worker in the course of his journey home from work. The appellant argued below, and on appeal, that the facts supported an inference of a substantial deviation or interruption to the journey from work to the respondent's place of abode. The appellant argued on appeal that his Honour erred in failing to find that the respondent's injuries were incurred on a substantial deviation from his journey home and the deviation was made for a reason unconnected with his employment.

Held

By Stein JA, Mason P, Sheller JA agreeing: The relevant findings of his Honour were open on the evidence, and are findings of fact demonstrating no error of law.

Mason P I agree with Stein JA. Sheller JA I agree with Stein JA.

Stein JA This is an appeal from a decision of Geraghty CCJ given in the Compensation Court on 23 June 1997. The appeal is confined to errors of law and the admissibility of evidence. It was a journey case under the Workers' Compensation Act, 1926 ("the Act'). His Honour made an award in favour of the respondent worker. As seems almost customary the appellant sought leave to file an amended notice of appeal at the hearing. This included a detailed ground NolA said "to clarify ground 1" and a new ground (No8) maintaining an error in the rejection of certain evidence. Leave to amend was granted over the opposition of the respondent but subject to protecting his position. Recently, in Email Ltd v Stedman (unreported, Court of Appeal, 29 April 1998), I made remarks critical of the frequency of late amendments to notices of appeal. Those comments apply equally to this case.