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. Facts As his Honour observed, because of the nature and quality of the evidence, some of the facts could not be determined and there remained unanswered questions. Nevertheless, many of the facts are clear and common ground. The respondent was accidentally shot in the chest by a fellow employee, a Mr van Heekeren, on 5 October 1986, at the Belrose Bowling Club. This tragic accident resulted in a complete transaction of the respondent's spinal cord at level T9. Christopher Neale was then 16 years of age and working for the appellant, which was a security company. He worked in its control room and in the installation of security alarms. At the time of the injury he was living with his grandmother at Queenscliff. He attended his place of work in uniform and Mrs James, his supervisor, offered to work his night shift since Neale appeared very 2 UNREPORTED JUDGMENTS tired. It was company policy that employees would be given a lift home by other employees if someone was available to do so, especially if it was late at night. As a result of the offer made by Mrs James to work the respondent's shift, Neale accepted a lift home with van Heekeren, who was a security officer. In the course of his employment, van Heekeren was armed with a revolver. They left their place of employment together at around 1am with van Heekeren driving. On the way to Queenscliff van Heekeren decided to turn off and drive to the Belrose Bowling Club to check the premises and leave his card. At about 1.30am they reached the club car park and van Heekeren got out. After he did this, the respondent also got out of the car and went around the outside of the club building where, he was accidentally shot by van Heekeren. His Honour was unable to make a finding concerning the actual circumstances of the shooting. The appellant's case was that it occurred when the respondent was playing a trick on van Heekeren, secreting himself somewhere in the vicinity of the club building and then jumping out at van Heekeren. Mr Neale denied this but the judge found that he had no credit and his evidence was not to be accepted unless corroborated. Before Geraghty CCJ there were a number of issues posed. One of the primary issues was whether the worker was on a journey between his place of employment and his place of abode. This issue was found in favour of the worker and is not challenged in the appeal. The other principal issue arose out of s7(1)(b)(i) of the Act. Was the injury received during a substantial interruption or deviation from the periodic journey, made for a reason unconnected with the employment of the worker? In examining this issue it is important to note the way in which senior counsel for the appellant put the case to his Honour in the Compensation Court. Mr Littlemore submitted that the "staging of an elaborate practical joke was a reason...incontestably unconnected with his employment." This practical joke, it was submitted, amounted to a substantial deviation in the journey (Black Appeal book at 173). His Honour dealt with the submission in the following fashion. Although he found that he had a strong suspicion that Neale was intending to and in fact attempted to play a trick on van Heekeren, this should not be elevated to an inference (AB 50). On the evidence before Geraghty CCJ this conclusion was open to him. Mr van Heekeren did not give evidence in the Compensation Court. Subject to the ground of appeal relating to the admission of the testimony he gave at his criminal trial, the only material before his Honour was that which two police officers stated in their evidence at the trial, that van Heekeren had told them when he was interviewed. This, in itself, was equivocal. Further, since van Heekeren did not give evidence in the Compensation Court, it was not able to be tested by cross-examination. In any event, it was not evidence of the truth of what was said, and in my view carried little weight. In giving reasons for judgment, his Honour was clearly very conscious of the way in which the appellant put its case. He said: "While there is no doubt Neale was injured during a deviation from his journey to his place of abode, the respondent submits only that the deviation was unconnected with his employment because his intention was to stage an elaborate practical joke" [AB 51] While there was a deviation in the journey home, by reason of van Heekeren choosing to go via the Belrose Bowling Club, it does not appear that his Honour found that this constituted a substantial one, although he did not expressly say so. Nevertheless, he did find that it was a deviation not unconnected with the worker's employment. He stated: URJ R & D SECURITY PTY LTD v NEALE (Stein JA) 3 "Whatever might have been the secret intentions of Neale, the deviation was without doubt connected with the employment of van Heekeren, and because he was driving Neale to his 'place of abode" (whatever might have been the intention of Neale to play a trick on van Heekeren in the course of the journey), and since Neale had attended his employer's premises in uniform and since he was rostered to work, and since he was being driven home by a fellow employee pursuant to what the respondent submitted was "an occasional and flexible practice" (Tr of submissions p1) the deviation was not unconnected with the worker's employment."[AB 51-52] Again, these were findings which were available on the evidence. As observed by Mr Barry QC, on behalf of the respondent, the test of the proposition in s7(1)(b) "unconnected with the worker's employment" is not the same as "arising out of or in the course of employment". The former is, for obvious reasons broader, since it is a periodic journey provision. The submission of Mr Hall QC, on behalf of the appellant, is that there was only one finding open on the evidence. This was that the respondent left the motor vehicle to play a practical joke on van Heekeren and in so doing, substantially interrupted his journey. Moreover, that interruption was for a reason unconnected with his employment. I cannot agree. As I have said, the relevant findings of his Honour were open on the evidence. In addition, they were findings of fact demonstrating no error of law. Before turning to the "evidence" point, I should advert to the question raised by the appellant of the applicability of the proviso to s7(1)(b) of the Act, viz, whether, assuming findings against the worker, he nonetheless was entitled to compensation on the basis that the risk of injury was not materially increased by reason of the substantial deviation. Geraghty CCJ did not deal with this issue. On his findings, he did not need to do so. Nor, in my view, do we. Admissibility of evidence of van Heekeren It is submitted that the trial judge erred in refusing to admit the evidence given by van Heekeren at his criminal trial. He did so on the basis of the failure to give notice under the Evidence Act 1995 (AB 40S). In so doing, his Honour said: "Brett van Heekeren's evidence might have been of great assistance in determining some of the issues, but there seemed to me to be immense potential prejudice to the applicant in admitting his sworn evidence without an opportunity to test it in cross-examination. In any event, I was not requested to exercise any discretion which might have been available to me, so his version of events remained untold." [AB 41] Three arguments are advanced by the appellant. First, because the whole of the evidence at the trial had been tendered earlier before a Commissioner, its tender before Geraghty CCJ could not be limited and must include van Heekeren's testimony. If this be the case, it was before his Honour, who erred in not taking it into account. Secondly, his Honour erred in refusing to admit the transcript of van Heekeren's evidence at his trial on the basis of the common law exception rendering evidence of a witness in previous proceedings admissible in later proceedings on the same issue. Thirdly, the evidence of van Heekeren should have been admitted pursuant to s63 and s67 of the Evidence Act. 4 UNREPORTED JUDGMENTS As to the first argument, it is apparent that Counsel for the worker tendered various parts of the evidence in the District Court trial of van Heekeren. The pages of the transcript tendered were specifically identified at Black Appeal book 161. No objection was made to the tender. The whole of the transcript of the trial had been tendered before Commissioner Ashford as Exhibit "A". Counsel for the appellant had earlier sought to tender the whole of this exhibit, including the evidence of van Heekeren. The tender was rejected for reasons given at AB 159 160. It is the submission of Mr Hall that the tender of the transcript before the Commissioner, which included the District Court trial, could not be so limited. It must include and incorporate the whole of the record of the proceedings, so it is argued. For my part, I can see no impediment to tendering the transcript, of a limited part of the proceedings. The tender was clearly so limited and was not objected to. If there was suggested to be some unfairness in the tender, no doubt this could have been the subject of objection. Principles of incorporation of evidence are beside the point. It was plainly not the whole record which was tendered. As to the second submission, it is clear that evidence in prior proceedings between the same parties (or their privies) may be given in evidence at a subsequent trial provided the issues are substantially the same. This principle is subject to the witness, who gave the evidence, being incapable of being called and the party against whom the evidence is tendered having had the opportunity of cross-examining the witness when the evidence was given. See, for example, Pallante v Stadiums Pty Ltd (No2) [1976] VR 363. It seems to me that none of these prerequisites are satisfied here. The proceedings were not between the same parties. The trial was between the Crown and van Heekeren. The compensation proceedings were between the worker and his employer. The issues on which the evidence was offered at the criminal trial were quite different to the issues arising under s7(1)(b) of the Act. It is unclear why van Heekeren was not called in the Compensation Court. An affidavit of attempted service of a subpoena upon him to attend Court was withdrawn from tender (AB 161). In addition, the worker had no opportunity to cross examine van Heekeren at the criminal trial. He (the worker) was a mere witness at the trial. The common law exception has not been made out. Lastly, it is submitted that the material was admissible under s63 of the Evidence Act, notwithstanding the failure to give notice pursuant to s67 thereof. The discretion in s67(4) permits the admission of such evidence notwithstanding that notice has not been given. It is argued that the merits and interests of justice weighed heavily in favour of its admission. The problem facing Mr Hall in this submission, apart from the difficulties in challenging the exercise of a discretion, is that the point was never taken below. Indeed, Geraghty CCJ specifically noted that he had not been requested to exercise his discretion to admit the evidence notwithstanding the absence of notice (AB 41 U). As a result, I would dismiss the appeal with costs. (1) Appeal dismissed with costs. Counsel for the appellant: P Hall QC/ P Barber Solicitors for the appellant: Hunt & Hunt Counsel for the respondent: C Barry QC/ J Davidson URJ R & D SECURITY PTY LTD v NEALE (Stein JA) Solicitors for the respondent: McClellands