Reported Decision : (2002) 23 NSWCCR 303 Compensation Court of New South Wales CITATION : George v Mechanical Advantage Group Pty Ltd [2002] NSWCC 16 Joan Hamilton George as tutor for Neil George PARTIES : v Mechanical Advantage Group Pty Ltd MATTER NUMBER(S) : 41431 of 2001 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 12/03/02 EX TEMPORE JUDGMENT DATE : 03/13/2002 FOR APPLICANT: Mr B G McManamey instructed by Turner Freeman appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M F G Batten instructed by Goldrick Farrell Mullan appeared for the respondent. JUDGMENT: 1. Mr Neil George of Waterford in the State of Queensland by his next friend, his mother, Joan Hamilton George, claims weekly payments of compensation from 8 May 1999 to date and continuing for either total or partial incapacity. He also claims his expenses under s 60. 8 May was a Saturday. The evidence discloses that the applicant's injury occurred some time between 11.00 pm on 8 May 1999 and 1.00 am on Sunday, 9 May 1999. In any event each of those days was not a work day so weekly payments of compensation ought be claimed from Monday, 10 May 1999. 2. It is clear that the applicant sustained extremely serious injuries when he fell from the balcony of the Federal Hotel in Bellingen. The balcony was on the first floor of the hotel and the applicant landed in a laneway beside the hotel which laneway separated the hotel from adjoining shop premises. It is clear from the nature of the applicant's injuries that he landed on his head. The applicant, I infer, was probably comatose and was not found by his brother until later in the day well after sunrise. The applicant was transported by ambulance to the Coffs Harbour Hospital whence he was transferred to the Royal Prince Alfred Hospital. 3. The applicant had major surgery at the Royal Prince Alfred Hospital and on 10 June 1999 he was transferred to the Princess Alexandra Hospital here in Brisbane. The applicant was not discharged from the Princess Alexandra Hospital until 26 November 1999. A report from the Princess Alexandra Hospital laconically states that the applicant was discharged "to the care of his parents". It is clear therefore that the applicant spent six months in hospital. The injuries that the applicant sustained have been summarised thus: 1. Severe open head injury. CT scan of head showed fractured base of skull and fractured left greater wing of sphenoid, frontal haemorrhage contusions and left posterior lateral subdural haematoma. This was complicated by a CSF [cerebrospinal fluid] rhinorrhoea and on 19 May 1999 he had bilateral frontal craniotomies and supraorbital plating on the right. 2. Fractured right femur with an open reduction and internal fixation performed on 9 May 1999. He was allowed to fully weight bear on 17 June 1999. 3. Fractured right wrist with open reduction and internal fixation performed on 9 May 1999. 4. Fractured right ribs. 4. The applicant required tracheostomy which was still in situ when the applicant was transferred to the Princess Alexandra Hospital. It was found at that hospital that the tracheostomy tube site was colonised with a methycillin-resistent staphylococcus areus infection. According to Dr Bennett that required the applicant to be on life support for approximately 3 weeks. The tracheostomy tube was removed on 21 June 1999. The applicant was eventually transferred to the brain injury rehabilitation unit of the Princess Alexandra Hospital on 5 August 1999. 5. Whilst in the brain injury rehabilitation unit the applicant was wheelchair dependent for mobility and required an assistant to push him around. He needed two people to move him and required full nursing care as he was doubly incontinent. The applicant's progress in the brain injury rehabilitation unit was complicated by two grand-mal seizures for which the applicant was treated with Dilantin. It is clear now that the applicant suffers post traumatic epilepsy which needs to be treated with Dilantin. Getting the dosage of the Dilantin right has been a continuing problem since it was first prescribed and has caused numerous complications. 6. It was discovered in the Princess Alexandra Hospital that the applicant's visual acuity was poor in each eye and this was attributed to posterior visual pathway damage, no doubt the result of the organic brain injury which the applicant sustained. According to the letter from the Princess Alexandra Hospital, the applicant's problems on discharge were a chronic brain injury with persistent severe cognitive and memory deficits, impaired vision, confused language and problem with flexion of the right knee. 7. At the time of discharge, that is 26 November 1999, the applicant required supervision with transfers presumably from bed to wheelchair and the like but only required the assistance of one person for that but when he sought to stand he required the assistance of two carers. The applicant also required assistance with "self-care" which I infer refers to toileting and showering and eating. At the time of discharge there was only "occasional incontinence". 8. From time to time since discharge from that hospital the applicant attended the day hospital rehabilitation unit. On 28 March 2000 it was noted that there was still evidence of severe visual impairment and chronic organic brain syndrome with extremely poor short term and long term memory. However, by that time the applicant was able to mobilise himself, mainly indoors because outdoors his eyesight rendered him unsafe. At that stage he had been assessed as requiring nursing home respite care and day respite once a week. 9. The hospital report concludes thus: Because of Mr George's severe traumatic brain injury he will require ongoing supervision and care as he is not able to manage his own financial affairs, or his personal cares. He is also dependent for all aspects of community access. His mother is reported to have an enduring power of attorney. Mr George unfortunately remains permanently severely handicapped for the remainder of his life. He is permanently and totally unemployable. Further rehabilitation will be of limited value to him because of his poor memory, although he has achieved some worthwhile functional gains in a familiar domestic environment. 10. Of course the last sentence indicates that the applicant, through the constant care and attention of his father and mother, has gained some improvement. 11. Dr Geoffrey Bennett, a general practitioner, first took up the care of the applicant on 29 November 1999 on his discharge from hospital. A report from Dr Bennett makes it clear that the neurological deficit following organic brain damage has led to a loss of intellectual capacity, severe cognitive effects with disinhibition and aphasia and mild inappropriate content and thought disorder and problems recognising letters of the alphabet. He expressed the view that the applicant had been totally and permanently disabled from 9 May 1999 and he did not expect the applicant to work ever again. 12. Dr Bennett makes the point that in addition to other problems to which I have referred the applicant has impaired hearing which is of sensory neural origin and may be due to a traumatic deafness following the applicant's severe head injury. As at the middle of June 2001 the applicant was having right buttock bursitis due to an intra medullary nail used to repair the applicant's fractured right femur. He referred the applicant to an orthopaedic surgeon, rejoicing in the name of Gary Nielsen, who eventually removed the nail, alleviating somewhat the problem that the applicant was experiencing in his right lower limb. 13. The applicant has been reviewed on two occasions by Dr Peter Mann, a specialist physician. He examined the applicant on 21 December 1999 and 6 June 2001. Dr Mann said that on examination the applicant had quite severe cognitive defects with disinhibition, very slurred speech, unsteady gait, double vision, impaired hearing in the left ear and a spastic ataxia with bilateral extensor plantar responses. He believed the applicant was totally incapacitated for work and the prognosis was poor. 14. The applicant was seen, for medico-legal purposes, by Dr John Cameron, a consultant neurologist on 2 May 2000. In addition to other problems to which I have already referred Dr Cameron makes the point that the applicant's sense of smell was mildly impaired to test substances. It may well be that the applicant's loss of sense of smell is due to the organic brain damage which he has sustained. Dr Cameron thought the applicant was unemployable and expressed the view that he was "totally and permanently impaired". Nevertheless the applicant's life expectancy did not appear to have been reduced because of his head injury. 15. The extent of the applicant's problems are well set out on page 3 of Dr Cameron's report and also his findings on examination indicate the extent of the applicant's disability. Dr Cameron said this on his clinical examination: He could recite the days of the week forward very slowly but was unable to repeat them backwards. He could not calculate even the simplest money problems. He could recall sets of five and six numbers. Immediate and short term recall was moderately impaired on simple testing. 16. There is one other report from a medical practitioner before me and that report is from Dr John O'Sullivan, a consultant neurologist, who is a senior lecturer in medicine at the University of Queensland. Dr O'Sullivan saw the applicant on 22 February 2002. He points out, as do other practitioners, that the applicant has severe retrograde amnesia for some weeks prior to his accident, an anterograde amnesia for most of his hospital admission and moderate severe persisting short term memory loss. He made the point that the applicant was still occasionally incontinent of urine at night, a fact attested to by the applicant's brother who wept when telling me of that ongoing problem. 17. Dr O'Sullivan diagnosed a 73 per cent whole person impairment which, of course, is not relevant for the purposes of this case. However he went on to tell me that the applicant was totally impaired and is unemployable and would be dependent on others requiring some degree of supervision for the rest of his life. There is in evidence a report from a psychologist, Ms Wilkie, and which speaks of attempts to train the applicant to again read. She makes the point that the applicant's attention span is only 10 minutes and that the applicant's impaired memory and poor concentration would make reading comprehension very difficult for all but simple short texts. 18. She pointed out that the applicant has difficulty naming things and tended to make a wild guess at the name when shown a picture of something. She presented to the applicant pictures of an apple, an orange and a hen but the applicant was unable to name those things. She could not see any likelihood of the applicant ever returning to the workforce. 19. I have no hesitation in finding that the applicant has been since at least 9 May 1999 totally incapacitated. There is no claim for lump sum compensation currently before me but I would hazard the observation, on my reading of the medical evidence that is available, that the applicant would probably be entitled to the statutory maximum prescribed by s 66(2) for lump sum compensation namely $121,000. If a claim for lump sum compensation were before me I would have no hesitation in finding this to be a most extreme case of pain and suffering, anxiety and distress and award the applicant the maximum amount under s 67. 20. It should be noted that the applicant is aware of the problems that he has. Ms Wilkie in her report says this: He presented as a young man who is still experiencing some pain and discomfort. He was walking with difficulty, having been in a wheelchair for some time. He was very dependent on his parents. He was pleasant, cheerful and trying to concentrate. His mother reported that he was usually an easygoing, non-aggressive person but at times he is frustrated by his limitations and 'wonders what is going to happen to him'. 21. The applicant has been in receipt of a blind or disability pension and I infer it would have been backdated to the time of the applicant's injury. An award of weekly payments would benefit not the worker but the Commonwealth of Australia. However, an award under s 60 would, of course, greatly advantage the applicant and, as the applicant's father, Mr Robin George, made clear, a significant reason bringing the current claim is to see if some provision can be made for the applicant's ongoing care in the future, considering Mr Robin George's age and state of health and the need of Mrs Joan George to care not only for Mr Robin George but now also for the applicant. 22. The real contest in this case concerns the employer's liability to pay compensation. The applicant is by trade a fitter and turner. Prior to working for the respondent the applicant normally resided at 11 Arpege Crescent at Eight Mile Plains, a suburb of Brisbane a few kilometres south of the city. The applicant resided there with his brother, Mr Kenneth George, whom I shall merely refer to as Ken. Ken is also a fitter and turner. The evidence discloses that the applicant had been married in the past but had been divorced and he has no dependent children. 23. Ken commenced working for the respondent in January 1999. The respondent is a labour hire company here in Queensland. The respondent had agreed to provide workers to a body described as AGL Clough Lucas which was installing compressor stations on the natural gas pipeline between Moombah and Melbourne. There were two compressor stations to be built in New South Wales, one at Cobar and the other at Young. Ken was sent by the respondent to work at Young. Whilst residing in Young Ken was provided with accommodation in a motel at Young by his employer. At some time there became a need for additional fitters at Young to carry on the work on the compressor station. Ken suggested to the foreman the names of two fitters known to him, namely his brother, the applicant, and a Mr Craig Doran. 24. Shortly thereafter the applicant and Mr Craig Doran arrived at Young and commenced working for the respondent on the compressor station. The work was completed on the compressor station on 6 May 1999. That day was a Thursday. Ken told me in his evidence-in-chief that work was completed at 8.00 pm or 9.00 pm on the evening of 6 May 1999. However, he was cross-examined about a statement which he made on 1 September 1999, a time much closer to the events now in question. In that statement he said at two places that work finished at 5.30 pm on 6 May 1999 and I accept that work did finish at 5.30 pm on 6 May 1999. However it must be borne in mind that Ken and his brother usually started work at 6.30 am and to the best of Ken's recollection that was the time at which work started on 6 May 1999, in other words some 11 hours of work were performed on that day. 25. At the conclusion of work at Young the respondent had no further work available for Ken and the applicant. The employer provided to them a hire car to enable them to transport themselves back to Eight Mile Plains near Brisbane. The applicant and Ken were paid for Friday, 7 May 1999 as a day for travel. Ken and the applicant decided to make their journey to their home via Sydney and via Bellingen. The reason for travelling to Sydney was to visit their sister who lived at Kensington. She had recently returned from the United Kingdom where she had been for a year and the siblings obviously wanted to meet up. A reason for stopping at Bellingen was to catch up with some friends that Ken and the applicant had made when in the past they had worked together at Bellingen. 26. When Ken had first driven to Young he had taken with him another worker whom he picked up at Beaudesert. From Beaudesert Ken had taken what in New South Wales is known as the New England Highway to Tamworth and thence travelled to Gunnedah and thence to Wellington and I infer from Wellington down the Mitchell Highway to Molong, then along the road to Cowra via Canowindra and from Cowra down to Young. It appears clear that Ken had taken the route from Tamworth along the Oxley Highway to Coonabarabran and then down the Oxley Highway to Dubbo, thence the Mitchell Highway to Wellington. 27. In cross-examination Ken was asked whether he was aware of the route taken by the applicant to get to Young. As far as he was aware the applicant had gone to Young via the Pacific Highway to Sydney and the Hume Highway to Yass, then the road from Yass to Young via Boorowa. There was evidence called from a consulting traffic engineer, Mr Dick van den Dool about routes between Young and Brisbane. The point of Mr van den Dool's evidence was that the shortest, quickest and safest route between Young and Brisbane was from Young to Forbes via Grenfell, thence along the Newell Highway to Goondiwindi, thence the Cunningham Highway in Southern Queensland to Warwick, Ipswich and Brisbane. 28. He also proposed as another route the route from Young to Sydney via either the Midwestern Highway to Bathurst, thence the Great Western Highway to Sydney, thence the Pacific Highway to Hexham, thence the New England Highway to Warwick in Queensland and thence to Ipswich and Brisbane. Of the three routes discussed by Mr van den Dool that was the longest but was the second shortest in travel time and was less dangerous than the route via Sydney and the Pacific Highway. Unfortunately the evidence of Mr van den Dool was based on false premiss. He stated this in his report: The worker's compensation act clearly states that workers must use the shortest available travel route from their place of work to their place of residence. 29. That statement is demonstrably wrong. Mr van den Dool is a native, I infer, of the Netherlands and has his primary qualification from the Netherlands. He told me that he was advised that that was the law by his colleagues. That, of course, is not the law. Vetter v Lake Macquarie City Council (2001) 202 CLR 439 concerns the periodic journey between the place of employment and the place of abode but the dicta in that case are applicable to any journey described in s 10. The majority judgment was given by Gleeson CJ, Gummow and Callinan JJ. The majority said at paragraph [29]: The appellant's real destination was her own residence. She always intended to spend the night at her own residence. As Mahoney JA said in Minchinton v Homfray : The term 'journey' , used in the relevant sense, has an indeterminate meaning or meanings. In the Shorter Oxford English Dictionary, the relevant meanings are: 'a day's travel; the distance travelled in a day or a specified number of days… ; a spell of going or travelling, viewed as a distinct whole; an excursion or expedition to some distance; a round of travel…' Having regard to the statutory reference to 'interruption or duration', the relevant meaning for the present purposes is, I think:: 'a spell of going or travelling, viewed as a distinct whole.'" There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker's abode so long as the journey can be said to be a journey between the worker's place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase of risk during or after any deviation or interruption. 30. Kirby J makes a similar point in paragraph [85] of the report after discussing in paragraphs [83] and [84] the submissions put forward on behalf of the employer in Vetter's case. There is no legal requirement that the journey be the shortest one possible, the safest one possible or the quickest one possible. The Act merely requires that a relevant journey be between two termini and that the journey be of the nature described by the Act. 31. Here the route chosen by Ken and his brother to return to Brisbane was a perfectly reasonable route for anyone to take between Young and Brisbane. True, there are other routes available, two of which were discussed by Mr van den Dool in his report but, as the point was made in evidence, there are other possible routes such as travelling from Wellington to Gulgong, to Cassilis and then to Scone or travelling from Coonabarabran to Gunnedah to Tamworth or if on the New England Highway leaving that Highway at Tenterfield and taking the Bruxner Highway to Lismore, thence to Bangalow, to pick up the Pacific Highway at Bangalow. 32. The respondent submitted largely along the lines adopted by the employer in Vetter's case. The respondent submitted that the journey undertaken by the applicant and his brother Ken was from Young to Sydney and was not a journey from Young to Brisbane. Mr Batten also submitted that there was a second journey between Sydney and Bellingen rather than one journey between Sydney and Brisbane, broken at Bellingen. I reject those submissions. I accept that this was one journey between Young and Brisbane. 33. On Friday, 7 May the applicant and his brother left Young at approximately 9.00 am. They arrived in Sydney at 2.00 pm where they met their sister and the Coogee hotel where they took lunch. They then returned with their sister to her residence at Kensington and stayed there overnight. They left their sister's residence at 8.30 am on the morning of Saturday, 8 May to travel north. They left at 8.30 am in order to avoid any peak hour traffic in Sydney. They arrived at Bellingen between 3.30 pm and 4.00 pm. It was their intention to stay overnight at the Federal Hotel in Bellingen which they did. It was during their stay in the Federal Hotel in Bellingen that the applicant sustained his injury. 34. It was the intention of the brothers to resume their journey early the next morning in order to arrive in Brisbane for Mother's Day, no doubt with the intention of sharing luncheon with their mother. It is well-established that a journey can have more than one purpose. That proposition was discussed in Hook v Rolfe (1986) 7 NSWLR 40. Glass JA said at 44G: The existence of conduct inspired by multiple purposes is a common phenomenon. It raises the problem of classification in connection with a legal standard defined in terms of purpose. The solution normally adopted is to act upon the relevant purpose to disregard others and not to inquire which of them is dominant or earlier: Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 (withhold supply for the reason that); National Mutual Life Association of Australasia Limited v Federal Commissioner of Taxation (1970) 122 CLR 13 (land use for the purpose of producing assessable income). The same approach has been adopted in relation to the question whether conduct motivated by several purposes can fall within the course of employment (Humphrey Earl Ltd v Speechley (at 134).) "…There is a great difference between, on the one hand, the worker's taking advantage of an allowable interval for lunch in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants. Such questions must involve matters of degree, but it does not follow that their decision is always a question of fact open in point of law to a finding either way." Whiting v Brambles Industries Ltd [1976] WCR 213 at 220; "…The purposes for which a journey is undertaken may, of course, be multiple and subject to classification as dominant or subordinate. But what those purposes are, how they are to be ranked and whether they reflect the employment relationship are questions of fact and degree. Accordingly, a finding that the requisite purpose was present or absent will raise no question of law unless evidence to support it is wholly lacking." Applying these statements to the facts found I would conclude that it was open in point of law to the Commission to find that one of the applicant's purposes when travelling between Scone and Gulgong was to make a professional call next day on his employer's client and that the finding made that such a purpose was present in his mind was supported by evidence. In other words it was open on the evidence to find that, although the holiday purpose was earlier, the employment purpose was operative in locating him on the road to Gulgong on the Monday afternoon. Upon these primary findings the conclusion that the applicant was then in the course of his employment is not challengeable in point of law. 35. It has been noted that Hope JA specifically concurred in the reasons given by Glass JA and similar reasons are offered by Samuels JA (as he then was). 36. I accept that on the journey between Young and Brisbane there were several purposes in mind. However the dominant purpose and the real reason the trip was undertaken was to journey between Young and Brisbane. The facts in Hook v Rolfe are different to this case. There the primary reason, if I might use that expression, was to take a holiday. A work reason was added to it. Here the dominant reason, and really the only reason that the journey between Young and Brisbane was undertaken was to return from their place of employment and of temporary residence to their permanent place of abode at Eight Mile Plains. 37. The applicant and his brother could fulfil some secondary purposes by stopping in Sydney to visit their sister and by taking a break at Bellingen to catch up with some friends. The dominant purpose remained the journey between Young and Brisbane. As I have indicated earlier, the journey on Friday, 7 May ceased at 2.00 pm when the brothers caught up with their sister at Coogee. If they had not intended to catch up with their sister they could have continued their journey through or preferably around Sydney and reached the Newcastle freeway and proceeded further north than they did on 7 May, it being noted that they only motored for 5 hours on 7 May. One could expect them to motor for at least 8 hours for a day's journey. I accept that there was an interruption in the journey when the applicant and his brother stopped to visit their sister. 38. In cross-examination Ken agreed that the most direct route would not take him and the applicant through Sydney and the reason to go to Sydney was to see their sister. It appears to me that having chosen to travel from Young to Sydney via the Hume Highway that the proper journey would have been to leave the Hume Highway via the Cumberland Highway and to reach the Newcastle expressway via Pennant Hills Road. However, there was a slight deviation in continuing on the Hume Highway via the M5 to Beverly Hills, thence to Coogee. The deviation, of course, continued the next day when they found it necessary to take the Harbour Tunnel and the Pacific Highway through the North Shore to reach the Newcastle freeway. 39. However, the distances involved are minuscule in the grand scheme of things. The overall length of the journey has been estimated by Mr van den Dool to be 1,351 kilometres. I accept that there was an interruption in the journey in order to visit and stay with their sister overnight. The legal onus of proof then falls upon the worker to establish that the risk of injury was not increased by reason of that interruption and minor deviation. 40. This has caused me some anxiety. The applicant in case, if it is not abundantly clear to those who have read thus far, is incapable of giving any evidence. Ken gave the substantive evidence in the case and he is obviously not familiar with Sydney at all. The employer qualified a traffic engineer but he did not give, nor was any attempt made to adduce from him, any evidence as to any material increase of risk in doing what the brothers did on the afternoon of 7 May 1999. In other words, although the worker bears the legal onus of proof, in the special circumstances of this case it appears to me that the evidentiary onus has fallen upon the employer. 41. This brings to my mind another interesting question. At common law it was not the role of a judge to decide any question of fact. Indeed, prior to the first attempt to abolish civil juries the dicta in the English superior courts indicated that their Lordships considered it beneath their dignity to sully themselves with making findings of fact. However, once judges are given the power and the duty to decide questions of fact they can bring to the exercise of that function such knowledge as a jury might have, that is common sense knowledge. 42. This Court is also an expert tribunal. The state to which that expertise goes has never been delimited. It clearly goes to knowing, for example, what wage rates are applicable, what work is available, what is the state of the labour market and, on one view of it, some medical expertise. 43. It must be recalled that this Court and its predecessor, the Workers Compensation Commission of New South Wales which was also a court, has for 75 years travelled the highways and the byways of New South Wales in order to bring justice to the citizens of the State. It is also necessary from time to time to sit interstate such as this sitting here in Brisbane. In the seven and a half years that I have been on the Bench and completely ignoring my earlier career as a solicitor and barrister appearing before this Court, I have travelled extensively the highways and byways of this State and have lived in Sydney all my life. It appears to me as a tribunal of fact that there will be no material increase in risk in continuing from the Hume Highway, along the M5 to Beverly Hills and thence to Coogee on a Friday afternoon, arriving at Coogee at some 2.00 pm. 44. Nor would there be any increase in risk in leaving at 8.30 am and travelling along the Sydney Harbour Tunnel and then the expressway to catch up with the Pacific Highway at Chatswood and then along the Pacific Highway at Chatswood to connect with the Newcastle freeway. Indeed, as a Sydneysider, I hazard the observation that it appeared to be riskier to continue driving around Sydney via the Cumberland Highway to catch up with Newcastle freeway on a Friday afternoon when the roads of Sydney are notoriously clogged with traffic and indeed with heavy traffic. 45. I am persuaded that there was no material increase in risk by reason of slight deviation and interruption that the brothers took on the afternoon and night of 7 May 1999. On Saturday, 8 May 1999, the brothers commenced the journey to Brisbane. It is the reverse of that journey I must undertake as soon as I am able to rise this day. If one drove without rest and at the top speed permitted by traffic laws, one might be able to travel between Sydney and Brisbane or Brisbane and Sydney in 12 hours. It is not something that I am about to do. It is not something that anyone ought do. 46. In the evidence of Mr van den Dool there was discussion about the problems caused by driver fatigue. The motorists are encouraged by the road authorities these days to stop, revive and survive every two hours. Mr van den Dool said that such a rest should be a quarter of an hour to half an hour and, as well as, for example, taking coffee, involve some physical activity such as walking. 47. A journey of 12 hours which is broken every two hours will require five additional half hours increasing the extent of the journey to fourteen and a half hours. Fourteen and a half hours is an excessively long time to be on a journey. I accept that it was reasonable and a proper part of the journey between Sydney and Brisbane to break that journey and stay overnight, as I intend to do when I leave this place today. 48. It is common ground between the parties that no matter which route was taken between Young and Brisbane, an overnight stop was required. The journey undertaken by the applicant and his brother required an overnight stop. I have held that the stop in Sydney was an interruption in the journey and therefore that it was not part of the journey. Clearly there was another interruption when the brothers stopped overnight at Bellingen and as already stated, a reason for that stop was to catch up with friends that they had previously made in that town. However, I accept that another reason for breaking the journey at Bellingen was the necessity of staying overnight on a lengthy trip between Sydney and Brisbane. 49. It must be recalled that the applicant did not have a driver's licence. All the driving was done by Ken. On Saturday, 8 May, the brothers left Sydney at 8.30 am and arrived at Bellingen between 3.30 pm and 4.00 pm, a journey of some seven hours duration, which accords with my own experience of travelling the Pacific Highway on numerous circuits. Ken could not recall stopping for lunch and thought that they may have stopped to refuel the car. It appears to me that the brothers drove basically non-stop between Sydney and Bellingen. The fact that Ken did not have any lunch on that day can be evidenced by the fact that he told me in his evidence that his brother Neil, the applicant, had had a counter meal at the hotel about 6.00 pm, but he had eaten earlier than that time. Taking such an early evening meal indicates to me that it was unlikely that the brothers had taken a meal at lunchtime. 50. Seven hours straight driving is a very good reason to stop and break the journey and stay overnight. In other words, I accept that there were two reasons why the brothers stopped overnight at Bellingen. One was to catch up with friends, but another was for purpose of the journey they undertook between Sydney and Brisbane. It is well-established that "he also travels who waits". I discussed that proposition in Smith v Brown (1998) 16 NSWCCR 491 in paragraphs [127] to [129]. It can also be said that "he also travels who rests". 51. The remaining factual question to consider is whether the stay over at Bellingen constituted a deviation in the journey. This of course raises questions of degree. Bellingen is 11 km off the Pacific Highway. One leaves the Pacific Highway at Raleigh and travels west 11 km direct to the town of Bellingen with which this Court is entirely familiar having to sit there regularly when the Coffs Harbour courthouse is not available. 52. A total detour of 22 km in journey of 1,351 km is in my view of no moment. In the course of argument with counsel, I raised a number of propositions as to how far one would be justified in leaving a highway that is a direct route in order find accommodation without there any being any deviation in the journey. When one looks at the Pacific Highway, one can see for example that Port Macquarie is 10 km off the Pacific Highway, but would be a convenient place at which to rest on a journey along the Pacific Highway. Equally one can now see that the City of Taree has been bypassed, but learned counsel for the respondent accepted that it would no deviation to leave the highway in order to enter the City of Taree in order to seek accommodation overnight in that city. 53. Equally one could not reasonably expect a worker travelling a route such as Sydney to Brisbane via the Pacific Highway to only stop at premises immediately adjacent to the highway itself. Many travellers seek accommodation away from major roads in order to enjoy a quiet night. There are many resorts and locations along the general area of the Pacific Highway which are not immediately on it and require one to leave the highway and detour for some small distance. I am not persuaded that leaving the Pacific Highway to travel to Bellingen was a deviation in the route chosen by the brothers George on 8 May 1999. The distance from the highway is short. The road is known to the Court. True, it is a country road, however, there is a well-marked centre line. There are places to overtake. There is some hilly country traversed in one section, but most of the journey is along flat ground. The greatest hazard of course is when the Bellingen River is in flood and there is no evidence that there was any floor at Bellingen on 8 May 1999. 54. One must also take into account the personal circumstances of a worker. The High Court of Australia did so in Walker v Wilson (1991) 172 CLR 195. That case was an appeal from the Supreme Court of Western Australia where the court was called upon to interpret a provisions in the Workers Compensation and Assistance Act 1981 (WA) which is similar to the provisions of s 10(3)(e) of the Workers Compensation Act 1987 (NSW). Mr Walker was a young unmarried jockey who had been living with his parents in Perth. He agreed with a horse trainer to travel to a town approximately 1,500 km from Perth in order to ride for the trainer during the local racing season of about four months. Under the agreement, the jockey was entitled to a weekly payment and free board and lodging at the trainer's house. He drove from Perth to the town and worked at the trainer's stables and elsewhere staying with the trainer and his wife on the outskirts of the town approximately 2 km from the stables. On Sunday afternoon a few weeks after the racing season began, the trainer told the jockey that his services were no longer required and the best thing for him to do was to return to Perth. The jockey packed his belongings and stayed overnight with a friend because he needed to obtain payment of a debt owed by a third party before he could afford the expense of driving to Perth. On the Monday morning he contacted the debtor who agreed to pay the money but the funds did not become available until early on the Monday afternoon. After the moneys were paid to him, the jockey had minor repairs done to his car, filled it with petrol and left on the highway to Perth. Late on the evening of that day, 700 km south on the highway his car was involved in an accident in which he received injuries as a result of which he became a quadriplegic. 55. The West Australian Act it should be noted contained a provision which is not found in the New South Wales Act. The words "substantial interruption" were given a prima facie meaning of any interruption of the journey for a period of more than one hour. It was submitted that Mr Walker had engaged in substantial interruption. On that, Brennan J (as he then was) said at 200: Second, was the appellant's preparation for the journey, which occupied a day spent in Wickham collecting some money he was owed and having his car repaired and fuelled, a "substantial interruption" of his journey between the respondent's home in Wickham and his parents' home in Perth? If so, the injury which he "incurred. . . after [the] substantial interruption" is not compensable: s 19(1). A "substantial interruption" prima facie includes any interruption of the journey for a period of more than one hour: s 19(5)(c). In my opinion, substantiality is to be assessed by reference to the circumstances of each case which include not only the terms and conditions of the worker's employment but also the exigencies of the journey and the personal circumstances of the worker. The time spent by the appellant in preparation for the approximately 1,500 km journey to Perth, immediately after his peremptory dismissal, was not so much an interruption as time necessarily spent in the undertaking of the journey. If that time is to be treated as an interruption at all, it cannot be described as substantial when regard is had to the magnitude of the journey then to be undertaken. 56. A joint judgment was given by Deane, Dawson, Toohey and McHugh JJ and their Honours said at 208: The third further question is whether the appellant's delay in setting out from Wickham to Perth disentitled him to relief pursuant to s 19(1)(a)(iii). Again, in our view, that question must be answered favourably to the appellant. No doubt there could be circumstances in which delay of a dismissed employee in setting out on a journey which otherwise satisfied the requirements of s 19(1)(a)(iii) would take the case out of the operation of that subparagraph. It is unnecessary to determine whether, in such a case, delay should be seen as breaking the nexus between the journey and the previous employment to an extent that the journey could no longer be seen as coming within sub-par (iii) or whether the delay constitutes a "substantial interruption of", or "substantial deviation from", the journey within the meaning of those words in s 19(1). It suffices to say that no such delay had occurred in the present case where what was involved was a journey of approximately 1,500 km which had taken the appellant some nineteen hours to complete when travelling in the opposite direction. In a context where the need to take the journey had arisen unexpectedly upon the respondent's peremptory termination of the appellant's employment, the delay of a day involved in obtaining the necessary funds and having necessary repairs effected to his vehicle could not properly be seen either as divorcing the journey from the employment or as constituting "a substantial interruption" or "substantial deviation" for the purposes of the concluding words of s 19(1). True it is that s 19(5) provides that "any interruption of the journey" for more than one hour "prima facie" constitutes a "substantial interruption". As the inclusion of the phrase "prima facie" makes clear, however, what constitutes a "substantial interruption" must be determined by reference to all the relevant circumstances in the context of sub-par (iii), a preliminary delay which involved no more than what was reasonably necessary for adequate preparation for the particular journey cannot properly be seen as constituting a "substantial interruption" or "substantial deviation" even if it be assumed that such a preliminary delay is an "interruption" to which the presumption embodied in s 19(5)(c) is applicable. 57. Here the minor detour, and I used that word advisedly rather than the technical "deviation" via Bellingen, was to catch up with friends, and no doubt to visit a place they had visited in the past and no doubt to take accommodation in a place with which they were familiar. There is no evidence comparing in this case, for example, the cost of staying at Bellingen, vis-a-vis the cost of staying at some resort at Coffs Harbour, but one would expect that two relatively young men sharing a room in an old hotel which did not have any en suite facilities was much less costly than staying in one of the resorts at nearby Coffs Harbour which is approximately half way between Sydney and Brisbane. 58. Furthermore, if the detour be seen to be a deviation, that detour is also a part of the journey proposed by the brothers ab initio. That is, it was always their intention to stay at the Federal Hotel at Bellingen. It was very close to the highway and was a convenient place in which to stop on the route between Sydney and Brisbane. 59. S 10(3) sets out the journeys to which s 10 applies. Par (e) of subs (3) is in the following terms: (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 reasonable 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; 60. Here the applicant was required by the terms of his employment to reside temporarily in Young. He resided there in accommodation provided to him and paid for his employer. The worker's place of abode when not living in that accommodation at Young was at Eight Mile Plains in the State of Queensland. The applicant was injured whilst resting overnight on a journey between the two termini referred to in par (e). 61. S 10(2) provides: Subsection (1) does not apply if - (a) the journey 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. 62. I have found that the journey was interrupted when the applicant and his brother visited their sister in Sydney and stayed overnight with her. However, I am satisfied on the balance of probabilities that the risk of injury was materially increased by reason of that interruption. There might be thought to be an interruption or deviation in the journey by the overnight stay in Bellingen, but I find that the purpose of that interruption or deviation was for the purpose of the journey, namely the taking of a necessary overnight stop on the long trip between Sydney and Brisbane. 63. I should discuss the circumstances in which the applicant sustained his injury. After arriving at the Federal Hotel in Bellingen, the applicant and Ken started taking alcoholic refreshment at some time between 4.00 pm and 4.30 pm. The applicant was drinking XXXX Gold which the evidence tells me is a medium strength beer. Ken also admitted that the applicant was later seen to be drinking what he assumed to be bourbon and coke. Ken, who had to drive the next morning, went to bed at 9.30 pm. His brother stayed up. Sometime between 11.00 pm that evening and 1.00 am the next morning, Ken's slumber was broken when his brother entered their room, turned on the light and made a noise. Ken did not tell me what he said to his brother when that occurred but one can readily imagine what it may have been. 64. Ken told me that his brother came into the room and placed on his bed a six pack of beer. He then opened the French doors onto the verandah and Ken assumed that the applicant had gone out onto the verandah to take a cigarette. It appears that the applicant was then a cigarette smoker. According to Ken, the applicant closed the French doors on the verandah as it was a cold night. Ken then went back to sleep. 65. When he awoke the next morning, his brother was not in the room. His brother's bed had not been slept in and the six pack of beer remained on his brother's bed unopened. He rapidly dressed and went looking for his brother; he was unable to find him in the hotel premises and then got his car and drove round the streets of Bellingen to try and find his brother and to see whether he may have gone to stay with one of their friends. 66. On the way back to the hotel, Ken noticed something in the laneway between the hotel and the adjoining shop premises. Having parked his car, he went to investigate what it was and found it to be his brother who had obviously broken his leg and had massive head injuries. Ken described his brother as being "a complete mess". Ken found his brother below the balcony which immediately adjoined the room in which he had slept that night. 67. The reason why the applicant fell is not known. One can speculate, obviously. However, there is no suggestion for example of any other person being involved. There was no suggestion that there had been some altercation and that the applicant was pushed over the balcony. There is no allegation of wilfully self-inflicted injury or the like. The evidence does disclose that the railing on the verandah is low. Ken initially told me that it was about knee height, but in cross-examination said that it was just below groin height. Ken is 5 feet 10 inches, his brother, the applicant, is 6 feet 2 inches. I accept the railing was low but somehow the applicant went over it landing on his head. There was no light on the balcony so it would have been difficult for the applicant to see the railing and perhaps the end of the verandah. 68. For some reason or other, the applicant went over the balcony. It may be that he sat on the balcony and overbalanced, he may have leaned over the balcony and for some reason overbalanced. It may be for example that he was smoking and lost his cigarette, reached out for it, overbalanced and fell. One can speculate, but there is no hard evidence as to how it happened. Clearly, the applicant had been drinking alcohol. However, there is no evidence that the applicant was drunk. When Ken left the applicant at 9.30 pm, Ken did not form the view that the applicant was drunk, nor did he form that view when he was woken up in his room by the applicant later in the evening. 69. There was no direct evidence called, but there is hearsay upon hearsay evidence admitted without objection. In the report of Dr Mann of 12 July 2001, which is Exhibit B, admitted without any objection, the following statement is recorded: He had had alcohol that night, but according to his mother, the proprietor said he was not drunk. 70. I assume that by "the proprietor" the publican of the hotel was meant. Clearly that is hearsay upon hearsay, but since it is in evidence without objection, it becomes pursuant to s 60 of the Evidence Act 1995 evidence of the fact. However, one can speculate that having been up since 8.30 am and it now being probably around closing time at the hotel, which I assume is midnight, although there is no evidence on the point, and the applicant having been taking alcohol since 4.00 pm or 4.30 pm, that he would at least have been tired even if not slightly affected by alcohol. 71. I make those findings because the alternative bases on which the case has been presented. If I be wrong in my finding that the purpose of the break at Bellingen was for the purpose of the journey, then it appears to me that the applicant has failed to discharge the onus of proof which is upon him of showing that there had been material increase in risk because of interruption or deviation. In other words, if the stop at the Bellingen Hotel is an interruption or deviation not for the purpose of the journey, the applicant would fail. Clearly, taking alcohol and being tired and staying at a hotel which had poor lighting on the verandah and a low verandah railing, all indicate increase of risk and the worker bears the legal onus of disproving increase of risk. 72. Another basis on which the case was presented to me is that the journey arose in the course of the employment and that the employment was a substantial contributing factor to the applicant's injury. I reject those submissions put to me by Mr McManamey on behalf of the worker. They are quite inconsistent with the law as I expounded it in Cotswold Australia Ltd v Pickwell (Compensation Court, No. 47868/98/1, Neilson J, 18 May 2001, unreported). True it is that an appeal was allowed from my decision in that case by the Court of Appeal, but the appeal was allowed on the basis that I erred in finding that there was no evidence available to draw the inference that the worker had crossed the boundary of his own premises after making a journey, which was not a journey within the meaning of the Act. 73. Their Honours in the Court of Appeal did not suggest that my statement of the law in this regard was inaccurate or erroneous. To hold that this journey was in the course of the employment would mean that any journey to and from work was in the course of the employment and the authorities make it quite clear that the opposite is the case. 74. I have inquired of the solicitors representing the parties this morning whether any further reasons for judgment are requirement. Unfortunately, the gentleman appearing before me today is only an agent, the counsel and solicitor for each party having returned to Sydney yesterday so I am without the assistance of counsel. If by some chance I have overlooked any issue, I invite the parties to apply to me under s 17(4) of the Compensation Court Act 1984 for reconsideration which I shall certainly entertain. 75. It is agreed that the applicant's current weekly wage rate is $805.10 per week. It is agreed that the applicant's average weekly earnings exceeded at all material times the statutory maximum mandated by s 35. For these reasons I make an award for the applicant for $805.10 per week from 10 May 1999 to 7 November 1999 pursuant to s 36 and for $277.10 per week as indexed from 8 November 1999 to date and continuing pursuant to s 37. 76. I order the applicant to pay the applicant's hospital and medical expenses pursuant to s 60. 77. I order the respondent to pay the applicant's costs. 78. I should add that whilst recovering documents on the Bench I found the decision to which I have referred by Mr Batten, Young v Commissioner for Railways (1960) 34 WCR 71 and in particular the decision in the High Court of Australia thereon at 84. It was submitted by Mr Batten that this case was similar to that in Young's case and he relied in particular on the dictum of Dixon C J at 86: It is, of course, plainly true that ultimately on that day he intended to reach home. That intention was no doubt present with him when he left to go to the works in the morning; it was probably an intention which he entertained day after day. But it does not follow that he was on the journey between the factory, the place of employment, and his abode. He obviously had some other destination which doubtless was intermediate, but was a destination to which he was going to transact business. The time is long. It is not a short time. It is true that you can calculate that to get to the hotel must have occupied him some time, and you can deduct, if you feel so disposed, some 20 to 25 minutes as accounting for the journey towards the hotel from wherever he was, but it still leaves a considerable interval of time to be accounted for in which he was occupied at the place to which he had proceeded, and it seems to me not right or in accordance with any probability of fact to treat that interval of time as a mere interruption of a journey which he commenced to go home. He commenced the journey to transact whatever business it was. 79. However, the claim in Young's case was unsuccessful because there was a lack of evidence as to what the worker in that case did before he met his death. That was pointed out by Kirby J in Vetter's case in paragraphs [81] and [82] at pages 468 to 469. 80. I add those reasons because Young's case is one of the few referred to me by learned counsel for the respondent. 81. At the time of correcting the first transcription of my oral reasons for judgment, I add the following additional reasons. On my journey towards Sydney on the afternoon of 13 March 2002, I recollected that a defence of failing to make a claim within six months of leaving the respondent's employ had been pleaded and evidence was adduced on that issue in the applicant's case. Ultimately, Mr Batten, for the respondent, made no submission on this pleaded defence, and very properly so, in my view. 82. The applicant has at all times since his injury been incapable of making any claim, because of his medical condition. His affairs are in the hands of his carers. Mr Robin George, because of his concerns for his son's long term care, considered making a claim for worker's compensation. Because the applicant had been recruited whilst living in Queensland, Mr Robin George thought that the applicant might have a claim under the Queensland legislation. He made such a claim on 12 August 1999 but it was rejected. An administrative review was unsuccessful (March 2000) and Mr Robin George was advised that he would have to "appeal" to a magistrate. When reviewing the paperwork available to him, the applicant's father noted that the applicant was being paid from the respondent's Newcastle office and wondered whether his son had a claim under the law of New South Wales. He then made a claim on 7 April 2000 under the New South Wales Act. That claim was refused, and led to the current litigation. 83. The delay between the applicant's injury and the making of the claim under the New South Wales Act was approximately eleven months. That delay can be and ought be excused on the grounds of the applicant's incapacity and Mr Robin George's ignorance of his son's legal rights. Mr Robin George knew nothing of the workers compensation laws of Victoria (where he had worked in the past) or of Queensland where he worked after leaving Victoria in 1979 and now lives, let alone of New South Wales where he has never worked or lived. He was, for example, completely unaware of the notorious fact that benefits under the New South Wales legislation were (at least until 1 January 2002) greater than those under the law of Queensland. Mr B G McManamey instructed by Turner Freeman appeared for the applicant. Mr M F G Batten instructed by Goldrick Farrell Mullan appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.