Cunningham v Tobin, Bolt and Rawlings t/as Stingray Cafe [2001] NSWCC 90

Reported Decision : (2001) 21 NSWCCR 524

Compensation Court of New South Wales

CITATION : Cunningham v Tobin, Bolt and Rawlings t/as Stingray Cafe [2001] NSWCC 90 Scott Cunningham PARTIES : v Glen Tobin, Michael Bolt and Kay Rawlings t/as Stingray Cafe MATTER NUMBER(S) : 4397 of 1999 JUDGMENT OF: Neilson J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 31/07/00, 02/04/01, 03/04/01 EX TEMPORE JUDGMENT DATE : 04/03/2001

FOR APPLICANT: Mr J D Cummins QC with Mr R Hanlon instructed by Kells The Laywers appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr C R Hoeben SC and Mr G Parker instructed by Moray & Agnew appeared for the respondent.

JUDGMENT: 1. Mr Scott Bernard Cunningham of Bellambi claims weekly payments of compensation from 15 December 1998 to date and continuing and also his expenses under s 60. It is common ground between the parties that the applicant has been, at all material times, totally incapacitated for work. 2. The applicant sustained very serious injuries in a motor vehicle accident on the morning of 15 December 1998. He sustained a significant head injury including organic brain damage. 3. The effects of this motor vehicle accident upon Mr Cunningham have been catastrophic. The case is really presented not for me to determine any question about quantum of compensation to which Mr Cunningham might be entitled but rather to ascertain the respondent's liability to pay compensation to Mr Cunningham. 4. Mr Cunningham was born on 7 September 1979. At the date of the accident with which I am concerned he was 19 years of age. He is currently 21 years of age. At the time of the accident Mr Cunningham was a second year apprentice chef. It would appear that prior to commencing work for the respondent the applicant was employed by the Corrimal Leagues Club, presumably as a first year apprentice chef. 5. For about two and a half years prior to September 1998 the respondents had operated the Metro Cafe in the Central Business District of Wollongong. Significantly that cafe is approximately 150 metres from the Illawarra Hotel which is in Keira Street, Wollongong. In September 1998 the respondents opened a second cafe called the Stingray Cafe which is in Bourke Street, North Wollongong. 6. It would appear that when that cafe opened the applicant commenced working for the respondent. 7. On Monday 14 December 1998 the respondent organised a Christmas party. The Stingray Cafe was closed on Mondays but the Metro Cafe was not. However, on this occasion the Metro Cafe opened for lunch on that Monday but was closed for dinner in order to enable staff to attend at the Christmas party. The Christmas party was organised by the respondents with the input of the staff of the two restaurants. It became clear from the oral evidence of Mr Bolt, one of the respondents given yesterday, that the original proposal was to have the Christmas party at the Illawarra Hotel in Keira Street as that was the favoured watering hole of the staff of the Metro Cafe. However, a suggestion was made that there be a picnic in a park where games could be played prior to going to the Illawarra Hotel. That was considered by Mr Bolt to be a good idea and hence arrangements were made for the party to commence in Stuart Park at North Wollongong. 8. I accept that the original plan of the employer was that the party commence at Stuart Park and that it continue at the Illawarra Hotel in Keira Street. 9. The party was to commence at 4.30 pm. I accept that the applicant arrived at approximately 5 pm at Stuart Park. It is common ground amongst all the witnesses that the party was to start at 4.30 pm. Mr Wallace did not think the applicant arrived "late" but Mr Ayrton believed that he did and Mr Bolt, one of the respondents said that he arrived late at about 5 pm and, as he arrived, the applicant was pulling up in his motor vehicle. 10. Having listened closely to all the witnesses it appears to me that the recollections of Mr Bolt about the evening in question are to be preferred, if there be any conflict, to those of Mr Wallace and Mr Ayrton. For example it is common ground that the respondent provided a chicken dinner for the staff which was to commence at 6 pm at Stuart Park. Mr Bolt arranged for that meal to be catered for by persons other than the respondents or their staff. He said that beer and wine was provided and had a distinct recollection that Carlton Cold beer and Melbourne Bitter beer were provided and also white wine and a few glasses of red wine. 11. The alcohol appears to have been conveyed from the Stingray Cafe which is very close to Stuart Park, in fish tubs filled with ice. Mr Bolt's recollection of what alcohol was provided is confirmed to a large extent by Mr Ayrton and, being the person who both arranged for it to be provided and who paid for it, I believe that Mr Bolt would have a better recollection of what was involved. 12. For example, it is suggested by Mr Wallace that champagne was provided but there is no evidence of that. He also suggested that Tooheys Old beer was provided but there is no evidence other than from Mr Wallace to that effect. However, it is clear that Mr Wallace's preferred beverage is, in fact, Tooheys Old. There was also a suggestion from Mr Ayrton that the respondent may have provided spirits but I am not persuaded that spirits were provided by the respondent. 13. The plan as I have said was to hold games such as a form of football and boules at Stuart Park, to eat the chicken dinner there, to have speeches and a presentation of Christmas gifts and thence to proceed to the Illawarra Hotel where both pool tables and a dance floor were available to members of the party. 14. The evidence suggests that there were 20 people at the Christmas party and the inference I draw is that those people were the employees of the respondents and the respondents themselves. There is a conflict between Mr Wallace and Mr Bolt as to the attendance of non employed spouses and friends of staff and I prefer, in that regard, the evidence of Mr Bolt who appeared to have a much better recollection of the evening than did Mr Wallace. 15. All but one member of the staff of the cafes attended. The lady who did not attend had a pre-existing family function to attend. 16. According to Mr Bolt all but two of those who attended at Stuart Park proceeded on to the next venue. One of those persons, clearly, was Mr Wallace's wife who was pregnant. 17. On the morning of 14 December 1998 there had been a heavy downpour of rain in Wollongong, and, indeed, rain threatened the party at Stuart Park. It appears that after the formalities of the speech making and presentation were over at Stuart Park the party adjourned to the Beach Bistro in the Novotel Hotel which was very close by. In fact that hotel would appear to be mid way between Stuart Park and the Stingray Cafe. 18. The reason for the adjournment of the proceedings to the Beach Bistro was to escape the inclement weather. The party had been huddling in a shelter shed at Stuart Park during a shower of rain. 19. There is a dispute as to how much time was spent at the Beach Bistro. Mr Wallace said it was approximately an hour or so, however Mr Bolt thought it was a mere half hour. I accept Mr Bolt's evidence that it was a relatively short period of approximately an half hour. 20. The party then proceeded to the Illawarra Hotel. It is clear that the employer provided food and beverages at Stuart Park and those beverages were both alcoholic and soft drinks. 21. Mr Bolt's recollection is that when he went to the Beach Bistro he put $50 on the bar in order to enable the staff at the restaurant to buy a drink. It was a form of the employers' "shout." 22. Mr Bolt has no direct recollection of doing the same when the party arrived at the Illawarra Hotel but he believes he would have done that because it is his normal practice. There is corroboration for Mr Bolt doing that in the oral evidence of Mr Wallace given on 31 July 2000 at page 7 of the transcript. 23. I accept that Mr Bolt did put $50 on the bar both at the Beach Bistro and later at the Illawarra Hotel as a form of "shout" for his employees. It is common ground that the employees of the respondent were not paid to attend this function, however they were expected to attend. 24. In his record of interview, Exhibit F, Mr Bolt was asked this question and gave the following answer: Q 40. Were the staff required to be at the function? A. They were expected to be there, if they didn't turn up they would not have been sacked but we expected them to be there. We had only been open 10 weeks and this was a reward to the staff. 25. In his oral evidence Mr Bolt made it clear that if a member of the staff did not attend without some good excuse he would look askance upon such conduct. The party was seen as a reward offered by the employer to the employees to thank them for the very hard work they had performed in the 10 weeks since the Stingray Cafe had been opened. 26. It is clear that some staff in the Metro Cafe worked in the Stingray Cafe and it may have been the other way around as well. It appears clear that the opening of the Stingray Cafe threw work not only on the new employees of the respondent such as the applicant but also upon the long term employees of Metro Cafe. Furthermore Mr Bolt in his oral evidence made it clear that one of the purposes of the Christmas party was to improve staff morale, thereby building the team that worked in the cafes, increasing their ability to work together and their ability to achieve the employers' desired results. 27. In other words there was direct benefit to the employer from the members of the staff attending at the Christmas party and there was little doubt that the staff members were expected to attend at the Christmas party. 28. In those circumstances I have no hesitation in finding that whilst the applicant was attending the Christmas party organised by the respondent that he was in the course of his employment with the respondent. 29. If one needs authority pointing in that direction one need only consider the decisions of my colleague Judge Armitage in Powell v Intercapital Brokers (1998) 16 NSWCCR 259 and Llewellyn v Casino Municipal Council (1995) 11 NSWCCR 221. 30. A formal submission was made by Mr Hoeben SC, for the respondents, that such ought not be the finding, or, if such be the finding, that it should be limited to the attendance at Stuart Park which appears to have concluded at approximately 7.00 to 7.15 pm on the evening of 14 December 1998. However, bearing in mind the evidence of Mr Bolt and bearing in mind the original plan, that the whole proceedings be held at the Illawarra Hotel I am persuaded on the balance of probabilities that the formal Christmas party organised by the respondent was to continue at the Illawarra Hotel. 31. One of the problems in a case such of this nature, where alcohol was being consumed and everyone was having a good time, is that people's recollection of events is not particularly trustworthy because most of them were affected by alcohol. 32. Mr Wallace admitted he was affected by liquor but was of the view the applicant himself was not as affected by liquor as he was. Mr Ayrton frankly conceded in his record of interview, Exhibit E, that he was "pretty drunk." 33. Mr Bolt also admitted to having ingested a fair amount of alcohol but he believed that he retained a fair amount of judgment. There is evidence that the applicant consumed alcohol at Stuart Park and at the Beach Bistro. The evidence would only suggest that the applicant had one or two bottles of Melbourne Bitter at Stuart Park and then one, perhaps two, "Stollies" at the Beach Bistro. 34. However the blood alcohol reading taken from the applicant after the accident with which I am dealing suggests that he probably ingested a much larger amount of alcohol. It is clear that none of the witnesses were keeping count of what the applicant himself was drinking. The evidence suggests that the applicant, whilst at the Illawarra Hotel, was both playing pool and dancing. 35. Mr Bolt left the Illawarra Hotel at approximately 12.45 am on the morning of 15 December 1998. When he left he says that approximately 50 per cent of the people who attended the party were still there. That would indicate that approximately 10 people from the Christmas party were still present in the hotel. It is clear from Mr Bolt that the applicant was still present at the hotel when he left. 36. Mr Ayrton said in answer to question 68 of his record of interview that he may have left the hotel at about 1.30 am but at question 75 he thought he may have left between 1 am and 1.15 am although the latter times are recorded as being "pm". 37. A report has been tendered, without objection, from Professor Starmer which sets out some observations of witnesses who have not been called to give evidence. The history recorded by Professor Starmer from statements that have not made their way into evidence is some evidence of the facts therein referred to by reason of the Evidence Act, 1995. 38. In addition to statements from Mr Bolt and Mr Ayrton Professor Starmer had available to him a statement of Glenn Tobin, one of the respondents and of Anita Webb. On page 2 of this report Professor Starmer records this: Anita Webb was also an apprentice chef at the Stingray Cafe. Both she and Mr Ayrton recall that Mr Cunningham had consumed a stubby [375 ml] of Melbourne Bitter Beer at Stuart Park. Ms Webb also recalled that Mr Cunningham had consumed two Stollies (lemon ruskies) at the Beach Hut [scil. Bistro]. She did not see him drinking anything at the Illawarra Hotel and said he had been on the dance floor all night (which was confirmed by Mr Ayrton and Glenn Tobin, one of the partners of the Stingray Cafe.) When she left (between 1.00 and 1.30 am), Ms Webb thought that Mr Cunningham appeared to be "in a bit of a trance." She had noticed on previous occasions that he had been affected by a couple of drinks and stated that he had been laughing or giggling on the night of the Christmas party. 39. It would appear that that applicant as one of the last persons to leave the Illawarra Hotel and it was sometime shortly after 1.30 am on the morning of 15 December 1998. 40. The applicant had driven himself to Stuart Park in what would appear to be his father's motor car. The evidence suggests that the whole party took taxi cabs from the Beach Bistro at the Novotel Hotel, besides which there is taxi rank, to the Illawarra Hotel. 41. The evidence does not enable me to say whether the applicant went by cab to the Illawarra Hotel leaving his car parked at Stuart Park, or whether he did not take a cab to the Illawarra Hotel but collected his vehicle from Stuart Park and drove it to somewhere close to the Illawarra Hotel in Keira Street. 42. Accordingly two possible scenarios arise as to how the applicant left the Illawarra Hotel. The first scenario is that, having parked his car nearby, he then proceeded on his way home. The other scenario is that he either walked or caught a lift back to Stuart Park and then proceeded to drive home. 43. There is no other scenario other than a slight possibility that the applicant hired a taxi cab to take him from the Illawarra Hotel back to his car at Stuart Park. In any event not much turns on that because it is common ground that the applicant was on a direct route from the Illawarra Hotel to his place of abode at the time he was involved in the motor vehicle accident. 44. Furthermore one need only look at the map, Exhibit A, to see that even if the applicant had left his car at Stuart Park and returned there from the Illawarra Hotel he was still on a direct route home from Stuart Park at the time he was involved in the motor vehicle accident. 45. According to the record of interview made by Senior Constable Warren Dyer, the motor vehicle collision occurred at 2.02 am on 15 December 1998. Senior Constable Dyer attended the scene at 3.10 am. He was then a member of the South Eastern Region Crash investigation unit based at the Corrimal Police Station. Clearly the constable has ascertained the time of the collision from some other person. However he did say that the collision occurred approximately at 2 am. 46. The applicant's vehicle, which was being driven north along Squires Way left the carriageway and collided with a telegraph pole on the western side of the carriageway about 100 metres south of the intersection of Squires Way and Elliots Road. The site of the accident can be gleaned from looking at Exhibit A, a copy of the street directory. According to statements made by Senior Constable Dyer the roadway was of bitumen and was in good condition. It was straight and level and there was one lane in either direction divided by double centre line markings. The lighting was good. When he attended at the scene the weather was fine and the road was dry. Whether the road was dry at approximately 2 am I do not know, although it appears unlikely that if there had been heavy rain or the like at 2 am the road surface would have completely dried out by 3.10 am. 47. Senior Constable Dyer's record of interview provides, by way of hearsay, but without objection that there was no mechanical fault to which the accident could be attributed. According to Senior Constable Dyer the headlights of the applicant's vehicle were not burning at the time of the collision. He was asked how that was established and he said there was no burning of the filaments which suggests they had not been on at the time of the impact of the car and the telegraph pole. 48. However, since the lighting was good, nothing appears to turn on that. 49. Question and answer 62 of Senior Constable Dyer's record of interview is this: Q.62 I note that mention is made in the Police Report that he fell asleep at the time of the collision. How did you establish this? A. It appeared as if the vehicle had crossed the centre lines to the wrong side of the road and at a distance of 25-30 metres from the telegraph pole, tyre marks began on re-entry to the northbound lane which suggested he had fallen asleep and had awoken at the time they crossed back to the northbound lane. The tyre mark at that point was a yaw or acceleration mark and this continued for a distance of 10 metres towards the pole. There was then a gap without tyre marks to where the pole was situated. 50. Initially Mr Cummins QC was minded to object to that question and answer but then withdrew the objection. I leave to one side the Senior Constable's opinion but merely looking at the physical evidence which he describes the conclusion is almost inevitable, in my view, that the applicant crossed on to the wrong side of the carriageway, suddenly realised that he was on the wrong side of the carriageway, accelerated quickly to get back on to the carriageway but then lost concentration and enabled the car to leave the carriageway and collide with the telegraph pole. 51. What condition would cause such erratic behaviour? The answer which immediately springs to mind is fatigue and it is therefore likely that the applicant did temporarily nod off to sleep, awake, find himself on the incorrect side of the carriageway, quickly return his vehicle to the correct side of the carriageway but then fall asleep again and collide with the telegraph pole. 52. Professor Starmer had available to him records of the Wollongong Hospital. Those have not been put before me but they are summarised for relevant purposes in Professor Starmer's report. It appears that the applicant sustained massive internal head and body injuries and was trapped in his vehicle for a period of time. 53. The records at the Wollongong Hospital indicate triage at 2.56 am on the morning of 15 December. The applicant was in a coma. A blood sample was taken from the applicant at 2.50 am. That has been analysed and a certificate issued pursuant to the provisions of s 4G(9) of the Motor Traffic Act. 54. The concentration of alcohol present in the sample of the applicant's blood determined by the analysis was not less than 0.129 grams of alcohol per 100 millilitres of blood. Professor Starmer, using that information, has been able to ascertain that the applicant's most likely blood alcohol concentration at the time of the crash would have been between 0.138 grams per 100 millilitres and 0.143 grams per 100 millilitres. This is a mid range blood alcohol reading. 55. Three relevant paragraphs of Professor Starmer's report are these: Alcohol exerts its major effects on structures of the brain which are responsible for balance and co-ordination. Alcohol reduced peripheral awareness as well as impairing speed and distance judgments. The ability to successfully divide attention between two or more inputs is significantly degraded with blood alcohol concentrations as low as 0.05 grams per 100 millilitres and increases exponentially with a rising blood alcohol concentration. Glare resistance is also reduced under alcohol and perspective is distorted. It is generally accepted that driving ability of all individuals is immeasurably impaired at blood alcohol concentrations of 0.100 grams per 100 millilitres and above. The effects of alcohol on an individual depend on some extent on his experience with the drug. Mr Cunningham was 19 years old at the time of the incident. I do not know his habitual alcohol intake at the time in question and, if possible, he should be carefully questioned about this at the Hearing. It is unlikely that, at the age of 19, he would have developed the sort of high tolerance to alcohol more commonly encountered in older, alcohol-dependent persons. Many of the manifestations of fatigue and alcohol intoxication are surprisingly similar, especially in ways in which they impair driver performance and in the types of traffic crashes with which they are associated. The interactions of alcohol and fatigue on driver performance are often more than additive. Police consider that alcohol and fatigue were causal factors in this crash and they also nominated speed as a factor. 56. There is no evidence before me which would enable me to find that the applicant was driving at an excessive speed. The extent of the damage to the applicant's motor vehicle and his person as described by Senior Constable Dyer might indicate that but no expert evidence was called in that regard. 57. It is important to bear in mind the comments of Professor Starmer about the synergistic effects of alcohol and fatigue. The inference I draw from the physical evidence described by Senior Constable Dyer is that it is likely that the applicant nodded off to sleep due to fatigue and that fatigue would have been heightened by the applicant's large blood alcohol reading which was affecting his brain and his ability to properly manage and control a motor vehicle. 58. It is important to note that as far as Professor Starmer was aware, and he was not cross-examined, that the driving ability of all individuals is measurably impaired at blood alcohol readings of more than 0.100 and, of course here the applicant's alcohol concentration at the time of the accident would have been at least 0.138. 59. Furthermore the suggestion that the applicant was somehow habituated to alcohol and, therefore, less likely to be affected by it is not borne out by the evidence. The applicant has been described as being 5 foot 10 and weighing 70 kilograms. He is a slight person. 60. The opinion Ms Webb, recorded by Professor Starmer, would indicate that the applicant did not have much tolerance to alcohol and, for example, Mr Wallace thought it unusual for the applicant to be seen taking alcohol. All of that would indicate a position quite the contrary to that of an habituated alcohol imbiber. 61. I accept as I said that the immediate cause of the applicant's accident was fatigue and I accept that there was a synergy between fatigue and alcohol intake such is common human experience. As one drinks more one can become more and more tired. 62. I have no hesitation in finding on the evidence of Professor Starmer, unchallenged, that the applicant's consumption of alcohol, evidenced by his blood alcohol reading, played a part in the collision in which he was so grievously injured. 63. The applicant's argument is this. By reason of the ratio decidendi of Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, the applicant should be seen to have been in the course of his employment at the time of the motor vehicle accident. In those circumstances s 10 of the Workers Compensation Act, 1987, is not applicable to the case. S 14 of the Workers Compensation Act would be applicable if I were to find that driving with a mid range prescribed concentration of alcohol amounted to serious and wilful misconduct, but that would not defeat the applicant's claim because he has suffered serious and permanent disablement. That the applicant suffered serious and permanent disablement, I have no doubt. 64. The respondent submits that even were I to accept, as I do, that the applicant's being present in the Illawarra Hotel was in the course of his employment, that the journey from the Illawarra Hotel to his place of abode was not in the course of his employment but rather governed by s 10 and that under s 10(1B) the applicant could not recover any compensation. 65. S 10(1B) is in the following terms: A personal injury received by a worker is taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act, 1999, unless the alcohol or other drug did not contribute in any way to the injury or is not consumed or taken voluntarily. 66. Of course the Road Transport (Safety and Traffic Management) Act 1999 was not in force at the time of this motor vehicle accident but there was equivalent legislation in force to which s 10(1B) then made reference. 67. Under s 10(1A) compensation is denied for injuries on a prescribed journey if the injury "is attributable to the serious and wilful misconduct of the worker." 68. S 10(1A) is a disqualification and (1B) deems having a prescribed concentration of alcohol in the blood to be serious and wilful misconduct, "unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily." 69. The applicant's case is not to escape somehow the implications of s 10(1B) in the event that I find he was on a periodic journey between his place of employment and place of abode but rather to merely state that s 10 is not applicable in this case because the applicant was in the course of his employment. 70. There are a number of circumstances in which a worker travelling "home" from work may be in the course of his employment. Two of my decisions illustrate that point. The first is Maurino v Amberlor Pty Ltd (1996) 14 NSWCCR 16, and Smith v Brown (1998) 16 NSWCCR 492. 71. In Maurino v Amberlor the worker was carrying his employer's equipment in his vehicle from the place at which he worked to his home where he was to keep custody of the equipment overnight in order that he might use it the next morning. Relying on a number of earlier decisions I held that the applicant was then in the course of his employment such that his fault in the motor vehicle accident in question did not disqualify him from compensation. 72. In Smith v Brown the employer provided the transport between the applicants' homes and the shearing shed in which they were required to shear sheep. After reviewing a large number of authorities I came to the view that if the employer supplied transport to and from work and a worker was required or expected to use it, the worker was in the course of his employment while using that transport. 73. However, I know of no direct authority that any journey between a place of employment and a place of abode causes the journey to be in the course of the employment, hence the applicant's reliance on Hatzimanolis' case. However, here it must be borne in mind that the applicant normally resided in Bellambi, a suburb of Wollongong. He worked in a cafe in North Wollongong. The factual situation in Hatzimanolis' case is quite different to the current one. Mr Hatzimanolis was working here in Wollongong, applied for a job with ANI Corporation Limited at Mount Newman in Western Australia for which job the company was tendering. Before leaving Wollongong, the employer briefed those who were going to Mount Newman on the nature of their employment there. The worker was told that he would be required to work about 10 hours each day for six days each week and that the company would hire two vehicles to provide transport for the group. 74. Mr Hatzimanolis and others were told that there was a possibility that they would have to work on a Sunday but if they had the opportunity the workers could visit areas around Mount Newman and the Pilbarra region of Western Australia. In the course of the third week at Mount Newman the supervisor of the respondent told Mr Hatzimanolis and others that he was organising a trip to Wittenoom Gorge on the following Sunday and as the group would not be working on that day they might like to go along on the trip to Wittenoom Gorge. On the return journey from Wittenoom the vehicle in which Mr Hatzimanolis was travelling overturned and he was grievously injured. The High Court of Australia restored the Award made in Mr Hatzimanolis' favour by my colleague Judge Moran. This case would traditionally have been referred to as a "camping" case. It is in the background of the facts that the dicta in Hatzimanolis must be considered. 75. Mr Cummins, QC for the applicant relied upon and emphasised the following statement in the joint Judgment of Mason CJ and Deane, Dawson and McHugh JJ, at 484: Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, any injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity, unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had for the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen". 76. The submission put on behalf of Mr Cunningham is that there was an interval or interlude being from the cessation of his work at approximately 11 pm on Sunday 13 December 1998 and its recommencement due to be at 9 am on Tuesday 15 December 1998. It was submitted that during that interval or interlude the employer in this case encouraged Mr Cunningham to attend at the Christmas party and supplied him, inter alia, with food and alcohol thereby encouraging him to behave the way he did during the Christmas party. 77. It is also submitted that, therefore, the journey to and from the Christmas party was also in the course of the employment. I am unable to accept that argument. 78. The dictum which I have quoted must be contrasted with that which fell earlier from their Honours in the joint Judgment to which I have referred. 79. Commencing at 482 their Honours said: A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment, is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way. However, it would be an unacceptable extension of the course of the employment to hold that an employee was in the course of his employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during that interval between periods of actual work and a particular place on a particular way. That formulation would cover not only the case of the "lunchtime injury," as in Oliver and the case of the railway worker as in Danvers , but also many cases involving injuries occurring during intervals between daily periods of work which could not be fairly be regarded as within the course of employment. Thus an employee who was encouraged by his or her employer to see a doctor after working hours is not ordinarily in the course of employment if injured while visiting the doctor, although the case would come within such a formulation. The course of employment is ordinarily perceived as commencing when the employee starts works in accordance with his or her ordinary or overtime hours of work and is ending when the employee completes his or her ordinary or overtime hours at work. The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the days work has ceased lies not so much in the employer's attitude for the way the interval between the periods of actual work was spent, but in the characterisation of the period or periods of work of those employees. For the purposes of Workers Compensation law an injury in more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work and the injury has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work which has been completed and the employee has returned to his or her home. On the other hand there are cases where the employee is required to embark on some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in a new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes at work. A journey occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality. 80. Here of course Mr Cunningham worked permanently at the Stingray Cafe in North Wollongong and he was living permanently in his family home at Bellambi. 81. The factual situation which underlies the dictum in Hatzimanolis' case is completely different and, furthermore, looking at what was said by members of the High Court, clearly the dictum upon which Mr Cummins rested his subtle argument is applicable only in the sort of case that has been traditionally described as a "camping" case. 82. A further submission put by Mr Cummins, QC, is that basically any journey to or from work was in the course of the employment. His argument was that such a journey arose out of the employment because it was necessary for the employee to get himself to work and that necessity caused the journey to be in the course of employment. I am unable to accept that argument, it is stretching the law a very long way and is contrary to many decisions upon which a whole body of case law has developed and which case law caused Parliament to enact the journey provisions now reflected in s 10 of the Act. 83. Whilst I am prepared to hold that the applicant was in the course of his employment during the Christmas party and therefore that both Stuart Park, the Beach Bistro and the Illawarra Hotel can be seen as his place of employment on 14 and 15 December 1998, that does not mean that the journey to Stuart Park and the journey home from the Illawarra Hotel were in the course of the applicant's employment. 84. To be compensable one must have regard to the provisions of s 10. Of course that was the law applied both by my colleague Judge Truss and by their Honours in the Court of Appeal in Alcatel Australia Ltd v Griffith (1997) 15 NSWCCR 390. 85. The facts in this case are somewhat similar to the facts in that case. On that day the worker had attended a Melbourne Cup Luncheon in a restaurant at Parramatta. The employer sponsored the function and it ceased at 5.00 pm but the worker stayed at the restaurant until 8.00 pm. He then claimed compensation for an injury received on a journey between his place of employment and his place of abode. 86. Judge Truss held that s 10(1B) was only applicable where the worker was driving a motor vehicle and therefore that the applicant's being under the influence of alcohol at the time that he sustained the injury in an assault whilst waiting for a cab was not a defence to the claim. 87. Their Honours in the Court of Appeal held that being intoxicated was a defence to a claim of that nature and that the provisions of s 10(1B) apply in every case, not just the case of a worker driving a motor vehicle. Here, of course, Mr Cunningham was driving a motor vehicle. Accordingly in my view the case must be approached under s 10 and equally unfortunately that means that the applicant's claim must fail. 88. The applicant was at the time of the injury under the influence of alcohol under the then legislation. There was a proviso to s 10(1B) as follows: Unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. 89. A nice question which arises is to who bears the onus of proof for the proviso. By analogy, it appears to me that the onus of proof in that regard lies upon the worker. If the employer proves for example that an injury was received during or after an interruption in or deviation from a journey, and that the interruption or deviation was made for a reason unconnected with the workers employment or the purpose of the journey, then the onus of proof falls upon the worker to establish that the risk of injury was not materially increased because of the interruption or deviation. Here it appears to me that once the employer proves that the personal injury was received by the worker whilst under the influence of alcohol, it is up to the worker to establish that the alcohol or other drug did not contribute in any way to the injury or is not consumed or taken voluntarily. Of course there is no suggestion here that the alcohol the applicant did consume, was taken other than voluntarily. The applicant then must prove in my view that the alcohol did not contribute, "in any way," to the injury. 90. On my findings of fact I have no hesitation in finding that the synergistic effect of alcohol and fatigue was responsible for the collision in which the applicant was so grievously injured. There is proof positive to the contrary of that which the applicant bears the onus of disproving. 91. In those circumstances the applicant cannot recover compensation under s 10. 92. The proviso of serious and wilful misconduct under s 14 is inapplicable to a claim under s 10, see Wilson v Wilsons Tyre Works (1960) 104 CLR 328 and Girlock (Sales) Pty Ltd v Herrell (1982) 149 CLR 155 and Czereba v Mark Irrigation (1999) 19 NSWCCR 196. 93. Accordingly the award must be in favour of the employer. 94. I have been asked to say something about the applicant's evidence. The applicant was called merely to establish that his failure to give any relevant evidence could not be taken against him, that is that, in light of his failure to give any relevant evidence, the court was entitled to be bold in drawing inferences against him as is stated in Joyce v The Insurance Commissioner. 95. The applicant clearly had no recollection of even being employed by the respondent and his first recollection is an attempt to strangle him while he was a patient at Port Kembla Hospital some three months after the motor vehicle accident with which I am now dealing. Such evidence establishes that he has significant brain damage which is common ground between the parties. I have no doubt that Mr Cunningham endeavoured to tell me the truth and I have no doubt that everybody else endeavoured to tell me the truth. Mr Cunningham clearly has no relevant recollection because of organic brain damage and other inconsistencies between the other witnesses can be explained by their haziness from an ingestion of a large amount of alcohol at this Christmas party. 96. I have enquired of the representatives of the parties whether any further reasons for Judgment are required. I am told that none is so required. For those reasons I am making an award for the respondent. Mr J D Cummins QC and Mr R Hanlon instructed by Kells The Lawyers appeared for the applicant. Mr C R Hoeben SC and Mr G Parker instructed by Moray & Agnew appeared for the respondent.