GRIFFITHS v ALCATEL AUSTRALIA LIMITED [1999] NSWCA 206

New South Wales Court of Appeal CITATION : GRIFFITHS v ALCATEL AUSTRALIA LIMITED [1999] NSWCA 206 FILE NUMBER(S) : CA 40636/98 HEARING DATE(S) : 4 June 1999 JUDGMENT DATE : 4 June 1999

PARTIES : Stephen GRIFFITHS v ALCATEL AUSTRALIA LIMITED JUDGMENT OF : Mason P at 1; Meagher JA at 14; Handley JA at 15

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : CC6869/93 LOWER COURT JUDICIAL OFFICER : Truss CCJ

COUNSEL : D Baran (Appellant) L King SC/S Campbell/C Pinkerton (Respondent) SOLICITORS : Williams Hussain Davidson (Appellant) Duffield & Duffield (Respondent) CATCHWORDS : Appeal from award of Compensation Court Judge - Workers Compensation Act 1987 s10(1B),(1C) - Error in point of law - Whether alcohol taken voluntarily ACTS CITED : Workers Compensation Act 1987 DECISION : Dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40636/98 MASON P MEAGHER JA HANDLEY JA

Friday 4 June 1999

STEPHEN GRIFFITHS v ALCATEL AUSTRALIA LIMITED

JUDGMENT 1 MASON P: This appeal is a sequel to Alcatel Australia Limited v Griffiths (1997) 15 NSWCCR 390. A worker was seriously injured when assaulted by a fellow employee of the respondent outside a restaurant where both had attended, with the employer's approval, a Melbourne Cup luncheon hosted by a firm providing skilled labour to the employer. The luncheon finished at 5pm and both employees stayed on drinking until 8pm. Both men were seriously affected by alcohol when they got into a taxi outside the restaurant. The taxi would not start and the men got out of the taxi. It was then that the assault took place. The worker's blood alcohol reading at 9.30pm was 0.3. 2 The matter was remitted for further hearing on the issues of the application of ss10(1A), 10(1B) and 10(1C) of the Workers Compensation Act 1987 (the Act), as they stood at the relevant time; and on the further issue of the application of s10(2) on the basis that the interruption to the journey commenced at 5pm. The matter came back before Truss CCJ, who made an award for the respondent. This is an appeal from that award, and in the circumstances of this case it is limited to a point of law (see Compensation Court Act 1984 s32(1)). 3 Her Honour found that the risk of injury was not materially increased because of the interruption of the journey (cf s10(2) of the Act). She was satisfied that the journey home by taxi was not rendered more hazardous by reason of the three hour interruption and the consequent deterioration in the worker's capacities due to the effects of alcohol. This finding meant that the personal injury received by the worker in the s10 journey was an injury arising out of or in the course of employment (see s10(1)). It is however pertinent to observe that in the course of her reasons on this aspect of the case her Honour held that: There was no evidence to establish that the worker was affected by alcohol at least to any significant extent when the lunch concluded at 5pm. This should be contrasted with his condition two and a half to three hours later when his state of intoxication was patently obvious.