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. 4 The present appeal challenges the approach adopted by her Honour in relation to s 10(1B) and (1C), attempting to tease out an error in point of law. It is appropriate to set out ss(1A), (1B) and (1C) as they stood at the relevant time. (1A) Subsection (1) does not apply if the personal injury was caused, partly or wholly, by the fault of the worker. (1B) A personal injury received by a worker is to be taken to have been caused by the fault of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Traffic Act 1909 ), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. (1C) If the risk of injury on a daily or other periodic journey to which this section applies, compared with the risk of injury on the worker's normal journey, is materially increased for a reason connected with the worker's employment (including the distance travelled, the time of day or night, the method of travel or the route of the journey), subsection (1) is not excluded merely because the injury was caused by the fault of the worker. 5 In the earlier Court of Appeal decision it was held that s 10(1B) is not confined to a worker who was driving or attempting to put a vehicle in motion. Accordingly, the issue to be determined by Truss CCJ in the remitted hearing was whether the employer could establish that the injury was caused partly or wholly by the worker's fault, applying the extended provisions of ss (1B) and (1C) (see Alcatel at 406 - 410). 6 The circumstance in which the worker came to be injured was that his drinking companion Mr Chitty inflicted a sudden and unexpected blow to the back of his head with an open hand. He fell heavily to the ground with his forehead striking the pavement, having made no attempt to put out his hand or arms or otherwise to cushion his fall. 7 The learned primary judge held that the worker had failed to establish that the alcohol did not contribute in any way to the injury. This finding was based upon acceptance and application of the evidence of Professor Starmer of the Department of Pharmacology at the University of New South Wales. Before Truss CCJ, the worker had attempted to deflect the force of this evidence by submitting that it had proceeded from a false premise, namely that Mr Chitty had merely "slapped" the worker on the back of the neck using reasonably insignificant force. It was contended that a proper understanding of the evidence of the eyewitness Mr Swade was that the blow was significantly heavier than a mere slap. Truss CCJ rejected this submission. She was unpersuaded that Professor Starmer's opinion had proceeded on a false premise. 8 Her Honour regarded the debate as to whether the blow could be described as a slap, a smack, a blow or something else was a matter of semantics, which did not undermine the Professor's opinion. She also referred to Mr Swade's description of the fall which supported the finding made in the earlier proceedings that the worker fell face down on the footpath, striking it without having made any attempt to cushion his fall with his arms. Her Honour observed that there was no evidence to suggest that had the worker not been affected by alcohol he would nevertheless have been injured in a similar manner. I understand that it is now accepted that this was a finding of fact and one that is beyond challenge in this appeal. I certainly agree with that acceptance. 9 The appellant seeks to establish an error in point of law by pointing to the concluding words of subs(1B) and submitting that the employer failed to establish that the alcohol was "taken voluntarily". We were referred to the remarks of Dixon CJ and Taylor J in Taylor v Stapley (1954) 90 CLR 1 at 9. There, referring to s7(1)(e) of the Workers' Compensation Act 1926, their Honours said that: The words `voluntarily subject himself' require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury. 10 It was submitted that this principle carries over into the context of subs(1B) and that there is necessarily to be an inquiry as to the freedom of the choice in the present case with which the worker continued drinking heavily with his companion. 11 The appellant accepts that the issue of voluntariness was not dealt with by her Honour and that this is because the point was not taken at trial. This in turn, in my view, is hardly surprising because there was no evidence that the consumption of alcohol by the worker was not voluntary. The worker bore the onus of showing that the concluding words of subs(1B) were established. But, wherever the onus lay, I see no reason to think that the ingestion of alcohol, albeit in substantial quantities, was anything but non-voluntary. 12 In any event, the failure to raise this issue at trial is fatal in the light of the principles in Coulton v Holcombe (1986) 162 CLR 1. 13 In my view the appeal should be dismissed with costs. 14 MEAGHER JA: I agree. 15 HANDLEY JA: I agree. 16 MASON P: That is the order of the Court. ********* 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.