Alvannex v Humphreys [1999] NSWCA 291

New South Wales Court of Appeal CITATION : Alvannex v Humphreys [1999] NSWCA 291 revised - 11/08/99 FILE NUMBER(S) : CA 40423/98 HEARING DATE(S) : 7 July 1999 JUDGMENT DATE : 7 July 1999

PARTIES : Alvannex Pty Limited v Jonathan Brian Humphreys JUDGMENT OF : Meagher JA at 10,12; Sheller JA at 11; Cole AJA at 1

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : CC 5456/97 LOWER COURT JUDICIAL OFFICER : Quirk CCJ

COUNSEL : Mr J E Maconachie QC & Mr J Pike (Appellant) Mr P Deakin QC & Mr W B Nicholson (Respondent) SOLICITORS : Appellant: Hickson Wisewoulds Respondent: P Ernman CATCHWORDS : ACTS CITED : n/a CASES CITED: n/a DECISION : Dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40423/98 MEAGHER JA SHELLER JA COLE AJA

Wednesday 7 July 1999

ALVANNEX PTY LTD v JONATHAN BRIAN HUMPHREYS

JUDGMENT

1 COLE AJA : Mr Humphreys lost an eye in an injury which occurred on 26 September 1996, when an octopus strap which he was using to secure an object on top of his toolbox in the back of his utility outside the post office at Tuross Heads came loose. Having finished his work for the appellant, he had driven from his workplace to his home, collected a slip advising of a postal delivery for him, whistled his dog to get into the back of the utility, driven to the post office, parked his utility, entered the post office and collected his parcel and returned to place it in his utility. He observed that the dog was on the object and might scratch it and accordingly set out securing it to the top of his toolbox so it would not be damaged. Having secured the octopus to one side of the utility, he pulled at the other side but it gave way and the catch on the octopus struck his eye. 2 The only connection with his employment was that the object he was securing was a sign belonging to his employer, being a Wide Load sign which was sometimes attached to his utility when he drove it as an escort vehicle accompanying wide loads on other vehicles. He claimed worker's compensation in respect of the eye injury. Judge Quirk CCI found in his favour, finding that:t he action of the applicant in attempting to secure the sign in these circumstances arose out of his employment and also probably amounted to placing himself back in the course of his employment. 3 Her Honour also said "in the circumstances of this particular case and on the above authorities, the act of the applicant in attempting to secure his employer's sign and in order to protect it from damage, even though the damage was potentially to be inflicted by his own dog, and especially in light of the fact that the sign was placed in his utility when the applicant was in the course of his employment, leads me to the view that his action was incidental to his employment with the respondent and arose out of it."