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." 4 Her Honour had made preliminary to the finding I have just quoted reference to some evidence from Mr Keegan, who was the employer. Her Honour said "Mr Keegan agreed in cross-examination that the applicant was the only person employed by the respondent company who used the sign on his own vehicle as opposed to a company vehicle. Mr Keegan agreed in cross-examination that when the sign was in the applicant's possession, he, Mr Keegan, would want him to take steps to see that the sign was not damaged." Further, her Honour found "Significantly, the evidence of Mr Keegan was that he expected the sign would be taken care of when it was in the possession of the applicant. I think it was mere inadvertence which led the applicant to neglect to take the sign out of his ute and place it in the storeroom." 5 These last two findings have been challenged by senior counsel for the appellant, suggesting that they go beyond the scope of the evidence given by Mr Keegan. 6 There was also evidence from the injured worker to the effect that the steps he was taking were for the purpose of protecting the sign from damage from his dog. Plainly, the worker perceived it as being necessary for him to take steps to protect his employer's property. 7 It seems to me that irrespective of whether or not the evidence of Mr Keegan was overstated there was an implicit obligation on an employee, having possession of his employer's equipment, to take steps to take care of it if it was in danger of damage. The opposite notion seems to me to be unthinkable. 8. It follows that the finding which was made by the trial judge that the worker's act in seeking to secure his employer's equipment so as not to permit it to be damaged damaged is properly to be characterised as her Honour characterised it, namely as being an action which was incidental to his employment and as such arose out of it. 9 In those circumstances, it seems to me that no proper challenge can be mounted to that finding of fact. I would propose that the appeal should be dismissed with costs. 10 MEAGHER JA : I agree with Cole AJA. It seems to me that her Honour's relevant findings were all findings of fact and we have no power to review such findings. I might add, if we did have such power, I would have come to the conclusion that her Honour committed no error. 11 SHELLER JA : I agree with what the other members of the Court have said and I agree that the appeal should be dismissed with costs. 12. MEAGHER JA : The order of the Court therefore is that the appeal is dismissed with costs. ********** 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.