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Injury on the journey

Allen v Hudson Global (Aust) PL [2006] NSWWCCPD 360. 

Mr Robert Harrington, acting deputy president, at [58]:

"The fact that an activity can be categorised as an activity in the course of employment does not preclude the activity from being covered by another provision of the 1987 Act.

"For example, many injuries that are compensable under the journey provisions are also compensable because the injury arises out of or in the course of employment.

"This often happens when an employee's means of transport, to his home after a day's work is the work vehicle with the equipment in it so that he can take the equipment to a different work site the next day.

"If on the way home, the employee is injured he would be entitled to claim compensation either under the journey provisions of the 1987 Act or alternatively to claim, compensation on the basis, the injury arose out of his employment under section 4 of the 1987 Act." [59]

Woolnough v Target Australia PL [2008] NSWWCCPD 109. Moore ADP. 

At [48]: "The issue when determining whether the interruption or deviation has materially increased the risk of injury is a comparison of the risk likely to arise had there been no interruption or deviation and the risk that did in fact arise.

"The conclusion then to be drawn from the comparison is a matter of fact and degree: Young v Cmr for Railways [1960] WCR (NSW) 71: Old Spaghetti Factory v Oughtred [1975] WCR (NSW) 231."

Also noted Rockcote Enterprises PL v FS Architects PL[2008] NSWCA 39 per Campbell JA, the defendant bears onus to meet plaintiff's evidence to negative proviso, expert evidence not necessary, quoted by Keating P in ISS Facility Services Australia PL v Antonios [08] PD 52.

Early in her reasons, Moore ADP quoted from a majority inVetter v Lake Macquarie City Council [2001] HCA 12:

"[29] There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker's place of abode so long as the journey can be said to be a journey between the workerâ's place of abode and place of employment.

"And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in the risk during or after any deviation or interruption. That is what the Act requires."

Too, trial finding material risk is fact finding beyond legal error appeal: Tucker v WD & HO Wills (1969) 43 WCR 11; journey need not be most direct route, and deviation or interruption does not halt the journey: Babcock Australia Ltd v Proudfoot [1993] 9 NSWCCR 525, per Cripps JA at 529; interruption purpose additional to home return does not vitiate journey: George v Mechanical Advantage Group PL (2002) 23 NSWCCR 303Hapago PL t/as Noni B v Anderson[2006] NSWWCCPD 217 per Roche DP.

A: Everingham Solomons Solicitors. R: Lander & Rogers.

Epilepsy disqualifies

Del-Ben v Ferrero Aust Manufacturing PL  [2009] NSW WCC 324. Minus, Arb. 

The worker was injured when the car she was driving home from work crossed to the wrong side of the Bruxner Hwy near Alstonville in March 2008, and collided with another vehicle whose driver was killed.

The respondent relied on 1987 Act s 10 (1D) providing no journey liability if the injury resulted from the condition of the worker and the journey did not contribute to the injury.

Treater medical reports referred to “drop attacks” as well as diagnosis of epilepsy standing since 1981.

A treating neurologist, Dr Melinda Pascoe, reported to police: “In my opinion there is a high likelihood that Mrs Del-Ben suffered a seizure while driving that led to the accident outlined in your letter.”

There was similar qualified medicine.

The arbitrator noted the employer’s onus to prove s 10(1D): McGraw v Commonwealth Bank (2002) 24 NSWCCR 372 per Armitage J, and causation authorities including Council &c Sydney v Estate of Giffey (No 1) [2008] NSW WCC PD 114 [31 WCMS 3], and Kooragang Cement PL v Bates (1994) 35 NSWLR 452.

Mr Minus quoted the following from Ipp JA in Flounders v Millar [2007] NSWCA 238 at [35]:

“It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail. … The rules governing causation at common law are those expressed in Luxton v Vines [1952] HCA 19; (1952) 85 CLR 35 and March v Stramare PL [1991] HCA 12; (1991) 171 CLR 506, namely, the test of commonsense, with the onus of proof at all times being on the plaintiff.”

To the proviso of journey contribution, the arbitrator cited Gavalas v Montbase PL (2002) 24 NSWCCR 285 per Bishop J: “If there is any contribution it must be as a result of the journey as a whole”.

Mr Minus found the “sole cause” of the injurious incident was the epilepsy of the worker.

Award respondent.

A: Mr Brendan Bourke, solicitor, of Bourke Love McCartney Young. R: Mr Stuart Marsh, instructing solicitor unannounced.

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