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Woolnough 30 WCMS

Woolnough v Target Australia PL [Coles self ins] [2008] NSWWCCPD 109. Moore ADP. 02.10.08.

The Port Macquarie retail assistant had driven from work on 29.08.07, stopping at friend Cheryl's house to pick up eggs as she often did, and then driving to friend Glanda's house to deliver some of the eggs, where on approaching her car to continue her journey home, she slipped on Glanda's rough driveway, of which hazard she was previously aware, and fell, injuring her right hand and wrist. The insurer declined.

An unnamed lady arbitrator, the determination unpublished, made an award respondent on 07.04.08, holding the worker had failed to satisfy 1987 Act s 10(2) no material increase of injury risk in journey deviation, having regard to evidence of the worker and Glanda of appreciation of the hazards of the driveway.

Moore ADP allowed the appeal with costs, remitting to the same arbitrator.

At [42], the worker had rightly submitted: "It is necessary that the correct legal issue be addressed, namely, not the materiality of the increase of the risk of the particular injury that occurred, but the increase of risk generally, having regard to any deviation found: Scobie v K D Welding Co PL [1959] 103 CLR 314."

The acting deputy president also considered NRMA Smash Repairs v Hoy (1995) 11 NSWCCR 326, before [45]: "In other words, the cause of the injury is irrelevant: what must be considered is not the actual injury which occurred and the materiality of the increase of the risk of that particular injury, but the increase of the risk of injury generally as a result of the interruption or deviation."

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 in Vetter 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 303; Hapago PL t/as Noni B v Anderson [2006] NSWWCCPD 217 per Roche DP.

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

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