Kortegast v Williamson & Anor

Supreme Court of NSW|2002-11-29|Before: Mathews AJ

CITATION : Kortegast v Williamson & Anor [2002] NSWSC 1134 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20043/00 HEARING DATE(S) : 12/11/02, 13/11/02 JUDGMENT DATE : 29 November 2002

PARTIES : Michael Kortegast v John Williamson & Anor JUDGMENT OF : Mathews AJ

D R Conti - Plaintiff COUNSEL : M Williams SC with J Neal - Defendant J McIntyre SC - Second Defendant D Davies SC with Ms C Adamson - Second and Third Cross-Defendant McClellands - Plaintiff SOLICITORS : Carroll & O'Dea - Defendant Hunt and Hunt - Second Defendant Deacons - Second and Third Cross-Defendants CATCHWORDS : Matter to be determined as preliminary issue - whether plaintiff's injury arose out of or in the course of his employment. LEGISLATION CITED : Workers Compensation Act 1987 (NSW) Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 Charles R Davidson & Co. v McRobb [1918] AC 304 Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 Commonwealth v Oliver (1962) 107 CLR 353 McCurry v Lamb (1992) 8 NSWCCR 556 Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 Blacktown City Council v Smith (1996) 14 NSWCCR 132 CASES CITED : Stewart v Metropolitan Water Sewerage and Drainage Board (1932) 32 NSWSR 576 Stewart v Metropolitan Water Sewerage and Drainage Board (1932) 48 ALR 216 Lawrence v George Mathews (1924) Ltd (1929) 1 KB McNeice's Case (1911) S.C. 12 Fisher or Simpson v London, Midland and Scottish Railway Co. (1931) A.C. Thom or Simpson v Sinclair (1917) A.C. 143 Blacktown City Council v Smith (1996) 14 NSWCCR 132 Smith v The Australian Woollen Mills Limited (1933) 50 CLR 504 Nunan v Cockatoo Docks and Engineering Company Ltd (1941) NSWSR 119 DECISION : Second and third cross-defendants discharged from the proceedings. First cross-defendant ordered to pay their costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20043/00 Michael KORTEGAST v John WILLIAMSON & ANOR

HER HONOUR : Background 1 On 3 April 1998 the plaintiff, Michael Kortegast, fell about 2.8 metres onto a cement floor at a house at Rozelle. He suffered extremely serious injuries and is now a paraplegic. 2 The Rozelle house was then owned by the first defendant, John Williamson. Mr Williamson, himself a builder, was carrying out renovations and extensions on the property. He had employed Mr Kortegast to assist him in this work. 3 The day of the accident, 3 April, was a Friday. The accident occurred at about 7:00 pm, well after Mr Kortegast had finished work for the day. Accordingly, an issue has arisen as to whether his injuries arose out of or in the course of his employment within the meaning of the Workers Compensation Act 1987 (NSW) ("the Workers Compensation Act"). This is essentially a dispute between insurance companies. The defendant, Mr Williamson, has issued cross-claims against three insurance companies. The first, GIO Workers Compensation (New South Wales) Limited ("GIO") was the defendant's workers compensation insurer pursuant to the Workers Compensation Act. The second cross defendant, NZI Insurance Aust Limited ("NZI") was the defendant's public liability insurer jointly with the third cross-defendant. The NZI policy excluded obligations for which the insured may be liable under the Workers Compensation Act. It follows that if the injuries sustained by Mr Kortegast arose out of or in the course of his employment, then the defendant will be entitled to indemnity from the GIO, his workers compensation insurer. If his injuries were not so sustained, then the defendant will be entitled to indemnity from NZI, his public liability insurer. 4 In the interests of facilitating the efficient and orderly management of this litigation, the parties agreed that the insurance issue should be resolved on a preliminary basis. Once this matter has been determined, the defendant's interests can be represented by the party which will be liable to compensate the plaintiff. At present there are three parties in the defendant's camp, the defendant himself and the two insurance companies. Accordingly, a consent order was made that a number of issues be tried separately from and prior to the remainder of the issues raised in the proceedings. The preliminary issue as finally formulated was in the following terms: "Is the first defendant entitled to indemnity in respect of the plaintiff's claim from either the Workers Compensation and Public Liability Insurer?" 5 The answer to this question is plainly yes. It is clear from the terms of the respective policies that the defendant will be entitled to indemnity from one or other of the insurers. There is no crack between them into which the present case can fall. Accordingly, the real issue to be determined at this stage is: which of the two insurers should indemnify the first defendant in relation to the plaintiff's claim? This is the issue which the parties came prepared to address. It depends in turn on whether the plaintiff's injuries arose out of or in the course of his employment. If they did, then the circumstances will fall within the workers compensation policy. If not, they will fall within the public liability policy. 6 At first I had some misgiving about dealing with this issue on a preliminary basis. I was concerned that questions of the plaintiff's credibility might be raised at this stage of the proceedings which could also be relevant at the final hearing. What would happen if I were to make findings of fact at this stage which were at odds with the impressions gained by the judge at the ultimate hearing? A central issue at that hearing (and very possibly the central issue) will be contributory negligence. The plaintiff was drinking alcohol before his accident, and I was concerned that the same matters might be relied upon at the preliminary hearing as breaking the nexus between his employment and his accident as might be raised at the ultimate hearing under the head of contributory negligence. However I proceeded to embark upon the preliminary issue, as it seemed to me that the orderly administration of justice was better served by having the insurance issue determined on a preliminary basis. However I flagged the possibility that, if there was a likely overlapping of significant questions between the preliminary issue and the ultimate claim, then it might be preferable for me to deal with both aspects of the case. In the event, I think that my fears have been largely ill founded. I do not consider that any of the findings I will be making on this aspect of the case will significantly affect the issues which are likely to arise at the ultimate hearing.

The evidence before me 7 I turn now to discuss the circumstances of Mr Kortegast's accident. The details emerged from the evidence of Mr Kortegast, Mr Williamson and Mr Michael Young. 8 Mr Kortegast, who is now aged forty-seven, has no formal trade qualifications, but before the accident had worked as a builder and carpenter for many years. In January 1998 he first met the first defendant Mr Williamson. Mr Williamson was planning to carry out renovations and first floor extensions to his home at 38 McKenzie Street, Rozelle. It was agreed that Mr Kortegast would work on this project for $200 per day. At the time of the accident he had been working on it for about five weeks, he said. Most of the time Mr Williamson, who was in charge of the project, was also there. Also on site was Michael Young, who was both a labourer and a painter. They were the three regular workers on the project. 9 The accident occurred at about 7:00 pm on the evening of Friday 3 April 1998. Mr Kortegast said that he generally worked between about 7:30 am and 4:30 pm each day. However on this day he worked later, and it was not until approximately 6:00 pm that he had finished cleaning up, a process which generally takes about half an hour. He worked later than usual, he said, as Mr Williamson had hired a nail gun and was anxious to complete the timber framing which Mr Kortegast was working on so that the gun could be returned. Mr Kortegast also needed to remain on site in order to receive his wages. In addition, he said that it was a common occurrence on Fridays for them to stay behind after work and drink some beer. 10 On this particular afternoon, Mr Kortegast's partner, Lisa, arrived to drive him home at about 4:30 pm or 4:45 pm. She waited for approximately an hour outside the house. Eventually, at about 5:45 pm, Mr Kortegast told her to leave and said that he would make his own way home. At this time, he said, he was still waiting to be paid by Mr Williamson. 11 According to Mr Kortegast, Mr Williamson left the site at about 5:00 pm, intending to go to his bank in order to get some money. He returned some time later, having been unsuccessful in obtaining the money, but bringing six bottles of beer. He gave Mr Kortegast $50 as an advance on his wages. A friend of Mr Williamson's, a Mr Osborne, also arrived on site some time after 5:00 pm, bringing a further four bottles of beer. Mr Williamson had previously spoken to Mr Kortegast about Mr Osborne and said that he wanted to arrange a meeting between them. Mr Osborne was planning to commence building work at his nearby home, and Mr Williamson had suggested that Mr Kortegast might work on this project. 12 At some stage, also between 5:00 pm and 7:00 pm, Mr Williamson's partner Janice arrived at the site and spent some time there. However she had left, as had Mr Osborne, well before the accident. 13 The accident, as mentioned, occurred at about 7:00 pm. At that time the only people remaining on site were Mr Kortegast, Mr Williamson and Mr Young. Mr Kortegast admitted that they had been drinking beer for the previous hour. He denied that the beer had been purchased by himself, saying that it had all been provided by Mr Williamson and Mr Osborne. Similarly, Mr Kortegast denied that he was intoxicated at the time of the accident. He had drunk about one and a half to two bottles of beer, he said, and was not affected by it. 14 Shortly before the accident Mr Williamson and Mr Young had climbed to the first floor extension, which meant walking over the floor joists which had been put in place that day. Mr Kortegast went to join them. He said that he wanted to discuss with Mr Williamson some ideas he had about design and construction issues. However before he could reach them he slipped and fell between the joists onto the concrete floor approximately 3 metres below. He sustained extremely serious injuries and is now severely disabled. 15 Mr McIntyre SC, who appeared for the GIO, called evidence from the two people who were present when the accident occurred. They were the first defendant, John Williamson, and Michael Young. 16 The first of these to give evidence was Mr Young, who had been working for several days on Mr Williamson's Rozelle home. On the day of the accident he stopped working at about 5:00 pm, at least two hours before the accident occurred. He was unable to say what time Mr Kortegast finished his work. During those two hours, Mr Young said, Mr Osborne, who was "a client from down the road" joined them, as did Mr Williamson's girlfriend Janice. There was a great deal of discussion about the work they were doing and considerable excitement on the part of Mr Williamson and Janice as to how the project was coming along. Mr Kortegast, Mr Williamson and Mr Osborne were all drinking beer. Mr Young thought that Mr Kortegast had bought the beer, but was not sure about this. He himself did not start drinking until about a quarter of an hour before the accident. He had planned to go surfing that afternoon, and was not prepared to drink while this remained a possibility. It was not until it became too late to go surfing that he started drinking with the others. 17 Shortly before the accident, Mr Young and Mr Williamson climbed up to the first floor extension and walked across the floor joists to the back of the room to have a look at the view. Access to the area was gained by climbing a step ladder from the existing kitchen which was mid level between the first floor extension and the room beneath it. 18 Mr Young said that not long after he and Mr Williamson went to that area he heard noises from behind. He could see Mr Kortegast approaching from the kitchen area. Mr Young said to him something like "You're pissed, don't come up here." He then heard more noises, turned around and saw Mr Kortegast "stumbling off various boards". Mr Kortegast grabbed Mr Williamson then lost his grip and stumbled backwards. He seemed to secure himself into a stable position but then, according to Mr Young, fell through the joists onto the concrete floor below. 19 The third witness was the defendant John Williamson. Mr Williamson is a qualified builder by occupation and runs his own business. In 1997 he bought the Rozelle home and in early 1998 started renovation work upon it. Mr Kortegast had been working on the job for some time before the accident. 20 On 3 April 1998 Mr Williamson and Mr Kortegast were working together installing the floor joists for the first floor extension. Generally this work was performed from beneath, with the assistance of ladders, but it was sometimes necessary to climb on top of the joists. There were a couple of "mud boards" lying on the joists. These were temporary platforms for placing tools or, if necessary, for standing upon. The joists were 2.8 metres, Mr Williamson said, from the concrete floor below. Mr Williamson confirmed Mr Kortegast's evidence that a nail gun had been hired in order to install the floor joists. However he denied that Mr Kortegast worked later than usual that day. The job was only 80 percent completed, he said, and Mr Kortegast was to return on the Monday in order to finish it. It was not until then that the nail gun would be returned to the hirer. 21 Mr Williamson said that he went to the bank that afternoon in an attempt to obtain money for wages. He returned at about 4:30 pm. At that stage, he said, Mr Kortegast and Mr Young were finishing their work and were tidying and cleaning up. This process, which usually takes about half an hour, was complete by 5:00 pm. Mr Williamson said that it was normal practice on a Friday afternoon that he pay his workers and that they have a beer together. This Friday was no exception. Somebody, he thought it was Mr Kortegast, went to a nearby hotel and bought three or four full bottles of beer. While they were standing around his friend, Mr Osborne, arrived and stayed for about half an hour, leaving at about 5:30 pm. 22 The group then proceeded to drink the beer which Mr Kortegast had bought. Mr Young was drinking less than the others. At about fifteen or twenty minutes to seven Janice left. At about 7:00 pm Mr Williamson and Mr Young climbed up to the floor joists on the first floor extension. The two of them were looking towards the city discussing the view. Mr Williamson heard Mr Young say "don't get up. Don't come up here, because you are pissed and you are not a surfer." Shortly afterwards Mr Williamson felt something push him and he fell onto a joist. He got up and saw that Mr Kortegast had fallen through the joists onto the concrete floor below.

Discussion 23 Section 4 of the Workers Compensation Act defines "injury" to mean "personal injury arising out of or in the course of employment." There is no dispute that the relationship between Mr Williamson and Mr Kortegast was one of employment. The sole question is whether Mr Kortegast's injuries arose "out of or in the course of his employment", given that, on any view of the evidence, he had finished his work that day well before the accident occurred. 24 The test under the Workers Compensation Act is an alternative one. Liability will arise if Mr Kortegast's injuries arose either out of or during the course of his employment. Substantially different issues arise in relation to each of these concepts, as the authorities reveal. Put simply, an injury will arise "out of" a person's employment if there is a sufficient causal link between them. An injury will arise "in the course of" employment if there is a sufficient temporal relationship between them. It is therefore appropriate to discuss the two concepts separately.

Did the plaintiff's injuries arise "in the course of his employment "? 25 The principal authority on this issue is the High Court judgment in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473. The worker in that case was engaged on a three-month contact to work at Mount Newman in Western Australia. Workers were required to work for about ten hours each day for six days a week. They were told that they might also have to work on Sundays, but if not the employer would provide transport for them, and they could visit areas in the Pilbara region. In the third week of this employment, the worker's supervisor said that he was organising a trip to Wittenoom Gorge the following Sunday. As there was to be no work that day the group might like to come. During the journey back from Wittenoom the vehicle in which the worker was travelling overturned and he was injured. He was awarded compensation by the New South Wales Compensation Court but this was reversed by the Court of Appeal. The High Court restored the Compensation Court's award, finding that the worker's injury was sustained during the course of his employment. 26 The majority of the Court (Mason CJ, Deane, Dawson and McHugh JJ discussed the development of the law in this area. They acknowledged that from a very early stage in the history of workers compensation law, it had been recognised that the course of employment covered not only the actual work which a person is employed to do but also "the natural incidents connected with the class of work." (see Charles R Davidson & Co. v McRobb [1918] AC 304). However in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 Dixon J acknowledged that expressions such as "incidental to the performance of the work" had not "proved very helpful" in determining whether an injury had occurred in the course of employment. His Honour suggested that in the case of injuries which were not sustained during actual work, the test of whether they had been sustained in the course of employment ultimately depended upon whether the workman was doing something which he was "reasonably required, expected or authorised to do in order to carry out his actual duties." The majority commented that since Henderson the courts had almost invariably purported to apply Dixon J's test, albeit in an increasingly wide range of situations. Their Honours commented as follows: "Since Oliver , [ Commonwealth v Oliver (1962) 107 CLR 353] appellate courts have upheld many awards of compensation in favour of workers in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity, convenience or enjoyment. But, as we have indicated, in many cases these decisions have been reached only by a strained reading of the words "in order to carry out his duties". In Danvers v Commissioner for Railways (N.S.W.) for example, a railway worker died when a van, provided by his employer for his accommodation, caught fire during the night. The van was moved from work site to work site. On the day of his death, the worker had finished work at about 4 p.m. and had no further duties to perform until the following morning. Nevertheless, this Court, reversing the Court of Appeal of New South Wales, held that it was open to the Workers' Compensation Commission to find that the worker's death occurred in the course of his employment. Barwick C.J., with whose judgment Kitto and Windeyer JJ. agreed, adopted the statement of Dixon J in Henderson that doing what was reasonably required, expected or authorized to be done in order to carry out duties may include being at a place at which the workman's presence "is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment"…

A little later their Honours said: "The distinction between an injury sustained by railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterization of the period or periods of work of those employees. For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. … Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show how that, gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the particular occasion out of which the injury to the employee has arisen." 27 In two cases later in the same year, the New South Wales Court of Appeal applied Hatzimanolis in order to achieve results which the court itself conceded might seem "anomalous or even bizarre". (See McCurry v Lamb (1992) 8 NSWCCR 556 and Inverell Shire Council v Lewis (1992) 8 NSWCCR 562.) In, Lewis the worker had been sent by his employer to attend a training course. The employer arranged temporary accommodation for him at a caravan park for the duration of the course. Apart from his obligation to attend the course, the worker was free to spend his time as he chose. One evening the worker joined in various social activities with a number of other people who were staying at the caravan park. Late in the evening, when he and others were in another caravan within the park, the worker was shot and injured by a stranger. The trial judge found that the injury arose in the course of employment and awarded him compensation. The Court of Appeal dismissed the appeal. Handley JA made the following observations: "The findings of the trial Judge demonstrate that there is no question of "gross misconduct" in this case. The employer had induced or encouraged the worker to reside in the caravan park during his course and the injury occurred in that place. Although the employer did not induce or encourage the worker to visit Miss Davis' caravan that evening to have a cup of coffee in the company of others, I can see no basis for limiting the principle in this way … In this case the worker was injured while he was at "the particular place" where his employer had encouraged him to stay, and while he was doing something that was reasonably incidental to his temporary residence there. Accordingly in my opinion Manser CCJ did not err in law in finding that the worker's injuries arose in the course of his employment." 28 In Blacktown City Council v Smith (1996) 14 NSWCCR 132 the worker, having heard a scream, went to the reception area of a solicitor's office which was in the same building as her employer's office. There she went to the assistance of a woman who was being assaulted. As a result she sustained injuries. The Compensation Court found that her injury arose during the course of her employment, a finding which was upheld by the Court of Appeal. Mahoney P, with whom Handley and Beazley JJA agreed, said: "Compensation may be awarded when the worker's injury arises out of or in the course of her employment. In this case, it does not arise "out of" the employment. The worker contends that it arose "in the course of" it. That relationship, "in the course of the employment" does not require that there be a causal relationship between the employment and the injury. Accordingly, it is ordinarily sufficient to show that the injury arose during the time when the worker was acting in her employment; ordinarily it will be sufficient if it occurred during the times when she was, as required by her employment, at the place of her employment for the purposes of it: see generally Hatzimanolis v ANI Corporation Ltd (19920 173 CLR 473 AT 483." 29 With this background I return to the facts of the present case. Of very great significance in my view is the fact that the accident occurred at Mr Kortegast's workplace. To use the words of the majority in Hatzimanolis, this was not a situation where the accident occurred after the daily period of work had been completed and the employee had returned to his home. Moreover the employer was present through most of, if not the entire period between when Mr Kortegast finished his work and when he sustained his injuries. Whether that period constituted one or two hours, in other words whether Mr Kortegast finished working at 5:00 or 6:00 pm does not, in my view, make any significant difference. The fact is, as Mr Williamson acknowledged, that it was normal for whoever was working on site to remain back after work on Fridays and enjoy a convivial beer. Similarly, it matters little, in my opinion, whether the beer was purchased by Mr Williamson, Mr Osborne or Mr Kortegast. The fact is that the employer, Mr Williamson, was an active participant in the evening's activities. As such, he must be taken to have implicitly encouraged Mr Kortegast to himself remain and participate. Indeed the evidence clearly shows that for most of this period those present were talking about matters connected with the building work. This provides yet a further link between Mr Kortegast's work and the circumstances in which he had his accident. 30 Before Mr McIntyre called his witnesses, he indicated that there might be evidence that Mr Williamson had asked Mr Kortegast to leave the premises at some time before the accident occurred. However as matters transpired, no such evidence was given in any meaningful form. Indeed in his oral evidence Mr Williamson confirmed that no such request had been made. Had it been the case that Mr Kortegast had been asked to leave, the outcome would probably have been different. Similarly, if Mr Kortegast had taken it upon himself to remain on site drinking after work, in the absence of Mr Williamson and without any encouragement or concurrence from him, then the situation would also have been very different. However the evidence shows that Mr Kortegast remained at his work place in the presence and with the encouragement of his employer for the whole period between the finishing of his work and the sustaining of his injuries. This being the case I do not think it could be said that the interval between periods of work had yet commenced when he sustained his injuries. It follows that his injuries were sustained during the course of his employment. 31 This finding makes it strictly unnecessary to determine the further issue of whether Mr Kortegast injuries arose out of his employment. However the matter was argued, and I propose to discuss it, albeit relatively briefly.

Did the plaintiff's injuries arise "out of" his employment ? 32 In order to support a finding that Mr Kortegast's injuries arose out of his employment it is necessary that a causal relationship be established between the accident and his employment. The precise nature of that relationship has received different expositions at different times . 33 I was referred by counsel to the dissenting judgment of Davidson J in Stewart v Metropolitan Water Sewerage and Drainage Board (1932) 32 NSWSR 576. As it transpires, that dissenting judgment prevailed on appeal. In Stewart v Metropolitan Water Sewerage and Drainage Board (1932) 48 CLR 216 the High Court, by majority, reversed the decision of the Full Court. At that time, the test under the workers compensation legislation was a compendious one. It was necessary to establish that the worker's injuries arose both out of and in the course of his or her employment. In Stewart, an affirmative finding had already been made that the worker's injuries arose in the course of his employment when the Court came to consider whether they also arose "out of" his employment. The worker in that case was employed as an overseer to supervise work being carried out by a contractor which employed a number of men on site. At one point a primus stove was used to boil a billy for lunch. The worker, who had no duties associated with the stove, happened to be sitting nearby and watching this process. The stove exploded, pouring burning kerosene over the worker who subsequently died of his injuries. The Compensation Board found that the worker's death was the result of injuries arising out of and in the course of his employment. The Full Court, by majority, found that the injuries did not arise out of his employment. The High Court, as indicated, reversed this finding. The majority (Gavin Duffy CJ, Evatt and McTiernan JJ) made the following observations: "It seems to us that Simpson's Case (1931) A.C. 351 is a strong authority in favour of the appellant. The accident was "unexplained", and yet, as Lord Tomlin pointed out at p 369, "where the evidence established that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment." This re-statement of the cases shows clearly that if Astill was "in the course of his employment" properly at a place near the stove, his accident also arose "out of" his employment if it arose because of a "risk particular thereto" attached to that place. What is really the same principle is stated by Russell L.J. in Lawrence v George Mathews (1924) Ltd. (1929) 1 K.B. at p 19 as follows:- "Sufficient causal relation or causal connection between the accident and the employment is established if the man's employment brought him to the particular spot where the accident occurred, and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, then the accident 'arises out of' the employment, even though the risk which caused the accident was neither necessarily incident to the performance of the man's work, nor one to which he was abnormally subjected." We think that some confusion has been caused by a misunderstanding of Lord Justice Russell's phrase "if the man's employment brought him to the particular spot." This cannot mean that there has to exist any special duty to be at the particular place of the accident. In Lawrence v George Matthews (1924) Ltd (1929) 1 K.B. at p 19 the commercial traveller was not bound to be at the spot where the tree fell, any more than the collector in McNeice's Case (1911) S.C. (Ct of Sess.) 12 was bound to be at the spot where he was kicked on the knee by a passing horse. The condition is satisfied if the worker, whilst in the course of his employment, may properly come and does come to the point of danger. It is there that his "employment brought him". Lord Tomlin in Fisher or Simpson v London, Midland and Scottish Railway Co. (1931) A.C. at p.369 refers to "a place to which some risk particular thereto attaches," and proof of the character of the place is often afforded by the occurrence of the accident. The place "turns out to be" a place of special danger (per Lord Shaw in Thom or Simpson v Sinclair (1917) A.C. at p 143." 34 In Smith v The Australian Woollen Mills Limited (1933) 50 CLR 504 the worker suffered injury when he fell against guard rails while he was walking along a passageway between two machines at his place of work. The fall was caused by a fainting fit which was in turn to due to the worker's diabetes. It was accepted that the injury arose in the course of the worker's employment. The substantial issue was whether there was a sufficient causal connection between the injury and the employment to establish that one arose out of the other. The High Court found that there was. The majority of the Court (Gavan Duffy CJ, Rich, Dixon, Evatt and McTiernan JJ) said as follows: (511-12) "If the question were asked: "Why was the workman injured when he fell? "the answer would be: "Because his body struck part of the plant at which he was at work." The nature and extent of the hurt he suffered was thus determined by the fact that he was at work and that his work brought him into proximity with a particular structure capable of inflicting the injury, a structure which is not part of the ordinary surroundings of daily life but is part of the equipment of the employer's manufacturing premises, and is distinctively industrial. The conditions which combined to bring about his injury, therefore, include the existence, configuration and situation of the particular piece of equipment, and the workman's presence near it. These were conditions which the employment established. The true question appears to us to be whether these conditions of the employment so materially contributed to the injury that it can be said to have arisen out of the employment." A little later, their Honours said: "We think that if an additional element or consideration is needed before it can be said that a workman's injury arises out of his employment when the injury is occasioned by his falling, through causes personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in risks of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman's fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstance that but for doing the particular piece of work which he was in fact performing he would not have experienced that particular sort of injury. We think that the reasoning disclosed by the citations were have made from Lord Summer, Lord Haldane and Lord Atkin requires the conclusion that, because the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work, a feature, in this case, characteristic of the conditions of employment and not to be found in ordinary life, the employment materially contributed to the injury, which accordingly arose out of it." 35 In Nunan v Cockatoo Docks and Engineering Company Ltd. (1941) NSWSR 119 a worker was injured when he was assaulted by a fellow worker. It was found that his injuries arose out of and in the course of his employment. Jordan CJ, with whom Roper J and Nicholas CJ in Eq agreed, said at 124 : "As the law now stands, I am of opinion that when a worker has proved an incapacitating personal injury, then if it appears that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury, and also that the injury was sustained whilst he was doing the job which he was employed to do or something incidental to it, he is prima facie entitled to compensation; and it is for the employer to show if he can that there is something which disentitled him to compensation or to full compensation." 36 In all these cases it had already been determined that the worker's injuries had arisen in the course of his employment. A temporal nexus had thus been established between the employment and the injury. So too in the present case I have determined that Mr Kortegast's injuries were sustained in the course of his employment. But even without that finding I consider that there would be a sufficient causal link between his employment and his injury to establish that the injury arose out of his employment. 37 The construction premises in the present case were private premises. The only people who were entitled to enter were those authorised by the owner or the employer, who in this case happened to be the same person, Mr Williamson. There was no social relationship between Mr Williamson and Mr Kortegast, and the latter's presence on the site was referable solely to his employment. Accordingly, the "but for" test has been satisfied. However as Mr McIntyre pointed out, passing the "but for" test is a necessary but not a sufficient pre-requisite for establishing causation. Mr McIntyre submitted that Mr Kortegast's presence on the site at the time of the accident was no longer a consequence of his employment. By that time, he urged, other factors had intervened to break the causal nexus between Mr Kortegast's work and his continued presence in the house. Accordingly there was an insufficient link between Mr Kortegast's injury and his employment to lead to a conclusion that the injuries arose out of his employment. 38 Had Mr Kortegast's injuries been attributable to some feature of the Rozelle house which bore no relationship to his employment, there would have been much to be said for Mr McIntyre's argument in this respect. For example, had Mr Kortegast fallen on a slippery floor in that part of the house which was not under construction, then it might have been difficult to conclude that his injuries arose out of his employment (although they would probably still have arisen in the course of his employment). But in this case Mr Kortegast's injuries were directly related to the work which he and Mr Williamson had been performing earlier that day. Mr Williamson was cross-examined by Mr Davies SC, for NZI, about the absence of any safety device such as a net to protect persons who might fall through the floor joists. Mr Williamson said that it would have been impracticable to provide a safety net, as he and Mr Kortegast were installing the joists from beneath, with the assistance of ladders. 39 It follows that it was the very work which Mr Kortegast had been doing that day, and particularly the manner in which that work had been performed, which created the dangerous situation which in turn led to his injuries. This being so, the nature of Mr Kortegast's employment to a material extent contributed to his injury. This is sufficient, according to the authorities quoted earlier, to establish that his injuries arose out of his employment. 40 One final matter should be mentioned. A considerable body of the evidence given before me was addressed to the question of how much Mr Kortegast had drunk before his accident and the extent to which he was affected by alcohol when he sustained his injuries. In the event, it is unnecessary to make any finding on this matter. This is because, as Mr McIntyre conceded, Mr Kortegast's alcohol consumption could only be relevant to the issues raised at this stage of the proceedings if it were capable of constituting "gross misconduct". This has never been suggested. Accordingly, I have refrained from expressing any views on this issue, which will probably assume considerable significance at the final hearing. 41 In conclusion, I find that Mr Kortegast's injuries arose out of and in the course of his employment. It follows that the first defendant will be entitled to indemnity in respect of the plaintiff's claim from the first cross-defendant, GIO Workers Compensation (NSW) Limited. 42 This effectively discharges the second and third cross-defendants from these proceedings. I order that the first cross-defendant pay their costs. **********

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(1996) 14 NSWCCR 132

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