Lake Macquarie City Council v Vetter [1999] NSWCA 98 | Case summary

One journey or two 5 The legislation, as Samuels JA said in Pitt v George Ford Pty Ltd (1980) WCR 130, 131, "provides for three possibilities so far as relevant". He continued: "The first is a continuous journey from the place of employment to the place of abode; the second is a journey between the same points, but one which is broken by a substantial interruption; and the third is an expedition which, although it may commence at the place of employment and ultimately end at the place of abode, is not one which enjoys the statutory character…". 6 Whether there is one journey or two in cases such as this was said by Mahoney JA to be "in the end, a matter of categorisation or impression". See Minchinton v Homfray (1994) 10 NSWCCR 778, 786. As such it will ordinarily be a question of fact, as this Court held in Pitt v George Ford Pty Ltd (1980) WCR 130. However a finding on this question may be vitiated by legal error as demonstrated by Young v Commissioner for Railways (1960) WCR 84, a decision of the High Court, and Kerr v NSW Club (1970) 3 NSWR 246, a decision of this Court. 7 The present might be thought to be an extreme case warranting a finding that there were two journeys because the respondent travelled nearly 20 kms further than the direct route home, much of it in a direction away from her place of abode, and her two periods of travel were separated by a visit to her grandmother's home lasting some two hours. The trial Judge said that it seemed to him "reasonable to categorise the applicant as calling in to see her grandmother on the way home". I must say that the view that she did this "on the way home" strikes me as forced and artificial. If asked, as she left work, where she was going I believe she would have said "I'm going to have dinner with my grandmother, and then going home", or words to that effect. 8 The fact that a worker ultimately intends to arrive home on the night in question does not require or support a finding that there was only a single journey between his or her place of work and place of abode. See Young v Commissioner for Railways above at 86 per Dixon CJ, and Pitt v George Ford Pty Ltd above at 131-2 per Samuels JA. 9 The typical deviation or interruption case has involved a worker stopping off for one or more drinks or other refreshment at an hotel, club or restaurant more or less "on the way home". In Tallar v K D Welding Co Pty Ltd (1955) WCR 214, 216 Rainbow J contrasted these cases with a different class of case saying: "… if you decide to go to a 5 o'clock theatre session, come out at 8 o'clock and have tea and so on it seems to me that that action puts you in the role of a civilian and not that of an employee getting home from work within a reasonable time". 10 In Cowie v State Land Tax Department (1966) WCR 175 Gibson J, having quoted the above passage, said in relation to the subject case: "… the worker abandoned his journey when he proceeded … in a direction away from his place of abode after leaving the hotel … with the intention of being engaged in basketball activities until at least 9 pm". 11 In Stokes v Commissioner for Government Transport (1967) WCR 129, 133 Dignam J, having referred to the example of Rainbow J, without quoting its source, said: "… it must be said that on such an occasion the worker is not going home from work but from the theatre". 12 The finding that there was a single journey raises the question whether the combination of the extra time, the extra distance, the different direction of travel in the first part of the journey, its independent purpose and the substantial break bring the case within the language of Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138 where he said: "… if the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law". 13 This principle was expressed by Lord Radcliffe in Edwards v Bairstow [1956] AC 14 at 36 in similar language when he said that there is an error of law if "the true and only reasonable conclusion contradicts the determination". His Lordship was dealing with an appeal by stated case but nothing turns on this. He said: "If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur". 14 See also Ex parte Robert John Pty Ltd v Fostars Shoes Pty Ltd (1962) 63 SR (NSW) 260, 272 per Sugerman J. 15 The decision which has made me pause on this question is The Old Spaghetti Factory v Oughtred (1975) WCR 231. There the worker, having ceased work at midnight, drove his motor cycle with a fellow employee as his passenger to a nearby restaurant where they remained from 12.15 until 2 am. He then drove her home to Vaucluse, 5 or 6 miles out of the city, spent a few minutes talking with her there, and left to drive home. He was injured between the city and his home in Dundas. Street CJ said at 232-3: "… this was a journey well capable of being regarded as continuous - in the vernacular, it would seem to be perfectly permissible on the evidence to regard the applicant as having called in at the restaurant and then having dropped off his female co-employee in the course of a roundabout journey to his home … The fact that the (applicant) had made it a practice of driving this fellow-employee home and the fact that they had on other occasions called at this place of entertainment provide ample material to support his Honour's inference that this was a single and continuing journey upon which the applicant had embarked at the time he left the restaurant (where he worked). When he left the restaurant he commenced a journey the terminal point of which was his home at Dundas, notwithstanding that he also intended to interrupt substantially, and to deviate substantially, from that journey by calling at the place of entertainment and by dropping his fellow-employee home". 16 After consideration I have reached the conclusion that this decision was correct because the journey from the "place of entertainment" to Vaucluse and thence towards Dundas was substantially continuous, and could fairly be viewed as a roundabout journey home. The substantial interruption and small deviation involved in the visit to the "place of entertainment" near their place of work can properly be viewed in the same way as stopovers at hotels or clubs which have generally been characterised as breaks in a journey rather than breaks between journeys. Compare Witherden v Estate of Body (1963) 64 SR (NSW) 48. 17 In the present case it seems to me that one cannot describe the journey on which this unfortunate young woman embarked when she left work that day as a single journey or as nothing more than a roundabout journey to her home. The direction of travel to her grandmother's house in the opposite direction to her home, the distance and time involved in getting there, and the length of her stay seem to me to require a finding that her stay at her grandmother's was a break between journeys, and not a break in a journey. Not without doubt I have concluded that the true and only reasonable conclusion contradicts the finding of the trial Judge on this question and that it must be held that the respondent was injured on a journey between her grandmother's home and her place of abode which was outside the protection of s 10. 18 The repetition of this pattern of travel does not support a finding that it was a single journey any more, in my opinion, than would a finding that once a fortnight an employee, after work and before proceeding home, went to watch a sporting fixture, or to a restaurant and the pictures, or to play basketball. Periodic journey 19 On the assumption, contrary to my conclusion on the first issue, that the respondent was injured on a journey between her place of work and her place of abode, I would affirm the Judge's finding that this was "a daily or other periodic journey". There was "intended repetition" of this journey which amply supports the finding that it was "other periodic". See Reilly v Henderson (1944) WCR 126, 130; and Boland v University of New England (1966) WCR 166 where it was the worker's habit after leaving work every third or fourth weekend to visit her mother in another town and spend the weekend with her. 20 Mr Shore for the appellant submitted that the reference to "other periodic" journeys only applied where the worker travelled between his home and his place of work at intervals other than daily, such as every week or fortnight. Such cases are within the section, but there is no justification for treating them as exhausting its operation. The construction contended for is contrary to the cases cited above, but is also contrary to the decision of this Court in Higgs v State Mines Control Authority (1967) 68 SR (NSW) 133. The worker had two places of abode, a permanent one in Lithgow and a temporary one near the mine where the worked. He went home to Lithgow at weekends but also once or twice mid week, these journeys being made at random with no set interval between them. 21 The Court held that these were other periodic journeys in the relevant sense. Sugerman J at 139-40 said that in testing this question it was necessary to have "regard to all the journeys made by the worker between his place of employment and his 'place of abode'" and then decide "whether on that footing the particular journey on which the injury was received was one of the daily or other periodic journeys between the applicant worker's place of abode and his place of employment" to which the section refers. Since the section applies to intermittent journeys to a second place of abode, there is no reason to deny its application to intermittent journeys to the same place of abode by a different route. On the assumption referred to the Judge's decision that the respondent sustained her injuries in the course of an "other periodic journey" was correct. Material increase in risk 22 The trial Judge found that the risk of injury to the respondent had not been materially increased because of what he held was an interruption and deviation in a journey between her place of work and place of abode. The journey was longer, and took longer, and because of the interruption and deviation the homeward leg on which she sustained her injuries took place at night whereas a direct journey home would have largely taken place in daylight. Moreover light rain fell steadily that afternoon and evening and it was raining when the accident occurred. 23 The parties called experts who gave conflicting evidence of the risks of travelling on the roads in question and supported their opinions by reference to and analysis of the available accident statistics kept by the Roads and Traffic Authority. The Judge preferred the evidence of Mr Kiernan, the expert called by the respondent, that although the expected number of accidents on the deviation route was slightly higher, the risks were very low for both routes. The increase in risk in percentage terms was not small, but in absolute terms both risks were very small. The Judge concluded that this small increase in risk was not a material increase and that the respondent had discharged her onus of proof on this issue. See Gillespie Bros Pty Ltd v Maksymczuk (1957) 57 SR (NSW) 610. 24 The increased length of the journey via the grandmother's home, and the increased time of travel, were both substantial, but these factors, without more, do not bring the case within the proviso dealing with the effect of a material increase in the risk of injury. This point was settled in Scobie v K D Welding Co Pty Ltd (1959) 103 CLR 314 at 322 where Dixon CJ said: "Of course the mere prolongation of the period of time during which the worker was occupied between the two termini of his journey must in a logical sense cause an increased risk of injury; for it lengthens the time during which injury may occur. But that element is necessarily put out of account". 25 See also Tucker v W D & H O Wills (Aust) Ltd (1969) WCR 14 CA per Herron CJ at 15-16. 26 Mr Kiernan gave evidence that the roads in question were well lit and well engineered. Although the rain and the darkness increased the hazards, the rain also affected the direct route home, and the lighting on the roads compensated for the darkness. Moreover the significant reduction in traffic volume after the peak hour reduced the risks. 27 The question of material increase in risk is, within broad legal limits, a question of fact. Scobie v K D Welding Co Pty Ltd above at 332 per Windeyer J. A trial Judge's reasons for preferring one expert to another are an unpromising area for discovering an error of law, and Mr Shore's attempts to do so were unsuccessful. The only question of law is whether an increase in risk which appears significant in percentage terms must be a material increase, even if it is not significant in absolute terms. This question must be answered in favour of the respondent. The section is concerned with an increase in risk which is material in real or practical terms. Windeyer J made this clear in Scobie v K D Welding Co Pty Ltd above at 330-1: "A deviation or delay, prima facie, increases the perils of a journey, because it adds a new place or further time in which danger might arise and loss occur. In particular cases, however, a deviation may actually reduce the risk of loss … as I have said … any substantial interruption or deviation must, in one sense, be likely to increase the risk of injury during the journey … but such an increase would not necessarily be a material increase". 28 In Tucker v W D & H O Wills (Aust) Ltd above the trial Judge found that the interruption and deviation had caused a slight increase in the risk and his further finding that this was not a material increase was held on appeal to involve no error of law. In my opinion the appeal on this issue also fails. Fault 29 Section 10(1A), which has already been referred to, provides in substance that a worker is not entitled to compensation for a journey injury if it was caused partly or wholly by his or her fault. Fault is defined in s 10(6) as including negligence and "any failure to take reasonable care for the worker's own safety". 30 The onus of proving fault is on the employer. Little is known of the accident. The respondent suffered head injuries and has no recollection of the event, and no eye witness was called to give evidence. All that is known is that the respondent's car crashed into the back of a stationary truck parked some 5 metres off the Pacific Highway on the respondent's correct side of the road. There were no marks on the roadway which could assist in working out what happened and there was no evidence of the speed of the respondent's vehicle, or that the conduct of any other vehicle played a part in the accident. 31 The trial Judge referred to the following passage in the judgment of Campbell CJ in Tang v Yu (1994) 10 NSW CCR 240, 248: "This doctrine (i.e. res ipsa loquitur) does not free me, as the tribunal of fact from the task of determining, on the facts as they are known, whether more probably than not the loss of control was caused by the fault of the deceased. (GIO NSW v Fredrichberg (1968) 118 CLR 403)." 32 With respect this is correct and fully supported by the authority cited. Tang v Yu however was a very different case. The Judge had the benefit of evidence of eye witnesses which established that the vehicle, which was travelling at a normal speed on a straight road began suddenly to fishtail and then veered onto its incorrect side of the road. The accident occurred mid morning in dry conditions, and there was no suggestion of alcohol or fatigue. Campbell CJ held (248) that it was not possible to do more than speculate as to what occurred, and that the employer had not discharged the onus of proving fault. In my judgment an important feature in that case is that the evidence excluded a number of causes which would have established negligence by the driver, and the sudden fishtailing suggested a mechanical malfunction consistent with the absence of negligence on his part. In other words the accident was not entirely unexplained. 33 The evidence in the present case does not exclude any cause of the accident which would have established negligence on the part of the respondent. The accident occurred where the northbound carriageway of the Pacific Highway curved to the left on a downhill grade. It is clear that the respondent lost control of her vehicle on the curve for some reason and as a result her vehicle left the roadway and collided with the truck. Thus there was evidence of fault. As Dixon J said in Davis v Bunn (1936) 56 CLR 246, 260: "… unless and until the cause of the vehicle's change of direction was explained, I think mere proof that it suddenly swerved from one side of the road to the other and hit the plaintiff's stationary car would constitute sufficient evidence of negligence. It is true that such a thing is consistent with more than one cause not implying negligence. For example, the driver may have fainted, or the steering gear may have failed through no fault of the defendant. But such unavoidable events are sufficiently unusual to raise the probability that the erratic course of the vehicle is to be accounted for by some failure in due care, whether in its management on the roadway or in the maintenance of its mechanical efficiency. In the absence of all explanation the probability would be high enough to justify an inference in the plaintiff's favour … a presumption of fact would arise and its strength would be a matter for the jury to estimate, in whose province it would be to draw or refuse to draw the inference". 34 The principle was again applied in the Government Insurance Office of New South Wales v Fredrichberg (1968) 118 CLR 403, 414 per Barwick CJ: "… the jury is not bound either to conclude that such an occurrence was unlikely to occur without negligence on the part of a person in the defendant's position or to draw the inference that it did in fact occur in the case before them because of the negligence of the defendant. All that has happened … is that the judge is satisfied that a jury would be entitled to conclude that such an occurrence in the ordinary affairs of mankind is not likely to occur without negligence on the part of a person in the situation of the defendant. For the rest, it is a question for the jury whether they think the occurrence unlikely in this sense and, if so, whether in the particular case they will be satisfied that there was in fact relevant negligence". 35 The trial Judge said: "There is even less evidence in this case than there was in Tang's case upon which the Court may make a finding as to fault. The evidence has raised some possibilities as to how the accident might have happened. None of them is any more than speculation as to what occurred. If it be assumed that the applicant lost control of the car there is no evidence to show that this loss of control resulted from negligence as supposed to some inadvertence or error of judgment. Speculation is insufficient to discharge the onus of proof upon the respondents of showing that more probably than not the applicant's injuries were caused partly or wholly by her own fault". 36 With respect to the trial Judge, in my opinion he fell into legal error in this passage. There was evidence of fault in this case, both negligence in relation to the owner of the parked truck, and a failure on the part of the respondent to take reasonable care for her own safety. The Judge therefore erred when he said that "there is no evidence to show that this loss of control resulted from negligence". He also erred in placing an onus on the employer to establish the precise cause of the accident. He said that the evidence raised "some possibilities as to how the accident might have happened. None of them is any more than speculation". The party relying on res ipsa loquitur does not have to identify and establish a particular negligent act or omission. In most res ipsa loquitur cases that would be impossible, just as it was in this case. Again, as Dixon J said in Davis v Bunn in the passage previously quoted: "It is true that such a thing is consistent with more than one cause not implying negligence. For example, the driver may have fainted or the steering gear may have failed through no fault of the defendant. But such unavoidable events are sufficiently unusual to raise a probability that the erratic course of the vehicle is to be accounted for by some failure in due care, whether in its management on the roadway or in the maintenance of its mechanical efficiency". (emphasis added) 37 Similarly in Government Insurance Office of New South Wales v Fredrichberg above at 415 Barwick CJ, in the course of referring to the directions a trial Judge should give a jury in a case such as this, said: "… they must be satisfied in their minds that more probably than not the defendant was in fact negligent and that his negligence, even though they cannot identify the particular negligent act or omission, caused the plaintiff's injuries". (emphasis added) 38 The importance of the errors in the passage identified is demonstrated by the Judge's statement that "There is even less evidence in this case than there was in Tang's case upon which the Court may make a finding as to fault", which shows that he considered that the employer had to identify and establish the act or omission which caused the accident and constituted fault. 39 In Tang's case the evidence excluded a number of possible acts or omissions of the driver which would have been probative of negligence and thus diminished the strength of the inference arising from the occurrence itself. In the present case the evidence excluded none of the possible acts or omissions of the driver probative of negligence leaving the force of the inference undiminished. That inference of course is that the occurrence "in the ordinary affairs of mankind is not likely to occur without negligence" on the part of the driver. The Judge referred to the possibility of inadvertence or error of judgment, but a downhill bend on the Pacific Highway on a wet night is not the time or place for a driver to lapse into momentary inadvertence, and she had only been driving a short time since leaving her grandmother's. 40 In my judgment therefore the trial Judge's finding on the issue of fault must also be set aside. This error would only lead to an order for a new trial, but my conclusion on the journey issue requires the entry of an award for the appellant. 41 In my opinion the following orders should be made: (1) Appeal allowed with costs. (2) Set aside the award for the applicant entered in the Compensation Court. (3) In lieu thereof order that there be an award for the respondent. (4) The respondent to have a certificate under the Suitors Fund Act. 42 PRIESTLEY JA: Introduction. Handley JA has set out in his reasons the materials relevant to the decision of this appeal, including the relevant parts of s 10 of the Workers Compensation Act 1987, which entitles a worker, subject to qualifications, to compensation for "personal injury received" on "daily or other periodic journeys between the worker's place of abode and place of employment". Handley JA has also set out the four principal issues argued in the appeal arising under s 10. I will deal with them under the headings he has used. 43 One journey or two. Ordinarily, this question is one of fact, and if it were so in the present case, the appellant Council would not have a ground of appeal. However, if the facts found by the trial court can not support the legal description given to them by the trial court (one journey), then there is authority, referred to by Handley JA, justifying an appeal court in saying that the trial court erred in law. 44 In my opinion, the facts of the present case left it open to the trial judge to categorise the respondent's journey in the way that he did. It seems to me that an objective bystander, using ordinary language, could describe the respondent's after work travel on the day of the accident as "going to see her grandmother on her way home" just as easily as "making a trip to her grandmother's and then making a second trip to home from there". If I am right in this view, it seems to me to show that the case does not fall into the category of those cases where there is only one way of truly and reasonably categorising the description to be derived from the facts. It demonstrates that there is more than one reasonable way of describing the facts, with the result that the choice of one description rather than the other is not an error of law. 45 The case in this court of The Old Spaghetti Factory v Oughtred [1975] WCR 231 is an example of the class of case into which, in my opinion, the present case falls. The facts were stated by Street CJ as follows: "The [worker] was injured in the early hours of the morning of 16th February, 1973. He had been employed the night before from 6 pm until shortly after midnight in a restaurant in The Rocks area of Sydney. He left the restaurant at about quarter past twelve in company with a fellow-employee, whom he had made it a practice to drive to her home at Vaucluse after work. A few times on such journeys to her home they had stopped at a place of entertainment about a mile distant from the restaurant. They made such a stop on the night of the accident and remained there from about 12.15 am to about 2 am. The [worker] then drove his fellow-employee to her home at Vaucluse, about five or six miles out of the city. He spent a few minutes talking with her there and then left Vaucluse for the purpose of journeying home to his home at Dundas, a place admittedly on the other side of Sydney and distant some many miles from the restaurant. The accident occurred while the [worker] was travelling on the Dundas side of Sydney on his journey to Dundas." 46 On these facts Street CJ said: "...in the vernacular, it would seem to be perfectly permissible on the evidence to regard the applicant as having called in at the restaurant and then having dropped off his female co-employee in the course of a roundabout journey to his home. That is essentially what the section comes down to. The fact that the appellant had made it a practice of driving this fellow-employee home and the fact that they had on other occasions called at this place of entertainment provide ample material to support his Honour's inference that this was a single and continuing journey upon which the applicant had embarked at the time he left the restaurant. When he left the restaurant he commenced a journey the terminal point of which was his home at Dundas, notwithstanding that he also intended to interrupt substantially, and to deviate substantially, from that journey by calling at the place of entertainment and by dropping his fellow-employee home." (at 232-233) 47 Street CJ added (at 233) that the question was clearly enough a matter of fact and degree. 48 Samuels and Mahoney JJA each agreed with Street CJ. Samuels JA was particularly emphatic that no question of law was involved (at 234). 49 In my opinion the trial judge in the present case made no error of law in holding, on the facts before him, that, for the purposes of s 10, the respondent had been in the course of one journey when injured. 50 Periodic journey. On this point I agree with Handley JA. 51 Material increase in risk. On this point I also agree with Handley JA. 52 Fault. I agree with Handley JA that the passage which he cites from the trial judge's reasons indicates a misunderstanding on his part of what the appellant needed to show in order to establish fault. That is, the trial judge did not consider the facts before him by reference to the right legal test. It will be necessary, in my opinion, for there to be a new trial so that the evidence may be considered by reference to the appropriate legal test. In applying that test I think it will be proper for the trial judge to consider, along with the other matters that must be considered, the possibility of inadvertence or error of judgment on the part of the appellant. Error of judgment in particular can happen at any time, and may be thought to be more likely in adverse conditions than otherwise. 53 Orders. In my opinion the appeal should be allowed with costs, the award below should be set aside, a new trial should be ordered limited to the question of fault and the respondent should have a certificate under the Suitors Fund Act. 54 POWELL JA: I have read in draft the Judgment which has been prepared by Handley JA in this matter. 55 I agree with his Honour's conclusion - and with his reasons for so concluding - that the evidence tendered by the Respondent did not justify the trial judge's finding that the Respondent was in the course of a statutory journey at the time of the accident. As that conclusion is sufficient to determine the fate of this appeal, I refrain from dealing with the other matters discussed by his Honour in his judgment.

Lake Macquarie City Council v Vetter

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Judgment (13 paragraphs)

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Cases Cited (5)