Mechanical Advantage Group Pty Ltd v George

Court of Appeal (NSW)|2003-05-21|Before: Spigelman CJ, Handley JA, Young CJ

CITATION : Mechanical Advantage Group Pty Ltd v George [2003] NSWCA 121 HEARING DATE(S) : 17/03/03 JUDGMENT DATE : 21 May 2003

JUDGMENT OF : Spigelman CJ at 1; Handley JA at 2; Young CJ in Eq at 27 DECISION : Appeal dismissed with costs.

CATCHWORDS : Workers Compensation- Personal injury- Workers Compensation Act 1987, s 10- Journey provisions- Detour- Deviation- Interruption- Material increase in the risk of injury- Onus of proof to disprove material increase in risk on worker- Prima facie case that no material increase in risk then onus shifts to employer to prove there was an increase- Injury in NSW on return journey to place of abode in Queensland- Areas of knowledge in which the Workers Compensation Court has "expert knowledge"- Rules of evidence for Workers Compensation Courts. (D) Compensation Court Act 1984, s 32 LEGISLATION CITED : Workers Compensation Act 1987, ss 10(1), (2), (3)(e) Workplace Injury Management Act 1998, s 112(3) Ambulance Service of NSW v Daniel [2000] NSWCA 116 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bryer v Metropolitan Water Sewerage & Drainage Board (1939) 39 SR (NSW) 321 Burns v Nott [1927] WCR 17 Kealley v Jones [1979] 1 NSWLR 723 Kemp v Darling Island Stevedoring & Lighterage Co Ltd (1959) 76 WN (NSW) 707 CASES CITED : Maksymczuk v Gillespie Brothers Pty Ltd (1957) 98 CLR 523 Martin v Globe Worsted Mills Pty Ltd (1962) 80 WN (NSW) 237 May v O'Sullivan (1955) 92 CLR 654 NRMA Smash Repairs Pty Ltd v Hoy (1995) 11 NSW CCR 326 (CA) Scobie v K D Welding Co Pty Ltd (1959) 103 CLR 314 Tucker v W D & H O Wills (Aust) Ltd (1969) 43 WCR 11 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 PARTIES : Mechanical Advantage Group Pty Ltd (Appellant) Neil George (Respondent) FILE NUMBER(S) : CA 40240/02 COUNSEL : L King SC and MFG Batten (Appellant) JP Gormly SC and BG McManamey (Respondent) SOLICITORS : Goldrick Farrell Mullan (Appellant) Turner Freeman (Respondent)

LOWER COURT Compensation Court JURISDICTION : LOWER COURT CC 41431/01 FILE NUMBER(S) : LOWER COURT Neilson CCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40240/02

SPIGELMAN CJ HANDLEY JA YOUNG CJ in EQ

Wednesday 21 May 2003 MECHANICAL ADVANTAGE GROUP PTY LTD v GEORGE Judgment 1 SPIGELMAN CJ: I agree with Handley JA. 2 HANDLEY JA: This appeal arises out of the journey provisions in s 10 of the Workers Compensation Act 1987. The section occupies nearly three pages in the print copy of the statute, but the relevant provisions are ss 10(1), (2) and (3)(e). Section 10 (1) provides that a personal injury received by a worker on any journey to which the section applies is for the purposes of the Act an injury arising out of or in the course of the worker's employment. The relevant journeys include in sub s (3)(e) a journey between a place where the worker is required by the terms of his employment to work and his normal place of abode. 3 This worker and his brother had been required by their employer to work at Young in New South Wales. When the job they had been working on was finished they set out to drive back to their home in Brisbane. This journey fell within sub s (3)(e), and prima facie was covered by s 10(1). 4 The appellant and his brother drove along the Hume and Pacific Highways. They deviated from their direct route to the Pacific Highway to meet their sister at Coogee and stayed with her in Kensington overnight. The following day they left Sydney and drove north along the Pacific Highway and then 11 kms off the Highway to Bellingen where they stayed overnight at a hotel. During the night the worker fell off the balcony at the hotel and was seriously injured. 5 The employer's appeal turns on s 10(2) which provides: "Sub section (1) does not apply if: (a) the injury was received during or after any interruption of, or deviation from, any such journey and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation". 6 Neilson CCJ found that the case fell within the proviso to sub s (2) and upheld the worker's claim. He found that there was a single journey from Young to Brisbane but the worker (and his brother) deviated from and interrupted that journey when they drove to Coogee on the Friday afternoon and stayed with their sister overnight. He held there was a further interruption, but not a further deviation, when the brothers broke their journey to stay overnight at Bellingen. There was some dispute as to whether the 11 km drive from the highway to Bellingen was also a deviation, but the Judge held that the stop at Bellingen was covered by sub s (2)(b) because it was for reasons connected with the purpose of their journey. He made no such finding in relation to the interruption and deviation at Sydney. 7 The employer contended that the Judge had erred in law in finding that there was a single journey between Young and Brisbane, and that the interruption and any deviation at Bellingen were for the purposes of that journey. I agree with Young CJ in Eq that these were questions of fact and this Court is not entitled to interfere. 8 The worker's injury at Bellingen occurred "after" the interruption or deviation at Sydney and therefore his right to compensation depended on the proviso to sub s (2): "unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation". 9 This proviso was based, with minor drafting changes, on the corresponding provision in the 1926 Act. The worker had the onus of proving that there was no material increase in the risk of injury: Maksymczuk v Gillespie Brothers Pty Ltd (1957) 98 CLR 523. 10 The proviso will operate if there is a material increase in the risk of injury although that increased risk did not cause the actual injury suffered by the worker: Scobie v K D Welding Co Pty Limited (1959) 103 CLR 314. As Fullagar J said in that case (326): "The proviso is concerned not with cause of injury but with increased risk of injury". 11 Dixon CJ said in that case (321-2): "... there must be an increase over a risk otherwise existing. Plainly the risk otherwise existing must be the risks of the journey without ... interruption or deviation ... Of course the mere prolongation of the period of time during which the worker was occupied ... 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". 12 The view of Dixon CJ, that the additional time added to the journey must be put out of account, was not accepted by Windeyer J and was not referred to by the other Justices. Windeyer J said (331): "... any substantial interruption or deviation must, in one sense, be likely to increase the risk of injury during the journey (including, for this purpose, the time of the interruption and the place of the deviation in the journey). But such increase would not necessarily be a material increase". 13 Whether the risk of injury was not materially increased is a question of fact and the worker must prove the negative. In Tucker v W D & H O Wills (Aust) Ltd (1969) 43 WCR 11, 19 Jacobs JA said in this connection: "This negative could not in the nature of things be exhaustively proved, because the number of elements of which account might be taken was practically inexhaustible. The applicant could not negative all elements, but could only point to those of them that seemed to be most important". 14 The relevant interruption and deviation began at Beverley Hills on the M5 (Black 12) a little after 1 pm when the brothers turned off their direct route to the Pacific Highway and headed for Kensington (Black 65). They met their sister at the Coogee Hotel about 2 pm. The interruption continued until about 9 o'clock the next morning when the brothers rejoined their direct route somewhere south of Hornsby (Black 65). 15 A traffic engineer qualified by the employer gave evidence about the risks involved in driving from the M5 at Beverley Hills to Coogee, and from Coogee to the Pacific Highway. The worker's brother said that he and the worker met their sister at the Coogee Hotel about 2 pm where they had a late lunch leaving about 4 pm. They stayed the night with their sister and left the next day at 8.30 am after the morning peak hour. The worker was not able to give evidence. 16 There was no other evidence about what occurred between 2 pm on the Friday and 8.30 am on the Saturday. The Judge said that the absence of evidence caused him some anxiety. He said that the traffic engineer did not give any evidence as to "any material increase of risk in doing what the brothers did on the afternoon of 7 May". If his Honour was referring to the increased risks associated with driving during the deviation, he was mistaken because the traffic engineer had given such evidence. If his Honour only intended to refer to the time the brothers spent in the company of their sister, and at her home, he was correct. 17 The strict position is that the onus on the worker related to the whole period between the start of the deviation at Beverley Hills some time after 1 pm on the Friday until the deviation ended at the start of the Newcastle Expressway south of Hornsby about 9 am on the Saturday. There is evidence about the increase of risk while driving to Coogee and from Coogee to the Pacific Highway. The true evidentiary gap relates to the period between 2 pm on the Friday and 8.30 am on the Saturday. 18 The Judge held that the employer had an evidentiary onus on the issue of material increase in the risk of injury during the interruption and deviation in Sydney which had not been discharged. He may have applied this onus to the time spent on the road, he may have applied it to the time the brothers were in the company of their sister, or he may have applied it to the whole period. 19 All that is known after 2 pm on the Friday is that the brothers had a 2 hour lunch with their sister, then went back to her home, which was said to be ½ to ¾ of an hour away (Black 11, 48), spent the night there, and left there the next morning (Black 10). Counsel for the employer did not cross-examine the brother about the activities of the siblings after they had returned to the sister's home and before they went to sleep, or in the morning after they got up until they left. Nor did he ask any questions about their consumption of alcohol at the hotel. 20 The natural inference from the evidence that the two brothers had a late and leisurely lunch with their sister is that alcohol was consumed but in moderation. No one came to grief at that stage and there is no reason for a tribunal of fact to infer that any increase in the risk of injury was material. The natural inference, if not the natural implication, from the evidence that the brothers went back to the sister's house and left there the next morning is that they remained in each other's company and did nothing which exposed them to a material increase in the risk of injury. 21 The evidence in report form from the traffic engineer (Black 65) was that the distance from the M5 motorway to Coogee was 28 kms and the estimated travelling time was about ¾ hour. The brother's evidence that the travelling time from the hotel to his sister's home in Kensington was ½ to ¾ of an hour (Black 11) may well be an over-estimate. The traffic engineer did not attempt to estimate this distance and may not have known the sister's address. He estimated the distance from Coogee to the Pacific Highway as 10 kms and the travelling time about ½ an hour. These may have been under-estimates but the differences could not be material. 22 On the basis of estimates of traffic volumes on the roads travelled during the deviation in Sydney and official accident statistics the traffic engineer said that the expected crashes between the M5 and King George's Road were 3 for every 100,000 journeys, on the next sector to Coogee 22 for every 100,000 journeys, and from Coogee to the Pacific Highway 18 for every 100,000 journeys. The witness was not asked to explain what he meant by "crashes" and in particular whether the statistics only covered crashes which caused physical injuries to persons travelling in a vehicle. 23 The traffic engineer's evidence (Black 64-5) therefore established that the deviation in Sydney added 38 kms to a journey of 1,351 kms, an increase of about 2.8%, and an increase of 7.3% in the total time that would be spent on the road. The Judge said that the additional distance in relation to the whole journey was miniscule. The expected crashes over the additional distance in Sydney were 43 per 100,000 journeys, which was miniscule in absolute terms although it represented a 25% increase in percentage terms. An increased risk, which is small in absolute terms, is not material merely because it is significant in percentage terms: Vetter v Lake Macquarie City Council (2001) 202 CLR 439, 448 (16). 24 As Windeyer J said in Scobie v K D Welding Co Pty Ltd (1959) 103 CLR 314, 331 [par 10] the increased risk due to the additional time taken on the journey as a result of a deviation or interruption is not necessarily material. On the evidence of the traffic engineer the Judge was entitled to find as a fact that the increased risks associated with the additional time and road mileage were not material. 25 The Judge's decision that the employer had an evidentiary onus necessarily depended on an unexpressed finding that the worker had made out a prima facie case. This is always a question of law: May v O'Sullivan (1955) 92 CLR 654. His Honour may have made factual errors in reasoning as he did, for the reasons I have given, but in my judgment there was a prima facie case and he did not err in law in holding that the employer had an evidentiary onus on the issue of material increase in risk. The employer did not adduce further evidence in an attempt to discharge that evidentiary onus, and did not relevantly cross-examine the brother. His Honour did not err in law in accepting the worker's prima facie case. 26 The employer has failed to establish that the award for the respondent worker was vitiated by error of law and the appeal should be dismissed with costs. 27 YOUNG CJ in EQ: This is an appeal by an unsuccessful employer from a decision of his Honour Judge Neilson in the Compensation Court. 28 The appeal is brought as of right under s 32 of the Compensation Court Act 1984. Under that section the appeal is limited to questions of law. 29 The basal facts are that Neil George the respondent and his brother Ken, were employed by the appellant to work on a pipeline near Young, New South Wales. At the time, the respondent and his brother were resident in Eight Miles Plains, an outer suburb of Brisbane. 30 The brothers finished work on Thursday 6 May 1999. Their employer provided a rental car for them in which to travel back to Brisbane. They commenced their journey from Young, drove south to pick up the Hume Highway, and then went north to Sydney. Had a person made the initial election to travel by the Hume Highway and Pacific Highway to Brisbane, the shortest route would be to branch off the Hume Highway near Liverpool, travel up the Cumberland Highway through Wentworthville, meet up with Pennant Hills Road near Carlingford, and then join the Newcastle Expressway at Wahroonga. However, because the brothers wanted to see their sister who resided in Kensington, they in fact continued up the Hume Highway to its end and then out to Kensington. 31 The brothers had a meal with their sister at the Coogee Bay Hotel between about 2 pm and 4 pm on the Friday afternoon, and then stayed with their sister overnight. 32 They started off again the next morning at 8.30 am, went through the Harbour Tunnel, up the Pacific Highway and on to the Newcastle Expressway and proceeded to Bellingen. Ken did all the driving. 33 Bellingen is not on the Pacific Highway, but is 11 km to the west. 34 The brothers stayed in the Federal Hotel in Bellingen. 35 The brothers arrived in Bellingen between 3.30 pm and 4 pm after a drive of seven hours. They did not have lunch but they both had a counter meal at the hotel at about 6 pm. 36 The learned Judge accepted that there were two reasons why the brothers stopped overnight at Bellingen. One was to catch up with friends, but another was for the purpose of the journey they undertook between Sydney and Brisbane. 37 Ken went to bed at about 9.30 pm. He remembered before he went to bed that his brother was drinking, what he assumed to be, bourbon and coke. Somewhere between 11 pm and 1 am Ken's slumber was broken when his brother entered their room, turned on the light and made a noise. The respondent placed a six-pack of beer on his bed and then opened the french doors onto the verandah. He closed the french doors on the verandah as it was a cold night and Ken then went back to sleep. 38 When Ken woke up the next morning, the respondent's bed had not been slept in and the six-pack of beer remained unopened. Ken found the respondent in a laneway between the hotel and the adjoining shop premises where he had obviously broken his leg and had massive head injuries and was a complete mess. The place where the respondent was found was immediately below the verandah adjoining the room in which Ken had slept that night. 39 The reason why the respondent fell is not known. There is no suggestion of any other person being involved, nor that the injury was wilfully self-inflicted. For some reason or other the respondent went over the verandah. 40 The key point of the case before his Honour centred on s 10 of the Workers Compensation Act 1987, which, so far as is relevant, in the form as it existed at the date of the accident, is as follows: "10(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment and compensation is payable accordingly ... (2) Subsection (1) does not apply if: (a) the injury was received during or after any interruption of, or deviation from, any such journey, and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey unless in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation." 41 His Honour found that the journey was interrupted when the respondent and his brother visited their sister in Sydney and stayed overnight with her. However, he said: "I am satisfied on the balance of probabilities that the risk of injury was not materially increased by reason of that interruption." (Judgment [62]).

He then said at [62]: "There might be thought to be an interruption or deviation in the journey by the overnight stay in Bellingen, but I find that the purpose of that interruption or deviation was for the purpose of the journey, namely the taking of a necessary overnight stop on the long trip between Sydney and Brisbane." 42 Although in the passage I have quoted his Honour spoke about an "interruption or deviation" into Bellingen, earlier in his judgment he had described the trip into Bellingen as "a minor detour" using those words advisedly rather than the technical word "deviation". Mr King SC who appeared with Mr Batten for the appellant, made the point that any detour was a deviation within the meaning of the section. With respect, I cannot agree with this comment. In Martin v Globe Worsted Mills Pty Ltd (1962) 80 WN (NSW) 237, 240, Herron CJ, with whom Macfarlan and Nagle JJ agreed, said: "Minds may differ perhaps as to what constitutes a 'deviation' … . Although it may be impossible to give a satisfactory definition … a 'substantial deviation' is one which can be discerned when met with as a question of fact by an experienced judge …". 43 If Mr King's proposition were correct, the learned Chief Justice could not have made that observation. Furthermore, it is against reason that if there is what is popularly called "budget priced accommodation" a few kilometres off a main road, a worker cannot take advantage of that accommodation but must take accommodation directly on the main road home or else he or she may be met with a rejection of a worker's compensation claim. 44 The first submission made by counsel for the appellant was that there were really three journeys, viz (1) the trip from Young to Sydney; (2) the trip from Young to Bellingen; and (3) the proposed trip from Bellingen to Brisbane, not just one journey. 45 His Honour rejected that submission and held that there was one journey between Young and Brisbane. It seems to me that this is a question of fact with which this Court cannot interfere. 46 The second submission was that there was an interruption or deviation by proceeding into Bellingen. The learned Judge held that any such interruption or deviation, assuming there was a deviation (there was certainly an interruption), was for the purpose of the journey, and again, it would seem to me that this was open to his Honour as a decision of fact on the evidence. 47 The third submission was of more concern, and that was that there was an interruption or deviation by proceeding into Sydney which was not for the purpose of the journey. It is clear that this is so, and indeed, his Honour so held: "I accept that there was an interruption in the journey when the applicant and his brother stopped to visit their sister." (Judgment [37]).

He also at [38] found that there was a "slight deviation" in continuing into Sydney and then taking the tunnel and the Pacific Highway through the north shore to reach the Newcastle Freeway. 48 There being then an interruption or deviation by the trip into Sydney, one then must accept that the right to compensation does not apply "unless in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation." What is the meaning of the words "the risk of injury"? As was virtually agreed during argument, the position of the definite article shows that the legislature was not talking about risk of the injury which actually occurred, but rather the risk of injury generally. This is also in accordance with the authorities: Scobie v K D Welding Co Pty Ltd (1959) 103 CLR 314, 322; NRMA Smash Repairs Pty Ltd v Hoy (1995) 11 NSW CCR 326, 334 and 388 (CA). 49 It was common ground before Neilson J, that the legal onus of demonstrating that in the circumstances of the case the risk of injury was not materially increased was on the respondent. His Honour so held in [40] but then said: "This has caused me some anxiety. The applicant in the case … is incapable of giving any evidence. Ken gave the substantive evidence in the case and he is obviously not familiar with Sydney at all. The employer qualified a traffic engineer but he did not give, nor was any attempt made to adduce from him, any evidence as to the material increase of risk in doing what the brothers did on the afternoon of 7 May 1999. In other words, although the worker bears the legal onus of proof, in the special circumstances of this case it appears to me that the evidentiary onus has fallen upon the employer." 50 His Honour then went on to say that his court was an expert tribunal and the state to which its expertise goes has never been delimited. It can take judicial notice of the highways and by-ways of New South Wales and "[i]t appears to me as a tribunal of fact that there will be no material increase in risk in continuing from the Hume Highway, along the M5 to Beverly Hills and thence to Coogee on a Friday afternoon, arriving at Coogee at some 2.00 pm. … Nor would there be any increase in risk in leaving at 8.30 am and travelling … to catch up with the Pacific Highway at Chatswood." (Judgment [43] and [44]). 51 He thus found that there was no material increase in risk by reason of slight deviation and interruption of the journey into Sydney. 52 Mr King challenges the last sentence of [40] which I have quoted, and also the ability of his Honour to use his own knowledge as judicial knowledge or the knowledge of an expert tribunal to enable the respondent to succeed. The proposition is that the onus at all times was on the worker to show that the risk of injury was not materially increased, particularly in circumstances where the evidence plainly showed that the parties were two hours in licensed premises in Sydney between 2 and 4 pm on the Friday afternoon, the worker clearly had not put forward material to discharge his onus. Accordingly, the claim must fail. 53 In answer to this, Mr Gormly SC, who appeared with Mr McManamey for the respondent, said that where the circumstances do not show any risk of injury, there is no need for the worker to tender any evidence on the subject. 54 Mr Gormly referred to the judgment of Jacobs JA in Tucker v WD & HO Wills (Aust) Ltd (1969) 43 WCR 11, 19, when his Honour said: "[I]t must be borne in mind that the applicant was bound to prove a negative, namely, that the risk of injury was not materially increased by reason only of the substantial interruption or substantial deviation. This negative could not in the nature of things be exhaustively proved, because the number of elements of which account might be taken was practically inexhaustible. The applicant could not negative all elements, but could only point to those of them that seem to be most important."

It would seem in Tucker's case that the worker had given evidence and the Judge also considered all the surrounding circumstances as a matter of common sense in coming to his view. The case, however, does not go so far as to say that where there is no risk in the first place, there is no need to give evidence. 55 In any event, the surrounding circumstances show that there was almost certainly some extra risk, though that could have been negatived by evidence. We do not know what type of meal and refreshments were taken at the Coogee Bay Hotel, but we do know that the parties were at licensed premises for two hours. 56 Accordingly, unless there is something in the phrase "in the circumstances of the case", that enables the respondent to succeed I would have to uphold the submissions made by Mr King that the fact that the respondent called no evidence should not have only caused his Honour "some anxiety" as he says in para [40] of his reasons, but ought, inescapably, to have led to the conclusion that the respondent failed to discharge his onus and thus failed in his case by the reference to interruption because of the trip into Sydney. 57 This phrase or a like equivalent "having regard to all the circumstances", has been in the Workers Compensation Act for at least 50 years and has never been thought to have any more significance than merely directing the Judge's mind when assessing facts that all circumstances have to be taken into account. 58 Was then, the Judge permitted to supplement the failure of the worker to give evidence by his own knowledge? 59 It could be said that this question is otiose. The Judge did not direct his mind to the question as to whether the interruption caused an increase in the risk other than in respect of traffic conditions. In particular he did not direct his mind to any risk there was in being in the Coogee/Kensington area or imbibing alcohol if alcohol was in fact imbibed. There are a number of pieces of dicta to the effect that judges and commissioners in the Workers' Compensation Court may use their "expert" knowledge to a greater extent than judges in other courts or tribunals. 60 It was decided very early on in the history of the NSW Workers' Compensation Commission that, in the words of the headnote in Burns v Nott [1927] WCR 17: "[T]he Commission will apply the ordinary rules of evidence in its proceedings in the same manner and to the same extent as they are applicable in British Courts of Justice."

The present Act makes no reference to how the court should be informed of matters though the presence of s 24 of the Compensation Court Act , which is virtually the exact equivalent of s 82 of the Supreme Court Act 1970, would confirm that this is the position. 61 Notwithstanding this, as the Full Court (Owen, Richardson and Brereton JJ) said in Kemp v Darling Island Stevedoring & Lighterage Co Ltd (1959) 76 WN (NSW) 707, 709: "In deciding that question his Honour was entitled to draw upon his own knowledge of the labour market and the wages to be earned therein in determining what the applicant … would probably be able to earn in the future, if he wished to do so. For this there is ample authority."

The footnotes include a reference to Bryer v Metropolitan Water Sewerage & Drainage Board (1939) 39 SR (NSW) 321, where at 330 Jordan CJ referred to the Commission as a tribunal investigating thousands of cases in which evidence is given as to conditions of employment and rates of pay acquires an immense fund of information and is at liberty to make use of such data in other cases, not only for supplying gaps from the evidence but for the purpose of weighing and testing any evidence that may actually be tendered. 62 In Kealley v Jones [1979] 1 NSWLR 723, 734, Moffitt P, when referring to cases such as Kemp and Bryer said: "Judges of the Workers' Compensation Commission have long been accorded the right to resort to an immense fund of general knowledge concerning conditions of employment and rates of pay." 63 It is odd that a court, as opposed to a tribunal, is permitted to rely on its own knowledge and furthermore that there is no requirement of natural justice if the court is going to do so to expose that knowledge to enable the parties to contradict it. However, the principle in the workers' compensation area has probably become so entrenched as to become sacrosanct. But it must be noted that the principle only applies to data on conditions of employment and rates of pay and like matters. It does not extend to the knowledge that a member of the Compensation Court may obtain merely because he or she constantly travels the roads of New South Wales. 64 Accordingly, in seeking to use this material, his Honour went further than he was entitled to do. In any event, as I have said, he did not direct his mind to the proper question, that was, whether the interruption caused an increase to the risk other than in respect of increased risk due to the traffic conditions. 65 In this respect, and indeed, in not holding that the worker could not succeed in the absence of proffering evidence that the interruption of the journey at Sydney did not cause the risk of injury to increase, his Honour committed an error of law; see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 as explained in Ambulance Service of NSW v Daniel [2000] NSWCA 116. 66 Accordingly, the appeal must be allowed. The orders of Neilson CCJ set aside, and in lieu, an order that the worker's application to the Compensation Court be dismissed. I do this with regret, but my Judicial Oath requires me to do so, because one cannot but feel sympathy with the worker who will never work again and whose claim has been nullified because of the Draconian words of the statute. Not only has the statute departed from the former wording of "substantial interruption or substantial deviation", but it also now has the effect that where there is any interruption or deviation at all, other than one connected with the journey, the rights to compensation cease unless the worker is able to proffer evidence to show not that the risk of the injury he or she in fact suffered increased, but that generally there was no greater risk than there had been had the interruption or deviation not taken place. 67 As to costs, s 112(3) of the Workplace Injury Management Act 1998, means that no order for costs can be made by this Court against the respondent for the costs of the appellant in the Compensation Court. However, the order for costs made in his favour must be set aside. So far as the costs in this Court are concerned, the respondent must pay the appellant's costs, but is to have a certificate under the Suitors Fund Act 1951. 68 Thus the orders I would make would be:

Orders of Neilson CCJ including orders for costs set aside.

In lieu order that there be an award for the appellant.

Order that the respondent pay the appellant's costs of the appeal.

Order that if the respondent, if qualified, have a certificate under the Suitors Fund Act 1951.

No order as to the costs of the parties before the Compensation Court. 69 However, as the other members of the Court take a different view of the result of this appeal, the order of the Court must be that the appeal is dismissed with costs.

Last Modified: 05/22/2003 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.

(1995) 11 NSW CCR 326

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Judgment (18 paragraphs)

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Cases Cited (7)