Taylor v Stapley

The Workers' Compensation Commission found that the deceased did not voluntarily subject himself to any abnormal risk of injury. There was no dispute about the other conditions of liability prescribed by par. (e). The deceased had attended at his place of employment pursuant to his contract of service; he was temporarily absent therefrom during an ordinary recess, viz., the recess for lunch, and during his absence he met his death without his serious and wilful misconduct. The commission made an award in favour of the deceased's mother as a partial dependant. An appeal by way of case stated was dismissed by the Supreme Court (Street C.J. and Herron J., Owen J. dissenting) on the ground that upon the evidence it was open to the commission to find that the deceased had not voluntarily subjected himself to an abnormal risk. It was correctly assumed that under par. (e) the burden rests upon an applicant to prove that the conditions of liability laid down by the paragraph, except the absence of serious and wilful misconduct, were fulfilled, notwithstanding the negative character of that required by sub-par. (ii). But it was held by the majority of the Court that whether sub-par. (ii) was fulfilled was a matter of fact for the commission and that upon the evidence the commission might find the fact as it had done.

To some extent the correctness of this conclusion depends on the effect given to the words "abnormal risk of injury". It was contended on this appeal that a risk should be regarded as abnormal within the meaning of the paragraph if it is a risk to which the worker has subjected himself in the course of some unusual or abnormal activity. But this proposition merely substitutes one difficulty for another since it is impossible to define those activities which may be said to constitute the normal activities of any particular worker during a recess and so to provide a standard of normality. The standard of normality cannot be discovered in the character of the employment for the whole paragraph relates, not to work but to a period of recess which is a period of freedom of action qualified only as to time and the necessity of returning to work. The word "abnormal" seems to mean no more than unusual and a risk may be said to be abnormal where the doing of an act is, in particular circumstances, attended with an unusual degree of risk. But to say this is not to deny that a risk should also be regarded as abnormal where it is a risk which is ordinarily incidental to the performance of some act which is itself inherently dangerous. Again the want of qualifications of a man for some activity may arise from his being unaccustomed to it and no doubt the risk might be rightly said to be abnormal or unusual in his case through his inexperience, although usual or normal enough with many men. In truth all the circumstances of the particular case must be considered. The words "voluntarily subject himself" require that he shall have acted of his own free choice and intentionally done what involves the abnormal risk of injury. It is an element that in this case has a peculiar importance in the distinction between on the one hand bathing in the river, which the deceased intentionally did, and on the other hand recrossing the river by a route which took him into proximity to deep flowing water, a thing that there is no reason to suppose was anything but an error of judgment. The action of the deceased in crossing the river in a way that in fact exposed him to greater peril may for this reason be put on one side as not a voluntary subjection of himself to the risk. The ultimate question of fact would therefore be whether in going to bathe in the river though it had risen and though he was so poor a swimmer he subjected himself to an abnormal risk of injury.

The question of fact is not for the Supreme Court or for this Court to decide. The appeal by way of case stated which the Act gives is confined to questions of law. All that can be decided upon the case stated is whether there is any evidence on which it may reasonably be found by the commission as the tribunal of fact that the deceased did not voluntarily subject himself to any abnormal risk of injury.

The question whether a risk is abnormal must be very much one of degree and questions of degree are usually to be decided as matters of fact. For the reasons that have already been given the commission might properly consider that the only risk to which the deceased subjected himself voluntarily, was the risk attendant upon his bathing in a flowing stream the depth of which at the place where he proposed to bathe was up to his waist, knowing however that he was a poor swimmer and that there were places in the vicinity beyond his depth. Was this risk abnormal in the sense of unusual or excessive? The answer to this question depends upon a number of factors including the capabilities of the deceased, the proficiency of those who were with him and the state of the river at the time. No doubt the evidence upon this point is meagre, but whatever we ourselves regard as the true answer to the question of fact involved, it seems to be going too far to deny that it was within the province of the commission to answer it as the commission considered proper. For a reasonable man might take the view that such a risk is not abnormal. In other words there was evidence upon which a reasonable man might find that the deceased had not voluntarily subjected himself to an abnormal risk. It follows that the appeal should be dismissed.

This is an appeal from an order of the Full Court of New South Wales dismissing an appeal by way of case stated by the Workers' Compensation Commission. The appeal was by the appellant Taylor, the employer of the deceased, son of the respondent Mrs. Stapley. The deceased was a trainee-apprentice and whilst working for the appellant Taylor was drowned in the Nepean River at Agnes Banks on 11th January 1952, during his lunch hour.

Section 7 (1) (e) of the Workers' Compensation Acts 1926-1951 N.S.W. as amended by No. 20 of the Act of 1951 provides inter alia that where a worker on any day on which he has attended his place of employment is temporarily absent therefrom on that day during any ordinary recess and does not during such absence "voluntarily subject himself to any abnormal risk of injury" he or his dependants as the case may be shall receive compensation from the employer.

The onus of proof under this provision is on the claimant.

The only question that now arises is: was the commission entitled to find that the deceased worker did not voluntarily subject himself to any abnormal risk of injury? The Full Court by a majority (Owen J. dissenting) answered the question in the affirmative.

The commission found inter alia: (1) that "the deceased was a poor swimmer, only a learner"; and (2) that "the river was swollen by recent rains and was running more swiftly. The deceased with his companions waded across the river to a sandbank. The river at that point was only waist high. They swam for a quarter of an hour and then started to come out at a point lower down the river. As a result they got into a part where there was some nine feet of water and not noticing that they were being swept down as they were getting out they got into this deep water. The deceased disappeared despite efforts to save him".

No question is raised as to the first of these two findings; deceased's brother said he could just "dog paddle"; but as to the second finding, reference must be made to the evidence, more particularly because of the words italicized in the commission's finding. The transcript of the evidence is attached to the case as part of it.

The companions of the deceased referred to in the commission's finding were his fellow workers, Weatherly and Harris. Harris did not give evidence. Weatherly said in examination in chief that he could swim; and the deceased went swimming in the river on several occasions; they crossed the main stream where it was shallow - up to Weatherly's thighs - to a sandbank; between the time they first went swimming and the day the deceased was drowned there had been several inches of rain which had put more water into the river; as they waded across the stream to the sandbank on that day it was shallow and reasonably safe; it was safe where they swam on the sandbank; they were in for about a quarter of an hour; then they started to walk out; they were "diving and crossing together"; they started to cross lower down the river and the result was they got into a deeper part of the river that they had not been in and where there was about nine feet of water. Weatherly continued: "I did not notice we were getting swept down as we were getting out and we got into water out of our depth. Tom" (deceased) "started to struggle because he was a bit exhausted. He started to struggle and go under then".

In cross-examination Weatherly said that the river was different from what it had been previously because there had been rain; it was flowing much more swiftly; it was deeper and much swifter, but he could not say how many inches deeper. It follows that it might well have been more than "thigh" deep, which Weatherly says was its depth before the rain.

It was suggested to Weatherly in examination in chief that when he and the deceased were wading across the river on the way to the sandbank it was "only waist high". But Weatherly replied merely that it was shallow. Again Weatherly said that he - Weatherly - did not notice they were getting swept down as they were getting out. He thus spoke only for himself. It may be contended that it should be assumed that if Weatherly failed to notice he was being swept down by the stream, then that was evidence that the deceased also failed to notice it. But that does not follow. The deceased was a poor swimmer and would be expected to be more alert to a situation of danger in the river than if he could swim. He could just dog paddle and the river was fast flowing. This is an important consideration in the view I propose to take, because I am assuming in the respondent's favour, but without deciding, that the test to be applied in determining whether the particular worker voluntarily subjected himself to an abnormal risk is a subjective test, and that the respondent was entitled to recover if there was evidence that the deceased did not in fact appreciate the risk he took in diving or swimming instead of wading on his way out of the river, no matter how abnormal and obvious the risk was. If it could be found on this evidence that he as well as Weatherly was not noticing that he was being carried down stream, then I would not be prepared to find that he appreciated that he was taking an abnormal risk. But apart from that evidence of Weatherly's state of mind, I think it was impossible to find that, when the deceased began to dive and swim in this swollen and swiftly flowing stream, he did not realize that he was in grave danger of being carried into a deep part of the river where he could not wade and of being drowned, even in the company of a swimmer. Poor swimmers of normal intelligence, as the deceased must be assumed to have been, are not necessarily oblivious to grave risks of drowning because there is a swimmer about. There is no evidence that Weatherly undertook to keep a watch on the deceased in case he got into difficulties. Again, as appears from the evidence already quoted, Weatherly said that they started back from lower down the river; and there is nothing to indicate that this was at a part with which the deceased was familiar and knew to be shallow. Dog paddling in a fast flowing river at an unknown depth involved taking a risk out of the ordinary.

A man who said he had given swimming lessons to the deceased testified that deceased was a fair swimmer and could swim about thirty yards. But obviously this witness was not believed by the learned chairman of the commission who preferred the evidence of the deceased's brother that deceased could "just dog paddle".

In my opinion, taking the most favourable view for the respondent of s. 7 (1) (e) the commission was not entitled to find on the evidence that the deceased worker did not voluntarily subject himself to any abnormal risk of injury.