Vetter v Lake Macquarie City Council

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gummow,Callinan JJ,Kirby J,Hayne J
• Judgment Date: 08 March 2001
• Neutral Citation: [2001] HCA 12,2001-0308 HCA B
• Docket Number: S27/2000
• Date: 08 March 2001

Natalie Jane Vetter

Appellant

and

Lake Macquarie City Council

Respondent

[2001] HCA 12

Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ

S27/2000

HIGH COURT OF AUSTRALIA

Vetter v Lake Macquarie City Council

Workers' compensation — Journey — Workers Compensation Act 1987 (NSW) – Compensation for worker injured on journey from work to place of abode — Worker travelling home after stopping for a meal with a relative — Whether deviation or interruption to the journey.

Workers' compensation — Practice and procedure — Compensation Court Act 1984 (NSW) – Appeal to Court of Appeal on a point of law only — Powers of the Court of Appeal.

Words and phrases — ‘journey’ – ‘direct route’ – ‘fault’ – ‘place of abode’.

Workers' Compensation Act 1926 (NSW), s 7.

Workers Compensation Act 1987 (NSW), s 10.

Compensation Court Act 1984 (NSW), s 32.

Representation:

R C Kenzie QC with I D M Roberts for the appellant (instructed by Hunt & Hunt)

D F Jackson QC with A G Bell for the respondent (instructed by Palmieri Lawyers)

ORDER

1. Appeal allowed with costs.

2. Set aside orders 1, 2, 4 and 5 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 16 April 1999.

3. Order that the matter be remitted to the Compensation Court of New South Wales for retrial limited to the question of fault under s 10(1A) of the Workers Compensation Act 1987 (NSW) and that otherwise the appeal to the Court of Appeal be dismissed with costs.

4. Costs of the proceedings in the Compensation Court to be determined by the judge at retrial.

1 Gleeson CJ, Gummow and Callinan JJ. This appeal requires the Court to construe sections of the Workers Compensation Act 1987 (NSW) (‘the Act’) and of the Compensation Court Act 1984 (NSW) relating to the ambit of a worker's journey from her place of work to her home and the nature of an appeal from the Compensation Court to the Court of Appeal.

Case History

2 On 1 June 1993 the appellant was working for the respondent as an accounts clerk. Her place of residence was 38.9 kilometres from her workplace, a journey by car, her usual means of travel, of about 45 minutes or so. The appellant had adopted a practice of calling upon her grandmother fortnightly after leaving work and before travelling to her place of residence. The practice was a regular one from which she departed very rarely, if at all. In order to call upon her grandmother the appellant was obliged to travel about 19 additional kilometres further than she would if she were to travel directly to her home.

3 On 1 June 1993 she undertook one of such visits to her grandmother at Belmont. After they ate a meal together she left her grandmother's residence and set out for home. It had been raining earlier in the day and it rained after she left her grandmother's house. At about 7:15 pm her car left the Pacific Highway and came into collision with an unattended truck, parked on the verge of the highway. The appellant suffered injuries including a severe head injury which caused brain damage and which has deprived her of any memory of the events leading up to, and the collision itself.

4 The appellant sought compensation for permanent injuries and consequential deprivations in the Compensation Court of New South Wales.

5 In order for the appellant to succeed in her claim she had to bring herself within s 10 of the Act which has since been amended but then provided as follows:

‘ Journey claims

(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.

(1A) Subsection (1) does not apply if the personal injury was caused, partly or wholly, by the fault of the worker.

(1B) A personal injury received by a worker is to be taken to have been caused by the fault of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Traffic Act 1909), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.

(1C) If the risk of injury on a daily or other periodic journey to which this section applies, compared with the risk of injury on the worker's normal journey, is materially increased for a reason connected with the worker's employment (including the distance travelled, the time of day or night, the method of travel or the route of the journey), subsection (1) is not excluded merely because the injury was caused by the fault of the worker.

(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.

(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.

(3) The journeys to which this section applies are as follows:

• (a) the daily or other periodic journeys between the worker's place of abode and place of employment;

• (b) the daily or other periodic journeys between the worker's place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to attend;

…

(4) For the purposes of this section, a journey from a worker's place of abode commences at, and a journey to a worker's place of abode ends at, the boundary of the land on which the place of abode is situated. …

(5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.

(6) In this section:

“fault” includes:

• (a) negligence or other tort; and

• (b) any failure to take reasonable care for the worker's own safety;

…

“place of abode” includes:

• (a) the place where the worker has spent the night preceding a journey and from which the worker is journeying; and

• (b) the place to which the worker is journeying with the intention of there spending the night following a journey.’

6 The effect of the section is relevantly this. The worker will be entitled to compensation if he or she suffers injury on a journey between the workplace and home. A daily or other periodic journey between those places will be a journey to which the section applies. Subject to some matters referred to in sub-s (1C) that entitlement will be lost if the worker's injuries are caused wholly or partly by his or her negligence, other tort, or any failure to take reasonable care for his or her own safety. The sustaining of an injury during or after any interruption of, or deviation from a journey which would otherwise be a relevant journey will also disentitle a worker to compensation unless the risk of injury not be materially increased because of the interruption or deviation.

7 Accordingly the appellant could recover here, if, absent fault on her part, she was injured on a periodic journey between her workplace and home, or, if she was injured on such a journey after a deviation from, or an interruption to it, and, in the latter case, the risk of injury was not materially increased because of the deviation or interruption.

8 The appellant argued at the trial that she was entitled to succeed on the basis that she was injured after an interruption to a relevant periodic journey, or after or during a deviation from it, in circumstances in which there was no material increase in risk. The trial judge summarised the evidence with respect to the frequency of the appellant's visits to her grandmother's house, and held, in respect of the evening of the accident, that although she had visited her grandmother and stayed for a time there, the appellant was in the course of a single journey when she was injured: that she was on an ‘other periodic journey’.

9 His Honour then turned to a consideration of events after the appellant's departure from her grandmother's residence on the basis that her stay there was an interruption to the journey home. He referred to the facts that, by this time darkness had fallen, it was raining, and the peak hour rush had abated. His Honour found that the rain was constant, and that, despite some evidence to the contrary, it was not heavy and the conditions were not particularly windy ones. He discussed the respondent's expert's evidence that the risk was greater while travelling at night in the rain, than in travelling in daylight in the rain. That expert had also relied on the known facts of the accident, as a basis for saying that in all probability the wet and dark conditions prevailing at the time, caused or contributed to it. The appellant's expert's evidence was that the reduction in the volume of traffic after peak hours, in effect, offset any increased risk of travel by car at night time in rain.

10 The trial judge preferred the evidence of the appellant's expert for a number of cogent reasons which are set out in the judgment. Both experts had produced statistical evidence of increases in risk by reason of rain and darkness. His Honour demonstrated in his reasons for judgment some fallacies in the assumptions and statistics relied upon by the respondent's expert. He accepted the evidence of the appellant's expert that any increase in risk in driving after dark in the rain, on the roads in question, in comparison with the risk of driving upon them in daylight, during rain, was very slight, and that the risk in either case, was, in real terms very low. His Honour accordingly held that there was no...