Parasiliti v Dimiakos [1993] NSWCC 29; (1993) 9 NSWCCR 518 (28 September 1993)

[1993] NSWCC 29; (1993) 9 NSWCCR 518, Matter No. 7496 of 1993

PARASILITI v. DIMIAKOS

COMPENSATION COURT OF NEW SOUTH WALES: GERAGHTY J

28 September 1993

FOR WHAT INJURIES COMPENSATION IS PAYABLE - INTERRUPTION OF CONTINUITY OF EMPLOYMENT - RECESSES - VOLUNTARY SUBMISSION TO ABNORMAL RISK - FACTUAL ISSUE - OBJECTIVE ASSESSMENT - WORKER INJURED CROSSING HIGHWAY - DIFFERENCE BETWEEN APPEAL AND REVIEW - ONUS OF WORKER - WORKERS COMPENSATION ACT 1987, SECTION 11

P.M. Jeffries, for the applicant

Mr Robertson, for the respondent

Ex tempore

GERAGHTY J: The application of Maria Grazia Parasiliti comes before me on Notice of Motion for a review, pursuant to section 36, of the decision of Commissioner Grayson of 1 June 1993. The ground for review is that the Commissioner erred in finding the applicant voluntarily subjected herself to an abnormal risk of injury.

The decision of the Commissioner is exhibit A in proceedings before me. He found that on 3 October 1990, the applicant voluntarily subjected herself to a risk of injury which, on any reasonable view, would be construed as abnormal. He observed that the test was an objective one, namely what the reasonable person, acting reasonably, would regard as normal or abnormal.

The Commissioner found Mrs Parasiliti's action in crossing the Princes Highway on 3 October 1990 was voluntary, and further found it subjected her to an abnormal risk of injury.

Section 11 of the Compensation Court, which mirrors the former section 7(1)(e) on which most of the law is based, deals with an injury to a worker during a recess. It is a provision aimed to protect the interests of a worker while he is temporarily away from his place of employment and he is injured. The section is also framed to protect the interests of the employer in circumstances where a worker is injured by subjecting himself voluntarily to an abnormal risk of injury, in circumstances over which the employer has no control. While the worker is on the employer's premises, the employer has a great deal more control over the behaviour of the worker and over the circumstances of his employment than does the same employer when his employee is away from the premises.

The Act provides, in section 11, that if a worker on any day on which the worker has attended at the worker's place of employment pursuant to a contract, is firstly, temporarily absent from that place on the day during any ordinary recess or authorised absence; and secondly, does not, during that absence, voluntarily subject himself or herself to any abnormal risk of injury; and thirdly, sustains a personal injury during such absence - the employer is liable for compensation.

The evidence before me consisted of the judgment of Commissioner Grayson, the transcript of proceedings on 1 June 1993, a traffic collision report dated 3 October 1990, and a diagram sketch of the scene of the accident. The diagram presented a short section of the Princes Highway south of the intersection with Bay Street. It showed the highway as straight, consisting of six lanes, three in each direction.

From the traffic collision report, it would appear the road is classed as a highway, the accident did not occur at any intersection but on a stretch of the highway, the road was straight in the vicinity of the incident, and the traffic was heavy. The weather was fine; the surface was sealed and dry; there was an open view; it was daylight.

The accident occurred approximately 80 metres south of the intersection with Bay Street. There was a small sketch provided in exhibit 1, the traffic collision report.

Mrs Parasiliti worked for Summerfun Sportswear, which conducted a factory on the Princes Highway. She was accustomed to leave those premises on at least three or four days each week, and to cross the highway immediately in front of the employer's premises. There are lights and a pedestrian crossing at Bay Street, 80 metres away, and also, it would seem, lights and a pedestrian crossing further back to the south, at a T intersection with Lister Street.

The applicant is a lady in her forties. She regularly traversed the highway in the position immediately in front of her employer's factory. On the day in question, she said, she had a half an hour's lunch break. She left the factory and looked for traffic. She said the traffic was stopped because of red lights. She looked to her right, she said. There was, immediately in front of her in the kerbside lane, a row of parked cars. In the middle lane, she said, there was traffic which was stationary as a result of lights to her left. She looked to see whether there was any traffic coming on her right. She saw none. She stepped out into the stationary traffic, and was then hit in the lane closest to the middle of the road, by a car. She did not remember its colour. She did not see it coming.

At 9 and 10 of the transcript, the applicant was asked:

"Q. You were waiting on the broken line between the second and third lanes for a clearing, were you not.

A. No, because I had a quick look and no cars were coming.

Q. There was a car coming, was there not, because it hit you, did it not.

A. Well - but I didn't see it, it wasn't there when I looked.

Q. You did not look at all, did you.

A. I did look.

Q. I put it to you that you were actually waiting on the broken line in between the second and third lanes, do you agree with that.

A. No.

Q. I put it to you that there were cars travelling in front of you and cars travelling behind you heading towards Bay Street.

A. No."

The applicant said she was in the habit of crossing immediately in front of the factory, and not going to the right or to the left to benefit from the pedestrian crossing and the lights. She only had half an hour for lunch and it took, she said, 15 minutes to negotiate the pedestrian crossing at the lights. Fifteen minutes did seem to be somewhat of an exaggeration, but undoubtedly, pedestrians have the feeling that it takes almost an eternity to get across some major intersection. This was undoubtedly a major intersection.

I have been supplied with copies of a number of cases, the principal one being Taylor v. Stapley [1954] HCA 12; (1954) 90 CLR 1. The other cases were Department of Attorney General and of Justice v. Kelly [1960] NSWR 154, and Sayer & Co (NSW) Pty Ltd v. RilEy [1960] NSWR 513 and a decision of O'Meally J, Gallard v. State Rail Authority of NSW (1992) 8 NSWCCR 281.

The difficulty I see with all but the decision of O'Meally J is they are all appeals from the primary Judge's finding of fact that the applicant had not submitted himself in each case voluntarily to an abnormal risk of injury. In each case, the Court dismissed the appeal, that appeal being only on a question of law. It was always difficult for appellants to succeed on questions of law when the issue is really a question of fact.

The primary Judge found in each case as a matter of fact, that in the circumstances of each case, the worker had not submitted himself to an abnormal risk of injury, and given that the finding was not a conclusion contrary to the evidence, it would have been difficult on appeal for any employer to succeed.

The problem in this case is quite different. This is not an appeal but a review. The law is set out by the President, Kirby P in Watson v. Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190, a passage repeated by Kirby P in Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 586.

He said in his judgment at 205:

"... it is undesirable to attempt to delimit exactly the scope of a 'review' as contemplated by section 36 of the Act. ... The fact that there is a decision of the Commissioner which is being 'reviewed' postulated that the Judge of the Compensation Court will not start with a blank page, but with a formal decision of a person who in making it is 'taken to be the Court'. Thus, unless the 'review' persuades the Judge that the order being reviewed should be varied, discharged or otherwise disturbed, the order under 'review' will stand and be binding between the parties. This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge."

It seems to me that however light, an onus rests upon the applicant worker to persuade the Court there is some proper basis for disturbing the decision under challenge and the Judge reviewing needs to be persuaded the order being reviewed should be varied: otherwise it stands.

Taylor v. Stapley determines that the onus is on the worker to establish inter alia, that he was temporarily absent, that he had attended the place of employment on the particular day, and, more particularly, that during an absence from his place of employment, he had not voluntary subjected himself to any abnormal risk of injury. The onus rested on the applicant in this case to persuade the Commissioner, and now me, that during the absence of her employment, she had not voluntarily subjected herself to any abnormal risk of injury.

The question of what constitutes an abnormal risk is a matter of fact. See Taylor v. Stapley. In his judgment in Taylor v. Stapley, Dixon CJ, said at 8-9:

" ... 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 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. ... 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.

...

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."

The High Court also decided, or at least presumed that the test of whether a risk is abnormal is an objective test, namely:

" ... For a reasonable man might take the view that such a risk is not abnormal." (at 9)

The question of abnormal risk was dealt with again by Herron J, in Sayer & Co (NSW) Pty Ltd v. Riley [1960] NSWR 513 at 519:

" ... It is a question of fact and of degree, a question of weighing up objective facts of the game itself [namely a football game] and subjective elements relating to the player, and other circumstances surrounding the game."

It therefore seems to me: (1) the onus rests on the applicant worker; (2) whether she subjected herself to abnormal risk is a question of fact to be decided from all the circumstances, weighing the objective facts about the road, the weather, the lighting, the traffic, the density of the traffic, the speed of the cars etc., and the subjective elements of the worker, namely her age, her experience and so forth. Very few subjective facts are before me from which I can decide.

However, in the circumstances, the applicant worker was engaged in an exercise which was dangerous. It was inherently dangerous to cross a six lane highway at that particular point, with a density of traffic, stepping out behind or in front of stationary cars.

I find in the circumstances the risk which the applicant exposed herself to was an abnormal risk.

I find also the worker has not satisfied the onus of proving to the Court she did not voluntarily subject herself to an abnormal risk of injury. She did not, for example, satisfy the Court that the risk she was taking on this particular day, was not abnormal. This may have been able to have been done by traffic studies, or by other people saying what they see or observe about this particular location. None of that was done.

I find no reason to disturb the decision of Commissioner Grayson. I therefore confirm his award for the respondent.

I order that the applicant worker pay the respondent's costs of the review.

And I order that there be a stay on the order as to costs for 28 days from today's date.

Solicitors for the applicant: W.G. McNally & Co

Solicitors for the respondent: Vardanega Roberts