Karates v Frank Whiddon Masonic Homes of NSW [1996] NSWCC 4; (1996) 12 NSWCCR 648 (16 February 1996)

[1996] NSWCC 4; (1996) 12 NSWCCR 648

KARATES v. FRANK WHIDDON MASONIC HOMES OF NSW

Compensation Court of New South Wales: Armitage J

16 February 1996

For what injuries compensation is payable - Journey injuries - Fault of worker - Worker in head-on collision - Whether injury was caused by worker's fault - Workers Compensation Act 1987, section 10(1A)

Words, phrases and maxims - "injury was caused, partly or wholly" - Workers Compensation Act 1987, section 10(1A)

D.A. Baker, for the applicant

C.J. Wynyard, for the respondent

Ex tempore

ARMITAGE J: This is an application for compensation by Serife Karatas against the Frank Whiddon Masonic Homes of NSW in respect of injuries suffered by her to her low back, left hip, right elbow, neck, and shoulders, according to her application for determination, upon a journey home from work in the employ of the respondent as a kitchen hand on 2 October 1994. The application for determination was amended at the commencement of proceedings to delete any lump sum claim under sections 66 and 67 of the Act, and to amend the periods of total incapacity claimed in paragraph 11 of the application from a claim for total incapacity from 2 October 1994 to date and continuing to one for total incapacity from 2 October 1994 until 26 June 1995, and from 16 December 1995 until 14 January 1996. The current weekly wage rate has been agreed between the parties as being the sum set out in the schedule of earnings filed by the applicant in the proceedings, which was not otherwise the subject of evidence, that is to say $270 per week.

The sole issue for determination was helpfully defined by Mr Wynyard, counsel for the respondent, at the commencement of proceedings as being whether or not the injuries suffered by the applicant on the journey alleged in her application for determination were wholly or partly the result of her "fault" within the meaning of section 10(1A) of the Act, so as to displace the operation of section 10(1) which, of course, casts liability for injuries suffered on a journey, within the meaning of the section, upon the employer.

The applicant gave evidence and I indicate at the outset that, despite some challenge to her credit on such matters as the speed at which her vehicle was travelling at the time of the subject accident, she struck me as a truthful person, who related as accurately as she could the circumstances of the accident and the events leading up to it, and I accept her evidence on all relevant issues. In particular, she struck me as a person who - in the way described by Priestley JA in Medida Pty Ltd v. Tobin (1995) 12 NSWCCR 580 at 592 - was sensible and did not convey to me the impression that she would take unnecessary risks. I do not rely on that impression principally, however, for I consider that the main question for determination by me, namely, whether or not the accident was caused by the negligence of the applicant, comes down to an objective estimation of the lack or otherwise of reasonable care in her actions leading up to the accident, rather than any subjective question as to whether in my view she was a careful driver or not.

She gave evidence that she was born on 19 September 1954 and arrived in Australia in 1976. Materially, she has in the evidence deposed to being licensed to drive a motor vehicle for a number of years before the occurrence of the accident and gave evidence that since joining the respondent in 1986 as a kitchen hand, she had been accustomed to commuting by means of her own car, which she drove between her home and her employment at Glenfield, her home being, at least on the date of the accident, at Liverpool.

She said that, on the day of the accident, she approached the exit of the F5 Freeway, upon which she had been travelling home from work, near its junction with Campbelltown Road. The date of the accident was 2 October 1994. She said that as she approached the intersection she observed a green arrow, indicating that she was lawfully able to proceed with a right hand turn off the expressway, and she then "tried to turn" - to quote her evidence - whereupon her vehicle began sliding to the left. She said that she attempted to correct this, and later said that she applied her brakes, whereupon her vehicle then commenced sliding to the right. It appears that, after that, things occurred rather suddenly in that her vehicle performed a turn approaching 180 degrees or more, such that it then collided with another vehicle which struck it head on after it had mounted the median strip to the left of the lane in which she had been travelling.

It is difficult to explain in words, rather than in diagram form, the precise layout of the intersection. It is sufficient for present purposes, I think, to say that the diagram of the accident site, which was Exhibit 2, and four photographs, which were Exhibit A in the applicant's case, establish the following matters. As the applicant approached the intersection, her vehicle went up a slight rise, after which the road dipped slightly before it approached the traffic lights which displayed a green arrow at the time that the applicant travelled through them. The diagram of the accident, which as I have said was Exhibit 2 in the respondent's case, and which was drawn by a Constable Holgate, who attended the accident and gave evidence, was rather more informative as to the angle faced by the applicant as she entered the intersection than were the photographs tendered in the applicant's case, as is often the case with diagrammatic evidence. The diagram shows rather better than do the photographs that the applicant was facing, as she entered the intersection at which the green arrow was displayed on the traffic lights, an angle of some 30 degrees such that, in order to execute a safe turn, her vehicle had to turn at an angle of 30 degrees to the right of the direction in which it had been travelling immediately before entering the intersection.

At the time of the accident, the applicant said that it had just started to rain after a long dry spell. Far from this fact being contested in cross-examination, it was reinforced by cross-examination, when it was put to the applicant (and she agreed) that there had been very recent rain after a long period of dry weather, for the purpose of demonstrating that the applicant should have apprehended some danger in the state of the roadway at the time of the accident.

Further, Constable Holgate, who gave evidence in the respondent's case, said that the camber of the roadway at the point of the intersection faced away from the direction of the turn which the applicant was required to make. That is to say, that the roadway slopped away slightly from the direction of the turn. Constable Holgate said in his evidence in response to a question by myself that this camber made it easier for an oncoming driver to lose control of his or her vehicle, but added the qualification "if he was driving too fast." I do not think however that I am significantly assisted in determining the cause of the accident by the camber of the roadway, particularly in regard to Constable Holgate's lack of expertise (as I apprehended) in engineering matters and the like, as distinct from matters relating to the experience of a police constable, such as the speed of vehicles.

It is enough to say that nothing in Constable Holgate's evidence, either in his oral testimony or in the statement which he prepared at the time of the accident or soon afterwards and which was tendered by consent, suggested that the applicant's evidence that she was travelling at a speed of approximately 40 to 45 kilometres per hour at the time of the entry of the intersection was untruthful, or otherwise not to be relied on.

The respondent's counsel, Mr Wynyard, frankly rested his case upon the single proposition that the applicant was travelling at an excessive speed in the circumstances when she entered the intersection. He specifically disavowed any attempt to prove that the skidding of the applicant's vehicle to the right or to the left or her eventual loss of control of it, in themselves, betoken either "negligence" on her part within the meaning of paragraph (a) of the definition of "fault" in section 10(6) of the Act, or "any failure to take reasonable care for [her] own safety" within the meaning of paragraph (b) of that definition. That seemed to me to be a reasonable concession in the circumstances, for it has been established that the conduct of a vehicle in these circumstances, without more, does not necessarily betoken negligence because of the operation of the doctrine of res ipsa loquitur; see particularly the quotation from Kennedy LJ in Russell v. London & South Western Railways (1908) 24 TLR 548 at 551, cited in Mummery v. Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 per Dixon CJ, Webb, Fullagar and Taylor JJ at 117. So much is recognised in GIO (NSW) v. Fredrichberg [1968] HCA 54; (1968) 118 CLR 403, cited by Campbell CJ in Tang v. Yu [1994] NSWCC 13; (1994) 10 NSWCCR 240 at 248.

I do not think in the particular circumstances of this case it is necessary to embark upon an elaborate excursus on the cases upon "momentary inadvertence" and the like, as that phrase has been used in the line of authorities commencing with Sungravure Pty Ltd v. Meani [1964] HCA 16; (1964) 110 CLR 24 per Windeyer J, at 37; see also Podrebersek v. Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. The applicant does not attempt to escape the operation of subsection (1A) of section 10 by alleging that she was "momentarily inadvertent" at the time of the accident, and temporarily gave less attention to the task in hand, but rather that she was travelling at a reasonable speed and then suddenly and unexplainably her vehicle skidded, owing perhaps to the special circumstances prevailing at the time, namely, the recent rain on a road that had remained dry for a long time and which had therefore become "greasy", as the applicant herself said.

I think had it been necessary for the applicant to rely on the proposition that her conduct betokened momentary inadvertence born of repetition of a task performed on very frequent occasions, such an argument might have been open to her because it is certainly true that the plaintiff drove her car on the particular route on which she was injured every day of her working life and had been accustomed to perform the turn in question safely - as indeed was put to her in cross-examination - on many occasions without mishap. It would not be surprising in these circumstances, in my view, that a person might allow her attention to lapse momentarily in a way that was not inconsistent with the duty to take reasonable care for her own safety and that of others on the roadway.

A more likely inference, however, from the evidence appears to be that her vehicle suddenly and without warning began to slide, firstly to the left, and then, when the plaintiff applied the brakes, to the right. The decision to apply her brakes seems to have been the classic "agony of the moment" reaction spoken of by the Court of Appeal in such recent authorities as A & B Conlon Cleaning Services Pty Ltd v. Clavell, Court of Appeal, No. 40760/93, 17 August 1995, unreported, per Powell JA at 5 of his judgment, and Medida Pty Ltd v. Tobin (1995) 12 NSWCCR 580 per Gleeson CJ at 582. At the worst, I do not think, and I do not apprehend that it was suggested in submissions by Mr Wynyard, that the actions of Mrs Karatas in braking the vehicle once the skid or slide commenced was a failure on her part to take reasonable care in the circumstances; but rather was really a reaction in the agony of the moment which, in the words of Gleeson CJ in Tobin (supra) at 582, was one "which, although it might have been seen to be imprudent if there had been adequate time for reflection, does not, in the circumstances, involve fault".

I note in passing that it was not contested by the respondent that it carried the onus of proving "fault" within the meaning of subsection (1A), and that this is where the onus lies appears to be recognised by all recent authorities which relate to the question and in particular by Aardvark Security Services v. Ruszkowski, Court of Appeal, No. 40353/90, 19 March 1993, unreported; see also Tang v. Yu (supra) at 242.

It was, however, suggested by Mr Baker, counsel to the applicant, that, even if the accident was indirectly the result of "fault" on her part within the meaning of the subsection, she might nevertheless escape the consequences of subsection (lA) because her injuries were sustained, not as a result of the loss of control of her vehicle, but rather by the fact that following the loss of control, her vehicle crossed the median strip and then collided with a vehicle travelling in the opposite direction to it in the lane adjacent to the median strip on the left-hand side of the lane in which the plaintiff was then travelling.

It appears to me that, applying the concepts of "common sense" causation expounded by the High Court in such authorities as March v. E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, especially at 522f per Deane J, and earlier Chapman v. Hearse [1961] HCA 46; (1961) 106 CLR 112, the expression "caused" in subsection (1A) carries with it the notion that an event which is so immediately connected with, as to be "caused" by, an earlier event must be regarded as being "caused" by the matters which caused the original event, even though the second event or events occurred as a result also of factors intervening after the operation of the original cause. In March, for example, the vehicle of the plaintiff struck an unattended vehicle left parked in an unsafe position in the early hours of the morning in a street in the city of Adelaide. True it was that the intoxication of the plaintiff at the time and his careless driving of the vehicle were the immediate "cause" of the accident, but the High Court held that the accident was also "caused" by the negligence of the owner of the unattended vehicle in parking it in the centre of the road in a way in which the driver should have apprehended danger to persons approaching it particularly if, as he should have anticipated, they drove unsafely. The same applied in Chapman v. Hearse where the doctor was killed by the approach of a motor vehicle when he was on the roadway attending the victim of an accident, who had in turn been injured as a result of a negligent driver, who was found liable for the doctor's death. In the same way, if the respondent establishes "fault" on the balance of probabilities within the meaning of subsection (1A), I am bound, it seems to me, in the circumstances of this accident as a matter of law, to hold that the chain of causation between the applicant's "fault", if it be found, and her injuries is not been broken by the fact that her vehicle mounted a median-strip and collided with a vehicle travelling in the opposite direction.

As I said before the foregoing analysis of the authorities, perhaps at unnecessary length, the question is whether, as Mr Wynyard contended as his sole submission by way of fault on the applicant's part, the speed of 40 to 45 kilometres per hour at which she was travelling at the time she entered the intersection was sufficiently fast in the circumstances to involve either negligence or a failure on the plaintiff's part to take reasonable care for her own safety. I do not on reflection think it did for reasons which follow.

The angle of the intersection, as I have said, meant that the applicant was required to perform a turn of only 30 degrees to her right, as compared from the direction in which she had been travelling. The speed limit on the roadway from which she had come was 60 kilometres per hour. It was nowhere suggested to her that the speed limit was other than that figure at the intersection itself, although that of course does not dispose of the question of whether her speed was prudent in the circumstances. Having regard to the angle of the intersection and having regard to the relatively slow speed at which the applicant entered it, namely, 40 to 45 kilometres an hour, rather than for example 60 kilometres per hour - which was the speed limit - I cannot see that the applicant was travelling imprudently fast such that a reasonable person in her circumstances ought to have foreseen that danger was imminent. I think, on the contrary, that the applicant, having regard to the speed of her vehicle, was entitled to apprehend that she would travel safely through the intersection, despite the rain and the greasy roadway prevailing at the time, as she had done on many occasions before.

It is a question of fact as the authorities appear to indicate, but doing the best I can, I do not think in the circumstances that she failed to take reasonable care for her own safety, having regard to the circumstances prevailing at the time by entering the intersection at that speed. As this was the only basis advanced by Mr Wynyard for the existence of a failure to take reasonable care for her own safety on the applicant's part, or for the occurrence of negligence on her part, I am therefore not prepared to hold that her injuries were caused either wholly or partly by "fault" on her part within the meaning of section 10(6) so as to discharge the onus of the respondent of proving "fault" within the meaning of subsection (1A) of the section so as to displace the operation of subsection (1).

There being no dispute as to any other matter in the case, other than the existence or otherwise of "fault" on the applicant's part, and it being conceded in particular that she was on a "journey" within the meaning of section 10(1), and that she was totally incapacitated for work for the relevant period, it is appropriate to proceed to the relevant findings.

I make the following findings:

1. Injury to applicant on a journey between her place of work and her place of abode on 2 October 1994.

2. Such injury did not result wholly or partly from "fault" on the part of the applicant.

3. Applicant totally incapacitated for work, as alleged, from 2 October 1994 to 26 June 1995, and from 16 December 1995 to 14 January 1996.

4. Current weekly wage rate agreed at $260.

I make the following award in the applicant's favour:

1. $260 per week under section 36 from 2 October 1994 to 1 April 1995, and $234 per week under section 37 from 2 April 1995 to 26 June 1995, and from 16 December 1995 to 14 January 1996.

2. Respondent to pay applicant's medical and like expenses under section 60.

3. Respondent to pay applicant's costs. Recommend such costs include one qualifying fee and additional conference fee at $150.

4. Respondent to have credit for payments made, if any, during periods of total incapacity.

5. Applicant to have liberty to apply by consent as to section 66 and 67 entitlements.

6. Interest on weekly payments at 3 per cent from 2 October 1994 to date.

Orders accordingly

Solicitors for the applicant: Kencalo & Rimes

Solicitors for the respondent: Hickson Lakeman & Holcombe