Hammond v P G Howarth Pty Ltd [2001] NSWCC 13 (17 April 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Hammond v P G Howarth Pty Ltd [2001] NSWCC 13


PARTIES:
Graeme Ronald Hammond
P G Howarth Pty Ltd


CASE NUMBER: 47809 of 1999 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:
s10 1(B) of the Workers Compensation Act 1987

CORAM: Campbell CJ

DATES OF HEARING: 26/10/00,16/02/01,17/04/01

DECISION DATE: 17/04/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr R Wood instructed by Long Howland Houston
FOR RESPONDENT: Mr S Hickey instructed by Lyons Barnett Kennedy


JUDGMENT:

1. The applicant claims lump sums and weekly payments under the Workers Compensation Acts in respect of injuries he suffered whilst on a periodic journey from his place of employment to his place of abode.

2. Mr Wood of Counsel appeared for the applicant and Mr Hickey of Counsel appeared for the respondent. Counsels’ addresses have been recorded and it is therefore unnecessary for me to deal with each submission, merely to ensure that it is noted.

3. The applicant is a 38 year old single man who in May 1999 was working for the respondent at the property Wombramurra, Nundle, as a wool presser.

4. On 14 May 1999 about 5pm he finished work and went to the Dag Inn, a tourist establishment operated by the respondent as part of Wombramurra. At the Inn he consumed beer, ate a light meal and took part in dancing and other activities amongst the 20 to 50 people, mostly backpackers, many of whom had arrived on a bus at about 6pm.

5. At about midnight the applicant went to his car and slept there. At about 5am he woke up and set out to drive to his home to get cleaned up and get back to work.

6. It was dark, very foggy and sort of half misty rain. The applicant was rounding a slight bend at about 100 kilometres an hour when his car left the road. He gave the following evidence:

Well I just sort of went off the side of the road fractionally, just enough to put the left hand wheels on the gravel and when I swung it to come back on the road I sort of swung a bit hard and it slid a bit and then I went to straighten it and the road being wet it just over corrected and spun all the way round and I just lost control and went over the bank

7. The applicant said that the car rolled a few times, went through a fence and finished on a property. He felt stunned and sore and went to the home of the owners of the property whom he knew.

8. The applicant had fractured the outer end of his right clavicle, the fracture involved the acromio-clavicular joint. He was off work totally incapacitated with a current weekly wage rate of $681.80 per week from 15 May 1999 to 21 September 1999. As a result of the injury the applicant has suffered 5 per cent permanent loss of efficient use of his right arm at or above the shoulder. The applicant also injured his right knee, however, there have been no continuing sequelae of that injury.

9. It was not disputed by Mr Hickey that the applicant was upon a periodic journey at the time of his injury and he is entitled to be paid compensation unless the respondent can establish that, more probably than not, the injury was attributable to his serious and wilful misconduct.

10. Mr Hickey did rather faintly suggest that the manner in which the vehicle was driven, in the prevailing conditions, amounted to serious and wilful misconduct,. In respect of that submission I am content merely to say that I do not accept it.

11. The real issue in the case arises from the reliance by Mr Hickey upon s10 1(B) of the Workers Compensation Act 1987. That section relevantly provided:

(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Traffic Act 1909), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed voluntarily

12. Mr Hickey did not dispute that the onus under this provision lay upon the respondent.

13. The applicant, who for reasons I shall give I did not think a particularly credible witness, gave evidence that at the time of the injury he was not under the influence of alcohol (no other drug was suggested to be relevant).

14. More importantly, in the particular circumstances, the owners of the property to which the applicant went immediately after the collision both gave evidence that at that time they did not consider him to be under the influence of alcohol.

15. Mr Peter Schofield is a farmer grazier, his family own the Peel hotel at Nundle, the nearest town, and he had considerable experience working as a barman at that hotel. Mrs Schofield, his wife, explained that she was especially sensitive to the smell of alcohol and noticed none on the applicant’s breath although she was close to him whist tending his injuries.

16. Mr Hickey raised a number of matters which, he put, should lead me not to accept the evidence of the Schofields as accurate. However, I was impressed by their evidence not only as to the manner in which it was given but as to the consistency of its content.

17. Mr Hickey relied upon a contention that the applicant’s blood alcohol level at the time of the injury was, more probably than not, above 0.05g/100ml and that accordingly the applicant was under the influence of alcohol. Mr Wood did not contest the second part of that proposition nor did Mr Hickey submit that a concentration of less than 0.05g/100ml would be sufficient.

18. The applicant admitted to drinking nine 375ml stubbies of full strength beer. It may be accepted that would not have been sufficient to leave a level above 0.05g/100ml for Mr Hickey did not ask Dr Dauncey, a consultant pharmacologist, who gave expert evidence for the respondent, to calculate and give evidence as to the concentration that could be expected at the time of the accident from that level of consumption.

19. Dr Dauncey volunteered , when dealing with an issue as to the likelihood of an alcohol smell remaining on the breath, that that level of consumption would have left a positive reading but she did not quantify it.

20. Instead Mr Hickey asked Dr Dauncey, who was in court during the hearing, to determine a level of consumption from the observed behaviour of the applicant and then to calculate from that level of consumption the probable concentration in the blood at the time of the accident.

21. Dr Dauncey estimated the necessary consumption to produce the applicant’s behaviour at 12 stubbies. She then used an elimination rate of .019 per hour, for reasons she gave, to arrive at a most likely blood alcohol level at the time of the accident of about .085. She did say:

...but it is just a probability you know the individuals vary greatly and it could be either side of that but that is the most probable mid joint.

22. She did not specify the range, however, she had done so in respect of a different calculation which she had done in her report of 21 March 2000. That report was based on material which was not established in evidence and Mr Hickey relied in the end primarily upon the oral evidence of Dr Dauncey and witnesses as the applicant’s conduct.

23. In that report Dr Dauncey had postulated a mid point of about 0.115g per cent . She then said:

There is a 5% probability that it might have been as high as 0.15g% or a low of about 0.06g%

24. The matter was not explored in evidence, however, assuming a range of 0.09g per cent, (the range given) and a mid point of 0.085g per cent, the range would go below 0.05g per cent, albeit the level of probability might be relatively small.

25. In any event, as a tribunal of fact, I do not accept that Dr Dauncey’s conclusion that the applicant had drunk 12 stubbies is one that I should accept. It is human experience that the reactions of people to the consumption of alcohol varies greatly, particularly in boisterous social situations.

26. That view is supported by the observation of Dr Starmer , an acknowledged expert in this area, in his report of 17 October 2000 which was tendered by Mr Wood. Dr Starmer said

In conclusion, it should be noted that all of Dr Dauncey’s calculations, estimates and opinions concerning the likely event of Mr Hammond’s impairment at the time of the crash are derived from her impression of the information which is contained in Mr Howarth’s statement. This is impossible to relate to the observations of Peter Schofield and his mother(sic) immediately after the crash

27. It is also interesting to note that Dr Starmer attached importance to the views of Peter and Helen Schofield as to the absence of the smell of alcohol.

28. I have not so far dealt with the evidence of the applicant, except generally as to the events at the Inn, or with the evidence of Mr Howarth , the Manager, or Mr Beattie, the barman on duty at the Dag Inn that night.

29. If the issue was whether the applicant was under the influence of alcohol at the time he left the Dag Inn at about midnight I would accept that he was.

30. Despite the applicant’s denials I accept the evidence of Mr Howarth and Mr Beattie that the applicant was refused bar service after about 9.30pm (Mr Beattie) or 10pm (Mr Howarth). I also accept that Mr Howarth requested his car keys and offered him a place to sleep, again despite his denials.

31. Mr Beattie’s evidence placed the applicant’s conduct as less removed from the mainstream at what was a boisterous evening than Mr Howarth. However, I do not need to go into these aspects for neither of them established that the applicant drank more that he said he did and I do not accept that Dr Dauncey could validly draw the conclusions Dr Dauncey drew from the descriptions of behaviour.

32. The applicant’s denials as to the matters just referred to and other matters raised by Mr Hickey reflect upon his credit and would make it easier to accept evidence that he had in fact consumed more than he did. However, none of the material precented is satisfactory evidence to be weighed against the applicant’s account.

33. Having regard to the conditions at the time the car left the road I do not consider that the fact of the accident supports an inference that the applicant was probably affected by alcohol.

34. Other matters have been put , they have been recorded and I do not consider it necessary to refer to them except to say that I do not draw the inference Mr Hickey has submitted I should from the fact that the applicant was not taken to Tamworth until 2pm. After all the police were notified from the Schofield home shortly after the applicant arrived there.

35. It is certainly possible that the applicant was under the influence of alcohol at the time of his injury, however, having regard to the evidence as a whole and particularly that of Peter and Helen Schofield, I consider that the respondent has not shown that, more probable than not, the applicant was under the influence of alcohol at that time.

36. Accordingly, the applicant is entitled to an award.

37. My findings may be summarised as follows:

(a)The applicant suffered injury to his right clavicle and right knee on 15 May 1999 whilst on a periodic journey from his place of employment to his place of abode

(b)He was totally incapacitated for work thereby from 15 May 1999 to 21 July 1999

(c)The current weekly wage rate at all material times - $681.80

(d)As a result of the injury to the right clavicle the applicant has suffered 5 per cent permanent loss of the efficient use of the right arm at or above the elbow

38. I make an award for the applicant

Under s36 at the rate of $681.80 per week from 15 May 1999 to 21 September 1999

Under s66 in the sum of $4,000 in respect of 5 per cent permanent loss of efficient use of the right arm at or above the elbow

Hospital and medical expenses, s60

I expect the parties to agree upon any claim for interest but grant liberty to apply if they are unable to do so

Respondent to pay applicant’s costs
Mr R Wood instructed by Long Howland Houston appeared for the applicant
Mr S Hickey instructed by Lyons Barnett Kennedy appeared for the respondent