NRMA SMASH REPAIRS PTY LTD v HOY [1995] NSWCA 328

NRMA SMASH REPAIRS PTY LTD v HOY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 3 April 1995, 16 May 1995 [1995] NSWCA 328

WORKERS' COMPENSATION — journey interruption — risks of injury — held: Risk of injury generally to be considered as distinct from risk of particular injury. Scobie vy KD Welding Co Pty Ltd (1959) 103 CLR 314 appld.

WORKERS' COMPENSATION — appeal point of law — review of Commissioner's decision — point not argued on appeal — whether error of law shown — held: (by maj): Not necessary to decide. Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 considered.

WORDS and PHRASES — "risk of injury".

WORKERS' COMPENSATION — journey — interruption — material increase in risk — relevance of risk of particular journey — relevance of cause of particular injuries — error of law to refer to cause of the particular injuries of the worker — duty to consider risks of injury of the journey as such — Held: (Clarke JA and Meagher JA; Kirby P dissenting) No error of law was demonstrated in the reasons of the Compensation Court Judge, incorporating the reasons of the Commissioner. Scobie v KD Welding Co Pty Ltd (1959) 103 CLR 314 applied, KD Welding Co Pty Ltd v Tallar (1957) 57 SR (NSW) 614, considered.

WORKERS' COMPENSATION — appeal — error of law — appeal from decision of Compensation Court Judge (Moran CCJ) following dismissal of application for review of decision of Commissioner (Ashford C) — review raises issues of fact — no error of law by the Commissioner expressly alleged in grounds of review — on appeal to the Court of Appeal, error of law on the part of the Commissioner, incorporated by the judge, is argued — whether such error of law may be raised in the appeal having regard to conduct of proceedings in the Compensation Court-Held: (1) (By majority): Not necessary to decide (2) (Kirby P dissenting; Clarke JA, Meagher JA concurring, not deciding.) It was an error of law for the judge conducting the review to fail to correct an alleged error of law in the reasons of the Commissioner notwithstanding that it had not been particularised because the issue involved the application of the proper legal test to the facts as found and had to be determined in order to confirm the award of the Commissioner. Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liq) (1916)22 CLR 490; Coulton v Holcombe 1986) 162 CLR 1; Banque Commerciale SA, En Liquidation vy Akhil Holdings Ltd (1990)169 CLR 279 considered.

WORDS AND PHRASES: "interruption" — "risk of injury"

Kirby P This appeal from the Compensation Court of New South Wales (Moran CCJ) raises two points. The first concerns the proper application of the former journey provisions (s10(2)) of the Workers Compensation Act 1987 (the Act). The second concerns the observance of proper procedures in the conduct by a judge of the Compensation Court of a review of a decision of a Commissioner.

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It was common ground that, having regard to the terms of the Compensation Court Act 1984, s32, at the relevant time, the appeal to this Court was limited to an appeal on an error of law. Such an appeal is a narrow one. See Azzopardi v Tasman UEB Industries Ltd (1985)4 NSWLR 139 (CA). In such an appeal, it is not open to a party to challenge factual findings as such, even if it be asserted that they are "perverse" or "extreme". See ibid, 156. However, if the ultimate finding of fact made is necessarily within, or outside, the applicable statute which it is the duty of the court to apply, and thus indicates that a mistake has been made in the application of the statutory test, an error of law will be demonstrated which may be corrected in an appeal, limited as this one is. See Hope v Bathurst City Council (1980) 144 CLR 1, 10, Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, 138, 57 WN (NSW) 53, 55.

At the trial before the Commissioner, and the review before Moran CCJ, each of the parties had various factual arguments. Determinations were made on these arguments contrary to the submissions of each. But each agreed that, in this Court, neither could contest the factual findings so made. Error of law, alone, was the gateway to this Court's intervention.

A WORKER IS INJURED ON A JOURNEY HOME

The pertinent facts, as found by the Commissioner (Ashford C) were as follows: Mr Michael Hoy (the worker)(the respondent) was employed by the National Roads and Motorists' Association (the employer). The award of the Compensation Court, both of Ashford C and Moran CCJ was entered against that Association. The appeal to this Court has been brought in the name of NRMA Smash Repairs Pty Ltd (the appellant). Neither party drew this variance to the notice of the Court. I assume that nothing turns on it.

On 2 July 1987, Mr Hoy, a spray painter, left his employer's premises travelling on his motor bike. It had rained on and off during the day but he had not taken his wet weather clothing to work that morning. He initially left the work premises at 4.45 pm. But he returned to secure his pay packet which he had left behind. At about 5.10 pm he set out again on his journey home. He interrupted that journey by proceeding to a nearby hotel. He there attended a farewell drinks or "send off" for a fellow worker. He then left the hotel at about 7.30 pm to proceed home. He said that he observed that it had been raining earlier and he wished to wait at the hotel until the rain cleared. He checked every 10-15 minutes to make sure that the motor cycle on which he was travelling was where he had left it. During the interruption at the hotel, the respondent consumed a quantity of alcoholic beverages. Part of the reason for his delay was for drinks with his colleagues. Part of it was to wait for a break in the weather.

When Mr Hoy finally set out, at about 7.30pm, he followed what was a reasonably direct journey to his residence. He explained that he had taken this route because an alternative route along Parramatta Road involved heavier traffic and he considered it more dangerous for a bike rider in wet weather conditions. He used the Rawson Street route on two or three occasions a week and was familiar with it. The road was wet from the rain. Sunset had occurred at 4.58pm. Accordingly, it may be assumed that, even if Mr Hoy had not interrupted his journey home at the hotel, he would, in the normal course, have travelled home in darkness.

According to an observer, when Mr Hoy left the hotel his judgment appeared to be unaffected. Mr M Collins said: "He had his wits about him. He was responsible - being himself. He wasn't yahooing or anything, no." Mr Hoy

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declined to give Mr Collins a ride on the back of his bike into Parramatta. He did so explaining: "No, because it is too wet and I haven't got a helmet for you. "

Whilst on the journey to his home, and at about 8pm, Mr Hoy was driving his motor cycle in Rawson Street, Auburn. According to the police, the corner near which Mr Hoy was injured was not well lit. Unfortunately, Mr Hoy's bicycle failed to take a bend in the road. He was thrown off the vehicle into a stormwater drain. An ambulance was called. He was taken to St Joseph's Hospital, Auburn. It was soon found that he was suffering from paraplegia at the T5/T6 level of the spine.

At the hospital, at about 10.05pm, a blood sample was taken from Mr Hoy. An analysis of the sample revealed a content of 0.06 gms of alcohol per 100 ml of blood. Associate Professor GA Starmer of the Department of Pharmacology in the University of Sydney gave expert evidence. Based upon average elimination rates, he considered that, upon the blood alcohol reading found at 10.05pm, the most likely estimate of the alcohol in the blood of Mr Hoy at 8pm (the time of the accident) was 0.098 gms per 100 ml. This figure depended upon the time of intake and the quantity of food, if any, consumed with the alcohol. There was no evidence about either of these variables. The professor agreed that body shape and size had an effect on blood alcohol concentration and elimination. The importance of the presence of blood alcohol in a particular person in particular circumstances, as contributing to a particular incident, depended upon all of these factors:

"Q. Professor, you wanted to say something and I think I have another question for you as well.

A. What I wanted to say was that I am not suggesting for one minute that the alcohol in Mr Hoy's blood caused the accident. I haven't said that and I didn't mean it and if it is not clear from that para3 then I am sorry I didn't express myself clearly. What I am trying to say is that the effects of alcohol on yours and mine or anyone anybody's driving are present at that level and whether they become important or not depends on the circumstances, and in particular the alcohol might be expected to impede someone's ability to deal with an unforeseen emergency, because the amount of coordination and skill that you would need to deal with an emergency is seriously eroded by alcohol, but the extent to which that would occur I have no idea."

THE RELEVANT PROVISIONS OF THE ACT

Mr Hoy claimed benefits under the Act against his employer. The employer declined liability. Proceedings were then brought in the Compensation Court. Ashford C upheld the worker's claim and dismissed the employer's defences. On review, Moran CCJ confirmed Ashford C's decision and dismissed the application for review. From the award of Moran CCJ, the appeal is brought to this Court.

The rights of Mr Hoy fell to be determined by the application of s10 of the Act. That section has been changed. But at the relevant time it read:

"10(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.

(2) Subs(1) does not apply if -

(a) the injury was received during or after any interruption of, or deviation from, any such journey; and

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(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;... "

The Commissioner accepted, and it was common ground, that Mr Hoy had received injury on a daily journey between his place of employment and his place of abode. He received that injury after an interruption of that journey. The earlier return to his work premises to get his pay packet was not regarded as relevant. The 'interruption' was the time he spent at the hotel. It was found that the interruption was for a reason unconnected with the worker's employment. It might have been argued that spending a little time at a hotel at farewell drinks to a fellow worker was 'for a purpose connected with the worker's employment'. But that point was determined against Mr Hoy. It involves a factual assessment. It is not challenged in this appeal.

THE COMMISSIONER'S DECISION AND REVIEW

Thus, the determination of the case before Ashford C came down to whether "the risk of injury" was or was not "materially increased because of the interruption".

Ashford C examined in some detail the sequence of events and the implications of the interruption for the 'risk of injury' on the journey. She found:

"T do not believe that the particular route caused a material increase in the risk of injury over and above the risk by travelling on Parramatta Road on a cycle on a wet night.... Darkness is a normal incidence of evening/night. It can be assumed that is the normal course of events in July and the applicant would be travelling home in darkness in any event. The change from day to night could not be said per se to materially increase the risk of injury. [While]... drizzling rain and the question of darkness may cause some slight increase in the risk of injury, it was not sufficient to cause a material increase in the risk of injury... ".

The Commissioner then reached the critical passage in her reasons for decision which the appellant, in this Court, contends displayed legal error:

"Whilst it is clear the applicant had consumed some alcohol during the interruption to his journey, I am satisfied that there was no material increase in the risk in the circumstances of the case which would deprive the applicant of the benefit of the proviso. No doubt the factor of alcohol did cause some increase in the risk but not a material increase in my view. In accordance with the principles in Scobie (Scobie v KD Welding Co Pty Ltd (1959) 103 CLR 314) I am satisfied that the factor of alcohol was not the cause of the actual injury and this is supported by Professor Starmer's comment along with the evidence of Mark Collins as to the applicant's demeanour and sense of responsibility.

Accordingly I am satisfied that the applicant is entitled to the benefits of workers' compensation, having found on the balance of probabilities that in the circumstances of the case there was no material increase in the risk of injury because of the interruption."

On the review, Moran CCJ reminded himself of the function of a judge of the Compensation Court in conducting a review. He referred to Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190 (CA). In that case and in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 (CA) it is emphasised (ibid, 585f) that a "review" requires the party seeking the review to fulfill the

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obligation "to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders". Moran CCJ set out the provisions of the Act. He outlined the findings of the Commissioner. He identified the grounds of review sought by the appellant thus:

"The appellant employer seeks a review of Commissioner Ashford's award in favour of the worker on three grounds:

(a) that the Commissioner erred in finding that on the balance of probabilities there was no material increase in the risk of injury because of an interruption to the journey;

(b) that the Commissioner erred in failing to find that there was a deviation to the journey, and that as a result there was a material increase in the risk of injury because of the deviation, and

(c) the Commissioner erred in failing to find that the injury suffered by the applicant was not suffered on any journey as the applicant had abandoned such journey."

Unsurprisingly, perhaps, Moran CCJ dismissed the contentions of deviation and abandonment. He reviewed the evidence as to the interruption. He then concluded:

"There is no doubt that there was an interruption to the worker's journey home from his place of employment to his place of abode on this day. There is no doubt that the interruption was made for a reason unconnected with his employment. The onus is on the worker to show that the risk of injury was not materially increased because of the interruption or deviation. Commissioner Ashford considered all the evidence, as I have, and on the balance of probabilities she found that whilst there was an increase in the risk of injury because of the interruption, she was not satisfied that there was any material increase in the risk.

Having reviewed the evidence AND HER REASONS, I find no reason to interfere with that decision and I confirm the award made by Commissioner Ashford, order that the Notice of Motion for review be dismissed and that the appellant employer pay the respondent worker's costs of the Motion for Review. " (emphasis added)

ISSUES IN THE APPEAL

The appellant presented two issues in the appeal. Each complained that Moran CCJ had erred in law in the way in which he conducted his review of Ashford C's decision:

(1) His Honour had failed to correct Ashford C's mistake of law in addressing, as if it were relevant, the actual cause of the actual injury suffered by Mr Hoy.

Despite the Commissioner's reference to Scobie's case, it was suggested, that she (and on review his Honour) had failed properly to apply the principles in that case and hence the terms of the Act as the law requires, and

(2) Alternatively, his Honour had failed to correct the conclusion reached by Ashford C in the facts. Only one conclusion was reasonably open on the facts found. Upon that basis the Commissioner was obliged in law to reach that conclusion. The failure of Moran CCJ, on review, to find error amounted to legal error on his Honour's part requiring correction by this Court.

This appeal comes from the award of Moran CCJ. This Court does not consider an appeal from the Commissioner. That function, in the form of a review, is reserved by law to the Compensation Court. Nevertheless, in a review, that court is obliged to correct relevant errors of law disclosed in the reasons of a Commissioner. Moran CCJ, in the passage cited, indicated that he had reviewed

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the Commissioner's reasons. Upon that basis he had found no reason to interfere with her decision. Accordingly, if error be shown in the reasons of the Commissioner, this Court (other arguments aside) would be obliged to correct the award of Moran CCJ which rested upon a failure to detect the Commissioner's legal error.

It was common ground that guidance on the test to be applied in the application of the statutory provisions in relation to interruptions to periodic journeys was to be found in the decision of the High Court of Australia in Scobie v KD Welding Co Pty Ltd (1959) 103 CLR 314. That decision affirmed the decision of the Full Court of this Court (KW Street CJ, Owen J and Roper CJ in Eq). See (1957) 57 SR (NSW) 614 (FC). There was one material alteration to the Act after Scobie. At that time s7(1)(b) contained in the proviso the exemption:

"\.. if, in the circumstances of the particular case, the risk of injury was not materially increased by reason ONLY of such substantial interruption..." (emphasis added)

In Scobie the workers, after a substantial interruption to their journeys, proceeded on their way home on a motor cycle. The primary judge considered that the injuries which they suffered when involved in an accident were brought about by three factors: (1) the journey was being completed in darkness; (2) it involved the passage in darkness over a rough road; and (3) in the course of the journey pedestrians created a sudden emergency which led to the motor cycle's overturning occasioning injuries to the workers. The primary judge had found that the first and second of these factors materially increased the risk of injury because of the passage from light to darkness. He found that the third factor was not an increased risk because a motor cyclist was at all times subject to the risk of injury from such a cause. The Full Court found that, it being determined that the risk of injury was in all the circumstances materially increased by reason of the change from light to darkness, the award should have been entered in favour of the employer. The fact that the actual injuries sustained were caused by a number of factors, of which darkness was only one, was not material. Their Honours explained the purpose of the subsection at 617:

"The real question for decision here is whether the words 'the risk of injury' in the proviso refer to an increase in the normal hazards of the worker's journey or whether they refer to some particular risk which the worker in fact encountered and which caused the injury which he sustained. To put it another way, if the journey becomes, to a material extent, a more hazardous one than it would have been had there been no interruption of it, is it relevant to inquire what factor or factors caused the injury in fact sustained?"

Their Honours answered this question as follows at 618:

"The proviso is not concerned with the cause of injury in fact sustained and whether that injury was or was not due only to a risk arising from the interruption. Indeed it is difficult and perhaps impossible to imagine a case in which the only cause of the injury could be the interruption. What it deals with are the hazards of the journey and whether those hazards have or have not been increased to a material extent by the worker's action in interrupting his normal journey to and from his place of employment.... The question is whether by reason only of the interruption the journey has become a more hazardous one, and more hazardous to a material extent, than it would otherwise have been. If it has, then the worker carries the risk of injury sustained during that journey because he has, by his own act, made it a more hazardous one than it would otherwise have been."

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In the High Court, this approach to the meaning of the section was endorsed by Dixon CJ, Fullagar, Menzies and Windeyer JJ. At 322 Dixon-CJ explained:

"What seems to have been intended is that if the substantial interruption... considered alone was enough to cause an increased risk of injury then the substantial interruption... should be fatal to the worker's claim. Of course the mere prolongation of the period of time during which the worker was occupied between the two termini of his journey must in a logical sense cause an increased risk of injury, for it lengthens the time during which injury may occur. But that element is necessarily put out of account.

The more important question, however, is whether the increased risk of injury must itself be the cause of the actual injury suffered. There are no words to justify such an interpretation of the proviso. It is an inference only drawn from the supposed policy of the provision, but there is nothing unreasonable in a policy of treating the substantial interruption and c as fatal to the right of a worker to claim if the interruption is fraught with the consequence of increased danger even though the actual injury cannot be traced to the particular increase of danger involved. The latter is the policy which the words are apt to express and we are not justified in implying any limitation of their natural meaning."

Fullagar J contented himself with endorsing the judgment of the Full Court.

But at 326 he went on:

"The proviso is concerned not with the cause of injury but with increased risk of injury. Further, it is concerned only with ACTS OF THE WORKER which increase the risk of injury. The deviation is an act of the worker."

Menzies J, at 327f, explained:

"The disentitling element is the material increase in the risk of injury which, in the circumstances, is due to the interruption... This is quite different from a provision that the worker should be entitled to compensation unless the interruption... caused or contributed materially to the injury and the question which arises under the proviso is: 'Did the interruption... of and by itself materially increase the risk of injury?'... in my opinion the cause of injury is immaterial; the increase in risk due to the deviation by itself - whether it materialised or not - is alone material."

To the same effect was the opinion of Windeyer J, at 332, where his Honour explained the policy of the section:

"The policy of the enactment becomes, I think, evident. A worker is disentitled to compensation if, but only if, a material increase in the hazards of the journey can, in the circumstances existing when the interruption... is made, be then predicated as its necessary consequence. The worker by making such an interruption... forthwith deprives himself of the benefit of the Act and his employer is discharged from liability. But a worker does not suffer if the interruption... would not, without some fortuitous and unforeseeable further occurrence, have materially increased the risk."

There are, as the High Court pointed out, some difficulties in considering the increase in risk of a journey, by reason of an interruption, disembodied from the actual circumstances of the interruption and the events which followed it in which the worker is injured. Both Dixon CJ (at 322) and Windeyer J (at 332) acknowledged that in this disembodied form, the risk of injury is to some extent necessarily increased by the lengthening of the time of the journey. The longer the time, the more opportunity for the chance of an accident to strike. Similarly, in Scobie as in all other cases, attention was paid to how the particular injury occurred in order to give colour to the supposed disembodied risks of the

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interrupted journey itself Thus, after the passage in the judgment of Dixon CJ cited above (at 322), his Honour went on to say that: "In any case on the facts of this case" it was impossible to eliminate darkness as one of the causes of the accident, ie one of the actual causes.

If the issue were at large, it could be timely to urge a reconsideration of the rule in Scobie. But the reconsideration would have to be done by the High Court. In light of the amendment of the journey provisions of the Workers Compensation Act 1987 and the introduction of new concepts, it is probably too late now to expect that reconsideration by the High Court. In any case, this Court, as the Compensation Court, is bound by the authoritative determination of the relevant provisions in s7 of the Act established by the High Court m Scobie. It was the duty of Ashford C, as of Moran CCJ and of this Court, to apply the section as explained in Scobie.

Ashford C acknowledged such to be her duty. She referred to Scobie's case. She cited a passage from the judgment of Dixon CJ. In a number of passages in her own reasons she appears, accurately enough, to have been focusing her attention upon what I have called the disembodied risks of the journey as such, occasioned by the interruption. Thus, because night was to descend anyway, that increase in the risk of injury was not materially increased in Mr Hoy's journey. As the drizzling rain would in any case have fallen, that factor was likewise not material to an increased risk of injury in the interrupted journey as such. The worker, being familiar with the particular route he took, choice of that way home was also not such as to cause a material increase in the general risks of injury. In this analysis, the Commissioner's reasons were impeccable.

However, when she came to the crucial issue of the increase in the risks of injury by stopping at a hotel for two hours and consuming several alcoholic beverages (bourbon and coke) her attention wavered. Instead of concentrating, as Scobie requires, upon whether such an interruption would occasion a material increase in the risks of the journey as such, the learned Commissioner made the mistake of addressing attention to whether that consumption had caused the actual injury later suffered by the worker:

"In accordance with the principles in Scobie (supra) I am satisfied that the factor of alcohol was not the CAUSE OF THE ACTUAL INJURY and this is supported by Professor Starmer's comment along with the evidence of Mark Collins as to the applicant's demeanour and sense of responsibility." (emphasis added)

With every respect, the citation of Scobie, both in the passage complained of, and earlier, does not protect that passage from demonstrating a plain error of law. Nor, in my respectful opinion, do the surrounding passages mollify the error. Although before and after this passage the Commissioner expressed the concentration of her attention upon the 'risk of injury' as such, in the critical passage cited she indicated, by the only means which this Court has (and Moran CCJ had), her reasons, that she was applying the test of the statute to an irrelevant consideration. She was looking not to the risks of injury, as such, but to the risks which had caused the particular injuries suffered by Mr Hoy. This is precisely what Scobie forbids.

To the extent that Moran CCJ endorsed these reasons, and confirmed the award resting upon them I am of the view that his Honour equally fell into an error of law in the conduct of his review. If this had been a minor or peripheral issue in the case, the passage in the Commissioner's reasons might have been passed by as a mere verbal slip. But the suggested increase in the risk of injury on the

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journey occasioned by a two hour delay with drinking at the hotel, such that it took the worker's blood alcohol well above the permissible level for driving - and probably to a level nearly double the permissible level - was clearly the kind of material increase in the risk of injury on a journey after interruption which attracted the disqualification. It put the worker outside the proviso. Ashford C should have so found in compliance with Scobie. Moran CCJ, if invited to do so, should have required correction.

THE ISSUES IN THE REVIEW

This is not an end of the appeal. Defensively, Mr Hoy relied upon the pleadings and the conduct of the review to contend that it was not open to the appellant to challenge Moran CCJ's award on the basis of the error of law urged on this Court.

The argument went thus. The issues presented to Moran CCJ were, and were only, the three issues recounted in his Honour's reason, extracted above. If deviation and abandonment are put to one side (not having been advanced in the appeal) the relevant issue posed for decision in the review by Moran CCJ was the following ground which I repeat:

"(a) That the Commissioner erred in finding that on the balance of probabilities there was no material increase in the risk of injury because of an interruption to the journey."

It will be noticed that, in this ground, so expressed, no specific complaint was made about the reasoning of Ashford C. No complaint was made that the Commissioner had misapplied Scobie. No error of law was asserted on the part of the Commissioner. Instead, there appears to be posed for decision in the review only an issue of fact upon which the judge was invited to reach his own conclusions. This much also appears from the reference in the ground relied upon to 'the balance of probabilities'. The error which Moran CCJ was invited to find on review was, relevantly, an error of fact in the Commissioner's findings.

In accordance with modern pleading practice, the Compensation Court rule governing applications for review under s36 of the Compensation Court Act 1984 requires specificity in the statement of the grounds for review. Thus Pt30 R3 CCR provides:

"Subject to subR(2), an application for review of a decision of a Commissioner shall be made by Notice of Motion under Pt14.

Under Ptl4 R2 CCR it is provided:

"(3) A notice of a motion shall

(a)...

(b)....

(c) State concisely the nature of the order which is sought;

(d) State concisely the grounds on which the order is sought, or referred to the affidavit in which those grounds are contained."

Part of the transcript which involved exchanges between Moran CCJ and counsel then appearing for the appellant is not in the appeal book. However, it was placed, without objection, before this Court:

"COUNSEL: This is an appeal from a decision of Commissioner Ashford. I might say that we are just here on passing. All I will be seeking to do, your Honour, is to tender the transcript of the proceedings and also, as written submissions, tender my address to the Commissioner which has been recorded and is part of the transcript, and I do not want to say anything else."

Examination of what was said before Moran CCJ makes it clear that no arguments of the precise kind which have been presented to this Court were presented to his Honour. Thus, Moran CCJ was not asked to review the

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Commissioner's decision on the footing that she had erred in law in her application of Scobie or that, upon the basis of the findings of fact which she made, only one conclusion was available in law, viz that the interruption found had materially increased the risk of injury. In this sense, the matters which have been pressed upon this Court are different from those advanced before Moran CCI.

For Mr Hoy, it was urged that the appellant should not now be permitted to raise, in an appeal to this Court limited to a point of law, ie to correction of errors of law, arguments which were not addressed to the primary judge when he was invited to conduct his review. A "review" is not, as such, an appeal. But in some respects it is wider than an appeal. It has particular features as explained in Watson (above) and in Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 58; (1992) 8 NSWCCR 290 (CA). It is not a free ranging inquisition by the judge of the Compensation Court. The parties, and the judge, may expect the issues for the review to be presented with a fair degree of precision. So much is indicated by the rules governing the process by which such matters are to be raised on motion before a judge of the Compensation Court.

Care must be taken in importing into a review in the Compensation Court all of the rules which have been required of courts of strict pleading. Nonetheless, it is worth remembering that the definition of issues for decision is itself an attribute of due process of law. It is designed to reduce trial by ambush. Its object is to promote a rational procedure by which parties, on notice, can come to court to meet and answer the issues truly in contention. It helps identify the issues which the parties will contest. It also defines the issues for the decision maker. Once defined, it is unreasonable, in most circumstances at least, to expect the decision maker to address other issues. Indeed, it may involve procedural unfairness for the decision maker to do so. See eg Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 284. The function of pleading and particularisation is to state with sufficient clarity the case which must be met. See Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490, 517. In Akhil, Brennan J, at 287, recalled what Jessel MR in Thrope v Holdsworth (1876) 3 ChD 637 (CA) at 639 had said:

"The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules... was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.

Various exceptions exist. They include where the parties choose to disregard the pleadings and to fight the case on issues which are different. See eg Dare v Pullam (1982) 148 CLR 658, 664. Where all facts have been determined beyond controversy and the question is only one of construction or law, it may sometimes be expedient, and in the interests of justice, to entertain a point of law, allowing a party to take the point for the first time on appeal. See eg Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Coulton v Holcombe (1986) 161 CLR 1, 7. But ordinarily, a party will be held to the way in which it has conducted its case in the court below. See Water Board v Moustakas (1988) 62 ALJR 209 (HC) at 212. This is partly for reasons of procedural fairness. But it is also partly for reasons of efficiency and rationality in court proceedings.

URJ NRMA SMASH REPAIRS PTY LTD v HOY (Clarke JA) 11

Should the appellant be permitted now to raise its legal argument in this Court? I have given much thought to this consideration. All of the facts relevant to the application of the legal test were found by the Commissioner. On the other hand the objections now voiced were clearly not raised before Moran CCJ. A fair reading of what took place before Moran CCJ suggests that his Honour was being invited to review the facts - the condition of the road; the lighting, the concentration of alcohol, the capacity to cope with an emergency and the driver's experience. Evaluation of those facts is reserved by law to the Compensation Court. In this appeal, it is not open to this Court to re-determine them on its view of their merits. What is before this Court is not an appeal from Ashford C but from Moran CCJ. Furthermore, it is an appeal which, at the relevant time, was limited to correcting errors of law.

Can it be said that Moran CCJ erred in law, in the conduct of the review, because he failed to address an issue which was not expressly raised by the party now complaining?

I have not found this question to be one easy of resolution. However, having confirmed, on review, the factual findings of the Commissioner, Moran CCJ could not avoid the ultimate question. It was a question of law. Before he could confirm (as he did) the Commissioner's award in favour of Mr Hoy, he still had a duty to decide whether, on the facts as found, the worker was entitled to compensation. If in law he was not, it was an error of law to confirm the award. The whole point of the employer's application for review was to challenge the worker's right to compensation. If the findings of facts, on the application of the proper legal test, required an award for the employer, Moran CCJ ought to have entered such an award in concluding this review.

Of course I have profound sympathy for Mr Hoy in his predicament. But the Court must uphold the proper application of the law to his case. Even if the legal point was not precisely taken before Moran CCJ, the Compensation Court is not a court of strict pleading still less of rigid procedure. No additional facts were tendered. It is not suggested before us that the way the review was conducted in the Compensation Court deprived Mr Hoy of the chance to call factual evidence which would have strengthened his case. All such evidence had been called. Thus, all that was sought was the proper application of the Act to the facts found. To do that was Moran CCJ's legal duty. It is, on this appeal, the duty of this Court to hold that it was so and to require that it be done.

ORDERS

The orders which I favour are:

1. Appeal allowed;

2. Set aside the award of the Compensation Court (Moran CCJ) confirming the award in favour of the respondent and dismissing the application for review;

3. In lieu thereof, order that the proceedings be returned to the Compensation Court for the conduct of the review according to law; and

4. Order the respondent to pay the appellant's costs of the appeal to this Court but to have, if otherwise so qualified, a certificate under the Suitors' Fund Act 1951 in respect of such costs.

Clarke JA I have read a draft of the President's judgment. The facts are fully recorded in it and it is unnecessary that I repeat them here.

I would dismiss the appeal. I would do so for the reason that I am not persuaded that Ashford C's decision was based on an erroneous understanding of the law.

12 UNREPORTED JUDGMENTS

The contrary view expressed by Mr Maconachie QC, senior counsel for the appellant, was that Ashford C had based her decision on the finding that the respondent's ingestion of alcohol did not cause, or materially contribute to, the actual injury suffered by the respondent contrary to Scobie v KD Welding Co Pty Ltd (1959) 103 CLR 314.

It is clear that if her decision was based on that finding it was legally erroneous. So much was conceded by the respondent. It follows that the question confronting the court is whether upon a proper understanding of the Commissioner's reasons she fell into the ascribed error.

The question is a nicely balanced one for I fully accept that when the Commissioner said, "In accordance with the principles of Scobie (supra) I am satisfied that the factor of alcohol was not the cause of the actual injury...", she expressed an erroneous view of that decision. That is not unimportant for it laid down the test to be applied.

What is not so clear, however, is whether her ultimate decision was tainted by that error.

At an earlier point in her reasons Ashford C considered whether the interruption which led the respondent to venture home in drizzling rain had materially increased the risk of injury. At that point she referred to a decision of this Court in Tucker v WD and HO Wills (Australia) Ltd (1969) WCR 11 (which was decided after Scobie) saying:

"The Court of Appeal said that to discharge the onus of proof cast upon the worker by the proviso to s7(1)(b) of the 1926 Act, the worker cannot be expected to deal exhaustively with all the hazards of his journey. Whilst they thought drizzling rain and the question of darkness may cause some slight increase in the risk of injury, it was not sufficient to cause a material increase in the risk of injury, and I adopt that view."

She then turned her attention to 'the question of alcohol consumed by the applicant' and, after referring to evidence on the effect of the ingestion of alcohol said:

"Whilst it is clear the applicant had consumed some alcohol during the interruption to his journey, I am satisfied that there was no material increase in the risk in the circumstances of the case which would deprive the applicant of the benefit of the proviso. No doubt the factor of alcohol did cause some increase in the risk but not a material increase in my view."

There could be no question of legal error if she had stopped there. But she then made the controversial statement and continued:

"Accordingly I am satisfied that the applicant is entitled to the benefits of workers compensation, having found on the balance of probabilities that in the circumstances of the case there was no material increase in the risk of injury because of the interruption."

Although I see the force of the contrary view I have concluded that the last passage I have quoted indicates that her decision was based on the express finding that there had been no material increase in the risk rather than her other, and erroneous, conclusion. That does not necessarily mean that the appeal should fail for one possible view is that her express, and correctly stated, finding was itself based on her erroneous view of Scobie. The reason why I do not think it was is the distinction she drew between "some" and "material" increase. This was clearly based on the statement in Tucker wherein a correct legal test was applied.

URJ NRMA SMASH REPAIRS PTY LTD v HOY (Meagher JA) 13

In my opinion the Commissioner was, in finding for the respondent (the applicant before her), basing her decision on her view that there had been an increase in the risk of injury, but not a material one. Her later reference to the cause of the injury did not bear on this conclusion and appears to me to have been a gratuitous, and unfortunate, addendum to a correctly reasoned decision.

The appeal should be dismissed with costs.

Meagher JA I agree with Clarke JA.

Appeal dismissed with costs.

Counsel for the Appellant: JE Maconachie QC

Solicitors for the appellant: Hickson Lakeman and Holcombe Counsel for the respondent: P Webb QC / NE Abadee

Solicitors for the respondent: McClellands