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17.2.6 Case examples

  1. Rowe and Australian Shipping Commission (1981): An employee stopped off at a hotel on the way home and later walked through a construction site after dark, injuring himself. The Tribunal found that there was a substantially increased risk because he had taken a route to his home that was dangerous, because it was dark, construction was being undertaken in the area, and the ground was slippery from rains that had occurred that day.
  2. Beach and Australian Postal Commission (1982): The increased risk arising from the onset of darkness on a rainy night was balanced by lessened traffic. Accordingly there was no change in the nature of the risk nor a substantial increase in risk.
  3. Repatriation Commission v Smith (1997): The Federal Court considered a reasonably similar provision in the Veterans' Entitlements Act 1986. The client's normal route home took about 20 minutes, but he was injured on a journey home which was rendered much longer because he diverted significantly to have a meal with his wife and then continued on home after dark. The normal journey involved travelling 7 kilometres, passing through 12 major intersections, while the journey actually undertaken involved a round trip of 44.6 kilometres, passing through 66 major intersections. The Tribunal held that there was not a substantially increased risk because the roads were sealed, adequately lit and dry, and there would be fewer cars on the road at 12.15am than earlier in the day. The Federal Court set aside the Tribunal's decision because of its failure to consider the Commission's reasonable submissions that reduced traffic volumes at night actually increased the risk of serious accidents and thus of serious injury.