You are here

25.5.1 Voluntary


'Voluntary' is defined in the Concise Oxford Dictionary as:

voluntary 1. done, acting, or able to act of one's own free will; not constrained or compulsory, intentional...

In the context of S6(3), it also connotes that the member was aware of the 'abnormal risk' and undertook the activity anyway. In Taylor v Stapely (1954) the High Court considered that the employee may not have foreseen the extent of the risk and therefore his submission to it could not have been voluntary. The fact that an employee has put himself or herself in a position of exposure to abnormal risk of injury could not be considered voluntary if the employee could not, or actually did not, foresee the extent of the risk.

This is well illustrated by the decision of the Administrative Appeals Tribunal in Re Grime and Telstra Corporation Limited (1994) where an employee drove a car to work in the morning with a blood alcohol level of 0.136%, after drinking approximately 16 light beers the night before. The Tribunal found that he was not aware that he was still substantially affected by alcohol, and that therefore it could not be said that he voluntarily submitted to an abnormal risk of injury. The Tribunal considered 'that 'voluntarily, for the purpose of S6(3), requires something more than an act being done without compulsion, and that it does require the free consent of the injured employee, this necessarily encompassing that the employee fully appreciate the risk which is being undertaken'.

Nevertheless, it was, however, agreed between the parties that the employee had been guilty of 'serious and wilful misconduct' in terms of S4(13).