The New South Wales Workers Compensation Commission recently
considered a case regarding a claim for workers compensation by an
employee, Camilla Scharrer (Ms Scharrer) who
suffered severe injuries in a motor vehicle accident.
The incident occurred in the early hours of 15 December 2001
when Ms Scharrer was travelling home from her employer's
Christmas party in a work vehicle she was entitled to use for
personal use. After the accident, she registered a blood alcohol
reading of 0.124 per cent, which was in excess of the allowable
limit of 0.05 per cent.
The employer, The Redrock Company Pty Ltd
(Redrock) made weekly payments to Ms Scharrer from
the time of the accident up to July 2005, at which point it decided
to deny liability for future payments on the basis the injuries
were attributable to the serious and wilful misconduct of Ms
Scharrer because she was under the influence of alcohol.
At first instance, Arbitrator Oldfield held that Ms Scharrer
suffered a serious and permanent disability in the course of her
employment and the disqualifying provisions in the Workers
Compensation Act 1987 (NSW) did not apply. Redrock appealed
against the decision.
Deputy President O'Grady accepted that Ms Scharrer was in
the "course of her employment" when she attended
Redrock's work Christmas party. The Commission noted that Ms
Scharrer, a sales representative, was not obliged to attend the
party, but was expected to do so.
The major point of contention, however, was whether Ms Scharrer
was acting in the course of her employment after she left the
Redrock argued that Ms Scharrer was no longer acting in the
course of her employment after leaving the party up to the time of
the accident because she had been directed by her managers to not
drive home. On the other hand, Ms Scharrer argued that the
direction of her managers did not take her outside of the course of
employment and she was otherwise entitled to use the motor vehicle
for personal use.
The Commission found that Ms Scharrer was not entitled to
compensation because she was not within the course of her
employment when she disobeyed her employer and drove home under the
influence of alcohol.
An alternative argument by Ms Scharrer was based on the
"journey provisions" found in section 10 of the
Workers Compensation Act 1987 (NSW). Those provisions deem
an employee to be in the course of employment where a worker is on
a journey related to work. The Commission held that Ms Scharrer was
journeying to her home, but was disqualified from relying upon that
provision because her blood alcohol concentration was well in
excess of the allowable limit, she had failed to demonstrate her
intoxication did not contribute to the accident, and failed to show
that the alcohol had been consumed involuntarily.
This decision demonstrates that in particular circumstances
staff at work functions can be in the course of employment. It also
shows that it is in the interests of employers to direct employees
to not drive home from work functions when under the influence of
alcohol, particularly where work-issued vehicles are involved.
The RedRock Company Pty Limited v Scharrer 
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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