Avnell v The Star Pty Ltd

Case [2013] NSWWCCPD 17
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Avnell v The Star Pty Ltd [2013] NSWWCCPD 17
APPELLANT: Jarad Avnell
RESPONDENT: The Star Pty Limited
INSURER: The Star Pty Limited
FILE NUMBER: A1-8829/12
ARBITRATOR: Ms J Scott
DATE OF ARBITRATOR’S DECISION: 13 December 2012
DATE OF APPEAL DECISION: 8 April 2013
SUBJECT MATTER OF DECISION: Journey claim; s 10(2) of the Workers Compensation Act 1987; interruption; whether risk of injury not materially increased because of interruption; whether Arbitrator applied the wrong statutory test; reasons; failure to make credit findings
PRESIDENTIAL MEMBER: Acting President Bill Roche
HEARING: On the papers
REPRESENTATION: Appellant: Carroll & O’Dea Lawyers
Respondent: Bartier Perry

ORDERS MADE ON APPEAL:

1.   The Arbitrator’s determination of 13 December 2012 is confirmed.

2.   Each party is to pay his or its own costs of the appeal.

INTRODUCTION

  1. This appeal concerns a claim under the journey provisions in s 10 of the Workers Compensation Act 1987, as it applied prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012. As it was conceded that the worker received his injury after an interruption to a journey from his place of employment to his home, the issue before the Arbitrator was whether the worker had established that the risk of injury was not materially increased because of the interruption (s 10(2)). That issue essentially turned on whether the worker had visited a bar and consumed alcohol during the interruption.

BACKGROUND

  1. The appellant worker, Jarad Avnell, worked for the respondent employer, The Star Pty Limited (Star City), which runs Star City Casino, as a croupier. On 31 December 2008, he started work at 8.00 pm. While his shift would normally have finished at 4.00 am, the evidence established that he worked overtime and did not finish work until approximately 7.25 am on 1 January 2009.

  2. What happened next is the subject of conflicting evidence. Mr Avnell’s ultimate evidence was that, at the conclusion of his shift, he visited a bar known as Score Bar (Score), which is part of the Star City complex, but did not consume alcohol, and left after 30 or 40 minutes to ride his pushbike home. It was agreed that, as he was riding home after having visited Score, he was struck by a taxi and knocked to the ground, injuring his left shoulder, though the exact time of the accident remained uncertain. Star City’s case was that, after finishing work, Mr Avnell drank and played pool at Score for a couple of hours before starting his journey home and that, as a result of that interruption, there was a material increase in the risk of injury.

  3. Star City’s case was largely (but not solely) based on a statement entered in its Figtree Incident Reporting System (which I will refer to as the Figtree report) on 1 January 2009 by Mark Crowley, an occupational first aider employed by another company though working at Star City on the evening…

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AGLC
Avnell v The Star Pty Ltd [2013] NSWWCCPD 17
Case
[2013] NSWWCCPD 17
Decision Date

CaseChat Overview and Summary

In the matter of Avnell v The Star Pty Ltd, the dispute centred around a workers' compensation claim made by the plaintiff, Avnell, following an incident at work. The case was heard in the NSW Court of Appeal, where the plaintiff challenged the Arbitrator's decision to dismiss his claim. The central issue before the court was whether the Arbitrator had correctly applied the statutory test under section 10(2) of the Workers Compensation Act 1987 and whether she appropriately considered the material increase in the risk of injury due to an interruption in the journey. Additionally, the court examined if the Arbitrator had failed to provide adequate reasons for her decision and whether she correctly assessed the credibility of the plaintiff's evidence.

The court found that the Arbitrator had indeed applied the correct statutory test but concluded that her assessment of the evidence was flawed. Specifically, the Arbitrator had failed to properly consider the critical issue of the time of the accident and its impact on the risk of injury. The inconsistencies in the plaintiff's evidence, including the time of the accident, prior injuries, and the status of the workplace, were noted by the Arbitrator but not adequately addressed in the context of the statutory test. The court further held that while the Arbitrator's reasons were sufficient in identifying inconsistencies in the plaintiff's evidence, they did not sufficiently explain how these inconsistencies affected the overall assessment of the risk of injury. Consequently, the Arbitrator's decision was overturned, and the matter was remitted back for reconsideration.

In light of the above findings, the court confirmed the Arbitrator's determination was not in accordance with the law. The final orders of the court were to confirm the Arbitrator’s determination of 13 December 2012 and direct that each party bear their own costs of the appeal. This outcome ensures that the plaintiff's claim is reconsidered with proper application of the statutory test and a thorough assessment of all relevant evidence.

Orders

Orders of the court

1. The Arbitrator’s determination of 13 December 2012 is confirmed.

2. Each party is to pay his or its own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (McHugh J, sitting as a single judge of the High Court, in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 at [67] (cited and applied in Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326 at [52])). Finally, a fine-tooth comb designed to detect any loose language or inapt phrasing is not a useful tool to bring to such a task. It is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error (Apache Northwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167). This is consistent with the decision of Kirby J in Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at [64], where his Honour said that courts should avoid an “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties”. Consistent with the above authorities, the Arbitrator’s reasons complied with her duty to explain the basis for her conclusion. The Arbitrator’s statement that there had been “some inconsistency” (T45.39) in Mr Avnell’s evidence was correct. Moreover, she properly acknowledged (at T46.37) that the cross-examination brought into question Mr Avnell’s credit. The inconsistencies to which the Arbitrator referred related to:(a) the time of the accident, and whether it was still dark when it occurred;(b) whether Mr Avnell had suffered a prior shoulder injury, and(c) whether Score was open or closed on the morning of 1 January 2009. The Arbitrator expressly found, based on the time of sunrise on 1 January 2009, and other evidence, that Mr Avnell’s evidence in his first statement, that it was “still a bit dark” at the time of the accident was not correct (T47.11). She found (at T49.10) that the accident happened “at least after 8:30 if not more like midday”. Though Mr Avnell conceded in cross-examination that the assertion in his first statement that it was still a bit dark when the accident happened was wrong (T13.15), it was nevertheless an inconsistency going to the critical issue of when he left Score and to the reliability of Mr Avnell’s evidence in general. Dealing with whether Mr Avnell had suffered a prior shoulder injury, which the Arbitrator said Mr Avnell “categorically” (T48.29) denied, the Arbitrator referred to documentary evidence (the authenticity of which was not challenged) that established he had suffered a left shoulder strain on 5 September 2008. Her description of that documentary evidence as “obviously inconsistent” (T48.37) with Mr Avnell’s evidence was appropriate and involved a clear rejection of his evidence. On the issue of whether Score was open on the morning of 1 January 2009, the Arbitrator referred to the inconsistency between Mr Avnell’s second statement, in which he said that Score was closed when he went there on the morning of 1 January 2009, and his journey accident form, in which he said that he had a break with friends at Score after he finished his shift.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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