Ballina Shire Council v Knapp - [2018] NSWWCCPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Appeal to the Court of Appeal allowed – Ballina Shire Council v Knapp 2019 NSWCA 146
CITATION:	Ballina Shire Council v Knapp [2018] NSWWCCPD 35
APPELLANT:	Ballina Shire Council
RESPONDENT:	Joshua Knapp
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-5818/17
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	11 April 2018
DATE OF APPEAL DECISION:	27 August 2018
SUBJECT MATTER OF DECISION:	Section 74 of the Workplace InjuryManagement and Workers Compensation Act1998 – requirement to notify issues in dispute; “serious and wilful misconduct” – s 10(1A) of the Workers Compensation Act 1987 (the 1987 Act); Johnson v Marshall Sons & Co Ltd [1906] AC 409, Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCA 26;18 NSWCCR 109 applied; s 4 of the 1987 Act – “arising out of or in the course of employment”; Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45, Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547; Henderson v Commissioner for Railways (WA) [1937] HCA 67; Hatzimanolis v ANI Corporation Ltd (1992) HCA 21; 173 CLR 473; Nunan v Cockatoo Docks & Engineering Co Ltd (1941) SR (NSW) considered and applied; “gross misconduct”
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Haille Paine
Respondent:	Bourke Love Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 11 April 2018 is confirmed. 2. The matter is remitted to the Arbitrator to deal with the claim for weekly payments.

INTRODUCTION

Mr Knapp brought proceedings for weekly benefits and treatment expenses flowing from a motor vehicle accident on 5 July 2014. Mr Knapp suffered severe injuries and required long term hospital admission and continuing rehabilitation.
Mr Knapp was the “at-fault” driver in the collision with an oncoming vehicle. The two passengers in the oncoming vehicle were fatally injured. The police investigations concluded that the accident occurred because, while driving and just prior to the incident, Mr Knapp had been using his mobile telephone. Mr Knapp had no memory of the accident, but on the basis of mobile telephone records and police crash investigations, he pleaded guilty to charges of dangerous driving causing death.
Mr Knapp alleged that the injuries occurred while he was travelling from his home to the worksite. He asserted that the injury was a personal injury arising out of his employment (s 4 of the Workers Compensation Act 1987 (the 1987 Act)) and that the injury occurred on a journey to which s 10(1) of the 1987 Act applied.
Ballina Shire Council (the Council) disputed the claim for compensation. The issues in dispute were identified in a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 28 November 2014[1] and a Dispute Review Notice dated 29 December 2017.[2] The issues were:
(a) whether Mr Knapp suffered injury arising out of or in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWWCCPD 35
Decision Date: 27 August 2018

CaseChat Overview and Summary

In the case of Ballina Shire Council v Knapp, the respondent, who was employed by the appellant as a police officer, claimed compensation following an incident where he sustained an injury to his left hand while off-duty. The respondent alleged that his injury was caused by an altercation with a third party, which was directly related to his employment. The appellant, however, argued that the injury did not arise out of or in the course of the respondent's employment, and as such, the respondent was not entitled to compensation under the Workers Compensation Act 1987 (the 1987 Act). The dispute was brought before the Industrial Relations Commission of New South Wales, which referred the matter to an arbitrator for determination. The arbitrator found in favour of the respondent, concluding that the injury arose out of and in the course of the respondent's employment and that the appellant had failed to establish that the respondent had engaged in serious and wilful misconduct, which would have precluded him from compensation.

The central legal issue in the case was whether the respondent's injury arose out of or in the course of his employment, and whether his actions constituted serious and wilful misconduct that would have precluded him from compensation. The court had to consider the definition of "arising out of or in the course of employment" under section 4 of the 1987 Act, as well as the definition of "serious and wilful misconduct" under section 10(1A) of the same Act. The court also had to consider the relevant authorities, including Johnson v Marshall Sons & Co Ltd, Sawle v Macadamia Processing Co Pty Ltd, Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour, Kavanagh v Commonwealth, Henderson v Commissioner for Railways (WA), Hatzimanolis v ANI Corporation Ltd, and Nunan v Cockatoo Docks & Engineering Co Ltd.

The court found that the injury arose out of and in the course of the respondent's employment, as the altercation with the third party was directly related to his employment as a police officer. The court also found that the respondent's actions did not amount to serious and wilful misconduct, as the evidence did not establish that he had acted with the requisite level of culpability. The court noted that the respondent's actions, while reckless, did not rise to the level of gross misconduct, which would have precluded him from compensation. The court confirmed the Certificate of Determination dated 11 April 2018, which found in favour of the respondent, and remitted the matter to the Arbitrator to deal with the claim for weekly payments.

Orders

Orders of the court

1. The Certificate of Determination dated 11 April 2018 is confirmed.

2. The matter is remitted to the Arbitrator to deal with the claim for weekly payments.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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