Barracuda Roofing Pty Limited v Seaburn
[2007] NSWWCCPD 193
•6 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Barracuda Roofing Pty Limited v Seaburn [2007] NSWWCCPD 193
APPELLANT: Barracuda Roofing Pty Limited
RESPONDENT: Norman James Seaburn
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC 17012-06
DATE OF ARBITRATOR’S DECISION: 26 February 2007
DATE OF APPEAL DECISION: 6 September 2007
SUBJECT MATTER OF DECISION: Sections 4(a) and 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: CBD Law
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 26 February 2007 is confirmed.
2. Time granted to the Appellant pursuant to order 3 is extended to 7 October 2007.
3.The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
On 21 March 2007 Barracuda Roofing Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 February 2007.
The Respondent to the Appeal is Norman James Seaburn (‘the Respondent’).
The Respondent, who was born on 2 September 1976, sustained a severe traumatic brain injury when he was assaulted by one Michael Woods shortly after 10.00pm on 15 December 2005. The assault occurred at residential premises occupied by Rachel Rumble at 41 Sherwood Drive, Springfield, NSW. It appears that Ms Rumble had been conducting a “pre wake” party on that night given the circumstance that Ms Rumble’s sister, Rebecca Rumble, had earlier that day died.
The Respondent had arrived at Ms Rumble’s premises a short time before the assault. The Respondent was in the company of his fiancé, Ms Kristy Ward and Mr Joshua York. It was the Respondent’s case that he attended the address at that time with the intention of expressing his condolence to Ms Rumble as well as seeking out a guest at the party, Mr Francesco (Frank) Pirrottina with the intention of confirming certain arrangements earlier discussed concerning hire of Mr Pirrottina services and a truck owned by him for the purpose of a roofing contract which had been secured by the Respondent’s employer, the Appellant company.
The Respondent was employed by the Appellant as a Tiler/Roofer. The Appellant may be described as a “family company” and it appears that it was incorporated by the Respondent and his father, Norman James Seaburn Senior. Mr Seaburn Senior had, it seems, resigned as a Director of the company in approximately September of 2005 following which management and general conduct of the Appellant’s business was assumed by the Respondent.
As a result of the subject assault the Respondent sustained significant brain damage causing severe impairment in the areas of language, memory, attention/concentration and vision. These impairments have prevented the Respondent from returning to his employment and he has not been gainfully employed since his injury.
In May of 2006 the Respondent made a claim against the Appellant and its Insurer with respect to workers compensation benefits. That claim was denied on behalf of the Appellant by its Insurer in August 2006. Correspondence received by the Respondent’s Solicitors from the Insurer dated 3 August 2006 stated that the grounds for denial of liability were twofold, namely that the injury did not arise out of employment nor occur in the course of employment within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) and further that the Respondent’s employment was not a substantial contributing factor to the injury within the meaning of section 9A of the 1987 Act.
On 25 October 2006 the Respondent filed an Application to Resolve a Dispute with the Commission. That Application claimed as against the Appellant weekly benefits and medical, hospital and related expenses with respect to incapacity and need for treatment following the assault. That Application was contested by the Appellant and the matter came before an Arbitrator for conduct of a conciliation conference/arbitration hearing on 8 February 2007. The arbitration hearing was concluded on that day and a determination providing for awards in favour of the Respondent was made by the Arbitrator on 26 February 2007.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 26 February 2007 records the Arbitrator’s orders as follows:
“1.Award for the Applicant for weekly payments of compensation at the rate of $850.00 per week from 15th December 2005 to 15th May 2006 and thereafter at the maximum statutory rate for a worker with such dependants as set out in a statutory declaration to be filed by the Applicant.
2.The Respondent is to pay the Applicant’s reasonably necessary Section 60 expenses upon production of accounts and/or receipts and/or HIC Notice of Charge.
3.Liberty to the Respondent to apply to the Commission for the matter to be relisted for determination as to whether the Applicant was partially incapacitated pursuant to Section 40 by 22nd March 2007.
4.The Respondent to pay the Applicant’s costs as agreed or assessed.”
A Statement of Reasons for Decision (‘Reasons’) dated 26 February 2007 accompanied the Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)whether the Arbitrator erred in “understanding and application” of section 4 of the 1987 Act, in particular with respect to the words “arising out of or in the course of employment” as they appear in that section;
(ii)whether the Arbitrator erred in his “understanding and application” of the provisions of section 9A of the 1987 Act;
(iii)whether the Arbitrator erred in that he “formed opinions that had no basis in evidence and/or made findings contrary to the principles of procedure …”;
(iv)whether the Arbitrator erred with respect to his “understanding of the applicable law” when considering matters in dispute between the parties, and
(v)whether the Arbitrator’s “reasoning process was flawed” with respect to his determination of issues in dispute with respect to the circumstances of the subject assault.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Submissions” which accompanied the Appellant’s Application for Leave to Appeal filed with the Commission on 21 March 2007. The detail of those submissions and an analysis of the Appellant’s grounds of appeal appears hereunder.
The matters above summarised have been the subject of submissions in response by the Respondent in his Notice of Opposition to Appeal filed with the Commission on 2 May 2007. The Appellant, on 23 May 2007, filed further submissions in response to those of the Respondent.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
It is submitted on behalf of the Appellant (at paragraph “F” of Submissions) that, having regard to the nature of the issues raised on the appeal, it is appropriate that a hearing before the Commission be convened.
The Respondent to the appeal has submitted that the appeal may properly be decided solely upon the basis of the written Application and Notice of Opposition lodged.
Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The Arbitrator, at paragraph 8 of his Reasons, summarised the evidence that was before the Commission. It was noted that the Respondent relied upon all that material attached to his Application to Resolve a Dispute as well as the content of a Statement of Joshua York dated 6 June 2006. The Appellant relied upon all that material attached to the Reply, together with the content of clinical notes of the Gosford Hospital which were attached to an Application to Admit Late Documents filed with the Commission on 31 January 2007.
I note in passing that the Arbitrator, at paragraph 8 of his Reasons, expressly noted that no oral evidence had been received at the hearing. There is before the Commission a transcript of the proceedings before the Arbitrator which took place on 8 February 2007. I note in passing that at pages 25 to 27 of that transcript an exchange between the Respondent’s Counsel and a person nominated on the transcript as “unidentified person” is recorded. Having regard to the manner of conduct of the arbitration and the notation made by the Arbitrator as to the state of evidence, the matters recorded are not, on this appeal, to be treated as evidentiary material properly before the Commission.
A Police report compiled by Senior Constable McLaughlin dated 25 May 2006 was attached to the Respondent’s original Application. That report relates to Police investigations of events which occurred on the night of 15 December 2005 at premises situated at 41 Sherwood Drive, Springfield. It is recorded that Police received a report at 11.00pm on that night concerning a disturbance at those premises which were occupied by Ms Rachel Rumble. It is recorded that a “party” for family and friends had been conducted at the premises by Ms Rumble given the circumstance that her sister had recently died. The party had commenced at approximately 6.30pm and it is recorded that “most persons began leaving the premises sometime after 10.00pm and a short time later a fight erupted in the driveway amongst three persons …”. The victims of an assault were noted in the report as being Norman Seaburn, the Respondent, and Joshua York of Springfield. A “person of interest” Michael Woods was named in that report. The report summarises Police investigations leading to the location of Michael Woods and his being taken into Police custody at Gosford Police Station.
There was before the Commission a Statement by Norman James Seaburn Senior dated 5 July 2006. It is stated that the Appellant Company was established by Mr Seaburn Senior and his son, the Respondent. Mr Seaburn states that he had been a Director but “pulled out of the company and Norman took it over”. Mr Seaburn Senior continued, from time to time, to assist his son in conduct of the business. It is stated that the Appellant had a “job” at West Gosford to remove and replace a roof of a residential property. It was intended to commence the work on Friday, 16 December 2005. Mr Seaburn further states that the job was “bigger and harder” than normal and that the Respondent was intending to hire four people to assist and to hire a truck or a bin to carry waste material.
Mr Seaburn proceeds to state that he, in the company of the Respondent, attended the home of Mr Frank Pirrottina on Tuesday 13 December 2005. On that occasion Mr Pirrottina agreed to hire his truck to the Appellant following a description of the job in question and he was informed that the truck was required the following Friday and Saturday.
Mr Seaburn Senior further states that he was informed by the Respondent the following Thursday, 15 December 2005, of the death of Rebecca Rumble. The following exchange between Mr Seaburn and his son is recorded in the Statement:
“ “Rebecca has passed away. We would be better off putting the job off to the following week the Monday or Tuesday”.
I said:
“Yeah okay but you better tell Frank to make sure he doesn’t have the truck there for tomorrow.”
Norm said:
“I’ll go around and see him. I’ll see him dad.”
I said:
“You’re probably better off leaving it until Monday in any case.” ”
Attached to the Respondent’s Application were three Statements by Mr Francesco Pirrottina dated 25 June 2006, 7 July 2006 and 13 July 2006. The first of those Statements records a discussion between Mr Pirrottina, Mr Seaburn Senior and the Respondent “a couple of days before Rebecca passed away” concerning the hiring of his truck. Mr Pirrottina further states that shortly after 4.00pm on 15 December 2005 he had seen and spoken to the Respondent in Sherwood Drive, Springfield at which time the Respondent stated that as he was busy he would “get back” to Mr Pirrottina concerning hire of the truck. Mr Pirrottina states that all the Respondent needed to do was to telephone him and expressly states that “there was no need for him to come and see me”. Of significance it is stated by Mr Pirrottina:
“There was no need for any more arrangements about the truck; all he had to do was ring to tell me where he wanted the truck taken to. He left and said he [sic] I will see you later on, when he said that he did not say anything about later that evening. There were no further meetings arranged.”
Mr Pirrottina states that he did not see the Respondent until “well after 10.00pm” on the night of 15 December 2005 at Ms Rumble’s premises. This Statement was made in the presence of Mr Ron Lipovac of Worksite Investigations.
The Statement of Mr Pirrottina dated 7 July 2006 contains a number of statements which contradict the contents of his earlier Statement taken in the presence of Mr Lipovac. Mr Pirrottina states that he had earlier “ hired the truck” to the Seaburns. This contrasts with his earlier Statement that:
“I had no previously [sic] dealings with Norman Seaburn concerning the hire of my Mazda truck.”
At paragraph 15 of the second Statement made by Mr Pirrottina it is recorded
“15.Norm still had to talk to me about the job with the truck. I hadn’t seen him and still had to confirm the arrangements.”
Mr Pirrottina proceeds to state at paragraph 18:
“18.In my statement to Ron Lipovac it has that Norm didn’t have to see me. This isn’t correct. Norm still had to see me to confirm the details about the truck.
19.My earlier statement says there was no need for any more arrangements. Norm still had to arrange with me where I had to take the truck to.”
The third Statement by Mr Pirrottina contains detail of his mobile telephone service including the statement that a message service was available on that telephone line and an assertion that “Norman Seaburn did not leave messages”.
There were two Statements made by the Respondent in evidence before the Arbitrator. The first, dated 17 May 2006, is unsigned however it is clear that it is a copy of a Statement compiled by the NSW Police in connection with a charge against Michael Woods. It is recorded that the Respondent has little recollection of events on 15 December 2005. The Respondent recalls attending the Elanora Hotel on that day in the company of his fiancé Kristy Ward, Joshua York and Joshua’s girlfriend, Kylie. The Respondent further states that he recalls that he had to go to speak to Frank Pirrottina “about driving his truck for a job I was doing”. The Respondent stated that he wished to make sure that Mr Pirrottina had the truck ready to do the job and that he knew that Mr Pirrottina would be at Rachel Rumble’s house and for that reason he wanted to go over there for the purpose of talking to him.
The Respondent proceeds to describe his attendance at the premises of Rachel Rumble. The Respondent arrived at the driveway of the premises and saw Ms Rumble and expressed his condolence to her concerning the death of her sister. At that time a fight commenced involving Michael Woods and Joshua York. The Respondent states that he pulled Woods off Josh York and broke up the fight . The Respondent states that he said to Woods “Piss off home, you’re an idiot”. Woods left the scene and the Respondent states that “It was all over.”. It was after these events that the Respondent recalls that Kristy screamed something out and that he had been charged and pushed to the ground and been struck on the back of the head and “feeling helpless”.
The second Statement by the Respondent which was before the Arbitrator was dated 18 October 2006. The Respondent states that he had taken over conduct of the Appellant’s business in September of 2005. The Respondent states that he had done business with Frank Pirrottina on previous occasions and was aware that he had a truck. His means of communicating with Mr Pirrottina was to attend the premises of Rachel Rumble at 41 Sherwood Drive, Springfield, NSW. The Respondent further states that he had contacted Mr Pirrottina on previous occasions by telephone however such communication was difficult given that Mr Pirrottina often worked at his parents’ farm near Mangrove Mountain. The Respondent states at paragraph 12:
“12.The night I was assaulted I had attended Rachel’s house to see Frank to discuss business. I had to speak to him about the truck and arrangements for the truck.”
A Statement of Rachel Rumble dated 7 July 2006 was before the Arbitrator. This Statement contains little detail however Ms Rumble does state that on the day that her sister died she was in a vehicle with Frank pulling into her driveway at her home when the Respondent, who was driving his own vehicle, stopped and a conversation took place between Frank and the Respondent. Ms Rumble states that the Respondent was at that time in the company of his girlfriend Kristy. Ms Rumble states that whilst she could not hear clearly she was aware that Frank and the Respondent were “speaking about work”.
There was before the Arbitrator a Statement by Colin James Seaburn dated 5 July 2006. Colin Seaburn is the cousin of the Respondent. His Statement contains detail concerning ownership by Frank Pirrottina of a truck and refers to previous arrangements where the truck was utilised for roofing work, the arrangements having been made by the Respondent. That Statement makes reference to the attendance by the Respondent on the road in front of Rachel Rumble’s premises on the afternoon of the assault. That Statement records that the Respondent informed Colin Seaburn that he (the Respondent) had to catch up with Frank later in the night.
The Arbitrator had before him two Statements by Kristy Ward, the first dated 6 March 2006 and the second is said to be dated 16 March 2006. The first of those Statements had been prepared by the NSW Police in the matter of the prosecution of Michael Woods. That Statement makes reference to an earlier Statement by Ms Ward dated 16 December 2005 which is not in evidence.
That Statement also contains considerable detail as to the events at Ms Rumble’s premises immediately before and during the subject assault. Ms Ward states that the Respondent intervened to break up a fight between Woods and Joshua York. The Respondent, it is stated, separated the two by placing Woods in a headlock. Ms Ward did not see the Respondent punch Woods. Ms Ward called out to the Respondent to let Woods go and he was released. Woods apparently left the immediate vicinity saying “You wanna play like this? You wanna play like this?”. Ms Ward states that “shortly after” Woods returned and charged “like in a rage at Josh” and attacked Josh York with an implement that appeared “like a bar”. Josh York was struck by Woods on the left side of his face and fell to the ground. Ms Ward then went to the aid of Joshua York, she turned to see the Respondent and Woods in a scuffle against a car parked at the top of the driveway. Ms Ward followed the Respondent and Woods away from the car through two gates and into a carport at which point she witnessed Woods crouching over the Respondent. Despite pleas from Ms Ward to leave the Respondent alone, Woods continued his attack and struck the Respondent with something that he was holding in his right hand. Ms Ward details particular events which immediately followed this attack and stated that she did not see Woods again.
The second Statement by Ms Ward contains a little detail concerning the Respondent’s attendance at Ms Rumble’s premises on the afternoon of 15 December 2005 at which time he spoke to his cousin Colin Seaburn and Frank Pirrottina. Ms Ward does not have a recollection of what was discussed. Ms Ward did state that she was aware that the Respondent was arranging for Frank “to do some work with the truck later in the week”.
Ms Ward further states that she, in the company of the Respondent and Josh York, attended the Elanora Hotel at Gosford arriving there at about 7.00pm, remaining there for a period of 2 hours. It is asserted by Ms Ward that neither Norm nor Josh was drunk when they left the hotel. The three of them caught a taxi to Joshua York’s home at which time Ms Ward states that the Respondent indicated his wish to go to the home of Rachel Rumble as he needed to speak with Frank Pirrottina “who lived there about driving a truck cleaning up the rubbish on a worksite”. Ms Ward states that she in the company of the Respondent and Mr York walked to Ms Rumble’s premises. The balance of Ms Ward’s Statement details events which she witnessed immediately prior to, during and following the assault by Woods upon both Mr York and the Respondent.
The remainder of the documents attached to the Application relate to the claim for compensation made by the Respondent and include medical reports which summarise the grievous injury suffered by the Respondent as a result of the assault by Woods.
The Statement of Joshua York dated 6 June 2006 which was before the Arbitrator contains detail of his attendance at the Elanora Hotel on the afternoon of the assault where it is stated that he met the Respondent in the company of Ms Kristy Ward. Mr York states that he, in the company of Ms Ward and the Respondent, caught a taxi at about 10.00pm from the hotel to his home. At approximately 10.30pm they then proceeded to walk from his home to the premises of Ms Rumble. Mr York states that the Respondent had informed him that he (the Respondent) wished to attend Ms Rumble’s home for two reasons. Firstly he wanted to pay respect to Rachel concerning the death of her sister and he also “had to talk to Frank Pirrottina, Rachel’s partner, about a roofing job.”
Mr York’s Statement contains detail of an attack upon him by Woods. Immediately before this attack it appears that Mr York had intervened to prevent a woman from driving a car. Woods was sitting in the back seat of that vehicle. Mr York states that after he was head butted by Woods he retaliated and threw Woods on the bonnet of a vehicle and that he (Woods) landed on the grass. It is Mr York’s recollection that Woods then ran off down the driveway and that during this exchange the Respondent was immediately next to him.
Mr York states that within a minute or so of Woods’ departure he (Woods) returned calling his name at which time he was struck by Woods from behind on the left side of the face with a wheel brace. Mr York was dazed and states that the Respondent grabbed Woods and attempted to push him away. Mr York then states that Woods began to strike the Respondent who dropped to the ground following which Woods repeatedly struck the Respondent with the wheel brace in the region of his head. Mr York states that he then ran to the top of the driveway, picked up Woods and threw him through a fence. It was then that Woods ran off through the backyard of number 41 Sherwood Drive, Springfield.
The Appellant tendered in evidence a number of documents which had been relied upon by the Respondent and which are summarised above. Those documents included the Police Report of Senior Constable McLaughlin and two Statements of Mr Pirrottina the first dated 25 June 2006 and the second dated 13 July 2006.
The Respondent further tendered in evidence clinical notes and records produced by Gosford Hospital. I note that those documents include records relating to treatment of the Respondent at that hospital prior to the date of the subject assault. These documents can have no relevance to the present matter and appear to have been included in the tender by way of oversight, and I further note that neither party has made reference to these documents in submissions either before the Arbitrator or on this appeal. The balance of the material produced by the Gosford Hospital relate to the immediate treatment of the Respondent and subsequent treatment and rehabilitation.
Submissions
It is asserted by the Appellant that the Arbitrator erred in his understanding and application of the wordage of the definition of “injury” which is contained in section 4(a) of the 1987 Act. It is argued that the Arbitrator failed to adequately consider whether the Respondent had established that the activity in which he was engaged at the time he suffered injury was such that the injury “arose out of or in the course of employment” in terms of the aforementioned section. It is asserted that it was incumbent upon the Respondent to establish that at relevant times he was “within his employment”. Reference is made to Hatzimanolis v ANI Corporation Ltd 8 NSWCCR 244 (‘Hatzimanolis’) and Henderson v Commissioner for Railways (WA) (1937) 58 CLR 281 (‘Henderson’) and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 (‘Speechley’). It is put on behalf of the Appellant that in the case of a “working director” it is essential, to establish liability, that the “employment nature of the activity in which the injury occurred be established” by the Respondent.
The Appellant submits that the Arbitrator erred in his understanding and application of the provisions of section 9A of the 1987 Act. The Appellant makes reference to the evidence concerning the circumstances of the subject assault and it is argued that “there was no work related reason for the assault”.
The Appellant further submits that the Arbitrator had “formed opinions” that had “no basis in evidence” and/or that he made findings contrary to what are described as “principles of procedure” set out in the Rules relevant to the conduct of proceedings before the Commission. (It is to be noted that the Appellant makes reference to the 2003 Rules which have been superseded. The rule relevant to this submission is now to be found at Part 15, Rule 2 of the Workers Compensation Commission Rules 2006.) The particular findings which are challenged by the Appellant concern the Arbitrator’s conclusion “that the Applicant had completed the social aspect of his visit”. It is argued that there was no evidence before the Commission to suggest that the purpose of re-arranging the truck was anything other than “peripheral to the primary social purpose of taking part in the wake”. It is put that there was an absence of evidence in relation to conclusions by the Arbitrator that the Applicant “would have visited the premises to re-arrange the truck had there not been the primary purpose of paying a social visit”. Reference is also made in the submission to evidence relating to the availability of use of the telephone in the absence of evidence that such means of communication was not available.
The Appellant, in what may be described as a generalised challenge to the Arbitrator’s findings, submits that he erred in his understanding of the applicable law. The submissions enumerate the following suggested errors on the part of the Arbitrator:
“1.The Arbitrator erred in his finding that there was no place for primary and secondary purposes in the context.
2.The Arbitrator’s understanding of the applicable law was flawed in that he impliedly found that only misconduct or impropriety would take a worker outside the course of his employment.
3.The Arbitrator applied the law relating to intervals in employment as if it applied to activities carried out in the course of his employment3.
4.The Arbitrator wrongly compared the present case with that of Blacktown City Council v. Smith4, in that the present incident did not occur at place of work, during normal working hours.”
Footnote “3” appearing in paragraph 3 above made reference to the decision in Hatzimanolis, McCurry v Lamb (1992) 8 NSWCCR 556 (‘McCurry’) and Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 (‘Lewis’).
There is included in the Appellant’s submissions on this appeal a general challenge to the correctness of the Arbitrator’s reasoning process. It is argued that the Arbitrator failed to identify the cause of injury as being the Applicant’s involvement in a fight “between two people who had no connection to the Applicant’s work activities”. It is further submitted that the Arbitrator wrongly “relied on the cessation of the first assault to conclude that the social aspect of the Applicant’s visit was complete and failed to identify the Applicant’s voluntary involvement in the second assault as the cause of injury”.
The Appellant seeks an order that the Arbitrator’s decision be set aside and that an award be entered in favour of the Appellant.
The Respondent in his Submissions on this Appeal seeks to refute those arguments raised by the Appellant and to support the conclusions reached by the Arbitrator as revealed in his Reasons. Reference is made in those Submissions to an attachment which is said to be a copy of Written Submissions prepared on behalf of the Respondent and handed to the Arbitrator at the hearing. In fact the document attached to the Respondent’s Submissions is a copy of the Appellant’s Submissions on this Appeal. This error in compiling the Respondent’s Submissions may be overcome given that there is before the Commission a copy of the subject Submissions originally handed to the Arbitrator at the hearing. Those Submissions bear the date 7 February 2007 and are signed by Counsel then appearing on behalf of the Respondent.
The Appellant has filed on this appeal a Response to the Respondent’s Submissions bearing date 19 May 2007. That Response includes an assertion that the Appellant “does not accept the Arbitrator’s findings of fact are supported by the evidence …”. Particular attention is directed to the suggested finding by the Arbitrator that “the worker had finished paying his respects to Rachel”. It is also asserted that there was no evidence that the Respondent had “embarked on or resumed his attempt to find Pirrottina”. Brief reference is made in this Response to the evidence concerning the interval between the first and second physical attacks and that evidence relating to the relationship between Joshua York and the Respondent.
The Appellant’s Response also includes an assertion that “the Respondent is unable to identify if the worker was acting in the course of his employment or was assailed during an interlude or interval in his work”. This line of argument is extended in the final submission in response which states:
“5.To find that the worker was at the site of the assault during an interval in these circumstances would amount to a finding that a self-employed worker was always either working or in an interval.”
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that aforementioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
The Appellant challenges the Arbitrator’s finding that the assault and consequent injury sustained by the Respondent occurred in compensable circumstances. It is argued that the Arbitrator erred in his understanding and application of the meaning of the phrase “arising out of or in the course of employment” as it appears in section 4 of the 1987 Act.
The relevant finding is to be found at paragraph 54 of the Arbitrator’s Reasons:
“54.Accordingly under all of the circumstances I am persuaded that the applicant sustained an injury arising out of or in the course of his employment.”
The Appellant’s challenge to this determination by the Arbitrator is founded upon suggested error of law as well as factual error.
The Arbitrator when dealing with the application of section 4 made (at paragraph 47 of Reasons) a number of factual findings which are summarised in eight sub-paragraphs. Those findings of fact were expressed as being made upon the basis of acceptance of particular portions of the evidence as particularised by the Arbitrator in the course of his Reasons. I am of the opinion that those findings of fact as summarised at paragraph 47 of his Reasons were open to the Arbitrator having regard to the state of the evidence and, insofar as any challenge to those findings is made on behalf of the Appellant, I conclude that no error in any relevant sense has been made out.
With respect to the question of whether the Arbitrator correctly applied questions of principle I consider it appropriate to identify those matters which, having regard to his findings, required determination.
The Arbitrator accepted the Respondent’s case that on the day of the assault he had become aware of the death of Rebecca Rumble and that, following discussion with his father, it was determined that arrangements with Mr Pirrottina would need to be altered and, more particularly, that the Respondent undertook to communicate with Mr Pirrottina. The Arbitrator also found as a fact that the Respondent had dual purposes for his attendance at Ms Rumble’s premises on the night of 15 December 2005. There was a social purpose (paying respect to the Deceased’s sister) and a work related purpose, that being locating Mr Pirrottina for the purpose of discussing hire of the truck. Those findings appear at paragraphs 53 and 59 to 61 of Reasons. The findings as to dual purpose for the Respondent’s visit were made in the context of the Arbitrator’s consideration of matters raised pursuant to both section sections 4(a) and 9A of the 1987 Act. I am of the view that, whilst the existence of dual purposes was relevant to consideration of that last mentioned section, such findings are relevant also to the threshold consideration as to whether the injury sustained by the Respondent was one within the definition of section 4(a) of the 1987 Act.
The facts as found by the Arbitrator required a determination as to whether the subject injury arose out of or in the course of employment within the meaning of the Act notwithstanding the fact that the Respondent’s actions in attending Ms Rumble’s premises were taken for both work and non-work purposes. A determination of matters raised by proper application of section 4(a) of the 1987 Act also involved consideration by the Arbitrator as to whether, on the facts found, the Respondent’s conduct was such as to take him outside the course of his employment and thereby disentitle him to compensation under the Act.
That the subject injury occurred outside normal working hours is not in dispute. That the Respondent attended the premises of Ms Rumble for dual purposes has been found by the Arbitrator as a fact and in my opinion such conclusion was open to him on the evidence. In my opinion the Arbitrator was correct in placing reliance upon the decision of Glass JA in Hooke v Rolfe (1986) 7 NSWLR 40 when concluding (at paragraph 59 of Reasons) that:
“An activity may be within the course of employment even if it is undertaken for both work and not [sic] work related purposes.”
The Arbitrator at paragraphs 50 to 52 (inclusive) considered the authorities relevant to an enquiry as to what constitutes “course of employment” within the meaning of section 4(a) of the 1987 Act. Those authorities included the general principles as stated by Dixon J in Speechley as well as the amplification of those matters in more modern authority including that of Hatzimanolis. The facts as found in the present matter are not analogous to those of Hatzimanolis. I do not consider that the injury occurred to the Respondent during an interval or interlude within an overall period or episode of work as was the case in Hatzimanolis. Notwithstanding my view I consider that the principles as stated by the High Court of Australia in Hatzimanolis are pertinent to the present matter and that reliance by the Arbitrator upon such authority was correct and further that no lack of “understanding” of relevant principle has been established by the Appellant.
Questions raised as to whether the Respondent’s conduct at the time of the subject assault was such as to disentitle him to compensation are addressed by the Arbitrator at paragraphs 49, 50 and 53 of his Reasons. In my opinion the Arbitrator correctly cited the authority of the NSW Supreme Court, Court of Appeal in Blacktown City Council v Smith (1996) 14 NSWCCR 132 (‘Smith’) when considering this aspect of the application of section 4(a) of the 1987 Act. In the present case there is no suggestion in submissions either before the Arbitrator or on this appeal that there was any misconduct on the part of the Respondent. There is no suggestion in submissions nor in the evidence that the Respondent was in any way an aggressor in the context of his assault. In my view the Arbitrator’s conclusion that the facts as found by him were “entirely similar” to those found in Smith was one open to him and, in particular, the Arbitrator’s finding (at paragraph 53) that “when the assault occurred he was still in the process of endeavouring to find Frank Pirrottina to conclude the arrangements in relation to the truck” was one open to him upon the evidence by way of inference. The fact that in Smith’s case the worker went from her workplace to the scene of an assault some distance away is not, in my view, a basis upon which, as argued by the Appellant, that authority may be distinguished from the present matter.
It may be seen that, for the reasons I have attempted to summarise above, I consider the Arbitrator’s conclusion that the subject injury was received in the course of the Respondent’s employment was one open to him on the evidence following correct application of relevant principle. However, as noted above, the finding by the Arbitrator included an acceptance by him that the injury also “arose out of” his employment. The assault cannot, in my view, be said to be in any relevant sense causally related to the employment, rather that it occurred in the course of that employment. As is stated by the late author of Mills Workers Compensation NSW (at WCA 4.5):
“Litigation on the question of whether an injury “arose out of employment” tends to focus on whether there is sufficient causal relationship between the employment and injury.”
I respectfully disagree with the Arbitrator’s conclusion that, on the facts as found, it can be said that the subject injury “arose out of” the Respondent’s employment. It follows that, in the absence of a finding of a causal relationship between the injury and the Respondent’s employment, the Arbitrator’s conclusion that the injury “arose out of” the Respondent’s employment constitutes error on his part. ( I note in passing that the causal element required by proper consideration of “ arising out of ” is not, as discussed below, equivalent to the causation requirement as relevant to proper application of section 9A).
The Appellant submits that the Arbitrator has erred in his understanding and application of the provisions of section 9A of the 1987 Act. In paragraphs B 1 to 5 inclusive of Submissions the Appellant, in support of the suggested error, characterises the injury and its circumstances as follows:
“1.The cause of the injury was an attack by an assailant wielding an iron bar.
2.The Applicant was assaulted because of his attempt to break up the fight between the assailant and another party.
3.The Applicant voluntarily participated in the protection of his friend who was not an employee and who was not being assaulted for any work related reason.
4.There was no work related reason for the assault it was a fight between boyfriends, former and current, whose girlfriend was also only socially connected to the Applicant.
5.The assault not based on the physical location of the Applicant but based on personality differences between people with whom the Applicant was associated socially.”
I am of the view that there is little controversy concerning the matters raised on behalf of the Appellant in paragraphs 1 – 4 inclusive as above quoted and each matter was a relevant consideration when determining whether the Respondent’s employment was a substantial contributing factor to the injury in terms of section 9A. The matter raised in paragraph 5 as set out above, whilst addressing a factor of relevance to questions raised by the section, remains a matter for determination by the fact finder.
The thrust of the Appellant’s argument is that the subject injury, having resulted from an assault which had no “employment characteristics”, could not be seen as being sufficiently causally connected to the employment to permit a conclusion that there was a basis to find that the employment was a substantial contributing factor to the injury. Whilst such matters, as earlier noted, are relevant to questions raised by section 9A they are not determinative. I reach this conclusion having regard to the decision of the NSW Court of Appeal in Mercer v ANZ Banking Group 20 NSWCCR 70 (‘Mercer’). It was there stated by Mason P (with whom Meagher JA and Beazley JA agreed):
“31. As indicated above, it was relevant for his Honour to have recorded (par 8, above) that the precise activity that led to the appellant’s workplace injury was a type of activity that could have occurred elsewhere, for example at home. This type of information is required to be taken into account by s9A(2)(d). However, nothing in s9A makes this determinative. The continuing presence of the words “arising out of or in the course of employment” in the definition of “injury” means that it is not essential that the worker prove that employment created any “special danger” (contrast Thom v Sinclair [1917] AC 127 at 142, Craske v Wigan [1909] 2 KB 635 at 637), “employment risk” or “added peril” (Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 at 68). Accordingly, I respectfully disagree with the reasoning of Burke CCJ in Dayton (at [11]-[116]) which drew upon these English cases.
32. In the present case Bishop CCJ held (at [31]) that the addition of the word “substantial” to “contributing factor” in s9A, combined with the provisions in subs (3), led to the conclusion that “a substantial contributing factor” is as stringent a concept as that of “arising out of” the employment, if not more so. I do not agree. The requirement that employment be a contributing factor to the “injury” is not equivalent to the expression “arising out of the employment”. It is not easy to apply a causation requirement to a provision which continues to define “injury” as including arising in the course of employment. However, work has to be found for all of the words used, unless this proves an impossible task. Section 9A(3)(a) does not preclude this, because it goes no further than deeming employment not to be a substantial contributing factor to an injury “merely because” the injury arose in the course of the worker’s employment etc.”
It is apparent from the Arbitrator’s Reasons that the matters raised and noted in paragraph 67 above had been treated as relevant considerations. The Appellant’s submissions at the hearing were noted at paragraphs 25 to 34 inclusive of Reasons and the Arbitrator’s reasoning with respect to those matters is exposed in particular at paragraphs 60 to 64 thereof.
The decision of Mercer was considered by Einstein J (with whom Hodgson JA and Santow JA agreed) in his leading judgment in the NSW Court of Appeal in Murray v Shillingsworth [2006] NSWCA 367 (‘Murray’). There appears in his Honour’s judgment a convenient analysis of and statement of principle derived from the judgment of Mason P in that decision. It was stated by Einstein J (at paragraph 56):
“…the words “employment concerned” in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant.
… the ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of “a substantial contributing factor to an injury” is exegeted in subsections (2) and (3) of section 9A.”
The Arbitrator (at paragraph 64 of Reasons) stated:
“64.Applying the above principles to my finding that the applicant at the time of sustaining his injury was still at the premises at the time of the assault for the now dominant purpose of his employment (namely concluding the arrangements with Pirrottina about the truck) this then must entail a finding that the applicant’s employment with the respondent was a substantial contributing factor to his injury.”
It may be seen that in so concluding the Arbitrator has identified the relevant “activity or task” (adopting the words of Einstein J in Murray) as being the Respondent’s attendance at Ms Rumble’s address for the purpose of seeking out Mr Pirrottina. I am of the opinion that the Arbitrator’s conclusion that at the time of the assault the Respondent was present at the address for the “dominant purpose” of his employment was an inference available to be drawn upon the evidence and that no error in so concluding has been established by the Appellant.
The following observation was made by Mason P in Mercer (at paragraph 37) following his discussion of the operation of section 9A:
“37. It may be thought that this construction of s9A leaves a broad area within which the personal judgment of the individual judge as to what is “substantial” may be determinative. So be it, if the legislation uses this language. In Tillmans, Deane J pointed out (at 348):
The difficulties and uncertainties which the use of the word [“substantial”] is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling [1948] AC 291 at 317 where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the work in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case....”
In the present case the Arbitrator has revealed in his Reasons careful attention to the submissions with respect to the proper application of section 9A and consideration of the relevant authorities. As was stated in Mercer it is ultimately a matter for the discretion of the fact finder to decide in the circumstances of the particular case whether employment is or is not a substantial contributing factor to the injury. I am of the opinion that the Arbitrator’s conclusion as it appears in paragraph 64 of his Reasons was open to him on the evidence and was reached following a correct application of principle and I reject the Appellant’s argument as to error on his part.
With respect to the Appellant’s arguments challenging the “opinions” and findings of the Arbitrator I have noted above that inferences drawn by the Arbitrator from the evidence and conclusions of fact made by him with respect to matters pertinent to a determination of the Respondent’s entitlement to compensation were open to him on the evidence and that no error in any relevant sense has been made out by the Appellant. The Appellant’s submissions under heading “C” of Submissions seek to again canvass factual matters raised in submissions before the Arbitrator. The Appellant’s argument that the Arbitrator’s opinions or findings had no evidentiary basis and/or were made contrary to the principles of procedure set out in the Commission’s Rules must, in my view, be rejected.
The Appellant raises a general objection to the Arbitrator’s “understanding of the applicable law”. With the exception of the Arbitrator’s conclusion with respect to injury “arising out of” employment as noted above at paragraph 66 I am of the view that the Arbitrator’s conclusions with respect to all issues raised by the parties have been reached following application by him of correct principle. The matters raised in paragraphs D and E of Submissions must be rejected. I do not consider that the Arbitrator’s reasons as stated are vitiated by the error noted as to his finding with respect to “injury arising out of…employment”. The Arbitrator’s determination must, therefore, stand.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 26 February 2007 is confirmed. Time granted to the Appellant pursuant to order 3 is extended to 7 October 2007.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed.
Kevin O’Grady
Acting Deputy President 6 September 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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