Calipari and Comcare
[2003] AATA 176
•20 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 176
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/481
GENERAL ADMINISTRATIVE DIVISION ) Re FRANK CALIPARI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr G A Mowbray Date20 February 2003
PlaceCanberra
Decision The Tribunal affirms the decision under review of Comcare of 1 June 2000.
..................(signed)..................
Member
CATCHWORDS
COMPENSATION - serious and wilful misconduct - whether misconduct serious - whether misconduct caused injury
Safety, Rehabilitation and Compensation Act 1988, s 14(3)
Comcare v Calipari [2001] FCA 1534
Chapman v Hearse (1961) 106 CLR 112
Re Elvin and Comcare (1998) 51 ALD 706
March v Stramare (1991) 171 CLR 506
Campbell v The Queen [1981] WAR 286
Royall v The Queen (1990) 172 CLR 378
Re Adams and Australian Postal Corporation (AAT 9152, 2 December 1993)
REASONS FOR DECISION
20 February 2003 Mr G A Mowbray 1. This is an application by Mr Frank Calipari (the Applicant) for review of a decision of the Independent Review Officer for Comcare (the Respondent) dated 1 June 2000 which affirmed a decision of a delegate of Comcare dated 19 January 2000. This decision denied liability to pay compensation for a claimed injury to the lower back.
2. The application was initially heard by Senior Member J.A. Kiosoglous who on 27 April 2001 set aside the decision under review and substituted a decision in favour of Mr Calipari. That decision was in turn set aside by Justice Finn in the Federal Court on 8 November 2001 and the matter remitted to the Tribunal to be heard and determined again (Comcare v Calipari [2001] FCA 1534).
3. The matter was reheard on 22 March 2002. Counsel for Mr Calipari was Mr James Sabharwal and counsel for Comcare was Mr Damien O'Donovan.
Background
4. Mr Calipari who was born on 21 March 1969 was employed as an APS1 on a three month temporary contract by the Australian Bureau of Statistics (ABS) between late September 1999 and 23 December 1999.
5. On 15 December 1999 during the course of his employment with the ABS Mr Calipari was involved in an incident at his workplace as a result of which his lower back was injured.
6. On 20 December 1999 Mr Calipari submitted a claim to Comcare for what was later described by Comcare as "lumbar back strain". This claim was rejected on 19 January 2000 which decision was later affirmed upon review on 1 June 2000.
Issues
7. Comcare concedes that Mr Calipari does in fact suffer from the claimed lower back injury. The sole issue therefore before the Tribunal is whether or not Mr Calipari's back injury resulted from serious and wilful misconduct so as to disentitle him to compensation pursuant to section 14(3) of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
Legislation
8. Section 14 of the Act relevantly provides
"(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment."
Evidence
9. The documents before the Tribunal consisted of the T documents filed under section 37 of the Administrative Appeals Tribunal Act 1975 labelled T1 to T39, Mr Calipari's exhibits A1 to A10 and Comcare's exhibits R1 to R10.
10. It was agreed between the parties that no new oral evidence should be heard, but the Tribunal should take into evidence the transcript of the hearing before Senior Member Kiosoglous on 22 and 23 March 2001. On that occasion the Tribunal heard evidence from Mr Calipari, Ms N. Relph, one of Mr Calipari's supervisors, Mr B. Jamieson, another supervisor, and Messrs R. Altman and R. Henderson, work colleagues of Mr Calipari.
11. A summary of that oral evidence is set out at paragraphs 6 to 31 of Senior Member Kiosoglous' decision of 27 April 2001 (Re Calipari and Comcare [2001] AATA 348). I have read the transcript of the oral evidence and accept that this material provides an accurate account of that evidence. This summary is set out below with a number of small corrections shown in square brackets
“Applicant’s Evidence
6. The applicant was born on 21 March 1969, and was employed as an APS 1 on a three-month temporary contract by the ABS between late September 1999 and 23 December 1999. He was involved in data processing work as part of a census data inputting trial. He had previously worked as a commercial tiler, but had been retrained through administrative courses.
7. The applicant told the Tribunal that at the ABS he sat at a desk located in a row of desks. Mr Roland Altman and Mr Robert Henderson worked on desks in his immediate vicinity (see Exhibits A6, A7 and A8). He stated that he was an honorary member of the ABS social club and would talk to other employees during their breaks, and during a number of lunches they had as a group. He further stated that he got to know Mr Roland Altman as well as anyone else as a result of these occasions.
8. On 19 October 1999 the applicant was involved in an incident with a Mr Troy Carter, a fellow employee. He stated that he had yelled out across the office to Mr Carter asking him why he was reading a book during work time. He stated that Mr Carter made a hand gesture and a “slitting throat motion”.. He further stated that he waited five minutes before clocking off at the end of the day, as he knew that “something fishy” might happen, due to Mr Carter’s slit throat motion. He considered that Mr Carter must have been upset because Mr Carter followed him out to the carpark and threatened his life.
9. The applicant stated that he was aware that Mr Altman and Mr Harvey [sic: transcript refers to “Harley”] (another employee) had had a “run in” and that it had involved harassment. He stated that he was not aware of Mr Altman having a history of violence, and had only heard rumours that he harassed people. He stated that he had formed the view that Mr Carter and Mr Altman were bullies, and was aware that they practiced martial arts.
10. The applicant stated that following the 19 October 1999 incident, he was called to a meeting with Mr Carter by one of his supervisors, at which time they were told to keep away from each other. He further stated that he was never given special counselling, and could not recall being counselled as to the Australian Public Service (APS) values and code of conduct. He considered that he may have been given a copy of the code of conduct and told that yelling out comments could be in breach, but had no specific recollection.
11. In relation to the incident on 15 December 1999 the applicant stated that at 9.50 am he was taking his morning break, eating a can of baked beans at his desk, with Mr Henderson and Mr Altman being in the vicinity. He told the Tribunal that he had earlier seen Mr Carter and Mr Altman together, and wanted to question Mr Altman about what Mr Carter might be up to with regards to a harassment complaint against him.
12. The applicant gave a version of the ensuing conversation to the Tribunal which was along the following lines [note this is not a precise quotation of the evidence in the transcript, rather a close paraphrase]:
“Applicant:You’re spending too much time with Troy. I’ll have to spread a rumour about the time you’re spending with Troy.
Would you like me to tell Troy something you haven’t got the balls to tell him?
I have an incident report to give to the police
Altman: He already knows
Applicant:Was Troy making statements of harassment about me because of the statements I have about him? [repeated several times]
Altman: Stop it
…”
13. Mr Altman then leapt across two desks and a partition separating his and the applicant’s workstations, grabbed the applicant by the neck, forcing him to the ground, and, according to the applicant, was about to hit him with a clenched fist before being detained by another employee. Mr Altman then yelled “he said I am having sex with Troy”. He stated that he was smiling initially when Mr Altman jumped on the desk because he thought it must be a joke.
14. In cross-examination the applicant told the Tribunal that he kept asking questions to try to get Mr Altman to reveal what Mr Carter was up to, and whether or not Mr Carter was upstairs with Mr O’Brien making a complaint against the applicant. He asked questions such as “are you going to go witness for Troy?”. He stated that he was genuinely seeking information from Mr Altman, that voices were not raised and whilst not a friendly conversation, it was simply asking questions whilst sitting across from one another. It just seemed to the applicant that Mr Altman did not want to answer questions, and he noted that Mr Altman may have said to “shut up” a couple of times. He did not taunt Mr Altman or accuse him of having sex with Mr Carter. He denied deliberately trying to insult or incite Mr Carter [sic: Mr Altman], and stated that he only wanted to fight outside after having been assaulted. He denied using the word “rooting” and considered that Mr Carter [sic: Mr Altman] must have read that into what he was actually saying.
15. The applicant stated that he had had similar blunt conversations with Mr Altman on previous occasions, and gave an example to the Tribunal in which a discussion took place about court proceedings arising from a car accident that the applicant was involved in. The applicant stated that Mr Altman said to him on that occasion, “you’ll go to gaol and be taken up the arse”.
16. The applicant stated that he never swore at work, and was only ever told to stop talking, as he tended to talk a lot. He denied calling out comments to fellow employees, and stated that on no other occasions did he make comments to try to incite people.
Ms Natalie Relph
17. Ms Relph was the applicant’s immediate supervisor at ABS and also supervised a further 9 of 22 employees working in the section. In her written statement (Exhibit R4) she stated (inter alia):
“…
5. Frank used to verbally ‘bait’ his co-workers…
…
8.At one point Frank was formally counselled about his behaviour. This was in a mediation session with Troy conducted by Dean Malcolm. This mediation arose from an allegation that Frank made about Troy harassing him.
9. I attended this mediation. It was made very clear to both of them the sort of behaviour that was acceptable in the workplace. It was made clear to Frank that his baiting of other employees was a form of harassment and that this sledging was unacceptable. They were told about the APS Code of Conduct. To my knowledge, this was the only time that Frank was formally counselled.
10. However, he was told many times to stop making offensive comments. …
11.Frank tended to use the full range of swear words. On at least three occasions I told Frank that his language could be offensive to his workmates and that enough was enough.
…”
18. In oral evidence in support of her statement, Ms Relph told the Tribunal that she became aware that the applicant and several other employees were sending inappropriate computer messages to each other, and told them to stop doing so. She recalled reprimanding the applicant on one occasion in relation to this. She stated that the applicant directed inappropriate comments to Mr Altman and Mr Carter, and that she reprimanded him on a couple of occasions in relation to this behaviour, later stating that she reprimanded him on 2-5 occasions in this regard. She stated that she had no written records in relation to the reprimands because she hoped that the applicant would take her advice without the need to make it formal, despite the behaviour being out of character with the section in general.
19. Ms Relph stated that she was involved in the mediation with Mr Carter and the applicant conducted by Mr Malcolm, because Mr Carter wanted an independent person present.
20. Ms Relph was quite emphatic in stating that the applicant used a full range of swear language at work, and she was “pretty sure” that he was the only employee using that language in her presence. She further stated that the more comfortable the applicant became with the job, the more frequent his inappropriate behaviour became.
21. Whilst she was not present at the incident on 15 December 1999, she stated that she was aware that Ms Mason, another supervisor, had spoken to the applicant that morning about his behaviour.
Mr Brian Bruce Jamieson
22. Mr Jamieson worked as a supervisor at the ABS during the relevant period. In his written statement (Exhibit R6) he stated (inter alia):
“…
3.I do not condone Roland’s action in any way. But I was amazed that someone had not previously reacted badly to Frank’s taunts. He took things too far in ‘sledging’ his co-workers. He would then put up his hands and say ‘it was not my fault: they misunderstood me’. Usually the target of the sledging understood perfectly well what was being said.
4.On numerous occasions on the morning of 15 December 1999, as well as during the preceding weeks, Frank had been told to keep his mouth shut. But despite clear instructions from his supervisors, he continued to sledge his colleagues.”
23. In oral evidence in support of his statement, Mr Jamieson stated that the three strokes he has had in the past eighteen months have impaired his recall. He stated that he saw and heard things the applicant did during the course of the applicant’s employment that other employees took offence to. He recalled one occasion in which Mr Carter was complaining that the applicant had made derogatory comments about Mr Carter’s wife.
24. Mr Jamieson stated that he attended the counselling session with Mr Carter and Mr Altman, and to the best of his recollection, the applicant was shown a copy of the APS code of conduct. To the best of his recollection, either the section leader or he himself had told the applicant to “shut up” on the morning of 15 December 1999, but he was not sure who might had done that. He considered that there was generally light banter and jokes in the workplace, and in reference to a particular emailed joke (Exhibit A9) he stated that he was not involved in generally circulating such material, but that it may have been picked up off the printer and photocopied.
Mr Roland Altman
25. Mr Altman told the Tribunal that he first met the applicant during their temporary contracts with ABS. He stated that on 15 December 1999 Mr Carter was on the supervisor’s phone to his wife, immediately adjacent to the applicant’s and Mr Altman’s desks. The applicant proceeded to make derogatory remarks about Mr Carter’s wife within earshot of Mr Carter. Mr Altman said that Mr Carter then left the area, and he guessed that Mr Carter had gone to see Mr Jamieson to complain about the applicant. Some 10 minutes later, Mr Jamieson asked to see the applicant, who was then away for about 20 minutes. Mr Altman stated that the applicant was agitated and upset after returning. Mr Altman was “100% sure” that Mr Jamieson had called the applicant away after the applicant made comments about Mr Carter’s wife.
26. Mr Altman stated that after returning, the applicant started to say that Mr Carter and Mr Altman were against him, and asked Mr Altman over and over for about a minute whether he was going to “go witness against me?”.. Mr Altman stated that the applicant then had a “brain explosion” and started saying:
“you’re fucking Troy up the arse … he’s fucking you up the arse … you’re putting your dick up Troy’s arse …”
for about three minutes. Mr Altman stated that he took all the comments, and said “shut your face Frank”.. According to Mr Altman the applicant then continued:
“you’re sucking Troy’s cock … he’s sucking your cock … you’re blowing all over his face …”
at which point Mr Altman went over the partition. Mr Altman declined to elaborate on the details of the alleged assault. He stated however, that he did not “snap” that morning.
27. In cross-examination Mr Altman stated that the incident occurred at 10.30am after a smoking break. He stated that he was “too nice a guy” to get up and go tell Mr Jamieson that the applicant was making the alleged comments on 15 December 1999 and that he sat there and took it. He stated that the applicant called him on 17 December 1999 and apologised, saying that he would take all of the blame for the incident.
Mr Robert Henderson
28. Mr Henderson worked at the same position as the applicant, occupying a workstation adjacent to the applicant and Mr Altman. He was aware of the altercation between the applicant and Mr Carter, but considered that the applicant and Mr Altman appeared to get along well until that point in time. He was also aware that Mr Carter may have put in a complaint against the applicant, as he sat right next to the applicant.
29. In relation to the incident on 15 December 1999 he told the Tribunal that it happened about one hour after work had started for the day. He stated that the supervisor was absent from the room that morning, and he did not see any supervisor speak to the applicant that morning. Mr Carter and Mr Altman were absent from the room at some time in the morning, and then returned to their positions. The applicant told Mr Henderson that he was concerned that Mr Altman would “go as witness for Troy”.. Mr Henderson told the Tribunal that the applicant asked Mr Altman “did you go witness for Troy” over and over for about 30 seconds, without reply. He stated that the applicant then got angry and lost his temper. Mr Henderson stated that the applicant was furious that a workmate may have betrayed him and said to Mr Altman “you must be rooting him” over and over to the point that Mr Altman told the applicant to shut up.
30. Mr Henderson stated that the applicant did not shut up and continued in that vain for 30 seconds to one minute, “long enough to the point of tedium”. Mr Henderson further stated that he felt guilty for not intervening, but that the applicant appeared very angry. He stated that Mr Altman then leapt over the workstation and tackled the applicant, holding him to the ground and challenging him to repeat what he was saying. Mr Altman was then pulled off the applicant, and exclaimed “he said that Troy and I were having sex”.
31. Mr Henderson stated that the applicant attended his house in early 2000 wanting him to sign a statement, which he refused to do. He agreed, in cross-examination, that there was common joking banter at work which could be explicit in its language. He thought that Mr Altman may well have said that the applicant would “get it up the arse in Goulburn gaol” in relation to the applicant’s motor vehicle court case. He could not recall any supervisor telling them to stop using that type of language at any stage. He considered that Mr Altman’s reaction was over the top, but did not consider the comments of the applicant to be the usual office banter.”
Consideration of Issues and Findings
“Serious and Wilful Misconduct”
12. When reviewing the previous decision in this matter, Justice Finn said in Comcare v Calipari [2001] FCA 1534
“2. Section 14(1) of the SRC Act creates a liability in Comcare to pay compensation to employees to who the Act applies in respect of injuries suffered which result in death, incapacity for work, or impairment. Section 14(3) limits that liability in the following way:
“Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”
3. Provisions of this type employing the “serious and wilful misconduct” formula have a long history in workers’ compensation legislation: see eg Johnson v Marshall, Sons & Co Ltd [1906] AC 409. For present purposes I would note that the word “serious” in the formula describes the misconduct in question and not the actual consequences of it. Nonetheless, because the s 14(3) disentitlement arises where the injury is caused by the misconduct it is well accepted that the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury: see Johnson v Marshall, Sons & Co Ltd, at 416.
4. On occasion judicial and scholarly exegesis of the formula has applied the term “serious” not only to the misconduct in question but also to the injury the risk of which is created or increased by the misconduct. So in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases 60-785, for example, Green CJ in paraphrasing observations in several earlier decisions (including Marshall’s case) observed that for conduct to amount to serious and wilful misconduct, “it must [inter alia] be such as to give rise to an immediate risk of serious injury” (emphasis added) ibid, at 74,797; see also Richards v Faulls Pty Ltd [1971] WAR 129 at 131-132. This usage is unexceptionable if it is understood as signifying no more than the converse of trivial injury. If it is intended to signify more than that and to postulate a positive requirement, it can find no justification in the terms of the statute itself nor in the general run of authoritative expositions of the formula…” (emphasis original)
Causation
13. Legal principles relevant to the issue of whether an injury is caused by misconduct include the following
· it is not necessary to show that the precise manner in which the injuries were sustained was reasonably foreseeable. It is sufficient if it appears that injury to a class of persons, of which the applicant was one, might reasonably have been foreseen as a consequence (Chapman v Hearse (1961) 106 CLR 112 at 120-121)
· there is no basis upon which the word "solely" can be read into section 14(3) of the Act (Re Elvin and Comcare (1998) 51 ALD 706 at [191])
· the cause must be such that the injury would not have happened without it and was an actual result of it (Re Elvin at [193])
· regard must be had to the chain of causation in determining the cause (Re Elvin at [193])
· “The fact that the intervening action is deliberate or voluntary does not necessarily mean that the plaintiff's injuries are not a consequence of the defendant's negligent conduct." (March v Stramare (1991) 171 CLR 506 at 517)
14. The following view of Chief Justice Burt in Campbell v The Queen [1981] WAR 286 at 290 is particularly apposite
"It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility..."
This approach was subsequently endorsed by the High Court in Royall v The Queen (1990) 172 CLR 378. Further Chief Justice Mason in March v Stamare at 515 said that the cause of a particular occurrence is a question of fact which must be determined by applying commonsense to the facts of each particular case.
15. Having regard to these authorities, the following questions need to be answered
· did Mr Calipari engage in misconduct
· if so, was the misconduct wilful
· was the misconduct serious
· was the injury caused by the misconduct
· was the injury intentionally self-inflicted.
16. Mr Calipari gave the following evidence
· after an incident on 19 October 1999 he had been called to a meeting with Mr Carter by one of his supervisors, at which time they were told to keep away from each other
· he was not given special counselling, nor could he recall having the Australian Public Service (APS) Values and Code of Conduct shown to him
· however, he may have been given a copy of the Code of Conduct and told that yelling out comments could be a breach
· on 15 December 1999 Mr Calipari tried to engage Mr Altman in a conversation in which he was seeking information as to whether Mr Altman was "going to go witness for Troy"
· while it was not a friendly conversation, it was simply asking questions when sitting across from Mr Altman
· although Mr Altman may have told Mr Calipari to shut up a couple of times, Mr Calipari did not taunt Mr Altman or accuse him of having sex with Mr Carter
· Mr Calipari denied deliberately trying to insult or incite Mr Altman
· he also denied using the word "rooting" and considered that Mr Altman must have read that into what he was actually saying.
17. However, Mr Calipari's denial that he used the word "rooting" or words to that effect is at odds with the evidence of Mr Altman and Mr Henderson. Mr Altman clearly was not a disinterested party, but the thrust of his evidence was consistent with that of Mr Henderson who testified that Mr Calipari had said to Mr Altman, "You must be rooting him", over and over to the point that Mr Altman told Mr Calipari to shut up. Mr Henderson further stated that Mr Calipari continued along those lines for 30 seconds to a minute, long enough “to the point of tedium".
18. Both Ms Relph and Mr Jamieson also gave evidence that Mr Calipari frequently sledged and taunted his co-workers. He was often told to stop making offensive comments and that this sledging was unacceptable. On one occasion, Mr Calipari was formally counselled and told about the APS Code of Conduct.
19. It is clear to me that on the morning of 15 December 1999 Mr Calipari engaged in misconduct when he made repeatedly obscene, offensive and distasteful remarks to Mr Altman. I agree with Senior Member Kiosoglous when he found that these comments were designed to antagonise and provoke Mr Altman into some sort of reaction. Mr Calipari's sledging of Mr Altman was not simply a spur of the moment matter, but arose in the course of his ongoing dispute with Mr Carter. Mr Calipari had been angered by developments in that dispute on the morning of 15 December 1999 and was very upset at the prospect of a complaint being made against him by Mr Carter and that Mr Altman would "go witness for Troy".
20. Furthermore, I am satisfied that Mr Calipari had previously been counselled about his behaviour, that he had been told that sledging was unacceptable, that he was told about the APS Code of Conduct and may have been provided with a copy of that Code.
21. I find on the evidence that Mr Calipari did engage in this conduct on the morning of 15 December 1999. It constituted misconduct. Furthermore, there can be no doubt that this misconduct was wilful in the sense of deliberate or intentional.
22. This brings me to the question of whether the misconduct was "serious" as explained by Justice Finn in Comcare v Calipari. In that decision Justice Finn said at [3]
"... because the s 14(3) disentitlement arises where the injury is caused by the misconduct it is well accepted that the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury".
23. In Re Adams and Australian Postal Corporation (AAT 9152, 2 December 1993) Deputy President Blow said (citing earlier authority) that for conduct to amount to serious and wilful misconduct
"[I]t must be such as to give rise to an immediate risk of injury, "it must be deliberate and not merely a thoughtless act done on the spur of the moment, and it must be accompanied by an appreciation of the risk which is involved in it.""
24. Having regard to Justice Finn’s decision in Comcare v Calipari, this leaves two questions. First, was Mr Calipari's conduct such as to give rise to an immediate risk of non-trivial injury, and secondly, did Mr Calipari have an appreciation of this risk.
25. Mr Calipari’s evidence to the Tribunal was
· although he was aware that Mr Altman had had a run-in involving harassment with another employee, he was not aware of Mr Altman having a history of violence. He had heard rumours that he harassed people
· he had the view that both Messrs Carter and Altman were bullies and knew that they practised martial arts
· he did not expect Mr Altman to jump on the desk and grab him by the neck as Mr Altman had never shown signs of violence to him previously
· he had not deliberately incited Mr Altman to make him angry nor did he want to have a fight with him.
26. In other evidence Mr Jamieson who worked as a supervisor at the ABS testified that he was amazed that someone had not previously reacted badly to Mr Calipari's taunts. On the other hand Mr Henderson, one of Mr Calipari's co-workers, said he considered that Mr Altman's reaction was over the top, even though he did not consider that Mr Calipari's comments on that day to be the usual office banter.
27. In my view, there is sufficient evidence to find on the balance of probabilities that Mr Calipari's conduct was such as to give rise to an immediate risk of non-trivial injury and that he had an appreciation of that risk
· Mr Calipari's previous encounter in October with Mr Carter put him on notice that his sledging placed him at risk of a physical reaction
· the evidence suggests that it was quite probable that Mr Calipari was taunting Mr Altman on this occasion with a view to precipitating a fight
· at the very least it was clearly designed to get a reaction from Mr Altman
· Mr Calipari himself gave evidence that he regarded Mr Altman as a bully and knew that he was engaged in martial arts
· Mr Calipari told Dr Le Leu that "Mr R allegedly had a record of violence within the Public Service" (Exhibit R3)
· Mr Grattan a work colleague of Mr Calipari said that Mr Altman was very "physical" and that he was an office bully (Exhibit R5). Mr Grattan was scared of Mr Altman
· Mr Calipari's incident report (T24) refers to Mr Altman's considerable size and physical strength, being "much bigger than me and is a weight lifter" and a bully, to Messrs Altman and Carter as "both well-built guys and known for their weight lifting and martial arts, so it is of no wonder that no-one else ever said anything to them", and in relation to Mr Altman's alleged harassment charge for bullying a co-worker at the Department of Transport, said, "I am surprised he was allowed to return to the Public Service after his first incident"
· on the other hand, in this incident report Mr Calipari said, "If I had any forethought that I would sustain physical damage as a result of this, I would certainly not have said anything in retort to him".
28. I am satisfied on the balance of probabilities that Mr Calipari's conduct was such as to give rise to an immediate risk of a physical reaction with a risk of non-trivial injury. Furthermore notwithstanding the comment of Mr Calipari reported at the last dot point in the previous paragraph, I am also satisfied on the balance of probabilities that Mr Calipari appreciated that the risk flowing from his conduct could have resulted in non-trivial injury.
29. I therefore find that for the purposes of section 14(3) Mr Calipari's taunting and sledging amounted to serious as well as wilful misconduct.
30. Mr Sabharwal for Mr Calipari submitted that nevertheless the remarks by Mr Calipari, however offensive, could not possibly have caused the injury to himself. It was the intervention of Mr Altman that caused the injury.
31. Mr O'Donovan for Comcare submitted that whether the misconduct caused the injury was to be determined through commonsense analysis of the facts of the case. Mr Calipari's conduct clearly initiated the chain of events that led to his injury. These events were specifically what caused the assault. Absent the taunts, no injury would have occurred. The taunts were not the sole cause but they were a necessary part of the causal chain that led to the injury. As the tortious or criminal act of Mr Altman was the very thing which was likely to happen as a result of Mr Calipari's behaviour, then it was reasonable to conclude when applying a commonsense approach to the question of causation that Mr Calipari's acts caused "his injuries" in the relevant sense.
32. I accept and adopt Mr O'Donovan's submissions on causation in their entirety. Notwithstanding that the most immediate cause of Mr Calipari's injury was Mr Altman's reaction to his taunts, it can not be doubted that Mr Calipari's taunts were a cause of his own injuries in the relevant legal sense. Having regard to the authorities on causation referred to in paragraphs 13 and 14 and particularly the commonsense test in Campbell v The Queen and March v Stamare, there is no question that although the taunts were not the sole cause they were a necessary part of the causal chain that led to Mr Calipari's injury.
33. Legal consequences therefore should be applied to the conduct of Mr Calipari. This is entirely appropriate, given the purpose underlying section 14(3) of the Act. Mr O'Donovan characterised that purpose as to ensure that people do not put themselves in harm's way deliberately and then seek to claim compensation.
34. Finally, Mr Calipari's injury was not intentionally self-inflicted, and did not result in death, or serious and permanent impairment.
35. Mr Calipari's lumbar back strain was therefore "caused by [his] serious and wilful misconduct". He is therefore not entitled to compensation for this injury.
Conclusions
36. In summary, I conclude
· on 15 December 1999 at the Australian Bureau of Statistics, Mr Calipari suffered an injury classified as a "lumbar back strain"
· that injury resulted from deliberate and offensive sledging of Mr Altman which provoked Mr Altman to leap across the partition between his and Mr Calipari's desks and to assault Mr Calipari
· Mr Calipari's conduct amounted to serious and wilful misconduct for the purposes of the Act
· Mr Calipari's "lumbar back strain" was caused by his serious and wilful misconduct
· Mr Calipari is not entitled to compensation.
Decision
37. The Tribunal affirms the decision under review of Comcare of 1 June 2000.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray
Signed:
............Trevor Mobbs...........................
AssociateDate of Hearing 22 March 2002
Date of Decision 20 February 2003
Counsel for the Applicant Mr J Sabharwal
Solicitor for the Applicant Mr B Redpath (Pamela Coward & Associates)
Counsel for the Respondent Mr D O'Donovan
Solicitor for the Respondent Mr A Dillon (Australian Government Solicitor)
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