Legal Research
Cases
Coles Myer Logistics Pty Ltd v Lee

Coles Myer Logistics Pty Ltd v Lee

Case [2007] NSWWCCPD 141 15 June 2007

Associated Journey

Serious and Wilful Misconduct

Serious and Permanent Disablement

Workers Compensation Law

Type to search within this case.

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Coles Myer Logistics Pty Limited v Lee [2007] NSWWCCPD 141
APPELLANT:  Coles Myer Logistics Pty Limited
RESPONDENT:  Colin Rodney Lee
INSURER:Self-insured
FILE NUMBER:  WCC17522-06
DATE OF ARBITRATOR’S DECISION:          21 December 2006
DATE OF APPEAL DECISION:  15 June 2007
SUBJECT MATTER OF DECISION: Sections 10, 12 and 14 Workers Compensation Act 1987; associated journey; consumption of alcohol; serious and wilful misconduct; whether injury solely due to serious and wilful misconduct; serious and permanent disablement.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Lander & Rogers
Respondent:   Braye Cragg

ORDERS MADE ON APPEAL: Time to appeal is extended until 23 January 2007.

The decision of the Arbitrator dated 21 December 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 18 January 2007 Coles Myer Logistics Pty Ltd (‘the Appellant Employer/Coles’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 December 2006. That document was rejected by the Commission’s registry and was filed again on 23 January 2007.

The Respondent to the Appeal is Colin Rodney Lee (‘the Respondent Worker/Mr Lee’).

Mr Lee started working for Coles as a storeman in 1993. In about 1997 he became a union delegate for the National Union of Workers (‘the NUW’). In his role as a delegate for the NUW Mr Lee attended six work sanctioned external NUW meetings per year and was paid his normal wage for doing so.

With the approval of Coles Mr Lee and other union delegates employed by Coles attended a national ACTU meeting at the Cardiff Workers Club (‘the Club’) on 27 May 2005. He left his home at about 7.45am on the morning of the meeting and rode his motorbike to the Club where the meeting was due to start at about 9.30am. He attended the meeting with about 150 other delegates. Whilst at the Club Mr Lee consumed alcohol.

After the meeting Mr Lee had lunch at the Club with other delegates. After lunch Mr Lee left the Club intending to ride to Coles at Somersby to see if there was any union business on his shift that night and to take in paperwork related to his travel allowances and time. While riding from the Club to Coles he was involved in an accident when he failed to negotiate a roundabout and collided with the concrete edge of the roundabout, causing him to fall. As a result he was taken by ambulance to John Hunter Hospital where he was admitted and treated for a fractured right wrist, fractured ribs and injury to his left foot and right knee. His blood alcohol level at the hospital was 0.109 gram per 100 millilitres.

A claim for compensation was initially made on 3 June 2005 and declined by Coles on 5 July 2005. An Application…

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.

Continue reading Coles Myer Logistics Pty Ltd v Lee

Details

AGLC: Coles Myer Logistics Pty Ltd v Lee [2007] NSWWCCPD 141
Case: [2007] NSWWCCPD 141
Decision Date: 15 June 2007

CaseChat Overview and Summary

In the matter of an appeal by Coles Myer Logistics Pty Ltd against an Arbitrator's decision, the key issue was whether the Arbitrator erred in confirming a decision that Mr Lee, a union delegate, was entitled to workers compensation for injuries sustained in a motorbike accident. The Arbitrator had found that Mr Lee's journey from a union meeting to his workplace, during which he was injured, qualified as an 'associated journey' under the Workers Compensation Act 1987, thus rendering his injuries compensable. The Arbitrator also rejected Coles' argument that Mr Lee's injuries were due to his serious and wilful misconduct, specifically riding his motorbike under the influence of alcohol. The Arbitrator determined that Mr Lee's injuries resulted in a serious and permanent disablement, warranting compensation.

Deputy President Bill Roche reviewed the appeal on the papers, considering arguments regarding the nature of the journey, the applicability of serious and wilful misconduct, and the extent of disablement. Roche confirmed the Arbitrator's findings, holding that the journey was indeed an 'associated journey' as Mr Lee was travelling to his workplace to conduct union business. Regarding serious and wilful misconduct, Roche noted that while Mr Lee's blood alcohol level was above the legal limit, there was insufficient evidence to conclude that Mr Lee knew he was intoxicated at the time of the accident. Consequently, the injury was not attributable to serious and wilful misconduct. Finally, Roche agreed with the Arbitrator's assessment that Mr Lee's injuries constituted a serious and permanent disablement.

The final orders extended the time to appeal, confirmed the Arbitrator's decision, and required the Appellant Employer to pay the Respondent Worker's costs of the appeal.

Orders