Coles Myer Logistics Pty Ltd v Lee
[2007] NSWWCCPD 141
•15 June 2007
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 to Resolve a Dispute was filed in the Commission on 15 November 2005 (matter 19455-05). That application was withdrawn after a teleconference on 16 February 2006.
A further Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 3 November 2006 seeking weekly compensation from 5 July to 30 August 2005 together with hospital and medical expenses in the sum of $14,101.03. The Application states that the injury occurred in the following way: “the Applicant fell from his motor cycle during the course of his employment”.
Coles filed a Reply on 24 November 2006 seeking leave to rely on the following issues and provisions of the legislation:
a) the extent of any entitlement to weekly compensation;
b) the alleged injury was sustained on a journey to which subsections 10(1A) and (2B) of the Workers Compensation Act 1987 (‘the 1987 Act’) apply;
c) the alleged injury was attributable to Mr Lee’s serious and wilful misconduct;
d) the section 60 expenses claimed were not reasonable and necessary as a result of the injury sustained;
e) section 11(b) of the 1987 Act;
f) section 12 of the 1987 Act;
g) section 14(2) of the 1987 Act, and
h) the absence of a current WorkCover medical certificate as to incapacity.
A teleconference was held on 8 December 2006 and the matter was listed for conciliation and arbitration on 19 December 2006. At the conciliation and arbitration Coles sought an adjournment in order to obtain expert evidence as to the effect of alcohol on Mr Lee’s ability to control his motorbike. The adjournment application was refused and the matter proceeded to arbitration. The claim for weekly compensation was withdrawn and in an ex tempore decision the Arbitrator decided all remaining issues in favour of Mr Lee.
Coles seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the compensation claimed is at issue on appeal and the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was initially filed on 18 January 2007 (within the time set out in section 352(4)) but rejected because the relevant form had not been completed correctly. It was filed again on 23 January 2007, outside the 28 day period in section 352(4).
The Appellant Employer seeks an extension of time to appeal on the ground that the Appeal Against Decision of Arbitrator (‘the appeal form’) was filed in time and only rejected because of a failure to attach submissions as to why new evidence should be admitted on appeal and failure to attach a copy of the fresh evidence.
By letter dated 23 January 2007 the Appellant Employer’s solicitors wrote to the Commission stating that the original appeal form had been completed in error and Coles did “not propose introducing new evidence in these proceedings”. The appeal was again filed on 23 January 2007, five days outside the time limit set in section 352(4).
An extension of time to appeal can be granted in certain limited circumstances. Part 16, Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Respondent Worker opposes the extension of time to appeal and submits:
a) he will suffer prejudice as a result of any delay in payment of his treatment expenses;
b) the issues sought to be raised on appeal are not of considerable general importance;
c) regard must be had to whether the Coles has “reasonable prospects of success”;
d) it is unlikely Coles will be able to establish that Civil & Civic v Hughes (1996) 39 NSWLR 505 (‘Hughes’) was wrongly decided;
e) it is unlikely that Coles will be able to establish that Mr Lee did not suffer “serious and permanent disablement”, and
f) Coles still has not provided any pharmacological evidence upon which it seeks to rely.
For the following reasons I believe that time to appeal should be extended in the present matter:
a) the appeal was originally filed in time;
b) the defect that led to the original appeal form being rejected was minor;
c) Appellant Employer’s solicitors acted promptly to correct the minor error in the first appeal form;
d) the appeal form was filed again within days of the error being discovered;
e) the Respondent Worker will suffer no prejudice if time to appeal is extended, and
f) I am satisfied that the above facts constitute ‘exceptional circumstances’ within the meaning of Part 16 Rule 16.2(11).
I extend time to appeal until 23 January 2007 and grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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.”
The Appellant Employer seeks an oral hearing of the appeal on the grounds that it involves significant points of principle and any review will require the sifting of contradictory material. I have had the benefit of detailed written submissions from both parties and I do not believe an oral hearing is likely to throw any further light on the issues to be decided on review.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Worker that the appeal can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 21 December 2006, records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant compensation under s60 of the Workers Compensation Act 1987 for the Applicant’s expenses in obtaining treatment that is reasonably necessary for the injury he sustained on 27 May 2005, upon production of accounts and receipts.
2.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)refusing to grant the Appellant Employer’s adjournment application (‘the adjournment’);
(b)applying the authority of Hughes (‘section 12’);
(c)failing to apply the qualifications in section 10 of the 1987 Act to section 12 of that Act (‘section 12’);
(d)ignoring the principles discussed by Glass JA in Thompson v Lewisham Hospital [1978] WCR 111 at 118 (‘Thompson’) (‘section 12’);
(e)considering himself bound by Part 3.3 of the Evidence Act 1995 (‘serious and wilful misconduct’);
(f)considering that the rules of evidence required expert evidence before inferences could be drawn about the effect of the blood alcohol reading upon Mr Lee and its significance in the causation of the accident (‘serious and wilful misconduct’);
(g)failing to find that proof of Mr Lee’s blood alcohol level was sufficient and conclusive in establishing that his accident was attributable to his serious and wilful misconduct (‘serious and wilful misconduct’);
(h)failing to find (if section 14(2) applied) that Mr Lee’s accident was solely attributable to riding while under the influence of alcohol when there was no other rational or logical explanation (‘solely attributable’);
(i)finding that Mr Lee’s injury had resulted in serious and permanent disablement (‘serious and permanent disablement’);
(j)failing to find that Mr Lee’s delay in starting his journey from the Club amounted to an interruption that increased the risk of injury (‘section 12’);
(k)failing to find that Mr Lee’s journey was not a journey from a union meeting but from a social gathering (‘nature of the journey’), and
(l)failing to find that because of Mr Lee’s delay in starting his journey he was not ‘in the course of his employment’ and neither section 10 nor section 12 applied (‘nature of the journey’).
FRESH EVIDENCE
Whilst the Appellant Employer sought leave to reserve its position in relation to fresh evidence, it has not made any application to introduce such evidence on appeal.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
AGREED FACTS
The following facts were agreed at the arbitration:
1.Mr Lee commenced employment with Coles as a storeman in 1993 (T1.27);
2.as at 27 May 2005 he was so employed and he was also an accredited union representative of the National Workers Union (T1.29);
3.Mr Lee was authorised to attend and did attend a union meeting on 27 May 2005 at the Cardiff Workers Club, arriving at the Club at 9am (T1.31);
4.whilst at the Club on 27 May 2005 Mr Lee drank two schooners of full-strength beer, having the first at some time between 9am and 10am and the second at some time between 1pm and 1.30pm. He had a sandwich for lunch between 1pm and 1.30pm (T1.37);
5.at around 1.30 to 1.45pm Mr Lee left the Club on his motorbike to go to Coles at Somersby, where he worked (T1.45);
6.whilst en route to Somersby, at Main Road, Edgeworth, Mr Lee failed to negotiate properly a roundabout and was thrown from his bike (T1.50);
7.as a consequence of that, Mr Lee sustained an intra-articular fracture of his right distal radius, four fractured ribs, a soft tissue injury to the left foot and bruising (T1.53);
8.Mr Lee was taken to John Hunter Hospital where he was admitted. He underwent surgery comprising of a reduction and fixation of the right wrist by Dr Meads, orthopaedic surgeon. Due to one of the screws coming out, that surgery was later revised (T2.1), and
9.Mr Lee returned to work on 30 August 2005 and performed duties thereafter as a storeman until he was retrenched on 21 July 2006 (T2.9).
SUBMISSIONS AND FINDINGS
Adjournment
The Appellant Employer submits that the rules of natural justice required that it be provided with the proper opportunity to present pharmacological evidence in support of its case, particularly where the Arbitrator indicated that notwithstanding the provisions of section 354 of the 1998 Act he could not draw any meaningful inference from the blood alcohol reading (Appellant Employer’s submissions, paragraph 13).
The granting or refusal of an adjournment is a matter within the discretion of the Arbitrator concerned. The issue of adjournments has been considered by the High Court in numerous cases. In particular, in Sali v SPC Ltd (1993) 116 ALR 625 at 628-9 Brennan, Deane and McHugh JJ said:
“In Maxwell v Keun [[1928] 1 KB 645, at 650, 657, 658] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. [See, for example, Walker v Walker [1967] 1 WLR 327, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 55, at 558-9]. Moreover the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action [Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569]. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.”
The above principles must be read in the light of the legislation, rules and Practice Directions that govern proceedings in the Commission.
Practice Direction No 2 of the Commission’s Practice Directions is also relevant. It emphasises the objectives of the Commission and, in particular, the duty to provide a timely and effective resolution service. It adds that:
“The Commission will not adjourn any proceedings unless it is demonstrated that one or more parties would suffer a substantial injustice if the adjournment in not granted.”
The Practice Direction adds that the Commission has the discretion to grant an adjournment, “other than in accordance with this Direction, where procedural fairness in the instant case requires it”.
The conciliation and arbitration hearing on 19 December 2006 was not the first time this matter came before the Commission. A teleconference was held on 8 December 2006. At that teleconference the matter was listed for hearing on 19 December 2006. In the absence of any submission to the contrary, I assume that the Appellant Employer indicated at the teleconference that it was ready to proceed on 19 December 2006.
On 19 December 2006 counsel for Coles sought an adjournment to adduce further evidence of the level of alcohol contained in Mr Lee’s blood at the time of the accident and on the question of whether Mr Lee’s injury had resulted in serious and permanent disablement under section 14(2) of the 1987 Act.
Evidence as to the level of alcohol in Mr Lee’s blood may well have been relevant to the issue of serious and wilful misconduct but I do not accept that the failure to allow an adjournment to obtain such evidence has, in the circumstances of the present matter, resulted in any injustice let alone a substantial injustice. At T5.29 the following exchange took place between the Arbitrator and counsel for the Appellant Employer:
“ARBITRATOR: With respect to the first one, the effect of the level of alcohol, why - is there a reason why that evidence couldn’t have been gathered earlier?
MR HOURIGAN: No. The position is that the police report was to be relied upon in relation to not only the level of alcohol but the effect thereof.”
At page five line 58 Mr Hourigan added:
“Can I say just further in respect of the alcohol level, those who instruct me considered that the police report and reported level was sufficient for certain inferences to be drawn, having regard that we are in the Commission and not in a court of strict evidential burdens, et cetera, and things of that nature.”
The above exchange makes it clear that the Appellant Employer’s advisers had considered the relevance of Mr Lee’s consumption of alcohol and decided, “the police report was to be relied upon”. In those circumstances it would require most unusual facts to justify an adjournment. There was no change in circumstances between the teleconference and the 19 December 2006.
Further, the proof of Mr Lee’s blood alcohol level at the time of his accident and the effect that would have had on his ability to control his bike would not, on its own, establish that his injury was “solely attributable to the serious and wilful misconduct”. At best that evidence might have established that it was more likely that Mr Lee would have an accident because of his blood alcohol level. That falls well short of what is required under section 14(2). That is so even if the evidence established that the chance of an accident for a motorbike rider with Mr Lee’s blood alcohol level was much higher than if he had not consumed any alcohol.
To succeed on a serious and wilful misconduct argument an employer must first prove that the conduct complained of was “serious” and “wilful”. Second, it must prove that the injury was solely attributable to that conduct. A pharmacological report would not have been conclusive on either issue.
On the issue of whether Mr Lee’s injury had resulted in serious and permanent disablement the Appellant Employer qualified Dr Limbers and asked him to comment on that question but he failed to do so. Exactly when Dr Limbers saw Mr Lee is unclear. At T4.43 it was submitted that the examination took place on 14 December 2006 but at T5.3 Mr Lee stated that he saw the doctor “two weeks after the second operation”. The date of that operation is not known. No submissions were made or evidence called as to what steps were taken to rectify the lack of evidence from Dr Limbers.
The Arbitrator declined the adjournment because:
a) the evidence could have been gathered earlier (T6.45) as the basis of Mr Lee’s claim was well known to the Appellant Employer (T6.49);
b) if the matter was adjourned Mr Lee would not be properly compensated in costs (T6.50);
c) Mr Lee was ready to proceed on 19 December 2006, the date on which the matter had been listed for conciliation and arbitration (T6.51);
d) it would be unfair to Mr Lee to adjourn the proceedings (T6.52);
e) the Commission is to deliver its objectives “efficiently and effectively” (T7.1);
f) at the teleconference held prior to the allocation of the date for the conciliation and arbitration, the solicitor for the Appellant Employer agreed on the 19 December 2006 as being suitable (T7.5);
g) if 19 December 2006 was not suitable “for any reason in terms of gathering of evidence” an application for adjournment should have been made earlier than the day of the hearing (T7.9);
h) he was not satisfied that the injustice to Coles in not granting the adjournment outweighed the injustice to Mr Lee in granting it (T7.20), and
i) the Commission has a duty to ensure the fair, efficient and prompt disposal of matters and that objective would not be achieved if the matter was adjourned in the circumstances of the present matter (T7.25).
In my view the Arbitrator fairly and properly exercised his discretion to refuse the adjournment. He carefully weighed up the interests of both parties and balanced those interests against the Commission’s objective of providing a “timely service” (section 367(1)(c) of the 1998 Act). He did not take into account irrelevant matters. In these circumstances the Arbitrator was not in error in exercising his discretion to refuse the adjournment application.
Nature of the Journey
The Appellant Employer submits that Mr Lee’s journey was not a journey from a union meeting but from a social gathering and it was not covered by either section 10 or section 12. The argument is that he delayed the commencement of his journey from the Club to Coles for “many hours for a reason unconnected with the duties of a trade union representative i.e. drinking with his mates” and the interruption or delay increased the risk of injury on the journey (Appellant Employer’s submissions paragraph 42) and changed the nature of the journey (Appellant Employer’s submissions paragraph 44) in that the “employment time span ended” (Appellant Employer’s submissions paragraph 46). I do not accept this submission.
First, the evidence is far from clear as to when the meeting started and finished. Mr Garland states that it started at about 10am and finished about 1.5 hours later. Other evidence gives different times. On any view of the evidence it is not accurate to say that Mr Lee was “drinking with mates for many hours after the meeting”, as has been submitted.
Second, after the formal meeting finished the evidence from Mr Lombard is that he, Mr Lee and other union delegates discussed the issues that had been raised in the meeting. That discussion was clearly related to Mr Lee carrying out his duties as a union representative.
Third, for the purposes of section 12 an injury sustained while a worker is carrying out his or her duties as a union representative or on an ‘associated journey’ is an “injury arising out of or in the course of employment”. Mr Lee’s injury was sustained while on an “associated journey” because he was riding his bike to Coles in order to conduct union business. It does not matter when that journey started, provided it was an associated journey. That term is not defined in the 1987 Act but some assistance as to its meaning can be gained from the Second Reading Speech to the Workers Compensation (Amendment) Bill 1979, when the Attorney-General and Minister for Justice said:
“There have been several cases of persons being injured while they were engaged on industrial matters concerning their employment and that of others. In one case, a person was journeying to Sydney to make submissions on behalf of her fellow employees to the employing authority when she received injuries. These circumstances are connected with the person’s employment and should come within the ambit of actions covered under the present legislation.” (Hansard, 28 November 1979 at 4162)
In my view an ‘associated journey’ is a journey to or from a place (whether the worker’s place of employment or elsewhere) at which the worker will or has been carrying out his duties as a union representative. Mr Lee was on such a journey when he was injured because he was travelling from a place where union business had been conducted to his place of employment in order to conduct further union business. Whether Mr Lee was still conducting union business immediately before he started his journey was irrelevant.
In the circumstances of the present matter, the delay in the commencement of Mr Lee’s journey has no bearing on whether he was on an associated journey under section 12. Mr Lee was on an associated journey when he was injured because he was travelling to his place of employment to conduct activities as a union representative at his place of employment. As such he is entitled to the benefit of section 12.
Section 10
The Appellant Employer’s argument is that the journey undertaken by Mr Lee was a journey within the provisions of section 10. I do not agree. Section 10 applies to certain limited and specific journeys as listed in section 10(3). That subsection provides:
“(3) The journeys to which this section applies are as follows:
(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,
(b) the daily or other periodic journeys between the worker’s place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to attend,
(c) a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,
(d) a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3),
(e) a journey between any camp or place:
(i) where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or
(ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment,
and the worker’s place of abode when not so residing,
(f) a journey between the worker’s place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act,
(g) a journey between the worker’s place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money:
(i) due to the worker under the terms of his or her employment, and
(ii) which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment.”
The journey undertaken by Mr Lee on 27 May 2005 does not come within any of the journeys defined in the above subsection. At the arbitration hearing counsel for Coles made the following submission on this point, at page 16 line 11:
“Subsection (3) of section 10, I concede, gives me some difficulties in grounding a defence under section 10. The highest I put it, I think, can be in relation to the circumstances of this case, being travelling between one place of - although it's approved by the employer, it's not a place of employment to his place of employment, on his evidence, in that subsection (5) of section 10 provides that between two employers, for instance, you are deemed to be travelling from place of abode to an employment, therefore, grounding section 10, but, to be fair, I have trouble putting it any higher than that.”
The Arbitrator did not err in finding that Mr Lee’s journey did no come within the terms of section 10.
Section 12
This section provides:
“12 Claims by trade union representatives
If:
(a) a worker is an accredited representative of a trade union of employees, or other organisation of employees, of which any person employed by the worker’s employer is a member,
(b) with the consent of or at the request of that employer or pursuant to an industrial award or agreement, the worker is carrying out his or her duties as such a representative (whether at the worker’s place of employment or elsewhere) or is on an associated journey, and
(c) the worker receives a personal injury while carrying out those duties or on that journey,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.” (emphasis added)
The agreed facts in the present case established that Mr Lee was an accredited representative of a trade union and that on the day of his accident he was carrying out his duties as such a representative. In addition, at the time of his accident, Mr Lee was travelling from the Club to Coles at Somersby in order to “see if there was any union business on my shift that night” and to take in paperwork related to travel allowances and time (Mr Lee’s statement 20 June 2005, paragraph 11).
The Appellant Employer’s argument is that:
a) relying on the dissenting judgment of Cole JA in Hughes, the terms of section 10 apply to a journey to which section 12 applies;
b) Hughes only concerned the meaning of ‘journey’ in section 12 and, in particular, the identification of a journey’s starting point;
c) the majority decision in Hughes was wrong;
d) the principle stated by Glass JA in Thompson is applicable and the Arbitrator seems to have ignored it. In that case his Honour said at 118:
“There is nothing in the Act which requires the various kinds of entitlement to compensation to be placed in watertight and mutually exclusive compartments and forbids any construction which provides for a common area between their respective spheres of operation.”
e) the Arbitrator ignored the “two-way interaction” principle identified by Professor Mills in his text Workers Compensation (NSW), 2nd edition (1979) (‘Mills’) at pages 3-4 and quoted by Priestley JA in Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45 at 53 (‘Higgins’), and
f) applying the principles in Thompson and Higgins the conditions in section 10 should apply to section 12. If that is done, section 14 has no application to section 12 journeys but would only apply to injuries received while the union representative was actually carrying out his duties as an accredited union representative.
I do not agree that Hughes was wrongly decided or that the principles discussed in it can be distinguished from the issue before the Arbitrator. In that case Mr Hughes was a union representative who left the front door of his home unit intending to take union dues to the union’s office when he was assaulted while descending the stairs to the foyer in the block of units. It was accepted that if he were on a journey to which section 10 applied his claim would have failed because, as he was still within the building in which his home unit was situated, he had not started his journey (section 10(4)).
In separate judgments Priestley and Meagher JJA held that the provisions of section 10 did not apply to Mr Hughes. The Arbitrator (at T26.53) quoted and applied the following passage from Priestley JA at 506:
“Where there is a journey provision, as in the present case, where no precise arbitrary starting point for the journey has been defined, I do not think the Court’s approach to giving content by reference to the facts of the particular case to the meaning of the undefined work, should be affected by reference to present or past arbitrary definitions applying to other statutory provisions enacted specifically for the purposes of those provisions. Rather, in my view, the contrary should be the case.”
In a passage quoted in part by the Arbitrator (at T27.15), Meagher JA said at 507:
“The question then resolves itself into the following: was Mr Hughes, when he closed the front door of his flat on the Monday morning in question and proceeded to the foyer of his building, engaged in a journey which was associated with his union activities? He was undoubtedly an ‘accredited representative of a trade union’. He intended to go [to] the union headquarters when he left the flat. He had every reason to do so: he had union dues to deposit there, and other business besides.”
His Honour then referred to the appellant’s submissions that:
“…because of the history of the Workers Compensation legislation on the meaning of the word ‘journey’ where it is used in s 10 of the Act and of sections which can be regarded as predecessors of s 10, the same word ‘journey’ when used in s 12 must be restricted to the process of travelling either from the front door of the building in which one lives or from the curtilage of the building in which one lives to one’s destination, but not from the front door of one’s flat to one’s destination. Such a remarkably restricted definition of ‘journey’ can only be justified if the form of the legislation in which the word is used requires it. It often did; s 10 of the present Act is couched in terms requiring such an unnatural reading. Other sections in previous Acts did so. But there is nothing in the present s 12 which requires such an oddity. The word ‘journey’ in that section is not defined in any limited way, nor is there any implied limitation to be gleaned from the context in which it is used.”
In my view the Arbitrator correctly applied the principles decided in Hughes to the present matter. The majority decisions are clearly applicable and binding in the present matter. That being so the question is: was Mr Lee on an “associated journey” when he was injured? That question must be decided without reference to section 10.
Coles sanctioned Mr Lee’s attendance at the Club as being part of his duties as a union representative. Even if it is assumed that Mr Lee’s stay at the Club after the meeting finished was not part of his duties as a union representative, he was, at the time of his accident, travelling to his employer’s premises to see if there was any union business on his shift that night and to take in paperwork related to travelling allowances and time for himself and other union delegates. In my view the Arbitrator was correct to characterise that journey as an ‘associated journey’ under section 12.
The majority decisions in Hughes are clear statements of principle directly relevant to the issues before me. Nothing in the obiter dicta comments by Glass JA in Thompson diminishes the relevance or binding nature of the authority of Hughes. The Arbitrator was not in error in ignoring that case or that ‘principle’. Thompson was a ‘recess’ case. The point being made by Glass JA (at 118) was that:
“…a period of rest which would otherwise fall within the statutory definition of ordinary recess does not fail to do so because the employee during its duration can be said also to be in the course of his employment.”
Thompson’s case gives the Appellant Employer no assistance in the present appeal.
The “two-way interaction” principle referred to in Mills at pages 3-4 was a reference to the fact that:
“The boundaries of the statute are continually being expanded at various points, by judicial interpretation as well as legislative amendment, and by the two-way interaction between the two processes.”
Professor Mills’ statement adds nothing to the resolution of the issue before me. A more accurate statement might be that the boundaries of the statute are continually moving as a result of legislative amendments, as the history of section 10 well illustrates. I do not accept the Appellant Employer’s submissions on this point.
Further, the Appellant Employer’s submissions are contrary to section 10(5A) which provides:
“(5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.”
In my view Mr Lee’s injury was an injury for which compensation is payable (subject to consideration of section 14) ‘apart from’ section 10. Therefore, nothing in section 10 prevents Mr Lee from recovering compensation if he is otherwise entitled.
Section 14
Serious and Wilful Misconduct
This section provides:
“14 Conduct of worker etc
(1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received:
(a) acting in contravention of any statutory or other regulation applicable to the worker’s employment, or of any orders given by or on behalf of the employer, or
(b) acting without instructions from the worker’s employer,
if the act was done by the worker for the purposes of and in connection with the employer’s trade or business.
(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.
(3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.” (emphasis added)
The Appellant Employer’s argument is that it only had to prove that the injury was solely attributable to Mr Lee riding his motorcycle whilst under the influence of alcohol (Appellant Employer’s submissions paragraph 37). That is not correct. To successfully rely on this section an employer must establish that the injury was “solely attributable to the serious and wilful misconduct of the worker”. Therefore, it must first be established that the conduct complained of was ‘serious and wilful misconduct’. Judge O’Meally considered this phrase in Sawle v Macadamia Processing Co Pty Ltd (1999) 18 NSWCCR 109 (‘Sawle’). His Honour held that the word ‘wilful’ connotes that the worker must have acted deliberately. To establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury and, in the light of that knowledge, to have proceeded regardless of the risk.
In Murray v Moppett [1958] SR (NSW) 59 it was held that intoxication during employment can amount to serious and wilful misconduct.
In Clyde v State of NSW (Technical & Further Education Commission) (1995) 12 NSWCCR 541 Judge Neilson held that a truck driver was guilty of serious and wilful misconduct when, having consumed alcohol during his lunch break, he then drove his employer’s truck and was involved in an accident. The worker in that case had a blood alcohol reading of 0.146. His Honour noted at 562:
“He consumed four standard drinks within a one hour period which he clearly knew should have placed him above the 0.05 blood alcohol level. Having done that, he chose to drive. It was misconduct and his action was deliberate i.e. wilful, in driving after consuming that amount of alcohol. It is also serious misconduct - he knew that there was a risk of his being a danger to himself and to others, if he drove ‘over the limit’.”
The agreed facts in the present case are that Mr Lee consumed two schooners of full strength beer while he was at the Club, the first between 9.00am and 10.00am and the second between 1.00pm and 1.30pm when he also had a sandwich. He left the Club between 1.30 and 1.45pm and had his accident at about 2.05pm (T12.41). He was taken to hospital where he was found to have a blood alcohol level of 0.109 grams per 100 millilitres (see Police Event Report 24076871). The reference to a level of 0.106 at T3.38 is incorrect.
Mr Lee was at the Club with several other union delegates from Coles: Phillip Lombard, Matthew Garland and Ross Clarke all attended the meeting and provided statements that were tendered in evidence. Mr Lombard states that the union meeting finished at about 10.30am. After the meeting he sat with Mr Lee, Mr Garland and Mr Clarke in the main bar area and discussed the issues raised at the meeting. He states that he did not see Mr Lee drinking any alcohol and that he “did not appear affected by alcohol” (Mr Lombard’s statement 20 June 2005, paragraph nine). Mr Garland suggests that the meeting started at about 10.00am and “lasted about 1.5 hours” (Mr Garland’s statement 20 June 2005, paragraph eight). He did not notice if Mr Lee was drinking alcohol. Mr Clarke states that he did not see Mr Lee drinking alcohol.
The Police Facts Sheet states, among other things:
“The cycle has approached the roundabout at the intersection of Main Rd and Northville Dr Edgeworth. The rider has failed to negotiate the roundabout and has collided with the concrete edge of the roundabout. The rider was thrown from his bike…The rider stated that he had consumed one schooner at 10am and another about 1.30pm of Tooheys New full strength beer on the day of the accident he also stated he consumeda [sic] sandwich during this time…”
The Police Event Report names three witnesses to the accident but no statements are in evidence from any of them. Mr Lee told the police he could not remember anything about the accident but did recall leaving the Club and waking up in hospital.
The Arbitrator agreed with a submission from Mr Lee’s counsel that he could not infer from the blood alcohol level of 0.109 that Mr Lee must have consumed more than two schooners of beer in the time he was at the Club and that he was intoxicated at the time of the accident (T29.47). On the issue of what Mr Lee’s blood alcohol level may have been at the time of the accident, the Arbitrator said at T29.55:
“…I just do not know. It is something upon which I cannot speculate. It’s not something upon which I can relate upon my common knowledge or experience to make any finding and, therefore, the evidence does not establish what Mr Lee’s blood alcohol concentration was at the time of the accident, nor does it establish his level of intoxication at that time and his consequent capacity or ability to control a motor bike.”
The Arbitrator said that in order to sustain a finding of serious and wilful misconduct the evidence had to establish that:
“…Mr Lee was aware that he was exposing himself to a serious risk of injury and disregarded that risk. The evidence does not establish that he was intoxicated, that he drank more than two schooners over the course of 9.00 to 1.30 and, therefore, I’m not satisfied that his behaviour amounted to serious and wilful misconduct.”(T30.10).
I accept that a worker, who drives a car or rides a motorbike when he knows or ought reasonably know that he has a blood alcohol level of 0.109 or that he is intoxicated, is guilty of serious and wilful misconduct. However, in the present case the evidence does not establish that Mr Lee knew or should have known that his blood alcohol level was above the legal limit. The only lay evidence of his state of sobriety is from Mr Lombard who did not believe that Mr Lee appeared affected by alcohol. Mr Lee’s blood alcohol level and his admitted consumption of alcohol were both much lower than Mr Clyde’s. In addition, Mr Lee consumed his drinks over a much longer period than Mr Clyde. These factors all point to it being plausible that Mr Lee would not have been aware that he had a blood alcohol level above the legal limit at the time he started his journey.
In respect of the argument that his reading of 0.109 indicates that he drank more than two schooners of full strength beer in the time he was at the Club, that may or may not be correct. There is no evidence of what alcohol Mr Lee consumed the night before the accident. No application was made for leave to cross-examine Mr Lee and it is not known if there were other factors that may have contributed to the reading of 0.109.
A person’s blood alcohol level is affected by many factors. The Arbitrator was right to conclude that it was not proper for him to speculate about what Mr Lee’s blood alcohol level may have been at the time of the accident or about how much Mr Lee had to drink at the Club (T29.55). Those issues were matters for evidence. For the Arbitrator to reach his own conclusion about them without evidence would have involved an error on his part, even allowing for the informal nature of the proceedings in the Commission. A conclusion drawn by the Arbitrator in the absence of evidence would have been based on speculation, something expressly prohibited by the Commission’s rules (see Part 15 Rule 15.2 of the 2006 Rules). The Arbitrator was not in error in not drawing the inferences urged by counsel for Coles without appropriate evidence to support such inferences.
Given the state of the evidence and having regard to the authority of Sawle, I do not believe the Arbitrator was in error in finding that Mr Lee’s conduct in riding his motorbike after attending the union meeting and consuming alcohol on 27 May 2005 did not amount to serious and wilful misconduct within the terms of section 14.
Solely Attributable
If I am wrong in my conclusion on the issue of serious and wilful misconduct it is necessary to consider if Mr Lee’s injury was “solely attributable to the serious and wilful misconduct”. The serious and wilful misconduct relied on was “riding whilst under the influence of alcohol” (Appellant Employer’s submissions, paragraph 37). The Appellant Employer submits that Mr Lee’s injury was solely attributable to his serious and wilful misconduct because:
a) Mr Lee was an experienced rider and there is no other rational or logical explanation for the accident;
b) the police found no evidence of any extraneous cause;
c) the Police investigation included interviewing three witnesses, none of whom, it may be inferred, suggested any other cause, and
d) Mr Lee’s experience excludes error of judgment unless his judgment was clouded by alcohol.
The police investigation concluded that Mr Lee “failed to negotiate the roundabout and collided with the concrete edge of the roundabout”. Mr Lee has consistently stated that he has no recollection of the accident. In the absence of statements from the three witnesses referred to by the Police I am unable to draw any conclusion about their knowledge of the accident.
The Appellant Employer carries the onus of proof. There are many possible explanations for Mr Lee’s bike coming into contact with the edge of the roundabout that are inconsistent with his consumption of alcohol being the sole cause. I am not satisfied that the Appellant Employer discharged the onus it carried of proving that Mr Lee’s injury was solely attributable to his serious and wilful misconduct.
Serious and Permanent Disablement
If I am wrong in the above conclusions it is necessary to consider if Mr Lee’s injury resulted in serious and permanent disablement. Mr Lee suffered fractures to his right wrist, left ribs, soft tissue injury to his left foot and bruising to the left parietal region of his head (see report Dr Raymond Lee, general practitioner, 31 October 2005). A CT scan of his right wrist revealed a comminuted fracture of the right distal radius and of the lunate and pisiform bones. The right wrist fractures required open reduction internal fixation at the hands of his specialist, Dr Bryce Meads. This required later revision as the fixation had loosened.
The Hunter Brain Injury service reviewed Mr Lee on 27 June 2005 and stated that he had posttraumatic amnesia and was still suffering that condition on discharge from hospital.
When examined by his general practitioner on 30 August 2005 Mr Lee’s right wrist extension was only 30 degrees compared to normal extension of 90 degrees. Mr Lee was certified fit for his pre injury duties on 30 August 2005.
On 7 March 2006 Mr Lee’s solicitors wrote to Dr Meads as follows:
“We understand that Mr Lee saw you recently for a check up and that there is a concern in relation to some lack of movement of the wrist and also the possibility of a further operation.
From a compensation perspective, there is now an important threshold factual issue in relation to his injury. In order for him to be entitled to compensation, his injury needs to be ‘a serious and permanent disablement’. To quote a relevant text, the phrase ‘denotes a disablement which is, at the time when the question is being examined [by the Tribunal] both serious and, on the evidence, likely to be permanent. It is not necessary that the seriousness should be permanent. Whether a disablement is serious and whether it is permanent are questions of fact. The test of whether a disablement satisfies this requirement is less stringent than that for total and permanent disablement…[as expounded in a particular case].
The disablement is to be understood in an employment context; that is, it refers to disablement in respect of capacity to perform work. Provided the disablement in respect of capacity to work is serious, the [sic] certain types of work, it is immaterial that the worker can undertake some types of work’.
Do you consider that Mr Lee’s injury is ‘serious and permanent’ using the above matters as a guide?”
The passage in quotation marks in the above letter is taken from Mills Workers Compensation New South Wales loose-leaf service at page 1822 of service 104.
On 12 October 2006 Dr Meads responded as follows:
“His injury was a serious injury requiring fixation. Despite this he has marked limitation in the range of motion within his wrist and has sustained a serious and permanent disablement to his right wrist. Due to his disablement he has lost some ability of his right wrist to function to a normal capacity. He has a [sic] lost some of the efficiency in use of the right upper limb.
In view of this I think that the injury sustained was both a serious and permanent disablement of Mr Lee.”
In Mr Lee’s statement dated 19 October 2006 he said:
a) he is right hand dominant;
b) after his accident he returned to work on 30 August 2005;
c) on returning to work he had physical restrictions as a result of his accident, especially in his right wrist but he did not obtain any WorkCover medical certificates as the insurer had already declined liability;
d) he avoided duties that placed excessive strain upon his right hand;
e) he has less movement in his right wrist;
f) he has pain in his right wrist when his wrist and hand are extended;
g) he has lost strength and control in his right hand and wrist;
h) he cannot carry anything too heavy without pain in his right wrist;
i) he has some loss of control particularly with his index finger which causes him to drop things occasionally;
j) he was unable to do landscaping in his yard because the impact of digging caused great pain in his right hand;
k) on 21 July 2006 his employment with Coles was terminated when he, along with other ‘order selectors’, was made redundant, and
l) on 17 and 18 October 2006 he worked for two days as a truck driver/deliverer for ‘Bidvest’ on the Central Coast. This job involved driving, lifting and carrying. He was unable to perform the work required without the onset of significant pain in his right hand and wrist.
The leading cases on serious and permanent disablement are Broken Hill Proprietary Company Ltd v Kuhna (1992) 8 NSWCCR 401 (‘Kuhna’) and Gregson v L & M Dimasi Pty Ltd (2000) 20 NSWCCR 520 (‘Gregson’).
In Kuhna the worker suffered multiple abrasions to his elbows, a fractured nose, a fracture of two ribs on the right side, a comminuted fracture of the os calcis and an undisplaced fracture of the left lateral malleolus. As a result of his injuries he was unfit for any work from 4 June 1988 until 14 August 1988. He was permanently unfit for his pre injury work as a miner. The employer argued on appeal that the proper question was: was the worker seriously and permanently disabled for work generally, not just for his pre injury job? Cripps JA agreed with the employer’s submission that “disablement” in section 14(2) “is to be understood in an employment context” (at 405E). His Honour added, “that is to say, it is not sufficient merely to conclude that a worker suffers an impairment”. On this issue his Honour referred to Peters Ice Cream Pty Ltd v Feeney [1970] 3 NSWR 125 at 127 where Jacobs JA, in dealing with the same phrase in the Workers Compensation Act 1926, said:
“The condition required under the section now being considered will be satisfied provided there is evidence that the disability was both serious and permanent. In the context it is correct, I think, to apply those words to employment situations, and it seems to me that that is what the medical evidence did in this case.”
Cripps JA then continued at 406B:
“In the present case, there was evidence that the worker not only suffered an impairment but that that impairment affected his physical capacity to undertake work. The argument, as I understand it, on behalf of the employer is that the disablement cannot be said to be serious because, before such a finding could be made, it was necessary for the learned trial Judge to consider the whole range of the worker’s activity and, it is submitted, that was not done.”
That submission was rejected. Cripps JA added that the fact that the worker may have been earning as much as he would have been earning had he remained an underground miner “did not mandate a conclusion that he had not been seriously and permanently disabled” (at 406G).
Mahoney JA agreed with Cripps JA, and added at 402B:
“No doubt the word ‘disablement’ primarily refers to disablement in respect of capacity to perform work. But provided the disablement or interference with capacity is ‘serious’, the provision may be satisfied notwithstanding that other work may be undertaken and even undertaken more remuneratively.”
Gregson concerned the meaning of “serious and permanent disablement” in section 65(13), though the consideration of the phrase by Judge Burke was strictly obiter. Nevertheless the facts and his Honours comments are instructive. At [78] his Honour said:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant’s incapacity and losses before a considered answer to those previous questions is available.”
In that case the worker suffered a back injury with consequential back and leg pain. In cross-examination the worker conceded that he could do some suitable light work but could not do his pre injury duties. There were conflicting diagnoses in the case: Dr Stephenson diagnosing a lumbar strain and Dr Combe diagnosing a “disc derangement”. The CT scan disclosed “discal anomalies” (at [83]). On the question of impairment Dr Stephenson assessed a 10% impairment of the back and Dr Combe a 30% impairment. In respect of the legs, Dr Stephenson assessed there to be no loss of use of the legs and Dr Combe assessed a 10% loss of use of each leg. His Honour preferred the evidence of Dr Combe. Having regard to the findings made, his Honour added at [105] that the worker “certainly falls within” the description “serious and permanent disablement” in section 65(13).
The Appellant Employer submits that Dr Meads’ opinion should be rejected because it is a bare conclusion that could not rationally and logically support a conclusion that Mr Lee had made out the exception in section 14(2). Reliance is placed on Hevi Lift (PNG) v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (see also South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16). I do not accept that submission. Dr Meads was Mr Lee’s treating surgeon. He based his conclusion on the following facts:
a) his examination of Mr Lee and, presumably, his findings at surgery;
b) the injury was serious and required internal fixation;
c) despite this Mr Lee was left with a marked limitation in the range of motion of his wrist;
d) Mr Lee had lost some of the ability of his right wrist to function to a normal capacity, and
e) Mr Lee lost some of the efficiency in the use of his right upper limb.
The above statements with respect to Mr Lee’s marked limitation in range of movement were consistent with Mr Lee’s evidence summarised at paragraph [94] above. In these circumstances Dr Meads was entitled to give his opinion as to the condition of Mr Lee’s wrist and the nature and extent of his injury and disability.
Applying the above authorities to the present matter it is my view that Mr Lee’s injury to his right wrist has resulted in him sustaining a serious and permanent disablement in that he has pain and a marked limitation in the range of motion of his wrist and, as a result, permanent restrictions in the use of his right wrist. Those restrictions have had a marked impact on his capacity to work. The Arbitrator was not in error in finding that Mr Lee’s injury resulted in a serious and permanent disablement (T32.8). I agree with that conclusion.
CONCLUSION
Therefore, if Mr Lee’s conduct in riding his bike on 27 May 2005 amounted to serious and wilful misconduct and his injury was solely attributable to that conduct, Mr Lee is still entitled to recover compensation as his injury has resulted in serious and permanent disablement.
DECISION
Time to appeal is extended until 23 January 2007.
The Arbitrator’s decision dated 21 December 2006 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Deputy President
15 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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