Collins v Signature Blend Pty Ltd t/as Alira - [2015] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Collins v Signature Blend Pty Ltd t/as Alira [2015] NSWWCCPD 22
APPELLANT:	Michael Niall Collins
RESPONDENT:	Signature Blend Pty Ltd t/as Alira
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-12084/12
ARBITRATOR:	Ms K Haddock
DATE OF ARBITRATOR’S DECISION:	14 November 2014
DATE OF APPEAL DECISION:	18 March 2015
SUBJECT MATTER OF DECISION:	Fall from balcony of the worker’s home unit; whether worker in the course of his employment at a social gathering at the home unit; whether social gathering a continuation of an earlier work Christmas lunch at a restaurant; relevance of ingestion of alcohol and drugs; assessment of expert evidence; whether employer induced or encouraged worker to engage in the activity that brought about his injury; application of principles in Comcare v PVYW [2013] HCA 41; 250 CLR 246
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	Edwards Michael Powell Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 14 November 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

This appeal concerns whether the Arbitrator erred in finding that the worker was not in the course of his employment when he either fell or jumped over the railing of a balcony at his home unit while affected by alcohol and drugs. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

The appellant worker, Michael Collins, was employed by the respondent, Signature Blend Pty Ltd t/as Alira, a restaurant in Sydney. He was the manager of the restaurant and also the sole director of the respondent. He suffered serious injuries when, at about 5.00 or 5.30 pm on 19 December 2011, he fell about 24 metres from the eighth floor balcony of his apartment at Darling Point.
Prior to the fall, Mr Collins had attended a Christmas lunch, with other members of the respondent’s staff, at a restaurant called the Grasshopper at Temperance Lane in Sydney. The lunch started at about midday. It is conceded that Mr Collins was in the course of his employment while at the lunch, the cost of which was met by the respondent. While at the restaurant, Mr Collins consumed alcohol and cocaine.
After the lunch, which finished at about 4.00 pm, Mr Collins and some of the attendees at the lunch returned to his apartment where they consumed further alcohol and cocaine. What happened next is the subject of conflicting evidence, but, for reasons explained later in this decision, is of no relevance to the outcome.
On one version, provided by Vernon Fitzgerald, and referred to as scenario A, Mr Collins was telling a story on the balcony and, while he had one hand on the balcony railing, which was wet from rain, he jumped in the air and clicked his heels together, “like an Irish jig type movement”, lost his grip, and fell over the railing.
The second version, referred to as scenario B, provided in the police report, was based on a statement taken by Senior Constable Rodwell from another eyewitness, Jonathan Clare. This version, which the Arbitrator quoted at [155], was:
“Sometime around 5-5.30pm the victim [Mr Collins] was on the balcony play fighting with WIT2 [Mr O’Brien]. After this stopped both the victim and WIT2 continued talking on the balcony when the victim grabbed the railing of the balcony and flung himself over the rail and attempted to land on the cement ledge. As the victim did this he has lost his grip on the wet railing and fallen from the balcony to a grassed area some 24 metres below. This was also witnessed by WIT1 [Mr Clare].”
Neither version relied on evidence from Mr Collins, it being accepted that, because of his injuries, he had no recollection of the fall or the circumstances immediately before it.
The respondent relied on evidence from Professor Marcus Pandy, a mechanical engineer, who conducted a biomechanical analysis to determine the likelihood that Mr Collins slipped and fell while telling a story in an exuberant manner (scenario A). Noting that the top of the railing stood 109 cm above the floor of the balcony and that Mr Collins is 170 cm tall, Professor Pandy said the top of the railing was 15.5 cm higher than the vertical position of Mr Collins’ centre of mass. That meant that Mr Collins had to raise his centre of mass above the top of the railing to fall over it. Of the two possible scenarios, Professor Pandy concluded that scenario B was the more probable cause of the fall.
The respondent also relied on evidence from a Dr Arnold, pharmacologist, to the effect that alcohol exerts its major effects on the structures of the brain that are responsible for balance and coordination. It reduces peripheral awareness and impairs the judgment of speed and distance. He said that it was clear from the evidence that Mr Collins was drunk at the time of the accident, which may have contributed to his impulsive action to jump over the railing and to his loss of coordination and impaired judgment, leading to his fall.
Dr Arnold also accepted that Mr Collins had consumed cocaine. As cocaine can improve psychomotor performance, it was unlikely to have contributed to the accident via that mechanism. However, it was possible that it impaired Mr Collins’ judgment and heightened his proclivity to perform an impulsive act, such as jumping over a balcony railing. On balance, Dr Arnold said that the effects of alcohol and cocaine were sufficient to impair Mr Collins’ judgment and coordination when he “flipped himself over” the balcony railing.
After a hearing on 19 March 2014, at which the Arbitrator heard oral evidence from Mr Clare, Professor Pandy and Senior Constable Rodwell, and after receiving detailed written submissions from the parties, the Arbitrator delivered a reserved decision on 14 November 2014.
The Arbitrator said that, accepting that the lunch was a “work event” ([285]), the question was whether Mr Collins’ actions at or after the work event took him outside the course of his employment. After a detailed decision, which included a comprehensive review of the evidence, the authorities, and the parties’ submissions, the Arbitrator found that:
(a)     based on the clinical records from St Vincent’s Hospital and the lay evidence, Mr Collins was intoxicated by both alcohol and cocaine (the latter he having consumed at least three times during the afternoon) at the time of the fall ([297] and [301]);
(b)     the respondent had not induced or encouraged Mr Collins in the consumption of excess alcohol or in the consumption of cocaine ([302]);
(c)     she did not accept that the consumption of drugs was not misconduct, such as to take Mr Collins outside the course of his employment ([306]);
(d)     what happened after lunch was not a “seamless” continuation (at Mr Collins’ apartment) of a work function ([307]) (the work function being the lunch);
(e)     Mr Collins’ attendance at his apartment was not “actively induced, or encouraged and expected by the respondent” ([307]);
(f)      there was no evidence that the respondent suggested, when invitations were extended to attend the lunch, that the work function “would continue at [Mr Collins’] apartment, or indeed anywhere else” ([308]);
(g)     the purchase of alcohol, by other members of staff, while on the way from the Grasshopper to Mr Collins’ apartment (without any suggestion that Mr Collins requested the purchase or that he would “fix [them] up” later) suggested that the “gathering at [Mr Collins’] home was not a seamless continuation of the work function, but rather was taking on the characteristics of a private party” ([311]);
(h)     even if Mr Collins was still in the course of his employment at his apartment, which the Arbitrator did not accept, his actions there (consuming alcohol and cocaine), took him out of the course of his employment because neither activity was induced or encouraged by the respondent ([312]–[313]);
(i)      what Mr Clare told the police on the day of the incident was “what he saw on the day in question” ([322]) (Mr Clare told the police that as he was watching Mr Collins “I distinctly remember him place his left hand on the bottom half for [sic] the balcony railing and his right hand on the top of the railing. I[n] one motion, I watched [Mr Collins] fling himself over the top of the balcony railing and just disappear. I watched him jump off the balcony” (paragraph nine of Mr Clare’s statement of 19 December 2011);
(j)      based on evidence from Dr Arnold, it was likely that Mr Collins’ judgment was “impaired by the combined effects of alcohol and cocaine” ([339]);
(k)     the “most likely scenario” was scenario B, as described in the police report and by Professor Pandy, ([339]), and
(l)      the respondent did not induce or encourage Mr Collins to engage in the behaviour that resulted in him falling from the balcony, including being intoxicated, under the influence of an illegal drug, and jumping on a wet and slippery balcony ([340]).
After dealing with other matters that are not relevant to the appeal, the Arbitrator concluded that Mr Collins “did not sustain injury arising out of or in the course of his employment on 19 December 2011” ([354]). Consistent with this conclusion, the Commission issued a Certificate of Determination on 14 November 2014 in the following terms:
“The Commission determines:
1. That there is an award for the respondent.
2. That there is no order for costs.”
Mr Collins has appealed.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     finding that Mr Collins was not in the course of his employment when present in the apartment;
(b)     finding that the ingestion of alcohol and cocaine was the root cause of scenario B occurring;
(c)     rejecting scenario A;
(d)     failing to place due weight on the evidence of the eyewitnesses;
(e)     accepting and relying on the respondent’s expert opinion evidence in circumstances where the experts’ opinions could not support the Arbitrator’s findings;
(f)      accepting and relying on the respondent’s expert opinion evidence in circumstances where the experts’ opinions were based on incorrect and unproven assumptions of fact;
(g)     giving undue weight to the opinion of Dr Arnold, and
(h)     in determining that scenario B occurred, giving insufficient weight to the evidence of the witnesses present at the party.

SUBMISSIONS

Counsel for Mr Collins, Mr Luke Morgan, submitted that the Arbitrator erred by drawing an inference about how Mr Collins injured himself by relying on material that could not support such an inference. She erred in relying on the fact that Mr Collins was affected by the consumption of alcohol and cocaine to support an inference that he was injured “due to his consumption of alcohol and cocaine”.
The Arbitrator accepted the evidence from Dr Arnold, which was that the combination of alcohol and cocaine would lead to “impulsiveness”, as “decisive in weighing up the likelihood of the two potential scenarios”. This was not available on the evidence because Dr Arnold’s opinion went no further than establishing that Mr Collins could have acted more impulsively than normal, but that opinion could not tip a decision maker on either side of the divide between scenarios A and B.
Mr Morgan contended that the evidence from the witnesses present was of considerable probative value and supported scenario A, but was given little weight in the determination of how Mr Collins was injured. The overlooking of “evidence of considerable probative value was found to amount to an error of fact requiring correction by Deputy President O’Grady in McGrath v Nestle Australia Ltd [2012] NSWWCCPD 3”.
On whether Mr Collins was in the course of his employment at the apartment, Mr Morgan submitted that the Arbitrator “blurr[ed] the line between employee and principal” when she said (at [309]) that if, as she found, “the other employees felt no compulsion or obligation to go to [Mr Collins’] apartment, there [was] no reason why [Mr Collins], who effectively controlled the respondent, should have done so”. He submitted that it was never put to Mr Collins that his presence at the party was anything other than as an employee.
Mr Morgan said the evidence established that the presence of the employees at the apartment “was solely for work purposes” and the “clear intention was that the Christmas celebration would extend beyond the lunch and the presence of the employees at [Mr Collins’] apartment was solely due to the fact that a thunderstorm had hit the city”. No part of the afternoon’s proceedings suggested any “interruption to or deviation from the intended beneficial purpose to the employer of allowing an end of year celebration to celebrate and facilitate harmonious integration in a working group”.
To suggest that, as Mr Collins “owned” the business, he was something other than an employee and that, as a consequence, he could not be induced or encouraged to attend a Christmas celebration was an error. There was no reason for the group to be at the apartment other than “the furtherance of the party”. Mr Morgan drew support from Hills v Pioneer Studios Pty Ltd (No 2) [2014] NSWWCCPD 42 (Hills).
Turning to the expert evidence, Mr Morgan submitted that the Arbitrator erred in making a finding of fact that was not soundly based on evidence. In the alternative, the opinions by Professor Pandy and Dr Arnold “lacked probative weight” in the determination of the primary facts surrounding the fall.
The Arbitrator accepted (at [333]) Professor Pandy’s opinion on the basis that he had formed his opinion “having conducted a biomechanical analysis [and] conclude[d] that the more probable cause of the fall is scenario B”, despite having acknowledged that his opinion was formed on the basis of a biomechanical analysis combined with an assumption based on reports that scenario B had occurred. Thus, the Arbitrator’s reasoning was “plainly contradictory” and at odds with Professor Pandy’s own concession that if there was no evidence that what appeared in the police report happened, then his conclusions on scenario B could not stand.
Professor Pandy’s opinion was formed on an unsatisfactory basis in that he assumed the existence of facts from the police report, the existence of which were in issue and not substantiated. Professor Pandy’s opinion, being based on an unsubstantiated assumption, should have been given no weight.
Professor Pandy’s opinion was based on two points. First, his “elementary” biomechanical analysis indicated that scenario A was unlikely to explain a fall over the balcony railing. Second, that scenario B was documented by the police as the cause of the fall. The second reason was the question Professor Pandy was called upon to use his expertise to answer, but it “served as a foundation for his expert opinion”. That was a fatal flaw in the provision of his opinion.
Professor Pandy accepted the police report at face value and took it to be the truth. The facts he assumed were in dispute and what was required was his “expert appraisal in terms of their respective likelihood, not his wholesale assumption of a fact the existence of which he was called to prove”.
In accepting the “police narrative” as fact, when there was no evidential basis for drawing such conclusions and the manner in which the conclusion was drawn went unexplained, the Arbitrator fell into the same error. There is a “real question on the probative value” of Professor Pandy’s opinion, given that he presumed the existence of a factual circumstance that the opinion was supposed to enlighten.
Dealing with Dr Arnold’s evidence, Mr Morgan has not challenged the fact of alcohol and drug consumption, nor Dr Arnold’s opinion on the recognised effects of alcohol and cocaine. However, the drawing of an inference that alcohol and drug consumption caused Mr Collins to “impulsively jump over the balcony railing” is not and could not be supported by any evidence from a pharmacologist.
Mr Morgan contended that, on one view, the expert evidence would support a finding that scenario B could not occur and that scenario A would occur. However, the opinion that alcohol and cocaine consumption has the effect of “impulsiveness” is “devoid of any probity when it comes to establishing the greater probability of scenario B over scenario A”, yet the Arbitrator relied on it.
Under the heading “Disposition”, Mr Morgan submitted that, leaving aside the fatally flawed evidence from Professor Pandy, the evidence did not support a finding that Mr Collins deliberately threw himself over his balcony.

DISCUSSION AND FINDINGS

Mr Morgan’s submissions cannot be accepted.
Mr Collins failed because the Arbitrator was not satisfied that, at the time of the injury, he was in the course of his employment. (Nor was she satisfied that the injury arose out of his employment, but that finding has not been challenged in any specific submissions on appeal.) That finding was open on the evidence and disclosed no error. As that finding did not depend on a finding as to exactly how Mr Collins came to fall from the balcony, though the Arbitrator also considered that issue, the attack on the evidence from Professor Pandy and Dr Arnold is of no consequence because, even if the Arbitrator erred in her assessment of their evidence, it makes no difference to the outcome.
As submitted by the respondent’s solicitor, Mr Wardell, Mr Collins was injured during an interval between two discrete periods of work and, applying Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) and Comcare v PVYW [2013] HCA 41; 250 CLR 246 (PVYW), it was necessary for the Arbitrator to consider whether the circumstances of Mr Collins’ injury were referrable to a place (his apartment) or an activity, and to determine whether the respondent had induced or encouraged him to be at that particular place, as distinct from his attendance at the Christmas lunch, or to engage in that particular activity.
There is no issue that Mr Collins was in the course of his employment while at the Christmas lunch at the Grasshopper restaurant, the respondent’s staff having been induced or encouraged to attend the lunch and the respondent having met the cost of it. However, it was open to the Arbitrator to conclude, as she did at [308], that the character of the gathering changed at the conclusion of the formal lunch. The Arbitrator said:
“308.There is no evidence that it was suggested by the respondent when invitations were extended to the lunch that the work function would continue at [Mr Collins’] apartment, or indeed anywhere else. Mr Fitzgerald says the group had made no plans for after lunch or for transport from it; and ‘there was nothing formal arranged’. There is evidence from Mr Clare that there was no compulsion to go to [Mr Collins’] home; and Mr Stone no longer worked for the respondent, so could have felt no compulsion to do so. Not all of the attendees at the lunch went back to [Mr Collins’] home.”

This statement was consistent with the evidence and disclosed no error. The relevant matters identified in it are, as Mr Wardell submitted:
(a)     the “place” of the function changed from a restaurant to Mr Collins’ home;
(b)     there was no arrangement prior to the lunch that the function would continue at Mr Collins’ home, or anywhere else;
(c)     as the lunch was concluding, there was a “discussion as to what the group would do next” ([35]), during which Mr Collins “suggested” ([36]) that, as it was a wet and unpleasant day, they go to his home, and “everyone [except for two employees] decided” ([36]) to do so, and
(d)     there was no compulsion to go to Mr Collins’ home and two or three of the people who attended the lunch did not do so.
This analysis is consistent with the evidence from Mr Collins and Mr Fitzgerald. The evidence as to who was to pay for taxis to Mr Collins’ apartment and for alcohol to be consumed at the apartment was inconclusive and, to some extent, contradictory. There was no evidence clearly indicating that the respondent paid for these things. Thus, there was no evidence of any financial or other inducement or encouragement for the group to go to Mr Collins’ home.
The mere fact that Mr Collins, the respondent’s manager, participated in the activity did not mean that the respondent provided the necessary inducement or encouragement to make the gathering at his home a continuation of the work function. There is no evidence that the respondent provided any relevant inducement or encouragement to staff to attend a work function at Mr Collins’ home. It follows that the Arbitrator’s finding (at [307]) that what happened after the lunch was not a “seamless” continuation of a work function at the apartment was open on the evidence and disclosed no error. That finding was clearly correct and was independent of how Mr Collins came to fall.
I do not accept Mr Morgan’s submission that the Arbitrator erred in saying that, as Mr Collins “owned” the business, he was something other than an employee and that he could not be induced or encouraged to attend a Christmas celebration. That is not what the Arbitrator said. This submission was (presumably) a reference to the Arbitrator’s statement (at [307]) that she did not accept that Mr Collins’ attendance at his apartment was actively induced or encouraged and expected by the respondent.
The Arbitrator’s additional observation (at [307]), namely, that Mr Collins was “the boss”, and that he “made the decision to invite the others to his home”, was not inconsistent with her finding that the respondent had not induced or encouraged or expected staff to go to his home. There is no evidence that Mr Collins, acting on behalf of the respondent, induced or encouraged staff to attend a work function at his home after the Christmas lunch. The Arbitrator’s findings were consistent with the evidence and disclosed no error.
The Arbitrator was merely saying that not every decision or statement made by Mr Collins on the day of the injury should be taken as a decision or statement made by or on behalf of the respondent. Mr Morgan’s submissions to the Arbitrator made no attempt to identify the capacity in which Mr Collins was acting at various times on the day, nor did they refer to any evidence that would assist on that issue.
On the other hand, the respondent’s submissions at the arbitration drew attention to the clear distinction between actions taken by Mr Collins as an individual and actions taken by him that could be regarded as actions of the respondent. In the circumstances, given the state of the evidence, the Arbitrator was right to conclude that the respondent did not induce, encourage or expect any staff, including Mr Collins, to attend at Mr Collins’ apartment to continue the work function that started at the restaurant. In other words, in contrast to the arrangements for the lunch at the Grasshopper, there is no persuasive evidence that, in suggesting that those at the lunch go to his home, Mr Collins was acting for and on behalf of the respondent.
The submission that the presence of the respondent’s employees at Mr Collins’ apartment “was solely for work purposes” is not supported by any convincing evidence and the Arbitrator’s failure to make that finding involved no error. The submission involves the conclusion that, on the day, there was a single work event which incorporated the lunch at the restaurant and the gathering at Mr Collins’ home. Mr Collins carried the onus on this issue. The inconclusive evidence about who paid for the taxis to get from the restaurant to the apartment, and who paid for the alcohol to be consumed at the apartment, meant that it was open to the Arbitrator to decline to reach the conclusion urged by Mr Morgan. In other words, Mr Collins failed to discharge the onus on this critical issue.
The following findings (at [308]) also support the Arbitrator’s conclusion:
(a)     there was no evidence that it was suggested by the respondent, when invitations were extended to attend the lunch, that the work function would continue at Mr Collins’ apartment at the conclusion of the lunch;
(b)     Mr Fitzgerald gave evidence that the group had made no plans for after lunch, or for transport from it, noting that “there was nothing formal arranged”;
(c)     Mr Clare gave evidence that there was no compulsion to go to Mr Collins’ home;
(d)     Mr Stone no longer worked for the respondent, so could have felt no compulsion to go to Mr Collins’ home, and
(e)     not all attendees at the lunch went to Mr Collins’ home.
Each of these findings and observations was open on the evidence. While it is accepted that it was not necessary for there to be any compulsion for people to go to Mr Collins’ apartment, the evidence fell well short of establishing any encouragement or inducement by the respondent to attend there as a continuation of the work function.
Hills does not advance Mr Collins’ position and, in particular, does not establish error by the Arbitrator. The facts in that case were substantially different to the present matter. In that case there were no reasons, other than employment related reasons, for the worker’s presence at the relevant premises at the time of the injury. In the present case, by the time of the injury, the accepted work function, the Christmas lunch, had ended and a separate function, a social gathering at a private residence, had begun.
That those present at Mr Collins’ home would not have been there but for the mere fact of being employed by the respondent, or, in the case of Mr Stone, having been previously employed by it, does not determine whether Mr Collins was in the course of his employment at the time of the injury. What is required is evidence that the respondent induced or encouraged Mr Collins to be at that place or to engage in the activity that brought about his injury. The evidence fell well short of establishing those matters.
The submission that it was never put to Mr Collins that his presence at the party was anything other than as an employee was not developed in any meaningful way. If it was intended to submit that the respondent was, because of the lack of cross-examination, prevented from submitting on this point, it was clearly wrong. There is no right to cross-examination in the Commission (Aluminium Louvres & Ceilings P/L v Zheng [2006] NSWCA 34 at [37]; 4 DDCR 348).
However, as the Commission has attempted to explain in dozens of cases, the absence of cross-examination does not mean that a worker’s evidence is unchallenged or that the Arbitrator is bound to accept his or her assertions. There was a substantial body of evidence, on which both sides addressed, going to the issue of whether the Commission could conclude that Mr Collins was in the course of his employment at the time of the fall. It was clearly an issue in the case and was not something that had to be put in cross-examination (see Campbell J in West v Mead [2003] NSWSC 161; discussed and applied in New South Wales Police Force v Winter [2011] NSWCA 330 from [81]). As Mr Wardell submitted, it is not a question of what was put or not put to Mr Collins, but one of whether he had established his case. It was open to the Arbitrator to conclude that he had not.
The above conclusion, which I have reached without regard to the expert evidence and regardless of whether one accepts scenario A or scenario B, is sufficient to dispose of the appeal. In summary, Mr Collins failed to establish that he received an injury arising out of or in the course of his employment. That finding was not only open on the evidence, but was clearly correct. However, in view of the parties’ submissions on appeal, I will deal with the other issues argued.
The Arbitrator was well justified in concluding that, if, contrary to her view, Mr Collins was in the course of his employment when he attended his apartment, his consumption of alcohol and cocaine while there took him outside the course of his employment. She approached that question by asking, consistent with PVYW, how was Mr Collins’ injury “brought about” ([291]). She then analysed the evidence of Mr Collins’ consumption of alcohol and cocaine on 19 December 2011 and concluded that, at the time of the fall, he was “intoxicated” ([297]) by the effects of alcohol and he had consumed an illegal drug on at least three occasions during the afternoon ([301]).
The Arbitrator said that the question became, applying PVYW, “did the employer induce or encourage [Mr Collins] to engage in that activity, that is, the consumption of excessive alcohol and the consumption of cocaine” ([302]). She did not accept that it did, noting that, unlike the worker in Hills, Mr Collins was not a new employee who had been invited to a function to meet other employees to ensure a “good happy team” and to meet people connected with the business. She concluded, on this point, at [306]:
“306.I do not accept [Mr Collins’] submission that, because the consumption of drugs was an everyday occurrence in the industry, was dealt with casually by the witnesses, and was not the subject of police action, it was not misconduct, such as to take him outside the course of his employment. It may have been something that those at the function did not take seriously; and the police may not have charged anyone; but it was nonetheless illegal.”
These findings and conclusions were open on the evidence and disclosed no error.
If the above conclusions are wrong, the next question is whether Mr Collins was in the course of his employment while engaged in the activity that led to him falling over the railing. As Mr Wardell submitted, Mr Morgan does not appear to challenge that Mr Collins’ injury was “brought about” while he was “engaged in an activity” (PVYW at [38]). That activity was, in Mr Wardell’s submission, skylarking on a balcony rendered wet and dangerous because of rain. That description was appropriate. Mr Morgan nevertheless contended that the Arbitrator erred in concluding that scenario B was more probable than scenario A.
Due to inconsistencies in the evidence, which the Arbitrator summarised in detail, the Arbitrator properly concluded that it was not possible to say “with certainty” how Mr Collins came to fall ([314]). There was evidence, however, that Mr Collins was being “boisterous” ([129]) or, as Mr Morgan submitted on appeal, “exuberant”, while on a balcony made slippery by rain, that he had his hand on the wet railing, that he “jumped” into the air, and that, while his feet were in the air, he lost his grip on the railing and fell over it to the ground ([331]–[332]).
Whether he slipped and fell while being exuberant and attempting to perform an “Irish jig” (scenario A), or, whether he “flung himself over the wet railing while attempting to land on the balcony’s cement ledge, lost his grip and fell” (scenario B), makes no difference to the ultimate conclusion in the case. That is because, on either scenario, Mr Collins jumped into the air while holding the railing, lost his grip, and fell over the railing. What motivated him to act as he did is discussed below.
Dealing specifically with Mr Morgan’s challenge to the finding that scenario B was more probable, the evidence in support of that finding is found in the evidence from Mr Clare in the statement he gave to the police on the day of the accident. The Arbitrator summarised his evidence at [92]–[93] as follows:
“92.Everyone but Liam [O’Brien] and [Mr Collins] went inside. They [Mr O’Brien and Mr Collins] were ‘mucking around on the balcony, jabbing and half backed [sic] wrestling with each other’. This went on for no longer than perhaps 30 seconds. They separated, with Liam going to the left of the balcony. [Mr Collins] was in the middle, directly opposite Mr Clare.
93.As Mr Clare watched [Mr Collins], he ‘distinctly remembers watching him place his left hand on the bottom railing and his right hand on top of the railing and just disappear’. He watched [Mr Collins] jump off the balcony.”
The Arbitrator also dealt, at [98], with Mr Clare’s oral evidence:
“98.As regards paragraph 9 (93 above) of his statement, Mr Clare says that he does recall saying ‘I distinctly remember watching [Mr Collins] place his left hand on the bottom half of the balcony railing and his right hand on the top of the railing’, but he does not believe he said ‘In one motion I watched Michael fling himself over the top of the balcony railing and just disappear. I watched him jump off the balcony’. He believes that those words were the ‘creation’ of the police officer who obtained the statement.”
The Arbitrator also had the benefit of oral evidence from Senior Constable Rodwell, which detailed the circumstances in which he took Mr Clare’s statement. She also had a second, later, statement from Mr Clare. Considering all this evidence, she concluded that Mr Clare’s statement to the police, that is, his first statement, probably contained the more accurate account of his recollection, partly because it was contemporaneous ([322]) and partly because she found his oral evidence to be “unpersuasive and gained the impression that he was attempting to do the best he could to assist a friend” ([320]). These conclusions were open on the evidence and disclosed no error.
The only witness who suggested that Mr Collins was doing an “Irish jig” was Mr Fitzgerald. The Arbitrator considered his evidence (at [49]–[63]) but did not find it persuasive, stating that Mr Fitzgerald had showed that his recollection was faulty by stating that Mr Clare was on the balcony when Mr Collins fell, when that was clearly incorrect ([314]). In any event, in his statement to the police, dated 19 December 2011, Mr Fitzgerald said that “as I was walking down the hallway I saw Michael Collins with his left hand on the railing of the balcony and he was in the air and going over the railing to the other side”, with no mention of him clicking his heels as if doing an “Irish jig”.
Mr Morgan’s submission that the Arbitrator erred in giving “insufficient weight” to the evidence of the eye witnesses is rejected. The Arbitrator carefully assessed the evidence from the eye witnesses, such as it was, and concluded that Mr Clare’s first statement was the more reliable. That statement supported scenario B. Mr Morgan has referred to no specific lay evidence to support his further submission that the Arbitrator overlooked evidence of considerable probative value on this issue. The only other lay evidence on this issue was from Mr O’Brien and Mr Stone. That evidence was, as Mr Wardell submitted, of little assistance as neither man saw what happened immediately before Mr Collins fell. The complaint on this issue is without substance and is rejected.
Turning to the expert evidence, the complaints regarding the role played by the expert evidence in the Arbitrator’s reasoning process are misconceived. The evidence from Professor Pandy and Dr Arnold was not challenged by any contrary expert evidence. This did not mean that the Arbitrator had to accept their opinions, even if unchallenged (South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal [2009] SASC 213 at [59]), but it is relevant that, in regard to Professor Pandy’s evidence, there was no alternative view of the biomechanical issues involved.
In any event, the attack on Professor Pandy’s evidence is without merit. Mr Morgan’s submissions have ignored the principles relating to expert evidence in the Commission, as discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock), which the Commission has consistently applied in several decisions. Hancock made it clear that, even in evidence based jurisdictions, compliance with the usual requirements for expert evidence “does not require strict compliance with each and every feature referred by Heydon JA in Makita to be set out in each and every report” (per Beazley JA (as her Honour then was) (Giles and Tobias JJA agreeing) in Hancock at [82]).
Beazley JA added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What is required for satisfactory compliance with the principles governing expert evidence is for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]). If the foundation for the expert’s opinion is false or inadequate, the opinion will be of limited probative value.
Professor Pandy set out the known facts, being that Mr Collins fell over the wet railing on a balcony, the top of which railing stood 109 cm above the floor of the balcony and, further, that Mr Collins was 170 cm tall, which meant that the top of the railing was approximately halfway up his torso, at about the bottom of his chest. These facts were not disputed. The assumed facts were the evidence from witnesses who had postulated scenarios A and B. The Arbitrator accepted that scenario B was more probable and I have rejected the challenge to that finding.
Professor Pandy merely applied his expertise in biomechanics to state whether it was likely that the fall occurred in the circumstances described in scenario B. He did not accept scenario A as being the more likely of the two scenarios he was asked to consider. That was because, he explained, as the top of the railing was 15.5 cm higher than the vertical position of Mr Collins’ centre of mass, Mr Collins must have raised his centre of mass above the top of the rail to fall over it. It does not matter that Professor Pandy was provided with the police report, rather than Mr Clare’s statement to the police. The police report was clearly based on Mr Clare’s statement and was a fair summary of it. The information available to Professor Pandy provided a “fair climate” for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844).
Contrary to Mr Morgan’s submissions, Professor Pandy did not proceed on the assumption that scenario B was correct and then provide an explanation as to why that was so. He accepted that scenario A was a possible scenario, noting that he had Mr Fitzgerald’s statement, and applied his expertise to conclude that it was an “unlikely” scenario. That approach was appropriate and, in light of Mr Clare’s statement to the police, which the Arbitrator preferred to his later evidence, and which was consistent with scenario B, it was open to the Arbitrator to accept Professor Pandy’s evidence.
Dealing with Dr Arnold’s evidence, Mr Morgan’s submission that it was not possible to infer that drug and alcohol consumption “caused” Mr Collins to “impulsively jump over the balcony railing” is based on the false premise that that is what the Arbitrator found. Having accepted Professor Pandy’s evidence, which was that scenario B was more probable, the Arbitrator merely noted that Dr Arnold’s evidence, which was that alcohol impairs the judgment of speed and distance and that cocaine impaired Mr Collins’ judgment and heightened his proclivity to perform an impulsive act, was:
“338. …sufficient answer to [Mr Collins’] submission that I should not accept the respondent’s submission that on a wet, stormy afternoon, with rain coming over a balcony, causing people to go inside, [Mr Collins] made a conscious decision to fling himself over a balcony more than 25 metres above ground, in a fluid single motion (having been to lunch), with a view to hanging on to a wet, slippery, thin metal railing and landing on a narrow ledge on the other side.
339.I accept Dr Arnold’s evidence that it is likely that [Mr Collins’] judgment was impaired by the combined effects of alcohol and cocaine. The most likely scenario is that described in the police report and by Professor Pandy as Scenario B.”

It follows that, on a fair reading of the decision as a whole, the Arbitrator merely relied on Dr Arnold’s evidence as providing an explanation as to why Mr Collins may have engaged in such a reckless act and to rebut the submission by Mr Collins that the reckless nature of the act of itself rendered scenario B improbable. That finding was open on the evidence.
More importantly, as the High Court explained in PVYW, whether an injury is received in the course of employment “does not raise any question about causation” (PVYW at [44]). Rather, the principle explained in Hatzimanolis directs attention to the “circumstance in which the injury is suffered” for the purposes of determining whether those circumstances rendered the injury as referrable to a place or to an activity. If the injury is referrable to an activity, the question will be whether the employer induced or encouraged the employee to engage in that activity. Accordingly, the question is not whether the consumption of alcohol and cocaine “caused” Mr Collins to act impulsively, but whether the employer induced or encouraged the employee to engage in the activity in which he was engaged at the time of his injury.
It follows that even if the Arbitrator erred in her conclusion that the fall occurred in the circumstances outlined in scenario B, which I do not accept, and scenario A was the “activity” which “brought about” (PVYW) Mr Collins’ injury, that activity was unarguably not induced or encouraged by the respondent. The top of the railing was well above Mr Collins’ centre of gravity and, absent some extraordinary effort by Mr Collins, such as jumping high off the ground in close proximity to the railing, while placing his weight on it, there is no way he would have fallen over it during a normal social gathering. In other words, as the Arbitrator concluded at [340]:
“The respondent did not induce or encourage [Mr Collins] to engage in the behaviour that resulted in him falling from the balcony, including being intoxicated, under the influence of an illegal drug, and jumping on a wet and slippery balcony.”
It follows that, on any view of how Mr Collins came to fall over the railing, the respondent did not induce or encourage Mr Collins to engage in the activity or activities that brought about his injury and he was not in the course of his employment at the time he fell. For the same reasons, his injury did not arise out of his employment and his claim must fail.

CONCLUSION

The Arbitrator’s conclusions were well justified on the evidence and disclosed no error. Mr Collins’ injuries did not arise out of and were not received in the course of his employment with the respondent.

DECISION

The Arbitrator’s determination of 14 November 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Deputy President

18 March 2015

I, STEVEN HAMPSON, 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