Department of Corrective Services v Weekes

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Department of Corrective Services v Weekes [2010] NSWWCCPD 127
APPELLANT:		Department of Corrective Services
RESPONDENT:		Michael Weekes
INSURER:		Employers Mutual Ltd as agent for the New South Wales Self-Insurers Corporation
FILE NUMBER:		A1-3371/10
ARBITRATOR:	Ms J Connelly
DATE OF ARBITRATOR’S DECISION:		16 August 2010
DATE OF APPEAL DECISION:		9 December 2010
SUBJECT MATTER OF DECISION:		Injury, s 4 Workers Compensation Act 1987; application of Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:	Thomas Booler & Co
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 16 August 2010 is revoked and the following orders made in its place: 1.     An award for the respondent, the Department of Corrective Services. 2.     No order as to costs. 3.     Each party to pay his or its costs of the appeal.

BACKGROUND TO THE APPEAL

1. The respondent worker, Michael Weekes, is employed by the appellant, the Department of Corrective Services (the Department), in the K9 Unit as a dog-handler. Between 19 September 2007 and 25 September 2007, he was required, as part of his duties, to attend a dog-training course at the Wellington Correctional Centre near Dubbo with seven other officers.

2. During the period of the course, Mr Weekes was provided with accommodation and was entitled to a meal allowance. On Saturday 22 September 2007, Mr Weekes alleges that he was encouraged by two senior officers to join them and other employees attending the course for dinner and drinks. This, Mr Weekes said, was consistent with his experience on similar courses when he was encouraged to socialise after hours with other officers. This included having drinks after the classes finished for the day and eating their meals together. All employees were accommodated at the same motel as far as possible.

3. On 22 September 2007, after completing his commitments for the day, and in the company of senior officers, he and his colleagues attended the Dubbo Bowling Club, where they consumed drinks and an evening meal.

4. The group left the bowling club and proceeded to a local hotel, arriving there soon after 9.30 pm.

5. Whilst at the Pastoral Hotel, several fights broke out between the respondent, his colleagues and patrons at the hotel.

6. At about 1.48 am on Sunday 23 September 2007, the respondent was seen punching a patron, after which he was escorted off the premises by hotel security staff.

7. After being removed from the hotel, Mr Weekes commenced to walk back to the motel where he was staying. During the course of that journey, he received a telephone call from one of his colleagues in the hotel to inform him that the group were intending to catch a taxi back to the motel where they were all staying. Mr Weekes then commenced walking back to the hotel to re-join his colleagues when he was assaulted and…