Department of Corrective Services v Weekes - [2010] NSWWCCPD 127

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

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.
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.
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.
The group left the bowling club and proceeded to a local hotel, arriving there soon after 9.30 pm.
Whilst at the Pastoral Hotel, several fights broke out between the respondent, his colleagues and patrons at the hotel.
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.
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 severely injured. At least one of his assailants was a person involved in the earlier fracas in the hotel.
Mr Weekes made a claim for weekly compensation and lump sum compensation in respect of 17 per cent whole person impairment under s 66, and pain and suffering compensation under s 67 of the Workers Compensation Act 1987 (the 1987 Act).
On 19 October 2007, Employers Mutual Limited issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability. Liability was declined on the basis that, during an interval between his duties and whilst at the Pastoral Hotel on the evening of 22 September 2007, Mr Weekes engaged in conduct that was not induced or encouraged by the employer. It alleged that the attendance at the hotel was “for personal reasons” unconnected with his employment. Employers Mutual Limited denied that Mr Weekes’s employment was a potential contributing factor to the injuries sustained on 23 September 2009, pursuant to s 9A of the 1987 Act.
On 21 April 2010, Mr Weekes lodged an Application to Resolve a Dispute in the Commission, claiming weekly payments of compensation and the lump sum compensation referred to in his earlier claim. The Application failed to allege how the injuries were sustained. At the arbitration hearing, the Application was amended to allege that “the applicant was assaulted in the course of his employment”.
On 19 May 2010, the Department lodged a Reply, declining liability on the basis disclosed by the s 74 notice.
The Commission listed the matter for conciliation and arbitration on 11 August 2010. No oral evidence was given at the hearing, but counsel for both parties made extensive submissions. The Arbitrator delivered a brief extempore decision the same day. The Arbitrator found that the worker suffered an injury within the meaning of s 4 of the 1987 Act. She also found that Mr Weekes’s employment was a substantial contributing factor to the injury.
The Commission issued a Certificate of Determination on 16 August 2010 in the following terms:
“The Commission determines:
FINDINGS
1. I find that the applicant suffered injury as pleaded in the Application to Resolve a Dispute (ARD) at Part 5.6 within the meaning of s 4 of the Workers Compensation Act 1987 (the “Act”) on 23/9/07.
2. Pursuant to s9A of the Act I find that the applicant’s employment with the respondent was a substantial contributing factor to the injury noted above.
ORDERS
1.     By consent the claim for s60 compensation is discontinued.
2.     By consent the ARD is amended at Part 4 “Describe how injury occurred” to read: “The applicant was assaulted in the course of his employment”.
3.     By consent the ARD is amended at Part 5.6 under the heading “Body Parts/Systems claimed” to read “Cervical spine, Nasal airway obstruction, Nasal Deformity and facial scarring and Sense of smell”.
4.     By consent, as a consequence of the Commission’s findings, the respondent is to pay weekly compensation to the applicant as follows:
a.     Pursuant to s36 for the period 15/10/07 to 28/10/07 @ $1087.53 per week;
b. Pursuant to s40 for the period 29/10/07 to 4/11/07 @ $624.40 per week;
c. Pursuant to s40 for the period 5/11/07 to 11/11/07 @ $583.92 per week.
5.     By consent the report of Dr Cordato dated 29/9/09 is removed from the Application to Resolve a Dispute.
6.     By consent the Application to Admit Late Documents filed by the respondent on 8/6/10 is admitted into evidence.
7.     By consent the report of Dr Ellis dated 17/3/08 is admitted into evidence.
8.     This matter is remitted to the Registrar for referral to an AMS for assessment of whole person impairment of the cervical spin, nasal airway obstruction, nasal deformity and facial scarring and sense of smell with a date of injury of 23/9/07.
9.     The documents to go to the AMS are the Application to Resolve a Dispute (minus the report of Dr Cordato), the report of Dr Ellis dated 17/3/08, the Reply and the Application to Admit Late Documents filed 8/6/10.”
In an appeal filed on 7 September 2010, the Department seeks leave to challenge the Arbitrator’s determination.

LEAVE TO APPEAL

Monetary threshold

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
It is not disputed that the monetary thresholds in s 352(2) are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.
I grant leave to appeal.

ISSUES ON APPEAL

There was no dispute before the Arbitrator or on appeal that Mr Weekes suffered the injuries complained of in the Application. There was no dispute that, if he was successful, he was entitled to the award of weekly payments as found by the Arbitrator, and the parties are agreed that the matter, if successful, should be referred to an Approved Medical Specialist (AMS) for an assessment of whole person impairment concerning the cervical spine, nasal airway obstruction, nasal deformity, facial scarring, and loss of sense of smell in relation to the injuries sustained on 23 September 2007.
The issue on appeal is whether the Arbitrator erred:
(a)     In finding that the respondent was injured in the course of his employment on 23 September 2007.
(b)     In finding that the applicant’s employment was a substantial contributing factor to the injury on 23 September 2007.
(c)     In failing to give proper reasons.
In terms of satisfying the requirements of s 4 of the 1987 Act, Mr Weekes amended the pleadings at the commencement of the arbitration hearing, as indicated at [10]. Mr Weekes alleges that his injuries arose in the course of his employment, but he did not plead that they arose out of the course of his employment.

EVIDENCE AND SUBMISSIONS

Mr Weekes

Mr Weekes commenced employment with the respondent in June 2000. He was initially employed as a prison officer and subsequently as a prisoner transport officer before joining the K9 Unit in 2000.
Since joining the Department, he completed Certificate III and IV courses in Correctional Practice, as well as “numerous other in-house training courses in corrective services and in dog-handling”.
In September 2007, he was required in the course of his employment to attend a dog-training course at Wellington Correctional Centre near Dubbo with seven other officers. The course was set to run from 19 September to 25 September 2007, during which time Mr Weekes was required to stay in Dubbo in accommodation provided for him. He was also provided with meal allowances.
In his signed but undated statement, commencing at page 44 of the Application, he said at [9]–[10]:
“(9) My experience with attending past training courses run by the Department for employees was that attendees were encouraged to team-build by socialising after hours during the course. This took the form of having drinks after classes finished for the day, eating meals together, staying in the same motels as far as possible and so on.
(10) This course was no different. On 22 September 2007, on completion of the course work with the dogs for the day at about 7.00 pm, our senior officer and supervisor on the course, Steve Barlow, and senior dog handler at the Wellington Correctional Centre, Rick Smith, both suggested that we all go out for drinks and a meal together. This was consistent with the Department’s normal team-building practice for course work. They also accompanied us that evening.”
On 22 September 2007, Mr Weekes and his colleagues drove into Dubbo and had a meal at the local bowling club. After that, they all went to the Pastoral Hotel “for a few drinks together”. Mr Weekes states that, whilst at the hotel, members of the group were recognised as prison officers, and staff eventually ejected a patron who had become abusive to them several times. Mr Weekes does not recall how long he stayed at the hotel, as his injuries affected his memory of that evening.
At [12] of his statement, he said “I eventually decided to go back to the Motel where we were staying. I left the Hotel alone and commenced to walk to our Motel”. He did not recall the time. He stated that he had not gone far when he received a call on his mobile phone from the other officers who had remained at the hotel, inquiring as to his whereabouts and informing him that they intended to catch a cab from the hotel back to the motel where they were staying. Mr Weekes asked them to wait for him until he could return to the hotel and travel back with them in the cab to the motel where they were staying.
Mr Weekes stated that, shortly after the phone call, three people attacked him from behind, he fell to the ground, and was viciously assaulted.
Mr Weekes made a statement to the police dated 24 September 2007. Mr Weekes stated at [4]:
“4. As a result of my employment I was required to attend Wellington jail for training purposes from Thursday 20 September 2007 to Monday 24 September 2007. The training included a number of other dog-handlers within the Corrective Services. While here for training we stayed at the Macquarie Inn Hotel, Dubbo.
5. On Saturday night 22 September 2007 I went out to dinner to the West Dubbo Bowling Club, I was there with my work colleagues Andrew Clark, Chontel Barber, Tina Lawler, Scott Ford, Steve Barlow, Michael Breen and Scott Emmett. While I was there I had a beef lasagne to eat and I drank two schooners of Tooheys New beer. After dinner we went to the Pastoral Hotel where I think we arrived about 10.00 pm. While there I had another two schooners of Tooheys New. I didn’t drink much as I don’t normally drink at all. At home I only drink soft drink.”
He then describes in some detail the events that unfolded at the Pastoral Hotel on the evening of 22 September 2007 and the early hours of 23 September 2007.
He stated at [11] of his police statement that, at the time of being removed from the hotel, “I had only had four schooners of full-strength beer in at least as many hours and would describe myself as being only slightly to moderately intoxicated”.
Mr Weekes made a further statement to the Department of Corrective Services dated 28 September 2007. In addition to describing his age and employment history, he stated that, on 20 September 2007, he travelled to Wellington Correctional Centre to participate in a training course. After completing his duties that day, he drove the departmental vehicle to the Macquarie Inn at Dubbo where his accommodation had been arranged. That evening, and the following evening, he had dinner “at the hotel”, which I infer is a reference to the Macquarie Inn.
Mr Weekes stated that, on Saturday 22 September 2007, he again drove to the Wellington complex, starting duties at 7.00 am. Throughout the day, he participated in the program and completed his duties at about 5.00 pm. Thereafter, he returned to the Macquarie Inn. His dog had been secured in Wellington. The remaining dogs were left in the back of their respective departmental vehicles, which were kept under observation by a designated officer from the dog unit staff.
Mr Weekes stated at [8] of his statement:
“I did not have any drink at the Macquarie Inn hotel and then went with a number of other off-duty officers in a maxi-cab to the West Dubbo Bowling Club, where we had dinner. I don’t know what time we got there but it was probably about 8.00 pm as it was getting close to the closing time for the bistro. I also had two schooners of Tooheys full-strength beer before we left the premises. I am not normally a drinker and usually drink Coke Zero.”
Mr Weekes described taking a taxi with other officers to the Pastoral Hotel, arriving there at about 10.00 pm. He stated that he had another two schooners of Tooheys full-strength beer whilst he was there.
He stated at [10]:
“I want it noted I had four schooners of full-strength beer over the entire period of time. I have stated to police that in my view I was moderately affected. I normally drink soft drink.”
Mr Weekes stated at [15]:
“Whilst I had ceased duty prior to going to dinner at West Dubbo Bowling Club as I have indicated in my statement there was a reference made to the effect of all of us being screws, meaning corrective services staff, by the persons involved in the incident.”

Steven Barlow

Mr Barlow is a senior correctional officer of the Department. He provided a report dated 23 September 2007 to Mr Halliwell, operations manager, K9 Unit, concerning the events of 22 and 23 September 2007.
He stated that he and his group of fellow officers, Officers Smith, Ford, Clark, Weekes, Emmett, Lawler, Breen and Barber, whilst off-duty and wearing civilian clothing, attended the Pastoral Hotel at approximately 9.30 pm on 22 September 2007. They were scheduled to recommence their duties at 11.00 am on 23 September 2007.
Mr Barlow stated, without providing a time for this incident, that, without provocation, a patron lunged at Officers Clark and Smith, and a fight ensued. Staff and security officers quelled the situation.
At 11.30 pm, whilst still at the hotel, Officer Barlow rendered his assistance to a security officer who was engaged in a scuffle with a drunken patron. He said that the security staff “misread the situation and asked me to leave”. He stated that he was required to leave the hotel at about 11.30 pm and had been unable to speak to his staff, but decided that it would be prudent for him to return to the motel where he was residing. He received a phone call at about 3.11 am on 23 September 2007 to inform him that Officer Weekes had been assaulted. In a further brief report to Superintendent Wilson, Officer Barlow repeated his version of events that unfolded at the hotel, adding that, during the evening, he had been drinking soft drink only.
Mr Barlow made a statement to the NSW Police dated 24 September 2007. He stated that, on 22 September 2007, in the company of his colleagues, he went to dinner at the West Dubbo Bowling Club, and then to the Pastoral Hotel “to continue socialising”. During the dinner, he had two schooners of beer and, whilst at the Pastoral Hotel, he drank soft drink. He then described the various incidents that took place in the hotel consistent with his departmental report. At [10] of his statement, he said, “I left the hotel somewhere around 10.30 pm and returned back to my accommodation. The other officers stayed at the hotel when I left”. He then described a series of events that occurred after Mr Weekes was assaulted.

Scott Ford

Mr Ford is a first class correctional officer. He provided a signed report to the general manager, M Wilson, dated 23 September 2007.
He stated that, at about 11.00 pm on 22 September 2007, in the company of other correctional officers at the Pastoral Hotel in Dubbo, they were approached by a male patron and spoken to in derogatory terms concerning their employment as correctional officers. A scuffle broke out between this person and Officer Clark. Security officers attended and a fight broke out involving other patrons. The person concerned was removed from the hotel.
At about 1.30 am on Sunday 23 September 2007, another fight broke out involving Officer Clark. The assailant was wearing an aqua coloured tee-shirt and was one of the persons involved in the earlier scuffle. Several other male patrons became involved and, again, the security staff at the hotel were required to intervene. It appears that the person wearing the aqua coloured tee-shirt was well known to the security staff. Officer Ford stated that he requested the security staff to call the police so that a complaint could be made.
In the meantime, Officer Clark had been in the toilet, wiping blood from around his face and nose. As he exited the toilet, the person who was subsequently identified by the police as person of interest 1 (POI 1) charged at Officer Clark, and another fight broke out. At this point, the group relocated to another room within the hotel and again requested that police attend. It was at that point that the group noticed that Mr Weekes was not present. Mr Ford stated that Officer Barber then called Officer Weekes on his mobile phone and was informed by Mr Weekes that he had been required to leave from the hotel, but would return to speak with police. Approximately 30 minutes later, the group was informed by security staff that Mr Weekes had been assaulted.
Mr Ford made a statement to the police dated 25 September 2007. In addition to describing the events that occurred at the Pastoral Hotel, he stated that he did not believe that he was intoxicated. He stated that his last drink was at about 11.00 pm. Prior to that, he had been drinking light beer. He estimated that, between 6.00 pm, when the group went out for dinner, and 11.00 pm, he consumed eight schooners of light beer. At [12], he added, “I would say that during the evening Officer Michael Weekes probably had eight schooners of Tooheys New because he had been in a shout with me. Officer Weekes also had a meal with the group”.

Scott Emmett

Mr Emmett is a first class correctional officer employed by the Department. He supplied a signed report to the general manager, M Wilson, dated 23 September 2007.
He stated that, as a member of the base dog-handlers’ course number 01/07, he attended an after-hours social gathering at the Pastoral Hotel in Dubbo.
He stated that, at about 11.00 pm, an unknown male patron approached their group and spoke to them in derogatory terms. The person shoved Officer Clark and a fight ensued. He stated that the male person wearing the blue-green tee-shirt was ejected from the hotel.
Officer Emmett then described a further fight which occurred in the hotel at about 1.30 am, in which the same group of locals was involved and which included Officer Clark. There is no reference to Mr Weekes being involved in this incident.
Mr Emmett stated that Officer Ford ushered the group to another room within the hotel away from the hostile individuals, and requested security staff to call the police. It was at that point that he noticed that Officer Weekes and another member of the party were “missing”. He went on to state that Officer Barber contacted Officer Weekes on his mobile phone and informed the group that he (Weekes) was on his way back to the hotel so that he could speak to police when they arrived.
After 30 minutes, the police had not arrived and, when inquiries were made, Officer Ford was informed by security at the hotel that there had been a report that Officer Weekes had been assaulted.
Mr Emmett made a statement to the police dated 24 September 2007. He described in detail the events that took place at the Pastoral Hotel on the evening of 22 September and morning of 23 September 2007. At [28] of his statement, he said that, on the evening, he would describe himself as moderately affected by alcohol. Between 6.30 pm and 2.00 am, he drank about five beers and about five scotch and cokes.

Tina Lawler

Ms Lawler is employed by the Department as a first class correctional officer. She provided a signed report to the general manager of the Department concerning the events that took place in Dubbo on 22 and 23 September 2007. Her report is dated Sunday 23 September 2007.
She stated that, whilst on a training operation for the K9 Unit at the Wellington Correctional Centre, she attended “an after-hours gathering” with other correctional officers at the Pastoral Hotel in Dubbo.
She stated that an incident occurred in the hotel at about 11.00 pm, when she and fellow officers were approached by a male patron who spoke to them in derogatory terms concerning their employment as correctional officers. She said that she felt immediately “scared for her safety” and that of her fellow officers. The patron was a large male in a very aggressive mood. Security officers were alerted and the male person was asked to leave the hotel. When he refused to do so, an altercation with security staff ensued and he was forcibly removed from the hotel.
Ms Lawler stated that she was “shaken” after this event and was relieved that the person had been removed from the hotel.
Ms Lawler further stated that, at approximately 1.30 am on 23 September 2007, she observed a fight involving punching and wrestling between the person identified as POI 1 and Officers Clark, Emmett and Weekes. Other patrons who appeared to be friends with POI 1 then became involved in the fight. She and Officer Ford then attempted to render assistance to their colleagues. Eventually, security staff broke up the fight and POI 1 and his colleagues were escorted off the premises.
Officers Barber and Lawler took Officers Clark and Emmett to the male toilets, where they checked their injuries and cleaned them up. Officer Clark had a badly cut lip and was bleeding heavily, and had a laceration to the bridge of his nose. She observed swelling and bruising to both the forehead and the eye area and the chin of Officer Emmett. While still in the male toilets, POI 1 barged in and again attempted to assault Officers Clark and Emmett, and another fight ensued. It went on for several minutes until security staff again attended and escorted POI 1 out of the hotel.
After the incident in the toilet, the group relocated to another area in the hotel and noticed that Officer Weekes was missing. Ms Lawler was told by security staff that POI 1 was well known to them and was frequently aggressive when drinking. At her request, security staff made available CCTV footage to Officer Lawler, which she reviewed. According to her, it was clear from the footage that the aggressor was POI 1. While still reviewing the footage, the security officer received a telephone call informing him that Officer Weekes had been the victim of an assault and had been badly injured.
Officer Lawler and her fellow officers then attended the scene of the assault and spoke with police.
Ms Lawler made a statement to the police dated 24 September 2007. She stated that, after the completion of training on Saturday 22 September, one of the handlers at Wellington, Senior Correctional Officer Rick Smith, suggested the group all meet at the West Dubbo Bowling Club in Dubbo at 5.30 pm for drinks and a meal. Subsequently, nine officers met at the bowling club. She added at [6]:
“One of the local officers in our group suggested we leave the club and go to the Pastoral Hotel in Dubbo for further drinks. We split the group to go to the hotel in taxis.”
The first group left the club at about 9.00 pm. The second group, including Ms Lawler, left about 40 minutes later, arriving at the hotel at approximately 9.45 pm.
During the course of the evening, Ms Lawler stated she consumed five vodka cruisers, and said:
“I would say I was mildly intoxicated. During the number of incidents that occurred I felt like we were under attack for being correctional officers. I was extremely fearful for the safety of my fellow officers.”

Andrew Clark

Mr Clark is employed by the Department as a first class correctional officer. Mr Clark provided a report dated 17 March 2006, which is clearly incorrectly dated, to Mr Halliwell, the operations manager of the K9 Unit of the Department. The report concerned the events that took place in Dubbo on 22 and 23 September 2007.
Mr Clark stated that he was present at the Pastoral Hotel in Dubbo on Saturday 22 September 2007 with his fellow Officers Barlow, Smith, Weekes, Ford, Emmett, Lawler, Breen and Barber.
Mr Clark described an event that took place when he and Officer Smith were approached by a patron who was screaming in a loud voice. He grabbed Mr Clark’s shirt and a scuffle broke out between officers of the K9 Unit at the table and the patron. The patron was passively supported by another person who is now known as POI 1. The security personnel ejected the patron, leaving POI 1 in the hotel.
Several hours passed without incident until Mr Clark observed POI 1 sitting at their table talking to Officer Emmett and then Officer Weekes. The conversation became heated. Mr Clark stated, “I approached POI 1 and asked him to leave. Security personnel intervened and POI 1 was removed from the area”.
After a further half-an-hour (but without pinpointing the time), Officer Clark was sitting at a table with his colleagues when he was struck on the left side of his head by POI 1, who then challenged Clark to a fight. Officer Emmett attempted to come between them and a fight erupted. POI 1 threw several punches at Officer Emmett, and Officer Clark went to Officer Emmett’s aid. Various unknown patrons also joined in, as did Officers Breen and Ford.
Security staff attended and POI 1 and other patrons were removed from the premises. During the fight, Officers Clark and Emmett received minor injuries.
Officer Clark stated that, minutes after POI 1 was ejected from the hotel, he returned wearing a different-coloured tee-shirt. He approached and attempted to strike Officer Clark. Another fight broke out between POI 1, other patrons and departmental officers. Eventually, the fight was brought under control and POI 1 and other patrons were again removed from the premises. Officer Clark stated that, at that point, he realised that he had not seen Officer Weekes since before that incident. He was informed that Officer Weekes had been removed from the premises. He stated that Officer Barber telephoned Mr Weekes and informed him what had occurred, including the fact that police had been called to the hotel and that the group was waiting inside the hotel for police to arrive. After a period of time, the police rang again, and he became aware that Officer Weekes had been assaulted.
Mr Clark made a statement to police dated 24 September 2007. He described the events at the Pastoral Hotel in terms that were consistent with his departmental statement. He stated at [17] that he had consumed about 10 schooners of full-strength beer during the course of the night. He added, “We had an 11.00 am start the next day and I’m an instructor on the course so I couldn’t be hung over. I was certainly not fit to drive and was under the influence of alcohol, but I was still aware of what I was doing and I wasn’t out of control”.

Michael Breen

Mr Breen is a correctional officer employed by the Department. He provided a statement dated 23 September 2007 to the general manager of the Department.
Mr Breen stated that, “whilst attending a social function” at the Pastoral Hotel in Dubbo with other members of the K9 Unit, the following events occurred.
He described a male person in an intoxicated state who approached the table where the group was sitting and began speaking in an aggressive manner to Michael Weekes. Officers Clark and Weekes became involved in a scuffle which required the intervention of the hotel security staff, resulting in the unknown person being escorted away.
“Some time later”, the same person again approached the table, yelling, “Bring it on”. Another scuffle ensued and security staff again moved the person from the hotel. Officer Breen stated that “At this stage, things were quite heated and we all moved to a different part of the hotel”.
Mr Breen further stated that the same person from earlier had re-entered the hotel wearing a different-coloured tee-shirt and immediately approached the group, whereupon another fight broke out, involving Officers Clark, Ford and Emmett. Officer Breen stated that he was involved in the incident, but only to the extent of trying to stop more people from joining the fight. At this time, he was unaware of Mr Weekes’s whereabouts. He was later informed that Mr Weekes had been hospitalised, and he and Officer Barber attended at the hospital.
Mr Breen made a statement to the police dated 24 September 2007. He stated that he arrived in Dubbo on Thursday 20 September 2007 to do some training and work at the Wellington Correctional Centre. He said that there were seven officers who came to Dubbo to take part in the operation. While in Dubbo, they stayed at the Macquarie Inn. At [7] of his statement, he said:
“7. After we finished work on Saturday, we went over to West Dubbo Bowling Club with a couple of guys based at Corrective Services at Dubbo. They were Scott Ford and Rick Smith. All seven of us who were here for the operation went over to the bowling club.
8. We had a meal and a few drinks while we were over there. I was drinking beer over at the club and had three schooners of full-strength while we were there. I’m not sure what time we left the bowling club, but we all caught two taxis and all of us went to the Pastoral Hotel.”
Thereafter, he describes the events that occurred at the Pastoral Hotel consistent with his departmental statement. He stated that he was unaware of how much alcohol had been consumed by Officer Weekes.

Chontel Barber

Ms Barber is a correctional officer employed by the Department. She provided a signed report to the general manager of the Department on 23 September 2007. Ms Barber stated, “[w]hile at a training operation at Wellington Correctional Centre with the K9 Unit I was attending a social gathering at the Pastoral Hotel Dubbo” when an incident occurred at about 11.00 pm. Ms Barber was at the bar when she noticed a member of the group, Steve Barlow, being escorted out of the premises by security staff.
Ms Barber then described the fight with a male patron involving Officers Clark, Emmett and Weekes, and involving Officers Lawler and Ford, who were attempting to break up the fight.
Ms Barber stated that, about five minutes after this incident occurred and whilst in the male toilets attending to the injuries sustained by Officer Clark, the individual who had been escorted off the premises approached them again, wearing a different-coloured tee-shirt, and another fight broke out. Security staff broke up the fight, and the person was again escorted from the premises.
After the incident described above, the group went to a quiet area of the hotel, where they realised that Officer Weekes was missing. When he could not be located, Ms Barber telephoned him. Mr Weekes informed her that he had been removed from the hotel, but was currently on his way back to rejoin the group. Ms Barber confirmed that Officers Ford and Lawler viewed security footage of the incidents while they were waiting for police at the hotel. It was at that point that they were informed that Mr Weekes had been assaulted.
Ms Barber also made a statement to the police dated 24 September 2007. She described in detail the events that occurred whilst the group was present at the Pastoral Hotel. She stated that, during the course of Saturday night and Sunday morning, she had been drinking rum and coke. She had been drinking all night and could not remember how many drinks she had consumed. She said, “I definitely wasn’t drunk. I would say I was tipsy or happy. I could still talk and walk properly and I knew exactly what was going on around me”.

Police report

The most succinct account of the relevant events is found in an extract from the police report dated 24 September 2007, which is in these terms:
“On the night of Saturday the 22^nd of September 2007, the victim has attended the Pastoral Hotel located on Talbragar Street Dubbo.
The K-9 unit of the NSW Corrective Services were staying in Dubbo for a training day that was to occur on Sunday the 23^rd of September 2007. The victim in the matter is part of this unit.
About 10.00pm on the evening of Saturday the 22^nd of September 2007 a scuffle broke out inside the Pastoral Hotel. Police believe at this stage that members from the K-9 unit may have been involved. This incident was minor and the night continued.
The officers stayed past midnight and about 1.48am a fight broke out within the Hotel. The poi 1 has been involved along with several other patrons and the members of the K-9 unit.
The victim (WEEKS [sic]) is seen punching a patron within the sports bar of the Hotel as a result of this altercation the victim was requested to leave the Hotel. The victim was escorted to the front door by security and was last seen heading in an easterly direction along Talbragar Street heading towards Darling Street Dubbo.
A short time later poi 1 is seen swapping his shirt with another patron inside the Hotel. About 1.52am POI 1 was again involved in an altercation About 1.48am the following morning on the 23^rd of within the Hotel [sic], he was subsequently escorted to the front door of the Hotel and ejected from the Hotel. A short time later the poi 1 re-enters the Hotel and again is escorted by security outside.
About 1.55am poi 2 leaves the Hotel. He remains at the front entrance for a short time before walking accross [sic]the road to the southern side of Talbragar Street and stood outside a cafe.
About 1.59pm poi 3 leaves the Hotel.
About 2.00am poi 1 returns to the Hotel after being ejected and gains entry by pushing past a member of staff that was requested to mind the door while the security were busy breaking up smaller altercations continuing to occur within the Hotel.
About 2.01am poi 1 leaves the Hotel after being escorted back out the front door. He walks accross [sic] to the southern side of Talbragar Street and stood outside a cafe.
About 2.03am the Manager of the Pastoral Hotel Mr Graham BROPHY leaves the Hotel and walks accross [sic] to the southern side of Talbragar Street and speaks with poi 1, 2, 3 and two males, Luke LEWIS and Tim ONEILL who was using crutches.
The manager has requested the group move from the location to which they agreed.
A short time later police making patrols see the victim laying motionless with a motorcycle rider offering assistance.
Ambulance were contacted and attended and transported the victim to Dubbo Base Hospital. A crime scene was established and FSG were contacted via VKG and attending a short time later. Orana LAC detectives were notified and attended.”

The Department’s investigation

The NSW Department of Corrective Services undertook an investigation into the events of 22 and 23 September. After obtaining statements from all relevant officers a report dated 24 September 2007 was prepared. Mr Bullock, the investigation officer concluded:
“The K9 staff were involved in three separate altercations at the Pastoral Hotel on the evening of 22 September 2007. Conversation with the assailants would indicate they were aware the staff were Correctional Officers and were going to be aggressive toward them whilst in the hotel. At no stage did any of the staff consider removing themselves from this hotel to avoid confrontation. It is also of concern that two of the staff (Mr BARLOW and Mr WEEKES) was [sic] ejected from the hotel due to their perceived behaviour. If staff had of [sic] removed themselves from the hotel after the first altercation, it is highly probable further incidents would not have occurred and the officers would not have received the injuries they have know [sic] sustained due to the further altercations.
It is not clear what provoked the local men to attack the K9 staff. None of the staff recalled in their statements what Mr MAAS was arguing with them about or any conversation they had with him prior to the altercation, other than him referring to them as ‘screws’. During a conversation with Mr CLARKE [sic] on the afternoon of 23 September 2007, Mr CLARK informed investigators one of the assailants was abusive toward the K9 staff as he believed they were perving on his girlfriend.
Whilst the incidents which have taken place involving the K9 staff on 22 and 23 September could lead to public embarrassment to the Department, especially having Wellington Correctional Centre recently opened, it is uncertain as to what powers the Department has over staff who are on working trips, but where incidents happen outside their rostered hours of duty. Whilst this area of jurisdiction is unclear, it could be expected that a senior officer in charge of the team would keep matters under control and that the staff themselves would have the common sense and professionalism to avoid such confrontations in public places.”

THE ARBITRATOR’S REASONS

After the conclusion of submissions, the Arbitrator adjourned briefly and then delivered an oral decision. She provided brief reasons for her determination.
The Arbitrator accepted that Mr Weekes had travelled to a remote location to attend the course. The Arbitrator acknowledged that liability was the only matter for her determination, acknowledging that the extent of Mr Weekes’s injury and the quantum of his compensation were not in issue. After stating the facts briefly, the Arbitrator accepted that, in order to determine whether the worker had sustained an injury within the meaning of s 4 of the 1987 Act, given the facts of this case, the relevant test was enunciated in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis). The Arbitrator determined at T29.15 that, whilst attending the training course in Dubbo between 20 and 25 September 2007, Mr Weekes was engaged in a single period or episode of work, on the basis that the worker was required to attend the course over several consecutive days, being accommodated at his employer’s expense throughout the period. She found that the injuries sustained by Mr Weekes occurred in an interlude or interval within the overall episode of work.

The Arbitrator was satisfied that two senior officers within the Department of Corrective Services, Officer Barlow and Officer Smith, encouraged Mr Weekes and other officers within the unit to go out to dinner and have drinks together. She noted that the senior officer, Mr Barlow, was one of the members of the group who went to the Pastoral Hotel after having a meal at the local bowling club. Based on that evidence, the Arbitrator found that there was “expressed and/or implied encouragement to spend the evening together and that is, in fact, what happened”.
Notwithstanding that Mr Weekes was injured in the early hours of the following day, he was still in the course of his employment and his employment was a substantial contributing factor.

ISSUES ON APPEAL

The issues on appeal are whether the Arbitrator erred:
(a) in finding that the respondent was injured in the course of his employment;
(b) in the alternative, in finding that the respondent’s employment was a substantial contributing factor to the injury on 23 September 2007.

THE APPELLANT’S SUBMISSIONS
Injury – in the course of employment

The appellant submits that Mr Weekes was not engaged in actual work at the time of his injury. He was in an interval between actual periods of work. No-one contended otherwise at the hearing. The appellant identifies the relevant question as whether the injury which occurred between actual periods of work was in the course of employment, applying the principles set out by the plurality of the High Court in Hatzimanolis, in particular, at 485.
The question was whether the interlude in the overall period of work ought to be seen as part of the course of employment because the appellant had “expressly or impliedly, … induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way” (Hatzimanolis at 484). The appellant submits that such a factual finding is not available on a proper analysis of the evidence.
The only evidence going to the question of express or implied encouragement on the part of the appellant is contained in the applicant’s undated statement (extracted at [25]).
Previously, when attending training courses, attendees had been encouraged to socialise after hours. This included having drinks after classes, eating meals together, and staying in the same hotel.
In this instance, it was a supervisor, Steve Barlow, and dog-handler, Rick Smith, who suggested “we all go out for drinks and a meal together”.
The appellant’s first submission is that this falls short of encouragement, express or implied, on the part of the employer. It submits that, whilst it was “undoubtedly reasonably foreseeable” that a group of work colleagues would choose to dine together, this did not constitute encouragement per se.
In the alternative, if the suggestion made by Officers Barlow and Smith, combined with the respondent’s experience on previous occasions, were found to be such an encouragement, the appellant submits that it did not extend to going to the Pastoral Hotel some time between 9.30 and 10.00 pm on 22 September 2007 and staying at the hotel until after 1.00 am the next morning.
It is submitted that, whilst the evidence is silent in this respect, it is possible that the respondent worker was encouraged to go to the Pastoral Hotel by his colleagues. However, that cannot be construed as an encouragement to do so by his employer.
The appellant submits that, in order to succeed, Mr Weekes was inviting the Arbitrator to find that the appellant induced or encouraged him to go to the Pastoral Hotel at 10.00 in the evening and stay there until after 1.00 am the next day. The appellant submits “that there was no evidence of any express encouragement or inducement to behave in this way”. Attendance at the Pastoral Hotel was not considered, directed, countenanced, sanctioned or paid for by the appellant.
Except to the extent that employees of the appellant were present, there is no suggestion that the appellant even knew that its employees were attending the Pastoral Hotel. To find otherwise constituted error on the part of the Arbitrator.

MR WEEKES’S SUBMISSIONS

Apart from traversing the appellant’s submissions and rejecting them, Mr Weekes submits that the evidence supports the Arbitrator’s finding that he was induced or encouraged by his employer, through the two senior officers Barlow and Smith, to join his colleagues for an evening of socialising by eating the evening meal together and going out for drinks.
Mr Weekes rejects the submission that the express or implied encouragement or inducement to attend dinner and drinks did not extend to going to the Pastoral Hotel after the meal and remaining there until 1.00 am the next day. He submits that there is no evidence to support that submission which, he says, “appears to rely on the implication that remaining at the venue and socialising for this length of time was somehow unreasonable”. The respondent submits that, if the Commission is satisfied that there was express or implied encouragement or inducement to spend the evening dining, drinking and socialising with his co-workers as a team-building exercise, then his attendance was within the course of his employment on the Hatzimanolis test for as long as the gathering lasted.
At [7] of Mr Weekes’s submission, he submits:
“His attendance did not suddenly ‘fall out of employment’ at 10.00 pm or at 11.00, or at 1.00 am … There is no ‘Cinderella’ limitation attaching to the inducement. It does not cease to be an induced attendance at a work-related function and turn into something else at midnight. The fact that the function went on at the hotel after midnight is neither here nor there.”
Mr Weekes submits that it is irrelevant that he and his co-workers paid for their own drinks while at the hotel. It is not a necessary condition for a finding of inducement that the meal and drinks were paid for by the employer. Mr Weekes submits that, if such a payment were made, a more express form of inducement or encouragement may be shown, but its absence does not prove the negative proposition.
Mr Weekes submits, without citing any authority in support, that it is “not to the point” that the Department was unaware that its officers were attending the Pastoral Hotel. He submitted:
“Its senior personnel present expressly encouraged the Respondent and other employees present at the course to attend and that encouragement at least impliedly continued after the meal at the Bowlers Club when the group moved on to the Pastoral Hotel.”
Mr Weekes submits that this submission is supported by the fact that two senior officers did not object to going to the hotel and indeed they voluntarily joined in. He submits:
“Had there been any desire to end the function at this point it should have been a relatively simple matter for one or other of the senior officers present to bring proceedings to a close or at least to advise the workers present that they continued on on their own as it were, and leave.”

DISCUSSION

Section 9 of the 1987 Act provides that a worker who has received an injury is entitled to receive compensation from the worker’s employer in accordance with the Act. Section 4 defines injury to mean “personal injury arising out of or in the course of employment”.
It has long been recognised that, for the purposes of s 4, the course of employment is not identical with the period of employment of a worker or with the work which that person performs.
In Hatzimanolis, the High Court reconsidered the principles to be applied to the determination of injuries sustained during an overall period of work, but not directly arising out of employment duties. At [15], the plurality stated:
“The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day’s work has ceased lies not so much in the employer’s attitude to the way the interval between the periods of actual work were spent but in the characterisation of the period or periods of work of those employees. For the purposes of workers compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in an interval between two discrete periods of work.”
The reformulated test in Hatzimanolis requires in the first instance a determination of the characterisation of the period or periods of work as one overall period or episode of work, or two or more periods or episodes of work (Watson v Qantas Airways Ltd [2009] NSWCA 322 (Watson)).
The evidence established that Mr Weekes was required to travel from his home in Sydney to Dubbo to attend a dog-handling training course at the Wellington Correctional Centre between 19 or 20 September 2007 and 25 September 2007. During this period, Mr Weekes attended the course each day, completing his duties at around 4.00 pm. He was provided with accommodation for the period of his stay in Dubbo and he was provided with meal allowances.
The Arbitrator concluded at T29.15 that, whilst attending the training course in Dubbo, Mr Weekes was engaged in a single period or episode of work. She found at T29.13 that Mr Weekes was injured in an interlude or an interval within that episode of work. In my view, that is the correct characterisation of the period of work Mr Weekes was engaged in. That finding has not been challenged on appeal.
The question on appeal is whether the injury sustained by Mr Weekes occurring between actual periods of work was within the course of employment applying the principles set out by the plurality in Hatzimanolis.
The issue is whether the interlude in the overall period of work ought to be seen as part of the course of employment. In Hatzimanolis, the plurality stated at [16]:
“Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. … Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.” (emphasis added)
The Department has not alleged Mr Weekes was guilty of gross misconduct. Misconduct was not argued before the Arbitrator or on appeal and I make no findings on that issue.
The appellant submits that the only evidence on the question of express or implied encouragement is contained in Mr Weekes’s statement, the relevant passages being extracted at [25]. The evidence of encouragement or inducement is from the joint suggestion of Officers Barlow and Smith that “we all go out for drinks and a meal together”. The suggestion was made in the context that it had been Mr Weekes’s experience attending previous courses that attendees were encouraged to “team-build” by socialising after hours during the course.
There is only a passing reference in Mr Weekes’s evidence that participating in dinner and drinks with colleagues is consistent with “the Departments normal team building practice for course work”. Mr Weekes did not offer any evidence regarding those previous experiences in terms of when they occurred, how many of them he had participated in, what occurred during them or the extent to which he was encouraged to participate in them.
There is no evidence from the Department’s senior officers or from Mr Weekes’s colleagues regarding any team-building activities.
Mr Barlow’s evidence is silent on the question of any inducement or encouragement to spend the interval between the course times in any particular way, and Mr Smith gave no evidence at all. However, Mr Weekes’s evidence was not challenged and was accepted by the Arbitrator. I also accept his evidence that he was encouraged to go to dinner and drinks, but I do not accept his evidence that he was encouraged to stay out drinking until 1.48 am the following day. None of the other officers who gave evidence of the events of 22–23 September add anything further on the question of whether they were induced or encouraged to spend the interval on the evening of 22 September and the early hours of 23 September 2007 at any particular place or in any particular way.
However, there is no evidence by Mr Weekes, or the senior officers Barlow and Smith, or any of the other officers who were present concerning any discussion, inducement or encouragement by any senior officer of the Department to proceed from the bowling club, where the group had shared dinner and drinks, to the Pastoral Hotel for more drinks, which extended on into the early hours of the morning of 23 September 2007.
Officer Barlow merely said that, whilst off-duty and wearing civilian clothing, the group attended the Pastoral Hotel at about 11.30 pm on 22 September 2007. Officer Emmett described the attendance at the Pastoral Hotel as “an after-hours social gathering”. Officer Lawler described it as “an after-hours gathering”. Officer Breen said that he was attending “a social function at the Pastoral Hotel with other members of the unit”. Officer Barber also described it as “a social gathering”.
In determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment, and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen (Hatzimanolis at [16]). I am satisfied that, based on Mr Weekes’s evidence, the Arbitrator’s conclusion that Mr Weekes was encouraged by Officers Barlow and Smith jointly to go out for dinner and drinks with other members of the unit was correct. Having regard to the senior positions that Officers Barlow and Smith occupied, I am satisfied that this amounted to express inducement or encouragement on the part of the employer to join the group of officers for dinner and drinks after completing their duties on 22 September 2007. It follows that I reject the appellant’s submission that the evidence falls short of encouragement, express or implied, on the part of the employer, with respect to dinner and drinks at the bowling club.
The next question is whether Mr Weekes remained in the course of employment after he left the bowling club at about 9.30 pm on 22 September 2007.
Mr Weekes carries the onus to prove that the employer expressly or impliedly induced or encouraged him to spend the interval or interlude at a particular place or in a particular way (Hatzimanolis).
As noted in the text Workers Compensation NSW by C P Mills (at WCA 4.8):
“A finding that a worker was injured during an interval or an interlude in an overall period of employment does not mean of itself that the worker was injured during the course of employment. The crucial test is whether an employer expressly or impliedly induced or encouraged a worker to spend an interval at a particular place or in a particular way. The need to address this question was considered by the Court of Appeal in McMahon v Lagana [2004] NSWCA 164 (McMahon).”
In McMahon, Hodgson JA, (Santow JA and Stein AJA agreeing) said at [38]:
“I would comment that in my opinion the employer did induce of encourage the appellant’s living on the boat and his presence in Ulladulla; and in my opinion the relevant question is then whether the appellant’s activities at the hotel and going onto the wharf can reasonably be considered as so incidental to what was induced or encouraged by the employer as to be within that inducement or encouragement. This in my opinion is a question of fact and degree…”
Mr Weekes submits at [9] of his submissions that there was express encouragement to “attend”, without stating what he meant by the word “attend”. He did not state that he was encouraged to attend at the bowling club and at the Pastoral Hotel. Further, he submits that he was at least impliedly encouraged to move on to the hotel after the meal at the bowling club, but again without identifying any evidence of implied encouragement by his employer through its senior officers present at the time.
There is in fact no evidence in any of Mr Weekes’s three statements concerning any discussions of any form of inducement or encouragement by the appellant or any of its senior officers to have Mr Weekes attend the Pastoral Hotel at around 9.30 or 10.00 pm on 22 September 2007 and stay on until the early hours of the next morning, by which time, on his own admission, he was moderately intoxicated. Nor is there any evidence of inducement or encouragement by senior officers to any of his seven colleagues to go to the Pastoral Hotel after having a meal and drinks at the bowling club.
Mr Weekes’s evidence concerning the reason for leaving the hotel in the early hours of 23 September 2007 is disingenuous. He merely said at [12] of his undated statement that he decided to leave the hotel and return to his motel, whereas the police report clearly indicates he was forced to leave the hotel after he was seen punching a patron and was escorted off the premises by security staff. In his statement to police he said:
“9. A bit after that I recall a melee breaking out with the same bloke, this time he was wearing a different coloured shirt, it was blue. He came back and was having a go at our group and a melee began. I again just stood back and didn’t get involved. There were people I didn’t know involved and also security guards as well as some of my work colleagues attempting to protect themselves. As I stood back I saw a person not known to me, get off a lounge to my right and come towards the melee with his fists raised. In fear that he was about to assault my work colleagues or someone else I struck out with my right fist to stop his intending assault. It was just one punch and it stopped the threat and I immediately stepped back and so did the person I had struck. It was just a blocking punch to stop his attempt to assault someone.
10. A security guard immediately grabbed me and ushered me towards the front door. I walked from the pub unassisted and without incident, the security guard did not have to restrain me or force me from the hotel in anyway. I just walked out and even had my hands raised most of the time while I was walking.”
None of Mr Weekes’s colleagues offered any evidence about the circumstances in which Mr Weekes was ejected from the hotel. However, as counsel for the Department noted at (T25.18), “this man was ejected from the hotel having been seen punching a – not punching a person of interest. Not POI one, two or three. That’s why he was ejected from the hotel according to the statement”.
Mr Weekes’s evidence concerning his alcohol consumption is also unsatisfactory. In his undated statement at [11], he said he had two or three beers. In his statement to the police at [11], he said he had four schooners of full-strength beer at the time he was ushered out of the hotel. Mr Ford, however, said at [12] of his statement to the Police that he had been drinking in a shout with Mr Weekes and said that Mr Weekes had consumed at least eight schooners of Tooheys New. Wherever the truth lay, Mr Weekes said he normally drinks soft drink and he accepts that he was “moderately affected” by alcohol.
The evidence clearly establishes that some of the other officers with Mr Weekes during the evening were also affected by alcohol. Officer Emmett volunteered he was moderately affected. Tina Lawler acknowledged she was mildly intoxicated. Andrew Clark did not volunteer an assessment of his state of sobriety, but said he had consumed 10 schooners of full-strength beer and Chontel Barber said she definitely wasn’t drunk but said she was “tipsy or happy”.

The respondent’s submission at [104] that, once it is established that there was express or implied encouragement to spend the evening “dining, drinking and socialising with his co-workers as a team-building exercise … then his attendance was within the course of his employment on the Hatzimanolis test for as long as the gathering lasted” is without merit for two reasons. First, the evidence is that Mr Weekes was encouraged to join the group for “dinner and drinks”, not a drinking session that lasted until the next morning. Second, the worker will only be in the course of employment during an interval in an overall period or episode of work when the injury is sustained at a place or whilst engaged in an activity by virtue of the employer’s inducement or encouragement.
Although Mr Weekes carried the onus of establishing that he was induced or encouraged to spend the interval or interlude “at a particular place or in a particular way”, he offered no evidence of any inducement or encouragement by the employer or its senior officers regarding his attendance at the Pastoral Hotel. The evidence from his colleagues on this issue is all one-way, that is, that they understood their attendance at the hotel to be part of a social get-together, a decision they arrived at collectively, without any involvement by senior offices.
Mr Weekes further submits that, after having consumed their evening meal at the bowling club, there was at least implied encouragement to move from the bowling club to the Pastoral Hotel by reason of the fact that the two senior officers “did not object” to going to the hotel, and indeed they joined in. I also reject that submission. The fact that the two senior officers did not raise an objection and that they joined in with the rest of the group attending at the hotel does not establish that those officers singularly or jointly induced or encouraged Mr Weekes to attend at the hotel, let alone drink to the point of intoxication and engage in unruly behaviour into the early hours of the following morning.
Kirby ACJ (as he then was) said in WorkCover Authority (NSW) v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565 (Billpat) at 593:
“[M]ere authorisation is not enough to cast the protective net of the Workers Compensation Act. To give the very substantial protections which that Act affords, there needs, according to the majority opinion in Hatzimanolis, to be a more direct connection with the employer’s enterprise. This involves encouragement or even inducement by the employer.”
To the extent that the employer merely authorised Mr Weekes to go to the Pastoral Hotel, by its officers engaging with him in that activity, such authorisation would be insufficient to establish that he remained in the course of his employment thereafter (Billpat).
I have come to the conclusion that the evidence does not support the Arbitrator’s finding that Mr Weekes was still in the course of his employment when he was assaulted in the vicinity of the Pastoral Hotel in the early hours of the morning on Sunday 23 September 2007.
Contrary to the respondent’s submission, for the reasons I have given, there was a point reached during the evening when Mr Weekes ceased to be in the course of his employment. There was a point at which his activities and conduct could no longer be regarded as engaging in the encouraged activity of “dinner and drinks”. That point was probably reached at around 9.30–10 pm when he went with his colleagues to the Pastoral Hotel for more drinks after having had dinner and drinks at the bowling club. It may have been reached by 11.30 pm when his senior officer was asked to leave the hotel for fighting in the hotel, or it may have been reached after the group was involved in an alcohol-fuelled brawl or brawls with other patrons in the hotel, but it was certainly reached when Mr Weekes was escorted from the hotel at 1.48 am the following morning after being seen punching a patron in the circumstances outlined at [131].
In summary, what Mr Weekes did in going to the Pastoral Hotel at about 9.30 pm, and staying there drinking alcohol until 1.48 am the following morning, and engaging in physical altercations with the patrons at the hotel, could not, on any view, be seen as so incidental to what was induced or encouraged by the employer as to be within that inducement or encouragement (McMahon at [38]).
For the reasons given, it follows that the Arbitrator’s decision must be revoked and an award entered for the respondent.
Having regard to the findings on injury, it is unnecessary to consider the remaining grounds of appeal.

DECISION

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.

COSTS

Each party to pay his or its costs of the appeal.

Judge Keating

President
9 December 2010

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE