| 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…
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- Case
- [2010] NSWWCCPD 127
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the interpretation and application of section 4 of the Workers Compensation Act 1987, specifically whether the Arbitrator correctly assessed Weekes' entitlement to compensation for injuries sustained during his employment. Additionally, the court needed to determine whether the principles outlined in the case of Hatzimanolis v ANI Corporation Ltd, as affirmed by the High Court, were appropriately applied to the facts of this case.
Dr D. Gray, in delivering the decision, meticulously reviewed the Arbitrator's findings and the relevant legal principles. The Commissioner concluded that the Arbitrator had erred in assessing the compensation award by not correctly applying the statutory provisions and the established legal framework. Consequently, the court revoked the Arbitrator's decision and substituted it with an award in favour of the Department of Corrective Services. The court also directed that there would be no order as to costs and that each party would bear their own costs for the appeal.
The final orders mandated that the original decision of the Arbitrator be revoked and replaced with a decision awarding the Department of Corrective Services. The court further stipulated that no costs would be awarded to either party, and each party would be responsible for their own costs incurred during the appeal process.
Orders
Orders of the court
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
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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