Doohan v North Shore Transport Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Doohan v North Shore Transport Pty Ltd [2012] NSWWCCPD 42
APPELLANT:		Sonny Doohan
RESPONDENT:		North Shore Transport Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-9130/11
ARBITRATOR:	Ms C D’Souza
DATE OF ARBITRATOR’S DECISION:		9 May 2012
DATE OF APPEAL DECISION:		10 August 2012
SUBJECT MATTER OF DECISION:		Adequacy of reasons; failure to weigh conflicting evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Walker Legal
Respondent:	Rankin Nathan Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 9 May 2012 is revoked and the matter is remitted to a different Arbitrator for re-determination. Costs of the first arbitration and of the second arbitration are to follow the event of the second arbitration. The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

INTRODUCTION

1. This appeal concerns the appellant worker’s right to compensation for injuries received by him during a physical altercation involving two co-workers on 3 August 2011. The critical issue argued before the Arbitrator was whether the worker’s conduct took him outside the course of his employment.

FACTUAL BACKGROUND

1. The appellant worker, Sonny Doohan, is a truck driver. On 3 August 2011, he was working as a driver for the respondent employer, North Shore Transport Pty Ltd. His offsider was Paul Morton. At about 10.30 am on 3 August 2011, Mr Doohan turned into the driveway to the loading dock at Artarmon Super Centre and found that a truck driven by a co-worker, Oscar Ellis, blocked access to the dock.

2. Mr Morton got out to speak with Mr Ellis, who was not initially in his truck, to ask him to move his truck to allow access to the loading bay. On Mr Ellis’s return to his truck a few minutes later, an argument developed between the two men in which Mr Morton used grossly offensive and insulting language. Mr Ellis got out of his truck and the two men then traded punches and ended up holding each other in headlocks on the ground while they continued to punch each other.

3. What happened next is the subject of conflicting evidence and was the focus of the dispute before the Arbitrator.

4. Mr Doohan’s version is that he approached the two men to try to stop the fight. He told them something to the effect of “c’mon guys we have work to do”, and tried to pull Mr Ellis’s hand off Mr Morton’s face. As one of the men said it was okay, Mr Doohan thought they were no longer going to fight and he backed off. Mr Ellis then got up and threw a phone at Mr Doohan and started coming at him yelling. Then Mr Ellis’s offsider, Johnny Kautai, arrived and said something that got Mr Morton’s attention. At that moment, Mr Ellis punched Mr Doohan three or four times in the left eye, nose and right ear.

5. Mr…