Duckworth v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 112
•9 June 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Duckworth v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 112 |
PARTIES: | Duckworth, Rodney James v |
CASE NO: | Simon Blackwood (Workers' Compensation Regulator) WC/2014/344 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 9 June 2015 |
HEARING DATES: | 8, 9 and 10 April 2015 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS: | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Regulator's costs of and incidental to the appeal. |
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where appellant suffered serious head injuries when involved in a physical altercation - whether appellant disentitled to compensation because his injuries were caused by his serious and wilful misconduct - where harassed by another employee - where employer failed to address responsibilities - where employer did not want or condone fighting on his premises - determined worker engaged in serious and wilful misconduct - determined serious and wilful conduct of worker not at the express or implied direction of employer - whether the injury arose out of or in the course of employment - whether employment was a significant contributing factor to the injury - appeal dismissed. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, S 130(1), (4) Australia Meat Holdings Pty Limited v Q-COMP 186 QGIG 527 R.E.C. Group Pty Ltd v Q-COMP (WC/2009/20) - Decision < Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 Keefff Taylor-Lawton v Q-COMP (Unreported, Industrial Magistrates Court of Queensland, Lee IM, 19 April 2010) |
| APPEARANCES: | Ms S. Anderson, Counsel instructed by Shine Lawyers for the Appellant. |
Decision
Rodney Duckworth suffered serious head injuries when he was involved in a physical altercation at his workplace with another employee. Mr Duckworth spent about one week in intensive care as a result of the head injuries he sustained and has not worked since the incident. He is now cared for by his second son.
Mr Duckworth was denied workers' compensation for his injuries. He appeals against that decision. The key issue in this appeal is whether Mr Duckworth is disentitled to compensation because his injuries were caused by his serious and wilful misconduct.
The Legislation
Section 130 of the Workers' Compensation and Rehabilitation Act 2003 provides:
"(1) Compensation is payable for an injury sustained by a worker that is caused by the worker's serious and wilful misconduct only if -
(a) the injury results in death; or
(b)the insurer considers that the injury could result in a DPI of 50% or more.
. . .
(4) In this section -
serious and wilful misconduct of a worker does not include conduct engaged in at the express or implied direction of the worker's employer."
Case Law
The phrase "serious and wilful misconduct" was considered by Hall P in Australia Meat Holdings Pty Limited v Q-COMP:
"This Court is concerned only with the issue whether the 'wilful misconduct' upon which Mr Richardson chose to engage is properly characterised as 'serious misconduct'. In embarking upon that task, the Court is assisted by the circumstance that the parties are ad idem that in the expression 'serious and wilful misconduct' the word 'and' is used in a conjunctive and not disjunctive sense. It is also conceded by Counsel for the Appellant that the language precludes any argument that 'wilful misconduct' is always 'serious misconduct'. Counsel maintain, in my view correctly, that the circumstance that misconduct is 'wilful' may be taken into account in weighing its 'seriousness'.
The expression 'serious and wilful misconduct' and the rival expression 'serious or wilful misconduct' have been much considered in employment-related litigation and in particular in connection with disentitlement to workers' compensation benefits for over a hundred years, see e.g. Johnson v Marshall, Sons and Co Ltd [1906] AC 409. Each of the words 'serious', 'wilful' and 'misconduct' is capable of bearing different shades of meaning, Australasian Meat Industry Employees Union v Australian Meat Holdings Pty Ltd [1999] FCA 96 at paragraph 87 per Dowsett J. In the present context, notwithstanding that the adjective 'serious' is used to describe the misconduct and is not used with reference to consequences of the misconduct, it seems to be settled that the seriousness of the misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non-trivial injury, see Johnson v Marshall, Sons and Co Ltd, ibid, at 416. I do not, however, accept the proposition contended for by the Industrial Magistrate in reliance upon the decision of Green CJ in Hills v Brambles Holdings Ltd (1987) 4 ANZ Insurance Cases 60-785, that for conduct to amount to serious and wilful misconduct, it must 'be such as to give rise to immediate risk of serious injury.'. I respectfully adopt the view of Finn J in Comcare v Calipari [2001] FCA 1534 at paragraph 4, where His Honour said of the quoted passage:
'This usage is unexceptional if it is understood as signifying no more than the converse of trivial injury. It was intended to signify more than that and apostolate a positive requirement, it can find no justification in the terms of the statute itself, nor in the general run of authoritive (sic) expositions of the formula.'.
Neither do I accept that a claimant worker is disentitled to workers' compensation benefits only where the evidence shows that the worker had 'knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk', see Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; (1999) 18 NSWCCR 109 at paragraph 24 per O'Meally J. The requirement that the misconduct must be 'wilful' adequately protects injured workers who might otherwise lose everything because of a momentary lapse into carelessness. It is a statutory gloss to go beyond weighing wilful risk taking in the balance and to confine s. 130 to such cases. For the same reason, I also reject the proposition of Green CJ in Hills v Brambles Holding Ltd (1987) 4 ANZ Insurances Cases 60-785, that the defence is available only where the misconduct is 'accompanied by an appreciation of the risk which is involved in it'. The preferable approach is that of Derrington J in Boral Resources (QLD) Pty Ltd v Pyke [1992] QdR 25 at 43, that the 'necessary knowledge and appreciation need not descend to particularity' and that an 'appreciation of possible danger or of factors which might enlarge it' may be sufficient to justify characterisation of the 'wilful misconduct' as 'serious'. Beyond those observations, it seems to me that the relatively simple language of s. 130 should not be overlayed with gloss and the question whether 'misconduct' is to be characterised as 'serious' should be dealt with as a jury question, compare Boral Resources (QLD) Pty Ltd v Pyke [1992] 2QdR 25 at 33 per Thomas J."[1]
[1] Australia Meat Holdings Pty Limited v Q-COMP 186 QGIG 527.
In the decision R.E.C. Group Pty Ltd v Q-COMP,[2] Asbury C drew on the judgment of Derrington J in the case of Boral Resources (Queensland) Pty Ltd v Pyke referred to by President Hall in Australia Meat Holdings. She said that although Derrington J was considering a case concerning an insurance contract, he provided some useful guidance on the construction of the essential phrase "serious or wilful misconduct". He observed that because it is a substantial detriment for an employee to be deprived of the relief provided to employees generally by the section, appropriate caution must be exercised in its construction.
[2] R.E.C. Group Pty Ltd v Q-COMP (WC/2009/20) - Decision <>
In considering the term "serious misconduct", His Honour Derrington J held that it must be something significantly worse than negligence and "must imply the need for such a degree of gravity as to make it fair and just that the employee should be deprived of the benefit of the relief." Further, it was held that:
"In order to be serious, the misconduct, although it may be so, need not be wilful in the sense of demanding recognition of its wrongfulness or deliberately reckless disregard of the risks ...".
and
"… although the standard is objective, this does not mean that factors personal to the (employee) should be ignored."
In relation to the term "wilful misconduct" Derrington J held:
"First it may amount to intentionally causing the loss. Secondly it may alternatively mean an intentional or deliberately reckless course of misconduct with knowledge that it is dangerous and wrong, that is an unreasonable perseverance in it with a recognition of its wrongfulness and a reckless disregard of any risks...".[3]
[3] Boral Resources (Queensland) Pty Ltd v Pyke [1992] 2 Qd R 25 at 43.
Brief Facts
The physical altercation in which Mr Duckworth was injured occurred on 7 May 2014. It has to be considered in the context of the treatment of Mr Duckworth by another employee, Martin Cameron. Both were employed to drive trucks. Mr Duckworth also performed mechanical work on various trucks.
It appears the truck Mr Duckworth was driving was owned by Jason Boardman Pty Ltd which was hired to another entity, Boardman Sand and Gravel. There is some confusion in the evidence as to which entity was Mr Duckworth's employer, although nothing turns on this. It is clear that Jason Boardman had senior roles in each entity. For ease, the employer will be referred to as "Boardmans". Mr Duckworth commenced employment with Boardmans after a five year period where he was recovering from Post Traumatic Stress Disorder. Mr Duckworth was very happy to have gained this employment and said truck driving was his life.
Mr Duckworth claimed that Mr Cameron had called him names and pretended to cry over the two way radio. Mr Duckworth interpreted the crying as Mr Cameron "having a go at me thinking that I whinged". In the early stages of his employment, Mr Duckworth and Mr Boardman had a good working relationship and often discussed issues relevant to the business. Although he denied pretending to cry, Mr Cameron agreed he mimicked people and gave people nicknames. He agreed he called Mr Duckworth, "Duck Boardman" or "Boardman". He considered this to be joking behaviour and acknowledged that it occurred more than once. As much as Mr Cameron attempted to downplay his actions, I accept that since his return to work at Boardmans in March 2014, he had been engaged in calling Mr Duckworth names and pretending to cry over the two way radio. I further accept that such behaviour constituted harassment of Mr Duckworth.
I am satisfied that on Good Friday 2014, Mr Duckworth complained about his treatment by Mr Cameron to Wendy Boardman, the Director of Boardman Sand and Gravel and Mr Boardman's mother. Mr Duckworth had gone to the office to obtain a quote for some work he thought the company would be interested in. Whilst there, he took the opportunity to speak to Wendy Boardman about being harassed by Mr Cameron, including the name calling. Mr Duckworth's wife, Tracey, was with him. Wendy Boardman offered to hold a tool box meeting to address the issues raised as well as taking other action, however, Mr Duckworth declined because he did not want to cause trouble.
While talking to Wendy Boardman, Mr Boardman entered the room and became involved in the conversation. I accept he was disinterested in the issues being raised by Mr Duckworth and refused to become involved in resolving them. I am satisfied that Mr Boardman said to Mr Duckworth words to the effect of "if you want to sort it out outside of work that's your business". However, it is clear Boardmans had a policy known to employees that fighting at work would result in dismissal.
The name calling and pretend crying did not cease. Mr Duckworth told Merrill Boardman, Mr Boardman's wife, and Michael Winnell, then a truck driver and unofficial supervisor, of this harassment.
Mr Duckworth also claimed to have reported his concerns about Mr Cameron at other times to Mr Boardman, however, he said that Mr Duckworth had only complained the one time before the incident, on Good Friday and Mr Cameron's name was not mentioned. I do not accept that evidence. It was clear that Mr Boardman was not interested in dealing with or resolving concerns raised by employees. His reference to Mr Duckworth "whinging" is indicative of his attitude when complaints by Mr Duckworth were raised.
That Mr Boardman was aware of Mr Duckworth's concerns is confirmed by the evidence of Merrill Boardman who said that she had told him about this and suggested a means of resolution. Mr Boardman denied any such conversation occurring. I am aware that Jason and Merrill Boardman are going through a bitter divorce and have jaundiced views of each other. Nonetheless I accept Merrill Boardman's evidence that she relayed Mr Duckworth's concerns to her husband; suggested a means of resolution and it was dismissed. I also accept the evidence of Mr Winnell that he told Mr Boardman of Mr Duckworth's complaints. While employed, Mr Winnell and Mr Boardman were "best mates". That relationship also ended badly and Mr Winnell does not remain employed by Boardmans. However, because of their former relationship I am satisfied that Mr Winnell passed on Mr Duckworth's concerns about Mr Cameron to Mr Boardman.
Mr Duckworth became increasingly frustrated with Mr Cameron's behaviour. Although they reference different dates, Mr Boardman and Mr Duckworth agree that at one point Mr Duckworth said he might end up bashing Mr Cameron if the harassment continued.
On 7 May 2014, while Mr Duckworth was at a service station to refuel, he heard Mr Cameron pretending to cry and calling him "Duck Boardman". Mr Duckworth had reached the limit of his tolerance for Mr Cameron's comments. He called Mr Cameron a "wanker" and told him to "stop it". After a further exchange, Mr Duckworth said words to the effect that he wanted to sort the matter out in the yard that afternoon. While Mr Duckworth said that he added the words "with Jason", neither Mr Cameron nor Ricky Walker heard that. Mr Cameron also stated that Mr Duckworth said, "We'll sort it out in the yard this arvo. I'm going to fucking bash you." However, Mr Walker did not hear the "bashing" comment and Mr Duckworth denied making it.
Mr Cameron denied he had said anything to provoke Mr Duckworth's response. He was only engaged in having "a yarn" or "a giggle" but conceded he mimicked another driver (not Mr Duckworth). He denied making the crying sound. He acknowledged Mr Duckworth called him a "wanker" and his response was to call him "Duck Board". I do not accept Mr Cameron's evidence that he had not said anything to warrant Mr Duckworth's response on the radio.
Mr Cameron then asked if Mr Duckworth was at the service station as he wanted to come over and sort the matter out. He denied that his question was a prelude to a fight. He wanted to talk about the matter directly rather than over the two way. Mr Duckworth replied that they would sort the matter out that afternoon with Mr Boardman. Mr Duckworth explained that "sorting the matter out" meant having a conversation with Mr Cameron in the presence of Mr Boardman. He did not intend to have a physical fight with Mr Cameron because he understood him to be an ex‑cage fighter. Further, he understood that fighting in the workplace would lead to dismissal.
Mr Cameron ceased work earlier than Mr Duckworth and returned to the yard. Before he left the work premises Mr Cameron sat in his car speaking with Mr Boardman. Merrill Boardman also participated in some of the conversation. Mr Cameron had told Mr Boardman of the conversation that morning where Mr Duckworth had threatened to "sort the matter out that afternoon." When Mr Duckworth drove into the yard quite quickly, Mr Cameron decided he should leave and Mr Boardman agreed. He began to drive out of the yard.
Mr Boardman said that Mr Duckworth took off his glasses and put them on the fuel tank before running towards Mr Cameron's vehicle yelling and screaming. Mr Cameron also said Mr Duckworth did not have his glasses when he was yelling to him to get out of the car and threatening to bash him. He had not seen him without his glasses before.
Mr Duckworth said that as he drove into the yard he saw Mr Cameron in his vehicle speaking to Mr Boardman. Mr Duckworth alighted from his vehicle and on his version, hung up his keys and briefly spoke to an apprentice before going out into the yard. The apprentice said the conversation did not occur that day. Mr Duckworth denies taking off his glasses and making the threat to bash Mr Cameron but acknowledges he was yelling for him to stop.
There is some difference in the evidence as to whether Mr Cameron stopped the vehicle or stopped and reversed.
When he caught up to the vehicle, Mr Duckworth said he reached inside and put his left arm across Mr Cameron's arm to prevent him swinging at him in the event he had a bat or a bar. Mr Cameron does not recall Mr Duckworth doing that.
Mr Cameron started to open the door when Mr Duckworth grabbed it and opened it the rest of the way. Mr Cameron alighted from the vehicle and said "Are you sure about this?" in response to Mr Duckworth's threats to bash him. Again, Mr Duckworth denied he made threats to bash Mr Cameron. They yelled and swore at each other. Mr Duckworth described it as "going toe-to-toe". Mr Duckworth said Mr Cameron grabbed him on his left shoulder and he responded by grabbing Mr Cameron's right shoulder with his left hand. Mr Cameron denied grabbing Mr Duckworth and said there was no time for Mr Duckworth to grab him.
Mr Duckworth has no recollection of subsequent events.
Mr Cameron threw a punch with his left hand which felled Mr Duckworth. He collapsed backwards, hitting his head on concrete. Attempts were made to make Mr Duckworth comfortable and the police and ambulance were called. Mrs Duckworth was also contacted and she arrived at the yard with one of her sons with the other two following.
Aaron and Jacob Duckworth, two of Mr Duckworth's sons, gave evidence that they did not witness any injuries to Mr Cameron. However, Mr Cameron said that after he asked Mr Duckworth whether he was "sure about this", and before he knew it, he received a punch to his left jaw. When this occurred, Mr Cameron said he believed Mr Duckworth was "really going to bash him". He stumbled to his right and Mr Duckworth came at him again. At that point Mr Cameron acted in self-defence and punched Mr Duckworth in his left eye. (The injury was in fact to the right eye.) That Mr Cameron received treatment from the ambulance officers called to the scene was supported by Mr Boardman. Mr Cameron also told Merrill Boardman that Mr Duckworth had hit him in the jaw. Mr Duckworth has no recollection of hitting Mr Cameron.
Did Mr Duckworth engage in serious and wilful misconduct?
The case for Mr Duckworth, which was presented carefully and skilfully, is that his conduct on 7 May 2014 was neither serious nor wilful misconduct. He did not intend to fight Mr Cameron but was seeking a peaceful resolution of a problem that had been created by Mr Cameron and left unresolved by Mr Boardman. Mr Duckworth's injuries were caused by being struck in the head by Mr Cameron. Although Mr Cameron claimed to be injured, his injuries were minimal or non-existent. In any event, Mr Cameron's response was disproportionate to Mr Duckworth's conduct. Further, Mr Cameron had the opportunity to drive away and avoid any sort of confrontation but rather than doing this he stopped his vehicle, alighted from it to engage with Mr Duckworth. This occurred in circumstances where he was allegedly concerned that Mr Duckworth was going to bash him. Mr Duckworth's injuries were not caused by his own actions.
It should be noted that it was the Regulator's position that Mr Duckworth had engaged in serious and wilful misconduct, however, the Commission was not assisted by its submissions on the law pertaining to s 130 of the Act and its application to this case.
Findings about the altercation: The only witnesses to the incident on 7 May 2014 were Mr Duckworth and Mr Cameron. Because of his serious head injuries, Mr Duckworth's memory is severely impaired. Mr Cameron had to be cautious given possible legal ramifications. The incident happened very quickly. For these reasons, and, because there was no independent eye witness to the circumstances leading to Mr Duckworth being struck, and importantly, whether he threw the first punch, it is necessary for the Commission to make findings of fact based on the competing evidence. Despite Mr Duckworth's impairment, he had some quite clear recollections of the events of 7 May 2014 in Boardmans' yard and I have relied on these to help establish what happened and the role of both men in the altercation.
The witnesses generally agreed that Mr Duckworth was a peaceful man and one who would not seek to engage in a physical altercation. Further, Mr Duckworth had only just returned to work after a long period away from employment and he did not want to jeopardise that. He also had a number of family issues which meant that he could not afford to be without work. He was aware that fighting in the workplace would lead to his dismissal.
For these reasons I accept that on 7 May 2014, Mr Duckworth was not originally looking for an altercation and he intended to seek to discuss his concerns with Mr Cameron in the presence of Mr Boardman. However, the evidence establishes that he realised a physical altercation was a possibility. Firstly, Mr Duckworth acknowledged he had told Mr Boardman sometime earlier than 7 May 2014 that he might end up bashing Mr Cameron if the harassment continued. Mr Duckworth also said that on 7 May 2014 he told another worker that as a result of the exchange earlier that morning he thought Mr Cameron would "flog him" and he would "end up in an ambulance" later that day. He held this opinion because of his understanding that Mr Cameron was an ex-cage fighter, although this was denied by Mr Cameron. Finally, on Mr Duckworth's own evidence, he put his arm across Mr Cameron's arm because he thought he might be hit by a blunt instrument.
Mr Duckworth could have allowed Mr Cameron to leave the yard when he saw Mr Cameron driving away but he panicked. He chased down the vehicle yelling for Mr Cameron to stop as he did so. I accept there was no impediment to Mr Cameron leaving the yard and his stopping the vehicle, alighting from it and asking Mr Duckworth whether he was "sure about this" materially impacted on the course of events.
Mr Duckworth acknowledged being "worked up" after chasing the vehicle and his subsequent behaviour of grabbing at the door to the vehicle and yelling and swearing evinces his agitation. Mr Cameron's questions of "Are you sure about this?" demonstrate that not only was he ready to engage in a fight but that Mr Duckworth was too. When Mr Duckworth opened the door to the vehicle, he was much invested in the dispute. His original intention to avoid an altercation was forgotten; overtaken by his anger and pent-up frustration with Mr Cameron.
I am satisfied that they grabbed each other's shoulder. Mr Cameron had hold of Mr Duckworth's left shoulder and Mr Duckworth grabbed Mr Cameron's shoulder with his left hand leaving his right hand free to punch Mr Cameron on his left jaw, where Mr Cameron said he was hit. It also allowed Mr Cameron's left hand to be free to retaliate, punching Mr Duckworth in his right eye. Being struck by Mr Duckworth's right hand accounts for the minor injury Mr Cameron sustained to his jaw. Further, he must have been struck first before he punched Mr Duckworth who, after being hit, was in no condition to retaliate. It is implicit in this finding that I accept that Mr Cameron received a minor injury in the altercation. In this regard also, I accept the evidence of both Mr Cameron and Mr Boardman that Mr Cameron was checked by an ambulance officer who attended. Mr Cameron also said he consulted his doctor the next day and had an X-ray taken.
I am also satisfied that Mr Duckworth was not wearing his glasses when he was punched by Mr Cameron. Had he been doing so then it could reasonably have been expected that Mr Duckworth would have suffered cuts to his eye socket, cheek or forehead. These are not apparent on the photograph taken of Mr Duckworth showing his head injuries. I do not find that Mr Duckworth took off his glasses and put them on the truck. At the point he saw Mr Cameron driving out of the yard he was in a state of panic and I do not consider that he would have removed them in that condition. It is more likely that he lost them as he ran towards Mr Cameron's vehicle.
Did Mr Duckworth engage in serious misconduct?: Section 130 of the Workers' Compensation and Rehabilitation Act 2003 disentitles a worker to compensation when the worker sustains an injury that is caused by the worker's serious and wilful misconduct except in two specific circumstances. Neither of the two circumstances apply in this case.
The decision in Australian Meat Holdings establishes that in the phrase, "serious and wilful misconduct", the word "and" is used in the conjunctive sense so the misconduct has to be both serious and wilful. Thus the Commission is required to consider whether Mr Duckworth's conduct can be so characterised.
Given that Mr Duckworth had engaged in a physical altercation and has been found to have thrown the first punch, I am satisfied that his conduct can be characterised as misconduct.
In Boral Resources, Derrington J referred to factors personal to the employee as being relevant to the determination as to whether conduct could be considered serious misconduct. Here, those personal factors were Mr Duckworth's knowledge, or reasonable anticipation, of the danger of engaging in an altercation with Mr Cameron, a man he believed to be an ex-cage fighter.
In Australia Meat Holdings Pty Limited v Q-COMP, Hall P said:
"It seems to be settled that the seriousness of the misconduct is to be evaluated having regard to whether the conduct would be attended by the risk of non‑trivial injury."[4]
[4] Australia Meat Holdings Pty Limited v Q-COMP 186 QGIG 527.
Mr Duckworth's conduct in chasing after Mr Cameron, opening the door of his vehicle and going "toe-to-toe" with him, was such that his conduct would be attended by the risk of non-trivial injury especially given his belief about Mr Cameron's fighting experience.
I am satisfied that Mr Duckworth engaged in serious misconduct.
Did Mr Duckworth have a momentary lapse into carelessness?: The continuing harassment, the refusal by Mr Cameron to engage in a resolution, his leaving the yard on Mr Duckworth's arrival and Mr Boardman doing nothing to prevent his departure were all provocative to a man who was in a state of distress. However, I reject that Mr Duckworth's actions could be characterised as a momentary lapse into carelessness. At the point he decided to chase Mr Cameron's car he panicked but was not then "worked up". He became so after chasing it, yelling at Mr Cameron as he did so. He became reckless when he grabbed at the door and opened it. These actions escalated the situation to a point where it became dangerous. He could have walked away when Mr Cameron asked him whether he was sure in relation to engaging in a fight. Instead, he continued to engage in behaviour which further escalated the situation.
Did Mr Duckworth engage in wilful misconduct?: I am also satisfied that Mr Duckworth embarked on an intentional or deliberately reckless course of misconduct with knowledge that it was dangerous and wrong. He knew it was dangerous or that the danger might be enlarged because of Mr Cameron's alleged background and it was wrong because he knew that fighting in the workplace would lead to summary dismissal. For these reasons, I find that Mr Duckworth engaged in wilful misconduct.
Conclusion: In all of the circumstances I find that Mr Duckworth engaged in serious and wilful misconduct.
What caused Mr Duckworth's injury?
The primary argument advanced by the Appellant is that Mr Cameron's punch caused Mr Duckworth's injury. As a result, s 130 of the Act does not apply. In the alternative, the injury is compensable because Mr Boardman impliedly directed Mr Duckworth to engage in misconduct by advising Mr Duckworth to resolve his problems directly with Mr Cameron.
Mr Cameron's punch?: It matters not that Mr Cameron engaged in serious and wilful misconduct by throwing the knockout blow. Further, I reject the submission of the Appellant that the only cause of Mr Duckworth's injuries is Mr Cameron's punch. To accept it means that the antecedents of the fight, specifically Mr Duckworth's role in the lead up to it must be ignored. It is not a case of accepting "boys being boys" but recognising that Mr Duckworth was the initial agitator who engaged in serious and wilful misconduct which in turn caused him to be seriously assaulted.
Is the injury removed because of the operation of s 130(4)?: The second argument advanced by the Appellant is that Mr Boardman implied that Mr Duckworth had to sort out his problems with Mr Cameron himself. Mr Boardman failed to address his responsibilities as an employer. Accordingly, it is submitted that Mr Duckworth's actions are removed from s 130 of the Act by subsection (4) which provides that serious and wilful misconduct of a worker does not include conduct engaged in at the express or implied direction of the worker's employer.
This submission is rejected. The Commission accepts that Mr Boardman did not want to engage in the resolution of issues between drivers and suggested to Mr Duckworth that he could sort out his issues outside of work. However, s 130(4) requires the employer to issue an express or implied direction to engage in the conduct. It is clear Mr Boardman did not expressly direct Mr Duckworth to engage in fighting either on or off the premises. Further, I do not accept that the conduct engaged in by Mr Duckworth was at the implied direction of Mr Boardman. I reject Mr Duckworth's claim that on 7 May 2014 Mr Boardman said words to the effect of "take them down the back and flog them". If there is one thing Mr Boardman was certain about in his evidence, and which I accept, it was that he did not want or condone fighting on his premises. His dismissal of Mr Cameron for fighting on 7 May 2014 highlights his attitude to fighting, and specifically, fighting in the workplace.
Mr Boardman's comment to the effect of "if you want to sort it out outside of work, that's your business", is short of what is required to be a direction. I consider the word "direction" in this context of s 130(4) of the Act means an instruction, command or order. There is nothing in a suggestion to sort matters out outside of the workplace that can be implied as an instruction, command or order to engage in fighting in the workplace.
The injury is not removed from s 130 by the operation of subsection (4).
Conclusion: Mr Duckworth's injury was caused by his serious and wilful misconduct.
Was employment a significant contributing factor to the injury?
In light of my findings above, it is strictly unnecessary to consider the question of whether the injury falls within the meaning of s 32(1) of the Act. However the argument made by Counsel for the Appellant that employment was a significant contributing factor to the injury will be considered in light of the reliance on the decision of the Industrial Magistrates Court in Keefff Taylor-Lawton v Q-COMP,[5] an appeal which is very similar on its facts to the present matter.
[5] Keefff Taylor-Lawton v Q-COMP (Unreported, Industrial Magistrates Court of Queensland, Lee IM, 19 April 2010).
In the case before the Industrial Magistrate, Mr Taylor-Lawton, a truck driver, had been harassed at work by another truck driver, a Mr Carroll. The two co-workers had no relationship outside of work and their only contact was while at work for the employer. Both Mr Taylor‑Lawton and his partner, who also worked for the business, had reported the harassment to their immediate supervisor who had fobbed off both of them. After making the reports, Mr Taylor-Lawton was speaking to another driver in the cab of that driver's truck in which Mr Carroll was a passenger, when Mr Carroll alighted. A verbal argument ensued between Mr Carroll and Mr Taylor-Lawton in which Mr Taylor-Lawton became "very verbal" then Mr Carroll punched Mr Taylor‑Lawton.
His Honour Lee IM found Mr Taylor-Lawton had not engaged in serious and wilful misconduct because he had not provoked the assault despite him becoming very verbal immediately before being assaulted. He found Mr Carroll to have been the initial agitator prior to the assault.
His Honour also held that the injury arose out of or in the course of employment and employment was a significant contributing factor to the injury. His Honour made the finding that employment was a significant contributing factor to the injury because:
· the two co-workers only had contact at work;
· the employment created the angst between the two co-workers;
· Mr Taylor-Lawton complained to management about the harassment and nothing was done; and
· Mr Taylor-Lawton was engaged in activity reasonably incidental to his work when the assault occurred.
Except for the latter dot point, the factors identified by Lee IM are apposite to the present matter. I am also satisfied that Mr Duckworth had not finished work for the day when the events took place. I accept his evidence that although he had returned to the yard he was to continue to work by performing mechanical work for Boardmans.
The finding that Mr Taylor-Lawton was engaged in activity reasonably incidental to his work when the assault occurred is one of the key distinguishing facts between the two cases. Although the point of running after Mr Cameron was to have him engage in discussing their differences, which could be considered to be an activity reasonably incidental to his employment, his subsequent actions were a significant departure from this. He was also the initial agitator. By putting his arm across Mr Cameron's, assisting in opening the car door, going "toe to toe" with him, then throwing the first punch, Mr Duckworth took himself outside the course of his employment. For these reasons employment could not be a significant contributing factor to the injury.
Orders
The Commission makes the following Orders:
1. The appeal is dismissed.
2. The decision of the Regulator is confirmed.
3. The Appellant is to pay the Regulator's costs of and incidental to the appeal.
2