EDWARD WESTRUPP and BIS INDUSTRIES LTD - [2015] AATA 298

[2015] AATA 298

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/3702

Re

EDWARD WESTRUPP

APPLICANT

And

BIS INDUSTRIES LTD

RESPONDENT

DECISION

Tribunal
The Hon. R Nicholson, Deputy President

Date 5 May 2015

Place Perth
The Tribunal affirms the decision under review.

......(Sgd) Hon. R Nicholson......................................
The Hon. R Nicholson, Deputy President
CATCHWORDS
WORKERS’ COMPENSATION – employee injured during visit to tavern in mining town in which he resided – employee assaulted by co-worker in relation to employee’s farewell hug to female – employee between definite periods of engagement overnight – whether an interval within overall period of work – whether employees injuries arose out of or in the course of his employment – whether assault would not have occurred but for employee’s employment – whether employee at place of work for the purposes of his employment or was temporarily absent from that place during an ordinary recess in that employment
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)- s 5(1) – s 5A – s 6 (1)(a) – s 6 (1)(b) – s 14
CASES
Comcare v Mather [1995] FCA 1216
Comcare v PVYW [2013] HCA 41
Gregory v Comcare Australia (1997) 72 FCR 196
Hatzamanolis v ANI Corporation Ltd (1992) 173 CLR 473
Kennedy v Telstra Corporation [1995] FCA 1640
Kennedy v Telstra Corporation (1995) 61 FCR 160
Lee vTranspacific Industries Pty Ltd [2013] FCA 1322
Military Rehabilitation & Compensation Commission v Roberts (2007) FCA 1
REASONS FOR DECISION
Perth
5 May 2015
INTRODUCTION

The applicant applied for review of a decision made on 23 June 2014 affirming a determination made on 26 May 2014. By that determination the respondent denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’) in respect of ‘rotator cuff tears with rupture and retraction of the supraspinatus, infraspinatus and subscapularis tendons, right shoulder’ sustained on 26 March 2014. The denial was made on the basis that the applicant’s injury had not ‘arisen out of, or in the course of, his employment’ with the respondent.
The applicant gave evidence by way of a written statement, evidence in chief and cross-examination. Evidence was also given for the applicant by Mr Lewis Roberts and Dr Neil McGill. The respondent led evidence from Mr Duncan Roos, Operations Manager of the respondent and Dr Neil McGill.
FINDINGS OF FACT FROM APPLICANT’S EVIDENCE
The applicant was born on 7 November 1953. He is approximately 61 years of age and has been in the employment of the respondent since 2006.
The applicant’s normal place of residence is Pine Hill, New Zealand.
He is employed on a fulltime contract basis and works on a two weeks on and one week off roster, fly in/fly out. That could be to New Zealand. When not flying there the applicant may have driven to Leonora, Kalgoorlie or Perth during a break, but not a shift change.
Day shifts are from 05.30am to 17.00pm and the night shifts are from 17.30pm to 05.00am. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 298
Decision Date: 5 May 2015

CaseChat Overview and Summary

The case of Edward Westrupp and Bis Industries Ltd involved a dispute over workers' compensation for an injury sustained by the applicant, Edward Westrupp, during his employment with the respondent, Bis Industries Ltd. Westrupp, who worked as a contractor for BHP Billiton, was injured during a visit to the Tavern in Leinster, a mining town in Western Australia. The injury occurred when Westrupp was assaulted by a co-worker, Mr. Troy Jones, following a farewell hug to a female colleague, Lauren. The central legal issues were whether the injuries arose out of or in the course of Westrupp’s employment and whether he was at his place of work or temporarily absent during an ordinary recess in his employment at the time of the incident.

The court examined the nature of Westrupp’s employment, which involved a fly-in/fly-out roster with shifts changing on Wednesday evenings. Westrupp resided in the SPQ Leinster Mining Camp during his two-week work period. The court considered the timing of the assault, occurring outside the Tavern, and whether it was related to his employment or a personal social activity. The evidence established that Westrupp was not intoxicated and was not on duty at the time of the incident. The court held that the assault would not have occurred but for Westrupp’s employment, but it was not deemed to have arisen out of or in the course of his employment because he was between two discrete periods of employment and not during a normal work-related break. The court concluded that the assault did not qualify as an injury under the statutory provisions of the Workers Compensation Act.

In light of the findings, the decision of the Tribunal dated 23 June 2014 to affirm the reviewable decision was upheld. The court found that Westrupp’s injuries did not arise out of or in the course of his employment, and thus, he was not entitled to workers' compensation for the incident. The court’s decision was based on the lack of connection between the assault and Westrupp’s employment, as well as the absence of an ordinary recess in his employment at the time of the incident.

Orders

Orders of the court

The Tribunal affirms the decision under review.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant gave evidence by way of a written statement, evidence in chief and cross-examination. Evidence was also given for the applicant by Mr Lewis Roberts and Dr Neil McGill. The respondent led evidence from Mr Duncan Roos, Operations Manager of the respondent and Dr Neil McGill.FINDINGS OF FACT FROM APPLICANT’S EVIDENCE The applicant was born on 7 November 1953. He is approximately 61 years of age and has been in the employment of the respondent since 2006. The applicant’s normal place of residence is Pine Hill, New Zealand. He is employed on a fulltime contract basis and works on a two weeks on and one week off roster, fly in/fly out. That could be to New Zealand. When not flying there the applicant may have driven to Leonora, Kalgoorlie or Perth during a break, but not a shift change. Day shifts are from 05.30am to 17.00pm and the night shifts are from 17.30pm to 05.00am. The applicant’s shifts changed from day to night on Wednesday evenings so that he would commence night shift on a Thursday at 17.30pm. In the two weeks he is at work, he resides at the SPQ Leinster Mining Camp in Leinster, Western Australia. Leinster is owned by BHP Billiton. Leinster is described as a closed town as generally only individuals and their families that work within the operations are eligible to reside within Leinster. The housing area at Leinster Village is accommodated by BHP personnel, contractors and families and partners. The respondent is one of several contractors employed by BHP Billiton to carry out work pertaining to their specific skills. All contractors plus BHP personnel reside at either the Leinster fly in/fly out accommodation or the housing area. They are catered for with a dry and also a wet mess (‘the Tavern’) which are run by Spotless Catering under contract to BHP Billiton. The applicant’s accommodation was approximately 60 metres from the dry mess, that being where he ate breakfast and dinner, and where he assembled lunch from hot and cold food available. The Tavern is about 250 metres from the applicant’s accommodation. It provides drinks and an a la carte menu. It was no more than three minute walk from the applicant’s accommodation. Both the dry mess and the Tavern are usually open seven days a week. The Tavern will cater for visitors to Leinster, although the applicant has not seen members of the public in the Tavern. At about 18.15pm on 26 March 2014, the applicant went to the Tavern at the invitation of a friend Nathan, a BIS colleague, intending to have a couple of drinks. During the evening, he had about four drinks of Carlton Dry, but was not intoxicated. At about 21.00pm, Nathan had wanted to go home and they were standing outside by the smoker’s area. At the Tavern the applicant had recognised some Cape Crushing personnel. He engaged with a woman known as Lauren, whom he had known since 2006. The applicant went over to where Lauren was sitting, where about four other individuals were also sitting there, one of which he knew to be Mr Troy Jones. The applicant later discovered that although Mr Jones was off shift, he was still on call.

Decision

Reasons for decision

Finally the applicant submits that the injury was sustained ‘while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment’: s 6(1)(b) of the SRC Act. The evidence has established that the applicant was at the tavern for the purposes of meeting a friend and having a beer with him, not for any purpose related to his employment. There was no ordinary ‘recess’ here: the applicant was between two ordinary discrete periods of employment.CONCLUSION It follows that the reviewable decision dated 23 June 2014 should be affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3702
Re	EDWARD WESTRUPP
APPLICANT
And	BIS INDUSTRIES LTD
RESPONDENT

Tribunal	The Hon. R Nicholson, Deputy President
Date	5 May 2015
Place	Perth