Gosaye v Damorange
[2021] VMC 19
•5 November 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION OF COURT
Case No. L12935289
| Genene GOSAYE | Plaintiff |
| v | |
| DAMORANGE PTY LTD | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne (via WebEx) |
DATE OF HEARING: | 21 – 22 October 2021 |
DATE OF DECISION: | 5 November 2021 |
CASE MAY BE CITED AS: | Gosaye v Damorange |
MEDIUM NEUTRAL CITATION: | [2021] VMC 19 |
REASONS FOR RULING
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CATCHWORDS – Workers compensation – Rejected claim – Assault – Arising out of or in the course of employment – Serious and wilful misconduct – Standard of proof - Workplace Injury Rehabilitation and Compensation Act 2013, ss 39(1), 40(5) – Evidence Act 2008, ss 140(1), 140(2).
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr R. Lewis | Maurice Blackburn Lawyers |
| For the Defendant | Mr J. Batten | IDP Lawyers |
HER HONOUR:
INTRODUCTION AND OVERVIEW
In the early hours of Saturday 20 July 2019, a physical altercation occurred (‘the altercation’) between two employees of the defendant, Damorange Pty Ltd (‘Damorange’) at its Werribee South premises (‘the workplace’). One of those involved in the altercation was the plaintiff, Mr Gosaye.
As for what had happened just before the altercation, Mr Gosaye, in his Amended Statement of Claim dated 19 October 2021, alleged as follows:
On 20 July 2019, the plaintiff was at the truck depot of the defendant [in] Werribee South 3030 when he accidentally backed a trailer attached to his truck into the trailer of a co-worker, Mr Adam Treacy (‘Treacy’) (‘the bingle’).
It was not disputed that the bingle had occurred as pleaded nor that the altercation between Mr Gosaye and Mr Treacy followed the bingle.
In the course of the altercation, Mr Gosaye was assaulted (‘the assault’). As a result of the assault, Mr Gosaye pleaded injuries as follows:
(a) Multiple physical injuries including: Left eye injury; Broken nose; Damaged teeth; Facial cuts and abrasions; Right lower rib injury; Aggravation of pre-existing low back injury; and
(b) Psychological injury including post-traumatic stress disorder and adjustment disorder (‘the injuries’).
Mr Gosaye brought his claim under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’). His claim for compensation dated 22 July 2019 was rejected, as was a second claim dated 11 October 2021 for injuries arising out of the same assault.
The defence case was that Mr Gosaye had no entitlement to compensation under the Act. Firstly, it was denied any injuries arose out of or in the course of employment. Secondly, any such injuries were not compensable as they were attributable to Mr Gosaye’s serious and wilful misconduct pursuant to s.40(5) of the Act.
The dispute arose as there were two versions of the altercation and its instigation, including whether (as the defendant alleged) the aggressor and instigator was Mr Gosaye.
By agreement, a preliminary hearing was conducted on the threshold issues of liability and the ‘serious and wilful misconduct’ defence. The preliminary hearing ran over two days. Evidence and submissions were confined accordingly.
PLAINTIFF’S EVIDENCE
Examination-in-Chief of Mr Gosaye
On 23 September 2018, Mr Genene (also known as ‘Michael’) Gosaye, began employment as a truck-driver with Damorange, initially on a casual basis then as a permanent full-time employee. His duties involved the driving of prime-mover trucks to deliver refrigerated goods to distribution centres.
Before 20 July 2019, Mr Gosaye had seen Mr Treacy around the workplace, but there had been quite limited contact between them.
On 20 July 2019, Mr Gosaye, having begun work at 2:30 am, did a distribution run. Just before 7:00 am, he returned to the workplace with an empty trailer. He was told by the operations manager, Mr Jason Nemtsas, that his trailer would not be used again that day and so he should park it. He then reversed into a designated parking-bay and, in doing so, inadvertently backed his trailer into a trailer parked in the bay behind it. He drove forward slightly before jumping out to check for damage.
Mr Gosaye could see no damage so he unpinned his trailer from the prime-mover. He then drove the prime-mover across the yard to the wash-bay. At the wash-bay, he turned the engine off and sat in the driver’s seat writing up his running-sheet.
Whilst Mr Gosaye was still sitting there, the cabin driver’s door was opened by Mr Treacy. Mr Treacy said to him, in a way that was very nasty, ‘You black c***, do you know how to drive a truck!’ Mr Treacy then dragged him down from the cabin by his leg. He landed on the ground. Mr Treacy punched his nose and mouth and also kicked him. Mr Treacy denied these matters.
The incident lasted for about three minutes. Mr Gosaye stood up and tried his hardest to defend himself. His nose, mouth and face were bleeding.
Other workers came over to try to break things up. They were Adam Wallace, a forklift driver, and another worker, Willie Ison. They held onto Mr Treacy and asked Mr Gosaye what was wrong. Mr Nemtsas also came over to break up the fight and told Mr Gosaye to go and wash himself due to the bleeding which would not stop.
Mr Gosaye had not realised there was a prime-mover attached to the trailer he backed into, nor that Mr Treacy was asleep in the cabin.
Mr Gosaye drove off the premises and called emergency services himself. Police and ambulance attended. He was taken to hospital. No charges were laid by police.
Since that time, Mr Gosaye has continued to be treated for his injuries by his GP, a nose specialist and other health professionals. He has not been back to work since that day.
Cross-examination of Mr Gosaye
After the bingle, Mr Gosaye had used the light of his mobile phone to check the trailer for damage. He denied seeing damage to the trailer’s rear. If he had, he would have made a report because that was the rule.
Mr Gosaye agreed that when seated in his cabin attending to his running-sheet, he was parked in the wash-bay area near the office. There was also a shed between his prime-mover and the office. The distance across the yard from the parking-bays to the wash-bay area was about 400 metres.
Mr Gosaye denied it was he who had flung the cabin door open and jumped down. He denied that he threw the first punch and was the aggressor. He also disagreed that Mr Treacy’s opening words were, ‘Michael, Michael, Michael, why did you drive off after hitting my truck’. He denied that he said to Mr Treacy, ‘bulls*** , you white dog’.
He agreed he said ‘I kill you’ to Mr Treacy and that, when he said this, he was screaming aggressively at the top of his voice. He agreed that he had to be held back by Mr Wallace and Mr Ison as he was trying his hardest to defend himself against Mr Treacy. He did not believe that he was taller or heavier than Mr Treacy. He had not charged at Mr Treacy running into his outstretched, clenched fist.
Mr Gosaye disagreed that Mr Nemtsas telephoned him that night. He denied that Mr Nemtsas would have a clear view of what happened from the office. Mr Gosaye also disputed receiving calls from Mr Splatt, the company manager, which he had not picked up.
When asked why he would leave the workplace and call police and ambulance himself, he said he had to do the right thing and he had to tell the government.
Mr Gosaye was asked whether he was aware of the company ‘Drivers’ Manual’ dated August 2017 which he would have been given when starting with Damorange. He didn’t recall the manual specifically, but agreed he was given written information and shown a video. He agreed drivers had to report incidents, injuries and near misses. As for why he had not done so on 20 July 2019 after the bingle, he said it was because there was no damage to the trailer.
Mr Gosaye agreed that fighting in the workplace was unacceptable. He was unaware that there was a first and final warning regarding his conduct waiting for him at the workplace as he had never been back.
As for his back, Mr Gosaye agreed he had had long-standing problems with his back beforehand for which he had been treated by a GP since February 2008.
Mr Gosaye had not returned to any work due to his injuries and had been in receipt of Centrelink benefits as well as income protection payments.
It was put to him that in speaking to police, ambulance crew, at the hospital and to other health providers, Mr Gosaye had deliberately given a completely self-serving and false account of the altercation. He denied that.
Re-examination of Mr Gosaye
Ever since migrating to Australia in 2011, he had been continuously employed.
Mr Gosaye had no treatment for his back for about two years prior to the altercation.
He gave a truthful account of the altercation to police, to ambulance paramedics, at the hospital and to his GP, psychologist and physiotherapist.
OTHER EVIDENCE
For the purpose of the preliminary hearing, Counsel for Mr Gosaye tendered into evidence (as business records under s.69 of the Evidence Act 2009) the following:
a. Victoria Police event report dated 20 July 2019 that stated: “Comp[lainant] [version] mpulled [sic] out of truck by leg 50 YO M, cons, breath, sore face – bleeding from mouth and nose…”
b. Ambulance Victoria records dated 20 July 2019 that stated: “@-06.30, [patient] states pulled out of his truck by leg, landing on other leg (left, nil fall), was then punched multiple times to face - falling to ground – nil LOC - was then continued to be punched. Per bystanders [patient] not pulled out of truck - both parties engaging each other.”
c. Werribee Mercy Hospital triage records dated 20 July 2019 that stated: “… 6:30 AM patient describes being pulled out of truck at work by legs and repeatedly punched in the face, and stood on with a heavy boot. ... “
d. Deer Park Medical Clinic extract of clinical records for 22 July 2019 that stated: “on 20/7/19, While at work, work colleague assault him with [after] he stopped his trailer … Pulled his right leg him down from his car cabin and started assaulting him, him with fist on his face. ‘Black c***’…”
e. Hoppers Crossing Physiotherapy extract of clinical records for 7 August 2019 that stated: “… Recently, July 20th was assaulted at work. … Hit onto face and fell to ground. …”
f. Mr Kenan Rahmanovic extract of clinical records for 7 August 2019 that stated: “…20/7/19 …Guy hit me at work. … Says he pulled me to the ground and punched me. …”
DEFENDANT’S EVIDENCE
Examination-in-Chief of Mr Treacy
Mr Adam Treacy, a full-time interstate truck driver, had worked for Damorange in that capacity for three years.
In the early hours of 20 July 2019, he was asleep in the sleeper berth of his prime-mover after returning overnight from an interstate trip. He was woken by a thump which knocked him out of the sleeping berth and into the driver's seat. He looked out via the mirrors and saw a person at the rear of the trailer. He believed the person was Mr Gosaye. He then saw him drive the prime-mover over to the wash-bay area. At this stage, it was still very dark.
Mr Treacy quickly pulled on trousers and boots before alighting from the cabin to assess the damage. He saw damage including to the trailer’s rear (the locking mechanisms) although not much. He walked over to the wash-bay area. He approached the prime-mover with his arms in the air saying: ‘Michael, Michael, Michael, you can't drive off - you've reversed into my trailer’. He could not say whether the engine was still running, but believed it was off. As he stood on the ground outside the cabin, the door was flung open. Mr Gosaye leaped out landing on his feet saying ‘bulls***, you white dog’.
Mr Gosaye threw the first punch. Mr Treacy crouched over to protect himself and, as he came up, he threw a volley of punches at Mr Gosaye. This was to defend himself. Mr Treacy felt frightened as Mr Gosaye was saying, ‘I kill you, I kill you’. Mr Treacy had not kicked Mr Gosaye. They were both then down low, wrestling, struggling, rolling on top of each other. At another point, they were wrestling while standing.
Mr Treacy had gone to walk away and raised a clenched fist back at Mr Gosaye which Mr Gosaye had charged into.
Other workers came over and it was Mr Nemtsas who broke up the fight by getting between them. Mr Treacy had spoken to Victoria Police when they arrived.
Cross-examination of Mr Treacy
Prior to 20 July 2018, he knew Mr Gosaye by sight, but they had little to do with each other.
Mr Treacy denied that he was a racist. When asked whether he had ever used the term ‘black c***’ before, Mr Treacy said he had heard the term, but not used it.
When asked whether he could handle himself in a fight, Mr Treacy said he could defend himself, adding ‘how can I answer that without incriminating myself?’
Mr Treacy agreed he was shouting as he approached Mr Gosaye’s prime-mover but it was in disbelief, not anger. The distance was no more than 150 metres across the yard. He denied opening the door or pulling Mr Gosaye out by the leg. He agreed he threw a volley of punches at Mr Gosaye as he had a right to defend himself especially as Mr Gosaye was threatening to him with the words ‘I kill you I kill you’.
As for the conditions, it was cold and there was a mist. It was a very dimly lit area.
Mr Treacy had not lodged a WorkCover Claim himself although he had a loose tooth, a bent knuckle and, to this day, his knee was infected because of a laceration sustained in the altercation.
Evidence of Mr Nemtsas
Mr Jason Nemtsas had been employed as operations manager with Damorange for eight years and an employee of the company for over 16 years.
On 20 July 2019, Mr Nemtsas had begun work at 6:30 am and was in the office. He was working on his computer in front of the window which faced the front of the yard. He had a clear view at all times. He was always looking out as his computer was by the window. It was dark but there was some lighting from the shed.
At around 6:40 am, Mr Nemtsas had a phone call from Mr Treacy who said someone had run into his trailer. Mr Nemtsas told him that it might have been Michael as he had just come in the yard. He then saw Mr Treacy walk over to Mr Gosaye’s prime-mover. He could see Mr Treacy because of his ‘high-viz’ vest. Mr Gosaye was still in his truck in the driver’s seat when Mr Nemtsas had first seen him. Mr Treacy was on the ground at the door of the truck. The door was about two metres high.
As for how the two had come into physical contact, Mr Nemtsas had seen Mr Gosaye jump out of the cabin and land on Mr Treacy. Then, the two of them were wrestling onto the ground. Mr Nemtsas went over and physically separated them and he had to hold Mr Gosaye to stop him from going forward.
Mr Ison and Mr Wallace had been present but had walked away by that stage.
In cross-examination, regarding the opening of the truck door, he never saw Mr Treacy climb up to open it. Mr Treacy was a short man and he could not have reached the door without climbing up. As for how long it would take to climb up and open a door, it would take only a split second.
At a later point, Mr Nemtsas said when he had first seen the two men, the cabin door was already open and they were on the ground. When pressed about the door, Mr Nemtsas maintained he had not seen Mr Treacy climb up to open it.
After the altercation, Mr Gosaye drove off and did laps of the streets around the workplace waiting for emergency services to arrive. That evening, Mr Nemtsas telephoned Mr Gosaye to check on him and spoke about what happened. Mr Gosaye had changed his version, first saying he did hit the trailer, then he hadn’t.
Evidence of Mr Wallace
Mr Adam Wallace, an operations floor manager with Damorange, had been so employed for about five years. He was on the forklift when he observed Mr Gosaye and Mr Treacy arguing in the wash-bay area. He saw it was getting heated and went over to separate them. Mr Treacy was standing there and Mr Gosaye kept lunging at Mr Treacy. Mr Wallace had separated them by jumping between them and physically pulling them apart. In cross-examination, he agreed that when he first saw the pair, they were ‘going at each other’ on the ground in the wash-bay area.
Evidence of Mr Splatt
Mr Shane Splatt was the founder and managing director of Damorange, having been in that role since 1974.
On 20 July 2019, Mr Splatt came into work around 10:00 am and he then learned about the altercation from Mr Treacy. He also spoke with Mr Nemtsas. Mr Splatt tried calling Mr Gosaye several times but his calls were not picked up.
As for the outcome of the altercation, Mr Splatt had wanted to speak with both men before making any decision, but was unable to do so. He decided to issue both Mr Gosaye and Mr Treacy with ‘first and final warning’ notices. Mr Splatt felt Mr Treacy was remorseful that the situation got to the stage it did. The warning notice for Mr Gosaye was still at the workplace as Mr Gosaye never returned or made contact.
On starting employment with Damorange, all new drivers, without exception, were taken through the Drivers Manual dated August 2017.
Evidence of Mr Ison
Mr William (‘Billy’) Ison had been employed as a truck driver with Damorange for about four years.
On 20 July 2021, while parking his car after his arrival at work, he saw Mr Gosaye and Mr Treacy. They were yelling and holding onto each other in the wash-bay area. He ran over and pulled them apart. Mr Treacy was saying Mr Gosaye had hit his trailer and Mr Gosaye was saying he hadn’t. Mr Ison told them to talk to the boss, meaning Mr Nemtsas. He decided to leave them to it and went to clock on. The pair then had got ‘back into it’.
In cross-examination, Mr Ison agreed it was still dark. The altercation was already under way when he arrived. At another point, he said he had seen Mr Gosaye get down from the truck of his own volition.
ANALYSIS AND FINDINGS
INJURY ARISING OUT OF OR IN THE COURSE OF EMPLOYMENT
Legal Principles
The burden of proof rested upon Mr Gosaye to satisfy the Court, on the balance of probabilities, of an entitlement to compensation. He needed to establish that he had suffered injury arising out or in the course of his employment on 20 July 2019 pursuant to s.39(1) of the Act.
In submitting that any injuries sustained by Mr Gosaye as a result of the altercation did not arise out of or in the course of employment, Counsel for Damorange relied on the Henderson principle. That was applying the test enunciated by Dixon J in Henderson v Commissioner of Railways (WA)[1] and Humphrey Earl Ltd v Speechley.[2] In short, on either version of the altercation, any injuries arose out of fighting in the workplace, an activity that was simply not in the course of or arising out of the employment itself. Fighting in the workplace was not sanctioned, not acceptable and contrary to workplace policies of the employer.
[1] (1937) 58 CLR 281, 294
[2] (1951) 84 CLR 126, 133
In Reid Stockfoods v Lindhe, Kyrou J in referring to the cases applying the Henderson principle, stated:
‘they have all required that there be a nexus (which has sometimes been very slight indeed) between the relevant activity and the work or service that the employee is employed to perform with most specifically referring to that activity as being incidental to the work or service. The outcomes of the cases have varied and have largely turned on their facts’.[3]
[3] [2008] VSC 304 at [17]
In considering whether there is a nexus between an assault and the employment of the worker claiming injury, Counsel for Damorange referred to the leading authority of Martin v Bailey.[4] The facts of that case had also involved an assault between two co-workers and, although the plaintiff there was bringing a common law claim for damages, the Court of Appeal was concerned with the same threshold question of whether the worker’s injury arose out of, or in the course of, his employment. Counsel for Damorange also made reference in submissions to the appendix to the decision listing the factual scenarios of many of the authorities considered by President Maxwell.
[4] (2009) 26 VR 270
Having reviewed the authorities, President Maxwell referred to two factors that are of ‘critical importance in determining whether the worker’s injury has the requisite connection with the employment. The first is whether the altercation has its origin in an employment-related matter or in a personal or private matter. The second is whether, at the time the injury (or death) occurred, the worker was performing the duties of his/her employment’.[5]
[5] (2009) 26 VR 270 at [22]
Maxwell P then held that the following general propositions can be derived from the authorities:
1. If the altercation had its origin in an employment-related matter, the injury is likely to be regarded as having arisen ‘out of the employment’.
2. If the altercation had its origin in a private quarrel or a personal grievance, then the injury is unlikely to be compensable unless the worker was carrying out the duties of his/her employment when injured, and was not the aggressor.[6]
[6] Ibid
Having considered the applicable legal principles on the ‘arising out of or in the course of employment’ issue, I now turn to the evidence and my findings of fact.
Matters Agreed or Not in Dispute
As Counsel for Mr Gosaye observed in submissions, there were many factual matters that were either agreed or not disputed. It is useful to start by summarising those facts:
a. Mr Gosaye was assaulted by a workmate, Mr Treacy. That was the evidence of Mr Gosaye and was corroborated by Mr Treacy who agreed he delivered ‘a volley of punches’ at Mr Gosaye. (Mr Treacy’s evidence was also that he was not the aggressor and that he was defending himself, an issue to which I will return).
b. The altercation occurred at the workplace.
c. The altercation occurred whilst Mr Gosaye and Treacy were required to be at the workplace and had been performing work duties. Mr Treacy had been sleeping in the truck cabin after an interstate trip for Damorange. Mr Gosaye had returned to the workplace following a delivery for Damorange. He had begun his shift some hours earlier and was completing his running-sheet awaiting his next allocated drive.
d. The altercation was preceded by the bingle which also occurred at the workplace.
e. The bingle occurred while Mr Gosaye was parking his trailer and inadvertently backed into Mr Treacy’s trailer. Both trailers were the equipment of the employer, Damorange. Mr Gosaye had unpinned the trailer and driven his prime-mover a short distance to nearby area of the workplace, the wash-bay. (There were varying estimates of the distance which I find were not material).
f. Employees of Damorange had obligations to report incidents, injuries or accidents. That was made clear in Clause 3.4 of the Company Driver’s Manual of August 2017 relating to ‘Incident, Injury and Near Miss Reporting.’ (Mr Gosaye agreed he had such an obligation in general terms, although he denied the bingle caused any damage).
g. Having been woken by the impact of the bingle (after pulling on trousers and boots), Mr Treacy walked across to the wash-bay to talk to Mr Gosaye about what happened.
h. There was an exchange of words with Mr Treacy asserting the bingle resulted in damage whereas Mr Gosaye contended there was no damage.
Physical altercation fighting then broke out between Mr Gosaye and Mr Treacy.
As a starting point, I find, on the basis of the undisputed facts, and I do not understand there to be any real contest about it, the bingle itself was an employment-related matter. This was because several factors in combination: it occurred at the workplace; both trailers were owned by Damorange; drivers had reporting obligations regarding damage or near misses; and both Mr Gosaye and Treacy were, at the time, performing duties in the course of their employment.
I further find, on the evidence, that the altercation had its origin in an employment-related matter, being the bingle and the non-reporting of it by Mr Gosaye. On that basis, applying the first part of the test enunciated by President Maxwell in Martin v Bailey, any injuries from the assault during the altercation would be regarded as having ‘arisen out of the employment’.
However, again applying the second part of the Martin v Bailey test, that is not the end of the matter in terms of finding ‘the requisite connection with the employment’. It is still necessary to make findings of fact regarding the instigation of the altercation and as to the aggressor or instigator of the altercation. Those findings turn on disputed facts including as to the words used by each man, the opening of the cabin door and the sequence of events of the physical fighting.
If the weight of evidence was that the altercation had its origin ‘in a private quarrel or a personal grievance’ between Mr Gosaye and Mr Treacy, then the injury was unlikely to be compensable unless Mr Gosaye was performing his employment duties and was not the aggressor.
Credit
I now turn to consider the evidence in relation to the disputed facts. Of course, in a factual dispute of this kind, the plaintiff’s credit as a witness was of central importance. I also needed to assess the credit of the lay witnesses for the defendant, particularly Mr Treacy.
Mr Gosaye was cross-examined rigorously and his credit came under heavy attack. Counsel for Damorange submitted that Mr Gosaye’s version was implausible and corroborated only his own false and self-serving accounts to emergency services. His credit was impaired by inconsistencies in his account, his decision to leave the workplace immediately after the altercation, his decision to call emergency services himself and his apparent avoidance afterwards of communication with his employer.
During his lengthy cross-examination and under sustained pressure, I consider Mr Gosaye gave largely consistent and credible answers. Having the benefit of observing Mr Gosaye while he was giving evidence to the court, I formed the view that he was, for the most part, a cooperative witness. I accept Counsel for Damorange submissions that there were some perplexing aspects to Mr Gosaye’s evidence such as why he would deny receiving any calls from Mr Splatt (whose evidence I accepted) or why he would deny that Mr Nemtsas called him that evening (which I accept the operations manager likely would have done).
Evaluating the whole of his evidence, he appeared, with some reservations to which I will return, to be doing his best to give evidence openly and without embellishment to the questions asked of him. For example, he agreed that fighting in the workplace was unacceptable. Again, weighing the whole of the evidence, I do accept that Mr Gosaye held a genuine belief he was ‘doing the right thing’ in, as he put it, telling the government (referring to police and emergency services).
Concessions adverse to his interests were made by Mr Gosaye where necessary. For example, he agreed saying ‘I kill you’ to Mr Treacy and that these words were said ‘screaming aggressively at the top of his voice.’ He also agreed that once the altercation was under way, the other men had to hold him back as he ‘was trying his hardest’ to defend himself.
It is true he denied calling Mr Treacy ‘a white dog’ although I find, on balance, that he probably did (a matter to which I will return).
As for Mr Gosaye’s denial that he caused damage to Mr Treacy’s trailer, it seems to me that may be explained by the darkness and only checking by the light of his mobile phone. Indeed Mr Treacy himself said there was damage although ‘not much’.
Overall, weighing the whole of the evidence, particularly the evidence of Mr Gosaye, I consider, with the reservations I have mentioned, that he was a credible witness.
Regarding the accounts of the altercation given by Mr Gosaye the same morning to the emergency services and the hospital and, three days later, to the GP, I find these were honest accounts of what occurred. That is because of my overall finding that Mr Gosaye was a credible witness, the contemporaneity of the accounts and the consistency of these accounts describing being pulled by the leg from the cabin.
As for how the altercation started, Mr Gosaye’s version was his engine was off and he was completing his running-sheets in the cabin. Mr Treacy opened the cabin door and spoke to him ‘in a very nasty way’ regarding the bingle, saying ‘you black c***, do you know how to drive’. It was Mr Treacy who grabbed his leg and pulled him out of the cabin onto the ground. Mr Treacy had punched and kicked him while he was on the ground.
Mr Treacy was also cross-examined at length regarding his version of the altercation and its circumstances. I formed a less favourable view of Mr Treacy as a witness whose evidence I found to be evasive and defensive on key matters in dispute. His evidence regarding use of the racist slur was unpersuasive. My impression was that he paused before answering the question put to him, then said he had heard the slur, but ‘never used it’. Another example was when asked whether he could handle himself in a fight, he agreed that he could, adding, ‘how can I answer without incriminating myself’.
In a similar vein, on another matter, when asked about whether he had suffered injuries, Mr Treacy gave what seemed to me to be a somewhat exaggerated account of his own injuries from the altercation including, to this day, having an infected knee.
I accept Mr Treacy made some concessions against interest. He agreed he was shouting as he approached Mr Gosaye’s prime mover (but not in anger) and that he threw a volley of punches at Mr Gosaye and that they each had to be held apart.
In other instances, Mr Treacy’s answers were inconsistent or were contradicted by other evidence or were simply implausible.
An example was Mr Treacy saying that, after being woken by the ‘thump’ of the bingle, he could see sufficiently well from the cabin, via mirrors, to identify Mr Gosaye standing in the vicinity of the rear of the trailer. That was in spite of it being ‘still very dark’ and his evidence there was mist that morning. That was contradicted by Mr Nemtsas’s evidence. He said Mr Treacy had rung him to say, ‘someone had run into his trailer.’ It was Mr Nemtsas who had then informed him it was likely Mr Gosaye as he just returned from the yard.
Another example was of when going to walk away, he had stood holding a raised clenched fist which Mr Gosaye had run headlong into it which to my mind sounded wholly implausible.
In terms of how the altercation started, Mr Treacy’s evidence was of walking over to Mr Gosaye’s prime-mover, his arms in the air shouting in disbelief rather than anger, ‘Michael, Michael, Michael, you can't drive off - you reversed into my trailer’. Then, as he stood on the ground outside the cabin, Mr Gosaye flung open the door and leapt out, saying ‘bulls*** you white dog’. It was Mr Gosaye who had thrown the first punch, only then did he throw a flurry of punches at Mr Gosaye.
Overall, having the benefit of observing Mr Treacy while he was giving evidence to the court, I did not form a favourable impression of him as a credible witness on the critical matters in dispute. It is not credible, in my opinion, that if Mr Treacy’s words were a disbelieving remonstration as he asserted, Mr Gosaye would have reacted in the way he did. Similarly, it seems to me highly unlikely that a person would call someone ‘a white dog’ if a racist slur had not been used in the first place.
I now turn to the other lay evidence.
Mr Nemtsas’s evidence was of having ‘a clear view at all times’ and of seeing Mr Gosaye jump down from the cabin. However, under cross-examination about who opened the cabin-door, he insisted Mr Treacy could not have opened the door. That was due to not having actually observed him climbing up to do so, which as a short man he would need to do to open the door. However, he also said it would only take ‘a split second’ for Mr Treacy to climb up to do so. Later, he contradicted his earlier evidence saying the door was already open when he first observed them and they were standing talking.
On balance, I attribute only limited weight to Mr Nemtsas’s evidence on disputed facts partly because of his contradictory evidence on a key disputed fact - insisting that Mr Treacy could not have opened the door (which was then at odds with his evidence the door was already open). To my mind, this suggested an element of conscious or unconscious bias in favour of his employer and its version of Mr Gosaye being the aggressor and instigator.
Mr Ison gave a contradictory and therefore, to my mind, unreliable account on the key issue of the instigation of the altercation. At first, he said the fighting was already under way when he arrived with the two men physically engaged outside the truck. Later, he said he had seen Mr Gosaye get down from the truck of his own volition.
Mr Wallace’s evidence added little as the fight was already getting heated when he first saw them. Although, he also said after he separated them, Mr Treacy was just standing there and Mr Gosaye kept lunging at Mr Treacy.
I formed a favourable opinion of Mr Splatt who impressed me as a credible witness who appeared genuinely grieved by the conduct of both men. However, his evidence was largely limited to matters not really in dispute such as the existence of the policy and the issuing of warnings. I have already said I accept he tried to reach out to Mr Gosaye.
A matter of critical significance to my mind was that none of the witnesses were in a position to give convincing evidence about the instigation of the altercation nor did any of them hear the initial words used by either Mr Gosaye or Mr Treacy.
Findings
Weighing the whole of the evidence, on the balance of probabilities, I make the following findings of fact on the matters in dispute:
a. It was Mr Treacy who opened the cabin door to Mr Gosaye’s prime-mover. Even with Mr Gosaye’s engine off (which was the evidence of them both), I find it unlikely, on the evidence, that Mr Gosaye would have been aware of Mr Treacy standing on the ground from the height of his cabin unless Mr Treacy opened the door himself to get Mr Gosaye’s attention. I so find because of: Mr Gosaye’s unchallenged evidence he was doing paper-work which meant he was likely looking at that; it was a dark morning and the area was dimly lit; it was cold and so the cabin window was likely to be up; it would only have taken moments (a split second according to Mr Nemtsas) for Mr Treacy to climb up to open the door and, as an experienced driver, he would do so multiple times a day.
b. Once the door was opened, Mr Treacy’s words to Mr Gosaye included a racist slur. I stated previously I found Mr Treacy’s answer on this issue evasive. On balance, I also find it to be a dishonest answer and that Mr Treacy did use a racist slur when first addressing Mr Gosaye at the outset of the altercation. I prefer Mr Gosaye’s evidence on this point. I also attribute weight to his inclusion in the history to his GP three days afterwards of the actual racial slur.
c. As I have already found, Mr Gosaye responded with the words, ‘bulls***, you white dog’. Whilst under pressure of cross-examination, Mr Gosaye denied that he said those words, I find it likely that he did so in response to Mr Treacy’s racist slur.
d. Mr Treacy grabbed Mr Gosaye’s leg after he had opened the door, partially or completely pulling him out of the cabin. I stated previously I accept the contemporaneous accounts of this detail to emergency services as likely to be truthful. I have also referred to the contradictory and unreliable evidence of Mr Ison and Mr Nemtsas on this point.
e. The racist slur, which I accept Mr Gosaye’s evidence was said in a way that was ‘very nasty’, provoked a furious reaction in him, offending and enraging him. Again, to my mind, it seems improbable that Mr Gosaye would have reacted to Mr Treacy in the way he did if Mr Treacy’s account were true.
f. Mr Gosaye, in his fury, reacted to the combination of the slur and being pulled by the leg by punching Mr Treacy.
g. Mr Treacy then threw the ‘volley of punches’ to Mr Gosaye’s face and head which caused the considerable bleeding.
h. There was then some minutes of essentially continuous wrestling and fighting, at times on the ground and at times with them upright, during which Mr Ison, Mr Wallace and, finally, Mr Nemtsas all attempted to intervene and bring to an end.
i. The words ‘I kill you’ were used by Mr Gosaye whilst the altercation was already under way.
Counsel for Damorange submitted that, on the whole of the evidence, particularly the accounts of the lay witnesses, there was essentially a ‘second round’ to the altercation. The second round was instigated by Mr Gosaye who charged at Mr Treacy, used the words ‘I kill you, I kill you’ and continued lunging at him after the two men had been separated. Mr Ison had said they had ‘got back into it’ after being separated.
On balance, I am not persuaded that there was any pause or break of significance in the altercation based on how heated the fighting was and the unsuccessful attempts of Mr Ison and Mr Wallace to break things up.
Weighing the whole of the evidence, and the totality of the matters not in dispute set out previously and my findings of fact, I find, on the balance of probabilities, that Mr Treacy was the aggressor and the altercation’s instigator. It is true I found that Mr Gosaye threw the first punch. However, I find that Mr Treacy, in opening Mr Gosaye’s cabin door, in using a racist slur in a ‘very nasty’ way, in pulling him out by the leg and in responding to Mr Gosaye’s punch with a ‘volley of punches’, was the instigator and aggressor.
For the sake of completeness, I now turn to whether the altercation was, because of the racist slur, in the nature of a personal grievance and, so, unrelated to employment even though I have also found Mr Gosaye was not the aggressor and the altercation had its origins in the employment-related bingle.
It is worth noting that the agreed summary of facts of Martin v Bailey also involved an altercation and an assault between two co-workers following a racist slur from one to the other. There, the trial Judge found there was insufficient connection between the employment and injury at least in part because the racist remark was not said in the pursuit of the employer’s interests.[7] However, on appeal, in the lead judgement, President Maxwell said: ‘It may be accepted that the racist remark was the immediate ‘trigger’ for the assault, but it is quite artificial to separate that one remark from the heated dispute in the course of which it was made’.[8]
[7] Ibid at [24]
[8] Ibid at [27]
There, like here, the altercation had its origin in a matter connected with the injured employee’s employment. In that case, it was about where a delivery of hay should occur and, in this case, as I have already found, it was the bingle and the non-reporting of it by Mr Gosaye.
Of course, each case must turn on its own facts and the precise sequence and circumstances will always differ.
I find that the racist slur used by Mr Treacy did not break the link with the employment and make the altercation in the nature of a ‘private quarrel’ but was an integrated part of the heated dispute that had its origins the work-related bingle and Mr Gosaye’s non-reporting of it. In my view, the weight of evidence supports ‘an unbroken sequence of events’[9] that was causal (originating from the work-related bingle which lead to the altercation, a sequence not broken by the racist slur trigger); temporal (occurring within minutes of the bingle) and also physically proximate (occurring relatively near to the bingle).
[9] Ibid at [30] referring to Glass JA’s analysis of another factual scenario in Tarry v Warringah Shire Council [1974] 48 WCR (NSW) 1
Accordingly, I find that any injury occurred in the course of, and also arose out of, the employment.
Injury
Whilst I am not required to make any determination as to the nature and diagnosis of any injury suffered by Mr Gosaye, I consider the question briefly for threshold purposes, in terms of injury as defined by s.3(1) of the Act. Mr Gosaye’s evidence that his face, nose and mouth were bleeding was corroborated by Mr Nemtsas and others. There was also no challenge to the evidence that Mr Gosaye required treatment for facial injuries on 20 July 2019 from paramedics and at Werribee Mercy Hospital.
Accordingly, I find that the plaintiff has discharged the burden of proof that he suffered injury in the course of or arising out of his employment pursuant to s.39(1).
WHETHER THE PLAINTIFF’S INJURY WAS ATTRIBUTABLE TO SERIOUS AND WILFUL MISCONDUCT
I am guided by the principles set out the decision of Parrish J in Rogers v Police Association Credit Co-Operative Ltd (which remain applicable to s.40(5) of the WIRC Act although his Honour was referring to the provision in the predecessor Accident Compensation Act 1985):
The question whether or not the conduct amounts to “serious and wilful misconduct” is a question of fact and the burden is on the employer to prove that the injury was attributable to the serious wilful misconduct of the worker. Furthermore, the employer must prove that the injury was attributable to such misconduct and that the misconduct was “a cause” of the injury (not necessarily the sole cause). However, the conduct must be such a cause that the injury would not have happened without it and was a natural result of it. It has been held that the word “serious” applies to the misconduct itself and not to the actual consequences of it and that the word “wilful” directs that the misconduct was deliberate and not merely a thoughtless act on the spur of the moment.[10]
[10] [2011] VCC 972 at [21] – [23]
Additionally, I refer to recent decisions of this Court of Kordelis v QUBE Logistic Vic[11] and Styles v Red Rooster Foods Pty Ltd[12] and the authorities in the Accident Compensation Vic Guide in relation to the predecessor provision of s.82(4).
[11] Magistrate Richards (del. 8 April 2021)
[12] Magistrate Wright (del. 18 April 2011)
There was no suggestion by Mr Gosaye’s Counsel that his injuries fell within the meaning of ‘severe injury’ as defined in s.40(7) which would preclude application of the defence in accordance with s.40(6).
As for the standard of proof, Counsel for Mr Gosaye submitted that, the defendant, in discharging its onus to the balance of probabilities, was subject to the standard set in Briginshaw v Briginshaw.[13] That was relying on the standard applied by Parrish J Rogers v Police Association Credit Co-Operative Limited.[14] Counsel for Mr Gosaye argued it was appropriate to apply a higher standard to the ‘serious and wilful misconduct’ defence because, if successful, the plaintiff worker would have no entitlement to compensation.
[13] (1938) 60 CLR 336
[14] [2011] VCC 972 at [88]
However, I prefer the submission of Counsel for Damorange that the usual civil standard of proof, on the balance of probabilities, is applicable. That is in accordance with the civil standard of proof pursuant to s.140(1) of the Evidence Act 2008. That provision is to be read with s.140(2) which sets out three matters that the Court must take into account. These are: (a) the nature of the cause of action; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged.
On weighing those matters, I accept that only in rare circumstances in a statutory workers compensation claim would a higher than usual civil standard of proof apply. The gravity of the matters alleged will be an important consideration – as was the case in Rogers in which Parrish J decided that ‘given the gravity of the stalking allegation’[15], a higher standard of proof applied. In my view, the facts of that case are of a higher gravity than the facts alleged here relating to a physical fight between two manual workers in an outside workplace.
[15] Ibid
Counsel for Damorange submitted that, on the balance of probabilities, the weight of evidence of this case overwhelmingly supported a finding of serious and wilful misconduct. The Court ought to find that Mr Gosaye had no entitlement to compensation. Counsel for the defendant referred specifically to the fact scenarios in the cases listed in the Appendix to Martin v Bailey and various other authorities.
There was no question, it was submitted, that Mr Gosaye’s injuries were the result of his own misconduct in engaging in physical fighting with Mr Treacy. In this regard, Mr Splatt’s decision to issue a first and final warning was persuasive evidence of both the misconduct itself and also of its seriousness.
Whether or not the conduct amounts to ‘serious and wilful misconduct’ is a question of fact. It is a question of degree and circumstance looking at the overall events.
I refer to my previous findings of fact in the relation to the altercation. On the basis of those findings, I accept the submissions of Damorange that Mr Gosaye’s injuries were attributable to his engagement in physical fighting with Mr Treacy which was misconduct of a serious nature. Mr Gosaye threw the first punch at Mr Treacy and then remained engaged in the altercation for some minutes. It was not a momentary skirmish.
However, considering the whole of the circumstances and my previous findings including that Mr Treacy was the instigator and aggressor and Mr Gosaye’s furious reaction to the racist slur, I find the misconduct of Mr Gosaye, whilst serious, was not wilful in the sense of being deliberate, as opposed to a thoughtless act in a heated situation and on the spur of the moment.
Accordingly, I find that the defendant has failed to discharge the burden of proof in relation to the ‘serious and wilful misconduct’ defence.
CONCLUSION
I will hear from the parties as to further conduct of the proceeding as to the quantum matters of the claim.
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