Gregory J Britt and Leanne Britt v Coady
[2014] NSWWCCPD 5
•30 January 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Gregory J Britt and Leanne Britt v Coady [2014] NSWWCCPD 5 | ||
| APPELLANT: | Gregory J Britt and Leanne Britt | ||
| RESPONDENT: | Glen Edward Coady | ||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-13099/12 | ||
| ARBITRATOR: | Mr J Phillips SC | ||
| DATE OF ARBITRATOR’S DECISION: | 17 October 2013 | ||
| DATE OF APPEAL DECISION: | 30 January 2014 | ||
| SUBJECT MATTER OF DECISION: | Whether injury received in an assault during an interval in actual work was received in the course of employment; factual findings; issues not argued at arbitration; application of the principles in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 and Comcare v PVYW [2013] HCA 41; non-compliance with Practice Direction No 6 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Bartier Perry | |
| Respondent: | Commins Hendriks | ||
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 17 October 2013 is confirmed and the matter is remitted to the Arbitrator for determination of all outstanding matters. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST. | ||
INTRODUCTION
This appeal concerns a claim for compensation for injuries received by a worker when his employer assaulted him late in the evening after both men had been drinking. The main issues on appeal are whether the injury was received while on an interval in an overall period of work and whether the employer had induced or encouraged the worker to spend the interval at a particular place or in a particular way (Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis). In the alternative, an issue arises as to whether the injury arose out of the worker’s employment.
FACTUAL BACKGROUND
In partnership with his wife, Leanne Britt, Gregory Britt has conducted a building and concreting business for about 17 years from his home at Gundagai. The business has operated in the Gundagai, Young, Cootamundra and Temora districts in south-western New South Wales. In December 2010, and for some months prior to that time, Mr Britt was engaged in concreting work at the Cootamundra Abattoir near Cootamundra. At that time, the respondent worker, Glen Coady, worked for Mr Britt as a labourer, having started with him in February 2010. In addition to his labouring duties, Mr Coady also drove Mr Britt to and from work and, as required, to other places, as Mr Britt had lost his driver’s licence because of a drink driving offence.
On Saturday, 11 December 2010, Mr Coady drove his car to Mr Britt’s home at Gundagai. Mr Coady left his car there and drove Mr Britt to Cootamundra Abattoir, in Mr Britt’s car, arriving at about 6.30 am. Other workers employed by Mr Britt on this job were his brother, Andrew, and his cousin Scott Pollack, who drove to the abattoir in a separate vehicle.
This much is uncontroversial. However, in view of how the appeal has been presented, it is appropriate to set out separately each side’s evidence of what happened next.
Mr Britt’s evidence
The men stopped work for “smoko” at about 10 am and Mr Coady drove into Cootamundra to buy morning tea for the workers, a trip that normally took about 20 minutes. On this occasion, Mr Britt noticed that Mr Coady had been gone for 45 minutes. However, when he returned, Mr Britt made no comment.
They finished work at about 1.30 pm. Mr Britt said that, at that time, he could smell alcohol on Mr Coady. He said he got angry with Mr Coady and told him not to drive his vehicle. He got Mr Pollack to drive his (Mr Britt’s) vehicle to the Family Hotel in Cootamundra for a beer and Mr Coady got a lift to the hotel with Andrew.
A short time after arriving at the hotel, Andrew and Mr Pollack left without saying goodbye. Mr Britt and Mr Coady stayed for a few more beers. Mr Britt says that Mr Coady did not indicate he wanted to go home and that he was not forced to stay. Mr Britt tried (unsuccessfully) to contact his wife to make arrangements for her to get them home, as he did not want Mr Coady to drive his vehicle.
Between 4 and 5 pm, James Smith, the works manager from Cootamundra Abattoir arrived at the hotel. Mr Britt estimated that, by the time Mr Smith arrived, he and Mr Coady had each had about six beers. They then had a couple of beers with Mr Smith. Mr Britt thought that Mr Coady was okay and seemed comfortable and settled. Mr Coady made no complaint that he wanted to leave or go home.
At about 5.30 pm, Mr Smith told the men that he was going to a Christmas party for the maintenance crew from the Cootamundra Abattoir. It was not an official function but just a social gathering arranged by the workers at the Wallendbeen Hotel about 20 kilometres northeast of Cootamundra. Mr Smith invited both men to attend the party and both agreed to go. The maintenance crew had organised for a mini bus to take them to Wallendbeen Hotel and back to the Family Hotel.
On arriving at the Wallendbeen Hotel at about 6 pm, Mr Britt paid for a couple of drinks and received shouts of drinks. Mr Coady paid for his drinks and, according to Mr Britt, did not make any complaint that he did not want to be there.
At about 10.30 pm, the men returned to the Family Hotel in the mini bus. Mr Britt said he was seated with Mr Coady, who he found annoying. Mr Britt was still angry that Mr Coady could not drive his vehicle earlier in the day as he had detected the smell of alcohol on him.
As they were getting off the bus at the Family Hotel, Mr Coady went to grab a smoke from Mr Britt’s top pocket and said “[g]ive me a smoke or I’ll bash you”. Mr Britt alleges that Mr Coady had been saying this for the past six months, “always bludging cigarettes” from him and it had worn a bit thin with him.
They were standing outside, next to the mini bus, when Mr Britt pushed Mr Coady back as he tried to grab his (Mr Britt’s) cigarettes. He then grabbed Mr Coady by the collar and pushed him to the ground. He did not strike or push him. When Mr Coady was lying on the ground, Mr Britt walked into the pub, got his car keys and slept in his car overnight. Mr Coady rang Mr Britt at about 7 am saying that he wanted to fight him. Mr Britt replied, “[w]ake up to yourself” and hung up. He has not spoken to Mr Coady since.
A couple of months’ later, Cootamundra police interviewed Mr Britt about an assault on Mr Coady. He received a notice to attend court in relation to a common assault and on 16 June 2011 pleaded guilty to having assaulted Mr Coady on 11 December 2010, stating that he had pushed Mr Coady but did not punch him.
Mr Coady’s evidence
Mr Coady started work for Mr Britt in February 2010 as a concrete labourer. He said, and it has not been disputed by Mr Britt, that the whole time he worked for Mr Britt he was “required to drive him everywhere as [Mr Britt’s] licence had been suspended” because of a drink driving offence.
During the time Mr Coady worked for Mr Britt, he found him to be volatile, moody, and always abusing people. He recalled an occasion when Mr Britt punched another worker, Michael Brewer, in the head. He said that, at the time of his statement, dated 17 May 2012, Mr Britt was barred from all licenced premises in Gundagai.
Mr Coady agrees that he drove Mr Britt’s car into Cootamundra for “smoko” on 11 December 2010. When he returned from “smoko”, Mr Britt complained about how long he had taken and was angry with him, but made no suggestion that he smelt of alcohol. Mr Coady denied that he smelt of alcohol when he returned from “smoko”.
Mr Coady said that work finished at about 2 pm. As Mr Coady knew that they were going to the pub in Cootamundra to be paid, as per the usual practice, and as Mr Britt was on the phone abusing someone, he got a lift to the Family Hotel in Cootamundra with Andrew. He said that Mr Britt arrived about 10 minutes later. Mr Coady said that at no stage did Mr Britt discuss with him that he was not to drive his (Mr Britt’s) vehicle or that there was any issue in relation to alcohol.
When he arrived at the hotel, Mr Coady told Andrew that he would like to go home with him, as he was annoyed with how Mr Britt was again cranky, yelling and abusing people. When Mr Pollack arrived, Mr Coady said to him “you drove him [Mr Britt] here (to the pub) you’ve got the keys[,] you can drive him home”. At some stage, Andrew and Mr Pollack, who had been inside the hotel, while Mr Coady and Mr Britt were drinking on the veranda, left without saying goodbye.
By about 2.30 pm, Mr Coady had had two schooners. He said to Mr Britt “I won’t have anymore, you can have another one but I will stop so I can drive home”. (In context, this was clearly a reference to Mr Coady driving himself and Mr Britt home.) Mr Britt responded, saying words to the effect:
“You may as well have another one we will stay the night, we have been invited to the Christmas drinks with a [m]aintenance [c]rew from the [a]battoirs and besides we can do a couple of hours tomorrow setting up for Monday.”
Mr Coady said this was not the first time that Mr Britt had decided, without notice to him, that they were going to stay, and not go home from work, though they had not packed any clothes.
Mr Coady did not recall seeing Mr Britt on the phone to his wife and he said he would be surprised if he did make such a call.
Mr Coady recalled that, sometime later, he and Mr Britt were talking to Mr Smith when Mr Smith mentioned going to the Christmas party. He added that, prior to Mr Smith arriving at the hotel, Mr Britt had said it was his intention to go for Christmas drinks (presumably with the maintenance crew from the abattoir, though this was not expressly stated by Mr Coady).
At the Wallendbeen Hotel Mr Coady purchased a packet of cigarettes and placed them on the table. When they were leaving, Mr Britt picked up Mr Coady’s cigarettes.
On returning to the Family Hotel, Mr Coady was waiting for others to get off the bus when he was “king hit” and dragged off the bus by Mr Britt. In his statement to the police, dated 15 December 2010, Mr Coady said that Mr Britt threw him to the ground like a rag doll and leant over him continuing to throw punches with both fists, striking him in the face, head and upper body.
Mr Coady also said in his police statement:
“We worked for most of the day at the abattoirs, and did not knock off until 1.30pm or 2pm. Greg [Britt] and I left where we had been working and went to the Family Hotel in Cootamundra. We had a few beers there, to the point where I felt that I would have been over the limit if I drove anywhere. Greg [Britt] and I had a conversation about this, and we decided that we would both stay the night in Cootamundra, and he also indicated to me that we had been invited to Christmas drinks with the maintenance crew from the abattoirs.”
After the assault, Mr Coady felt dazed. He walked into the hotel, then walked to a nearby shop and rang his partner and waited for her to collect him, which she did at about 5.30 am on Sunday morning. (It was agreed that Mr Britt’s residence at Gundagai is about 57 kilometres from Cootamundra.)
Mr Coady suffered bruising and lacerations and saw his general practitioner on 14 December 2010. While the bruising and lacerations resolved he had difficulty sleeping, was moody, constantly vigilant, unable to work, did not like going out in public, and suffered forgetfulness and nightmares. Ultimately, Mr Coady was diagnosed with Post Traumatic Stress Disorder (PTSD) that, he alleges has prevented him from returning to work.
Mr Coady’s evidence about Mr Britt’s general behaviour is corroborated in a statement from Michael Brewer, who worked for Mr Britt for about eight months in 2010 and 2011. Mr Brewer said that he used to drive Mr Britt around on occasions, but stopped because he got sick of Mr Britt’s behaviour and bullying. He said that, on many occasions when working away from Gundagai, Mr Britt would have a few beers at a hotel and say, “let[’]s stay the night” and not return to Gundagai. Mr Brewer declined those requests to stay over. Mr Brewer said that, on 8 June 2010, Mr Britt punched him in the mouth while the men were staying overnight for a job at Temora Primary School after his keys had been locked in his room.
Neither side called any evidence from Mr Pollack or Andrew.
The police records
The police case narrative recorded that Mr Britt told police that he had consumed about 20 – 30 schooners of beer on the evening of 11 December 2010 and could not remember most of the night. It also recorded a witness (whose name had been deleted from the documents produced to the Commission and who did not give a written statement) as saying that as Mr Britt went to get off the bus at the Family Hotel he stood at the doorway and then turned and punched Mr Coady once in the face. The men then got off the bus and the witness did not see anything else. The same witness said that, at Wallendbeen Hotel, Mr Britt had been abusive with staff and patrons, including Mr Coady.
The claim
Mr Coady completed a claim form on 1 July 2011 in which he alleged that he suffered from depression and anxiety caused by the assault by his employer on 11 December 2010. He claimed weekly compensation from 12 December 2010 to date and continuing together with medical expenses.
The dispute
In a s 74 notice dated 9 August 2011, Mr Britt’s insurer denied liability on the grounds that Mr Coady had not suffered an injury arising out of or in the course of his employment under s 4 of the Workers Compensation Act 1987 (the 1987 Act) and, if he did suffer such an injury, his employment was not a substantial contributing factor to that injury under s 9A. It also disputed that Mr Coady suffered any incapacity as a result of the assault or had any entitlement to any statutory compensation.
The Arbitrator’s decision
After an arbitration at which, surprisingly, neither side sought to call any oral evidence, the Arbitrator delivered a reserved decision on 17 October 2013 in which he found in favour of Mr Coady. In summary, his reasons were that, despite Mr Coady’s stated preference for Mr Pollack to drive Mr Britt home, in the absence of evidence of any arrangement that he do so, the practice that Mr Coady would drive Mr Britt home each day continued to apply. In keeping with that practice, Mr Pollack left the hotel without further communication with them. It followed that Mr Coady’s responsibility to drive Mr Britt home was not transferred to Mr Pollack ([41]).
The Arbitrator said (at [42]) that Mr Coady’s evidence that Mr Britt said they would stay the night (at Cootamundra), and work the next day setting up for Monday, had not been disputed by Mr Britt. Nor had Mr Britt disputed the conversation in which Mr Coady said that he would not have any more drinks so he could drive Mr Britt home.
After noting (at [45]) Mr Coady’s undisputed evidence that there had been other occasions when Mr Britt had, without notice, decided not to return home after work, the Arbitrator said (at [47]) it was apparent that the established practice was that Mr Coady was required to drive Mr Britt, in Mr Britt’s vehicle, to and from places at which work was performed. He said that Mr Coady could not independently proceed home from a workplace because his vehicle was many kilometres away, at Mr Britt’s home (at Gundagai), and he was required to drive Mr Britt home.
Having regard to the principals in Hatzimanolis, the Arbitrator said (at [48]) that Mr Coady’s responsibilities as Mr Britt’s driver meant that “the employer, expressly or impliedly … induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way” until Mr Britt arrived at his residence. He added that, having regard to the general nature, terms and circumstances of Mr Coady’s employment, what Mr Coady did after “the actual work” (Hatzimanolis) was completed was subject to what Mr Britt chose to do between “knocking off” and being left, with his vehicle, at his home in Gundagai.
The consequence of being Mr Britt’s driver was that Mr Coady “was required to tag along with him” ([49]). The Arbitrator added that it was Mr Britt, as the employer, not Mr Coady, who would decide whether to go to the pub before Mr Britt was driven home, the time they would leave the pub, or, whether they would go home, or spend the night where they had been drinking.
Therefore, instead of being at home at Gundagai late on 11 December 2010, Mr Coady was in Cootamundra “for reasons directly related to his employment” ([50]). The period initially spent at the Family Hotel was an interval or interlude of a kind for which the employer was liable, involving “something which is part of or is incidental to his service” (Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 per Dixon J at 29 (Whittingham)). That interval was extended when Mr Britt determined that they would stay the night in Cootamundra and do a couple of hours (work) on Sunday setting up for Monday.
Consequently, the Arbitrator reasoned (at [50]) that “the relevant interval was scheduled to continue until work resumed on Sunday, and the circumstances in which [Mr Coady] found himself at the time of the assault were therefore incidental to his employment”. The Arbitrator therefore concluded (at [51]) that the injuries Mr Coady received when Mr Britt assaulted him were received in the course of his employment as contemplated by s 4 of the 1987 Act. He went on to conclude that employment was a substantial contributing factor to the injury, something that has not been challenged on appeal.
The Arbitrator did not consider the alternative ground on which Mr Coady’s case had been presented, namely, that the injuries arose out of the employment.
The Commission issued a Certificate of Determination on 17 October 2013 in the following terms:
“The Commission determines:
1. The respondent shall pay the applicant’s reasonably necessary medical expenses associated with treatment of the injury received on 11 December 2010, pursuant to section 60 of the Workers Compensation Act 1987, on production of accounts and receipts.
2. The matter is listed for telephone conference at 9 00 am on 31 October 2013 … for further submissions in relation the applicant’s entitlement to weekly compensation.
3. The respondent is to pay the applicant’s costs as agreed or assessed.
4. I certify that the matter is complex and that the costs of the parties will be subject to an uplift of 25 per cent.
A statement is attached to this Certificate of Determination setting out the Commission’s reasons for the determination.”
Mr Britt has appealed the Arbitrator’s finding that Mr Coady’s injuries were received in the course of his employment. In his Notice of Opposition, Mr Coady has defended the Arbitrator’s decision that the injury was caused in the course of his employment and sought to argue a “notice of contention” that, in the alternative, his injuries arose out of his employment.
PRELIMINARY MATTERS
On the papers
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
Interlocutory
As the Arbitrator’s decision was interlocutory, because it has not finally determined the parties’ rights to compensation (Licul v Corney [1976] HCA 6; 50 ALJR 439 at 443-444), but merely decided that the preliminary liability issue, the appellant requires leave to appeal. In view of the issues raised in the appeal, it is necessary for the proper and effective determination of the dispute that the Commission grant leave to appeal and I do so (s 352(3A) of the 1998 Act; DP World Sydney Ltd (formerly known as Container Terminals Australia Pty Ltd) v Kelly [2011] NSWWCCPD 43 at [13]).
ISSUES ON APPEAL
Though counsel appeared for Mr Britt at the arbitration, the insurer’s solicitor, Ms Cassidy, has prepared the written submission on appeal. Those submissions have not complied with Practice Direction No 6 in that they have not properly identified the grounds of appeal. The alleged grounds of appeal are that the Arbitrator erred in making the determination on the following bases:
(a) making findings of fact which are not supported by, or are contrary to, the evidence before him. The errors made by the Arbitrator in this respect were fundamental to the determinations he made as to liability under s 4 and 9A, and
(b) misapplying the principles in Hatzimanolis and Comcare v PVYW [2013] HCA 41 (PVYW).
Ms Cassidy then said that “specifically” the Arbitrator erred in:
(a) mistakenly accepting certain evidence from Mr Coady as uncontradicted;
(b) failing to identify the existence of conflicting evidence about certain events;
(c) failing to identify which version of events was relied upon to make a finding of fact, and
(d) failing to provide reasons for preferring one version of events above another, where a conflict existed between the two versions.
These points were not grounds of appeal and did not comply with Practice Direction No 6.
Ms Cassidy then made detailed submissions under seven general topics or headings, discussed below, in which she made submissions on errors she asserted the Arbitrator made. Those alleged errors should have been listed as the grounds of appeal, as required by Practice Direction No 6, rather than buried in the body of the lengthy submissions.
Practice Direction No 6 makes it clear that the appeal must state briefly, but specifically, the grounds relied on in support of the appeal. Neither the two identified grounds of appeal, nor the “specific” grounds did that. The legal professions’ repeated failure to comply with Practice Direction No 6 is unacceptable and results in appeals being unnecessarily protracted and issues on appeal not being properly defined.
I intend to deal with the appeal under the seven general topics or headings in Ms Cassidy’s submissions, rather than, as would normally be the case, under the alleged “grounds of appeal”.
Topic 1 – The finding that Mr Coady remained in the course of his duties at least until he reached the Family Hotel
Submissions
This heading relates to a challenge to the Arbitrator’s findings at [49], where he said:
“The consequence of being Mr Britt’s driver is that [Mr Coady] was required to tag along with him. It was Mr Britt, as employer, not [Mr Coady] as a subordinate, who would decide whether to go to the pub before Mr Britt was driven home, the time when they would leave the pub, or, as occurred on 11 December 2011 (and on previous occasions which are not in dispute) whether they would go home, or spend the night where they happened to be drinking.”
Ms Cassidy submitted that the evidence does not support the conclusion that there was no limit to the scope of Mr Coady’s employment insofar as it required him to drive Mr Britt around and that he remained in the course of his employment until such time as he finished driving Mr Britt home.
Ms Cassidy argued that, whatever might have been the usual arrangement between Mr Britt and Mr Coady concerning driving Mr Britt home, the Arbitrator accepted that Mr Coady ceased performing his duties as a driver when Mr Coady proceeded from the abattoir separately from Mr Britt. The Arbitrator then found that Mr Britt remained in the course of his employment without identifying the conflict between the facts as found by him and his conclusion that, in law, the worker remained in the course of his employment after that point.
Ms Cassidy said that the Arbitrator accepted Mr Coady’s evidence that it was the usual practice to attend the pub at Cootamundra to be paid and placed some weight on that evidence when considering whether Mr Coady remained in the course of his duties after leaving the abattoir. However, there is no evidence that Mr Coady was paid on this occasion. She submitted that the only evidence of what Mr Coady and Mr Britt did is that they attended Cootamundra to drink at the hotel and it was not open to the Arbitrator to reach any other conclusion.
Discussion
I do not accept Ms Cassidy’s submissions.
After noting Ms Goodman’s submission that the working day ended at 1.30 pm, as claimed by Mr Britt, the Arbitrator said that there was no evidence that Mr Pollack would drive Mr Britt home and, in the circumstances, the practice that Mr Coady would do so continued. This finding was open on the evidence, but was not the end of the analysis and, on its own, even if it were wrong, is of limited weight.
The Arbitrator’s ultimate, and critical, finding was that Mr Coady’s responsibilities as Mr Britt’s driver meant that Mr Britt (as the employer) expressly or impliedly induced or encouraged Mr Coady (as the employee) to spend the interval or interlude (between periods of actual work) at a particular place (the Family Hotel and the Wallendbeen Hotel) or in a particular way (drinking) until Mr Britt arrived home. These findings are discussed further below.
The submission that the evidence does not support the conclusion that there was no limit to the scope of Mr Coady’s employment, and that he remained in the course of his employment until he finished driving Mr Britt home, was based on a false premise. The Arbitrator did not find that there was no limit to the scope of Mr Coady’s employment. He found that, in the circumstances, Mr Coady’s responsibility to drive Mr Britt home had not been transferred to Mr Pollack and that subsequent discussions between Mr Coady and Mr Britt confirmed Mr Coady’s continuing responsibility to do that. That finding was open on the evidence.
The Arbitrator correctly approached the scope of Mr Coady’s employment, as required by Hatzimanolis, by reference to “the general nature, terms and circumstances” of Mr Coady’s employment, which established that Mr Coady’s whereabouts, and what he did after his “actual work” was completed, was subject to what Mr Britt chose to do between “knocking off” and being left at his home at Gundagai.
Contrary to Ms Cassidy’s submission, which was inconsistent with the heading for this topic, the Arbitrator did not accept that Mr Coady ceased his duties as driver when Mr Coady proceeded from the abattoir separately from Mr Britt. He noted (at [40]) Ms Goodman’s submission to that effect and referred to Mr Coady’s evidence that it was his preference that Mr Pollack drive Mr Britt home. However, he correctly recorded that there was no evidence regarding any arrangement that Mr Pollack actually do so. In the circumstances, he found that the practice that Mr Coady would drive Mr Britt home each day continued. That finding was open on the evidence and disclosed no error.
If follows that, contrary to Ms Cassidy’s submission, there is no conflict between the facts found and the Arbitrator’s conclusion that Mr Coady remained in the course of his employment after he left the abattoir.
It is correct that (at [37]) the Arbitrator referred to Mr Coady’s evidence that it was the usual practice to go to the pub in Cootamundra to be paid. He also (correctly) noted that this evidence had not been disputed by Mr Britt. However, as the Arbitrator made no further reference to that evidence, it is unclear what, if any, weight he placed on it, though it may be inferred that he accepted it. Though he did not refer to it as a factor in support of his finding that Mr Coady was in the course of his employment at the time of the assault, it was a factor that would have supported a finding that Mr Coady was in the course of his employment when he initially went to the hotel. However, that did not determine whether he remained in the course of his employment when he was assaulted several hours later. Nothing in the decision suggests that the Arbitrator thought that it did.
It follows that Ms Cassidy’s submission that there is no evidence that Mr Coady was paid at the hotel is of limited, if any, relevance and certainly does not establish error by the Arbitrator. In the absence of any evidence from Mr Britt (or anyone else) disputing Mr Coady’s assertion that it was the usual practice to go to the hotel to be paid, it was open to find that, for that reason alone, Mr Coady remained in the course of his employment when he went to the Family Hotel.
Ms Cassidy’s submission that the only evidence was that Mr Coady and Mr Britt went to the hotel to drink, and that it was not open to the Arbitrator to reach any other conclusion, was wrong and is rejected. While it may have been open to argue that the lack of evidence that wages were in fact paid at the hotel undermined Mr Coady’s evidence that he went to the hotel for that purpose, Ms Goodman did not put that argument at the arbitration and that is not the argument that Ms Cassidy has put on appeal. As that was a matter that Mr Coady could have met by the calling of additional evidence at the arbitration, it is not an argument that can be run on appeal in any event (Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418, at 438; Coulton v Holcombe [1986] HCA 33; 162 CLR 1, at 6 – 7; Water Board v Moustakas [1988] HCA 12; 180 CLR 491, at 498).
Topic 2 – The finding the time spent at the Family Hotel was an interval between two periods of work
Submissions
This topic seems to relate to the Arbitrator’s findings at [41], [42], [43] and [44], where he said:
“41. I note that despite [Mr Coady’s] stated preference that Mr Pollack drive Mr Britt home, there is no evidence regarding any arrangement that Mr Pollack would actually do so. In the circumstances, the practice that [Mr Coady] would drive Mr Britt home each day continued to apply. In keeping with that practice, Mr Pollack left the hotel (and Mr Britt and [Mr Coady]) without further communication with them. It follows that [Mr Coady’s] responsibility of driving Mr Britt home was not transferred from the applicant to Mr Pollack, and the subsequent discussion between [Mr Coady] and Mr Britt confirms [Mr Coady’s] continuing responsibility.
42. In his statement of 17 May 2012, [Mr Coady] states that whilst he and Mr Britt ‘were drinking at the front of the Hotel, Andrew and Scott were inside and they left without saying goodbye to either [himself] or [Mr Britt]’. He states further that ‘[a]t about 2.30pm [he] had had 2 schooners and said to Greg words to the effect ‘I won’t have any more, you can have another one but I will stop so I can drive you [sic] home’’. According to [Mr Coady] they ‘were on the front verandah [sic] and at this stage both Andrew and Scott had left’. It is relevant that Mr Britt has not disputed this evidence.
43. [Mr Coady] states that Mr Britt responded…
‘…by saying words to the effect you may as well have another one we will stay the night, we have been invited to the Christmas drinks with a Maintenance Crew from the Abattoirs and besides we can do a couple of hours tomorrow setting up for Monday.’
44. [Mr Coady’s] evidence that Mr Britt stated that they would ‘stay the night’, and that they would work the following day setting up for Monday has not been disputed by Mr Britt. In effect, it was envisaged by Mr Britt that [Mr Coady] would not drive him home that afternoon, but would stay in Cootamundra and resume work in Cootamundra the following day.”
Ms Cassidy submitted that the Arbitrator erred when he found (at [41]) that, in the absence of any evidence regarding any arrangement that Mr Pollack would drive Mr Britt home, the usual practice that Mr Coady would do so continued and Mr Coady remained responsible for that duty. She said the fact that Mr Coady and Mr Britt arrived at the Family Hotel separately was evidence that Mr Britt no longer required Mr Coady to drive him and that Mr Coady’s driving duties had concluded for the day.
Ms Cassidy contended that Mr Coady’s evidence, as summarised by the Arbitrator at [42] and [44], was contradicted by the following evidence:
(a) in his statement dated 13 July 2013, Mr Britt said he told Mr Coady not to drive his (Mr Britt’s) vehicle and that he attempted to contact his wife to make alternative arrangements to get home;
(b) in the same statement, Mr Britt estimated that he and Mr Coady had each had approximately eight beers by 5.30 pm, when Mr Smith invited them to drinks at Wallendbeen Hotel, and
(c) in his statement to the police dated 15 December 2010, where Mr Coady said:
“Greg [Britt] and I left where we had been working and went to the Family Hotel Cootamundra. We had a few beers there, to the point where I felt that I would have been over the limit if I drove anywhere. Greg and I had a conversation about this, and we decided that we would both stay the night in Cootamundra, and he also indicated to me that we had been invited to Christmas drinks with the maintenance crew from the abattoirs.”
Ms Cassidy argued that this evidence demonstrated that both Mr Coady and Mr Britt formed the intention that Mr Coady would not drive Mr Britt home and both took steps to carry out that intention by seeking to make alternative arrangements.
Last, Ms Cassidy submitted that the “Arbitrator found that Mr Coady remained in the course of his duties because those duties usually required him to drive Mr Britt home and he must remain in the course of his employment until he did so”. She said that the Arbitrator failed to give any or any adequate reasons why it was not open to Mr Coady and Mr Britt to “vary the duties of [Mr Coady’s] employment in this respect, nor did he give proper weight to the evidence from both witnesses to the effect [that Mr Coady’s] duties were varied on this occasion”.
Discussion
The fact that Mr Coady and Mr Britt arrived at the Family Hotel separately did not establish, on its own, that Mr Coady’s driving duties had concluded and the Arbitrator did not err in not making that finding. The Arbitrator was well aware of Mr Britt’s assertion that, at the abattoir, he told Mr Coady not to drive his (Mr Britt’s) car and he referred to that evidence at [35]. He also referred (at [36]) to Mr Coady’s denial that Mr Britt gave such a direction.
Though the Arbitrator made no express finding as to whether Mr Britt gave that direction, in light of the later conversations at the Family Hotel, that is of no consequence. He approached the issue by reference the whole of the evidence, which included the conversations between Mr Coady and Mr Britt at the hotel, their previous dealings, and by reference to the principals in Hatzimanolis, which required consideration of the general nature, terms and circumstances of the employment.
The submission that Mr Britt’s statement of 24 July 2013 contradicts Mr Coady’s evidence is incorrect. The relevant evidence the Arbitrator said Mr Britt did not dispute was Mr Coady’s evidence that by about 2.30 pm he had had two schooners and said to Mr Britt words to the effect “I won’t have any more, you can have another one but I will stop so I can drive home”, to which Mr Britt replied “you may as well have another one we will stay the night, we have been invited to the Christmas drinks with a [m]aintenance [c]rew from the [a]battoirs and besides we can do a couple of hours tomorrow setting up for Monday”.
As Mr Britt did not deal with this conversation in his statement, or in any other evidence, the Arbitrator was correct to state that he did not dispute it. The evidence relied on by Ms Cassidy deals with two different points, namely, Mr Britt’s assertion that, at the abattoir, he told Mr Coady not to drive his (Mr Britt’s) car and that Mr Britt attempted to contact his wife to make alternative arrangements. Neither point addressed the evidence from Mr Coady referred to by the Arbitrator at [42] and [44] (reproduced at [67] above).
The evidence that Mr Britt attempted to contact his wife did not dispute the specific allegations made by Mr Coady and is of limited weight. That is especially so when it is not known when Mr Britt tried to contact his wife. If he did so before the 2.30 pm conversation, and was unsuccessful in his attempts, that provides, if anything, a further reason why he might want Mr Coady to stay the night in Cootamundra. It is sufficient to state that the Arbitrator did not err in stating that Mr Britt did not dispute this critical conversation. Quite properly, Ms Goodman made no submission that he had.
Mr Britt’s evidence that the two men had each consumed eight beers by 5.30 pm when Mr Smith invited them to Christmas drinks is of limited weight. The allegation seems to be that, by inference, if Mr Smith did not tell the men about the Christmas drinks until 5.30 pm then Mr Britt must dispute the conversation that Mr Coady said occurred at about 2.30 pm. There are two answers to this point.
First, while Ms Goodman referred to Mr Britt’s evidence, she did not invite the Arbitrator to draw the inference that Ms Cassidy appears to raise on appeal. Her submission was merely that there was no coercion or inducement by Mr Britt for Mr Coady to stay at the hotel (T43.24). Therefore, it was never put to the Arbitrator that the conversation was disputed and it is not open to argue on appeal that the Arbitrator erred in failing to deal with a point not argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 at [30] (Bell)).
Second, as counsel for Mr Coady, Mr Hickey, submitted, Mr Britt’s statement does not provide a specific answer to Mr Coady’s evidence of the conversation he says took place. He added that, as Mr Britt’s statement had not been signed, the Arbitrator gave Mr Britt the opportunity to sign and date it after the arbitration. The statement was then signed and dated 24 July 2013 and submitted with an Application to Admit Late Documents dated 31 July 2013 without alteration and, again, without any challenge to Mr Coady’s evidence of the relevant conversation. It follows that, apart from such inference as may be drawn from the time at which Mr Britt says that Mr Smith invited the men to the Christmas drinks, the essential evidence upon which the Arbitrator’s critical findings are based remains uncontradicted.
Mr Coady’s statement to the police dated 15 December 2010 is, in general terms, consistent with his second statement and it is untenable to suggest that that statement contradicts the later statement. To the extent there is any (potential) inconsistency with the later statement, it is to be remembered that Mr Coady gave his statement to the police for a very different purpose to the purpose for which he gave his later statement. Just as medical reports must be assessed in their proper context and a judge must have regard to the purpose for which they were obtained (Patrech v State of NSW [2009] NSWCA 118 at [78] [88] and [89]), statements from lay witnesses should also be assessed in their proper context. As Mr Hickey submitted, the statement to the police was in general terms until the description of the lead up to the assault, the assault itself and the aftermath.
Moreover, Mr Coady’s statement to the police that “we had a few beers there, to the point where I felt that I would have been over the limit if I drove anywhere” must be viewed in the context that there is no indication, in that statement, of when Mr Coady formed that view. On Mr Coady’s uncontradicted evidence in his second statement, the suggestion that he stop drinking after two schooners was at about 2.30 pm (which would be roughly consistent with the men having arrived at the hotel shortly before that time, having stopped work at either 1.30 pm or 2.00 pm). In addition, on Mr Coady’s unchallenged evidence, the decision to continue drinking was made after notification from Mr Britt that they had been invited to Christmas drinks with the maintenance crew from the abattoir.
In any event, the evidence in Mr Coady’s police statement that he felt he would be over the limit if he drove is not necessarily inconsistent with his later statement that, after having had two schooners, he told Mr Britt he would not have any more. Consistent with that, Mr Coady said in his police statement that he and Mr Britt “had a conversation about this”. It is not unreasonable to conclude that the conversation they had was the conversation set out in Mr Coady’s later statement, which Mr Britt did not dispute, and about which Mr Coady was not cross-examined.
Even if it is correct that both men formed the intention that Mr Coady would not drive Mr Britt home on the evening of 11 December 2010, and that they would stay the night in Cootamundra, the submission that they both took steps to carry out that intention by seeking to make alternative arrangements is incorrect. While Mr Britt gave evidence, which Mr Coady doubted, that he had attempted to contact his wife, there is no evidence that Mr Coady attempted to make any alternative arrangements on the afternoon of 11 December 2010. The evidence is that he contacted his partner after the assault and that she picked him up early on the morning of 12 December 2010.
Last, Ms Cassidy’s submission that the Arbitrator found that Mr Coady remained in the course of his employment (duties) because those duties usually required him to drive Mr Britt home and he must remain in the course of employment until he did so was an oversimplification of the Arbitrator’s reasons.
The Arbitrator found:
(a) that, in the circumstances, the practice that Mr Coady would drive Mr Britt home each day continued to apply and was not transferred to Mr Pollack ([41]);
(b) in light of the conversation that the men would stay the night and work the next day, it was, in effect, envisaged by Mr Britt that Mr Coady would not drive him home that afternoon, but would stay in Cootamundra and resume work in Cootamundra the following day ([44]);
(c) this was not the first time that Mr Britt had decided, without prior notice to Mr Coady, that they would stay and not go home from work ([45]);
(d) therefore, the established practice was that Mr Coady would drive Mr Britt to and from the places where work was performed ([47]);
(e) Mr Coady could not independently proceed home from a workplace such as the Cootamundra abattoir because his vehicle was parked many kilometres away at Mr Britt’s home in Gundagai and he was required to drive Mr Britt home ([47]);
(f) having regard to the principles in Hatzimanolis, Mr Coady’s responsibilities as Mr Britt’s driver (having regard to the general nature, terms and circumstances of the employment) meant that “the employer, expressly or impliedly … induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way” until Mr Britt arrived at his residence;
(g) the consequence of being Mr Britt’s driver was that Mr Coady was required to tag along with him and it was Mr Britt (as employer), not Mr Coady (as a subordinate), who would decide whether to go to the pub before Mr Britt was driven home, the time they would leave the pub, or, as occurred on 11 December 2010, whether they would go home or spend the night where they happened to be drinking ([49]);
(h) instead of being at home at Gundagai late on 11 December 2010, Mr Coady was in Cootamundra for reasons directly related to his employment ([50]);
(i) the period initially spent at the Family Hotel was an interval or interlude of a kind for which Mr Britt was liable, involving what Dixon J described in Whittingham as “something which is part of or is incidental to his service” ([50]), and
(j) the interval was extended (until work resumed the next day) when Mr Britt determined that they would stay the night in Cootamundra and do a couple of hours (work) the next day and the circumstances in which Mr Coady found himself at the time of the assault were therefore incidental to his employment ([50]).
The Arbitrator then concluded (at [51]), after applying the principals in Hatzimanolis, that Mr Coady received his injuries “in the course of his employment”.
Once the Arbitrator’s reasons are properly understood, it is clear that the submission that he failed to give any reasons why it was not open to Mr Coady and Mr Britt to vary “the duties of [Mr Coady’s] employment” is completely misguided and without merit. In the circumstances, the Arbitrator did not have to give reasons why it was not open to the parties to “vary the duties”. It is patently obvious that it was open to the parties to “vary the duties”. However, Ms Goodman did not submit there had been a variation of Mr Coady’s duties. She argued, because Mr Britt told Mr Coady, at the abattoir, not to drive his (Mr Britt’s) car that was “the end of his working day” (T40.4). However, it is equally obvious that, because of the unchallenged conversation at the hotel, the Arbitrator did not accept that submission.
In her submissions in reply, Ms Cassidy said that where Mr Coady provided two conflicting versions of events it was “necessary for the arbitrator to identify that he [Mr Coady] did so and to explain or give reasons for accepting one version of events over another”.
This submission has ignored the way experienced counsel conducted the arbitration. Ms Goodman did not refer to the police statement in her submissions and did not submit that Mr Coady had given conflicting versions of events. Mr Hickey referred to the police statement at T29.21, where he said:
“The police statement of the applicant is at page 191, 192 and 193. It describes what happened. It’s only marginally different to the worker’s statement which I first read from but it is not addressing all of the instances in terms of what’s required or proof in this case. It’s really a statement given which the police required in terms of what occurred in the assault and it confirms the order of events and it’s contemporaneous.”
For good reasons, Ms Goodman did not challenge this submission and made no submissions along the lines in Ms Cassidy’s submissions on appeal.
The extent and scope of a trial judge’s duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The reasons must do justice to the issues posed by the parties’ cases (Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing)).
Moreover, when considering if an Arbitrator has complied with his or her obligation to give reasons, it is necessary to have regard to the overall sense and import of the reasons, read as a whole and without an eye attuned to the detection of error (ApacheNorthwest Pty Ltd v Department of Mines and Petroleum [2012] WASCA 167). In addition, as Kirby J observed in Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, courts should avoid an “overly pernickety examination of the reasons” and that the “focus of attention is on the substance of the decision and whether it addressed the ‘real issue’ presented by the contest between the parties”.
In circumstances where Ms Goodman made no reference to the police statement and, save for submitting that Mr Coady’s working day came to an end at the abattoir, made no submissions along the lines argued by Ms Cassidy on appeal, the Arbitrator was not required to deal with any alleged inconsistency in that statement. Even if the Arbitrator erred in failing to deal with the police statement, for the reasons explained above, that error makes no difference to the outcome because the police statement does not alter the substance of the unchallenged conversation in Mr Coady’s second statement.
I am comfortably satisfied that, having regard to the issues argued at the arbitration, the Arbitrator exposed his reasoning on the critical issues in dispute and articulated the essential ground on which he based his decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). Those reasons were adequate in the circumstances.
It follows that I do not accept that the Arbitrator failed to give “proper weight” to the evidence from Mr Coady and Mr Britt to the effect that Mr Coady’s duties were varied on 11 December 2010. He reviewed the evidence from both sides and made the findings recorded above. Those findings were open on the evidence and disclosed no error.
Ms Cassidy also argued in her submissions in reply that the Arbitrator failed to give any consideration to the principle in Watson v Foxman (1995) 49 NSWLR 315 to the effect that greater weight should be attached to evidence which is closer in time to the event because the degree of fallibility of memory of conversations increases with the passage of time. This appears to be a new or additional ground of appeal.
Again, Ms Goodman made no submission along these lines (or even close to it) at the arbitration and it is not open to argue on appeal that an Arbitrator erred in failing to deal with a point not argued (Bell at [30]). Essentially, Ms Cassidy has attempted to conduct the appeal as a rehearing and to present a range of new arguments that were not raised at the arbitration. Section 352 of the 1998 Act does not permit that approach. Appeals under s 352 are restricted to the identification and correction of error and are not a review or rehearing (s 352(5); Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [65]).
Topic 3 – The question of whether Mr Coady’s consumption of alcohol took him outside the course of his duties
Submissions
Ms Cassidy argued that the weight of the evidence is that, prior to the decision to stay the night at Cootamundra, Mr Coady had consumed sufficient alcohol to “render him unfit to drive Mr Britt home” and, in doing so, Mr Coady took himself outside the course of his employment well before the injury occurred. She said that the Arbitrator failed to consider the whole of the evidence as to Mr Coady’s consumption of alcohol and its effect on his ability to carry out the duty of driving Mr Britt home. In failing to do so, the Arbitrator made a determination of fact, namely, that Mr Coady remained in the course of his employment at least until the decision to spend the night at Cootamundra, which was not reasonably open to him.
Discussion
I do not accept this submission. It has ignored the evidence, which the Arbitrator clearly accepted, that Mr Coady decided to stop drinking after he had two schooners at an earlier time in the afternoon so he could drive Mr Britt home. It also overlooks the evidence that Mr Britt encouraged Mr Coady to spend his time at a particular place (the Family Hotel and the Wallendbeen Hotel) and in a particular way (drinking).
Once it was accepted that Mr Coady and Mr Britt were drinking together while on an interval between periods of actual work, and that Mr Britt had induced or encouraged Mr Coady to spend his time at a particular place and in a particular way, and that the Arbitrator’s findings on these points were open to him, as I have found they were, it is untenable to argue that the mere fact of drinking took Mr Coady outside the course of his employment.
On the findings the Arbitrator made, Mr Coady would only be outside the course of his employment if his behaviour amounted to gross misconduct (Hatzimanolis at 484). At the arbitration, Ms Goodman did not argue gross misconduct, but submitted that Mr Coady’s conduct amounted to serious and wilful misconduct. The Arbitrator dealt with this submission at [65] and [66] and his reasons, on that issue, have not been challenged on appeal.
Topic 4 – The decision to stay in Cootamundra overnight
Submissions
Ms Cassidy submitted that the decision to go to the Christmas drinks at Wallendbeen Hotel was a “mutual one, rather than one by Mr Britt alone” and that the Arbitrator erred in finding Mr Britt decided that he and Mr Coady would stay at Cootamundra on the night of 11 December 2010. She said that, at a minimum, “the Arbitrator wrongly found the evidence in this respect was undisputed, failed to determine which evidence he preferred and failed to provide his reasons for doing so”.
Ms Cassidy said that Mr Britt disputed Mr Coady’s evidence as to how the invitation from the maintenance crew was conveyed to him but, even if Mr Coady’s evidence were accepted, the primary purpose for staying the night at Cootamundra was to permit Mr Britt and Mr Coady to attend Christmas drinks. It was an advantage of the plan that both men could then do some work on the following day, but that was a secondary consideration and there is no evidence to show this was the purpose of staying in Cootamundra or that indeed work was to be carried out the following day.
Ms Cassidy contended that “in circumstances where [Mr Coady] and Mr Britt have determined upon a course of action unrelated to [Mr Coady’s] employment duties, it was not open to the Arbitrator to find [Mr Coady] remained in the course of his duties”.
Discussion
I reject these submissions.
As I have already noted earlier in this decision, in determining whether an Arbitrator has erred one must always have regard to the way the case was presented at the arbitration. On this point, Ms Goodman made no submission that the decision to go to the Christmas drinks and stay overnight at Cootamundra was a mutual one, and that, therefore, Mr Coady could not succeed. She submitted, at T43.24:
“There’s no coercion by the employer. There’s no inducement by the employer. The employer never says to him, ‘You must come with me because in your state, your inebriated state, you’re still going to be driving me home’ or anything like that. There is nothing. They are no longer employer and employee at this time. They’re out there on an equal basis and the other person comes and starts talking to them and invites them to go what turns out to be drinks organised by employees of an abattoir. It’s not even an official function of the abattoir. It’s just something that some other employees have arranged.”
It goes without saying that there does not have to be coercion, or even a direction, for there to be an inducement or encouragement. The Arbitrator acknowledged Ms Goodman’s submission that the working day had ended, but accepted Mr Coady’s evidence, which was not disputed by Mr Britt, that Mr Britt said, relatively early in the afternoon, and prior to Mr Smith’s invitation, that Mr Coady may as well have another (drink) and that they would stay the night in Cootamundra and do some work on Sunday. This finding was open and disclosed no error.
The passage relied on by Ms Cassidy from Mr Britt’s statement did not deal with that evidence from Mr Coady. It merely said that Mr Coady and Mr Britt agreed to go to the Christmas drinks, which implied that the decision was a mutual one. Mr Britt did not have to make Mr Coady feel that he was “required to go” for there to be an inducement or encouragement.
The statement by Mr Britt to Mr Coady, as accepted by the Arbitrator, that “we have been invited to the Christmas drinks”, was a clear inducement or encouragement to Mr Coady to attend those drinks. That is especially so when it was preceded by the words “we will stay the night” and followed by the statement “we can do a couple of hours tomorrow setting up for Monday”. It is irrelevant that Mr Coady did not indicate that he did not feel comfortable in going to the Christmas drinks.
This issue must also be analysed in light of the evidence from Mr Coady, which the Arbitrator clearly accepted, as he was entitled to do, that he (initially) wished to go home with Andrew and have Mr Pollack take Mr Britt home. As Andrew and Mr Pollack left the hotel, apparently without further discussion with either Mr Coady or Mr Britt, the Arbitrator found that that left the onus on Mr Coady to provide transport for Mr Britt. That finding by the Arbitrator (at [41]) was open on the evidence and disclosed no error.
Given Ms Goodman’s submissions at the arbitration, and nature of the issues in dispute, the Arbitrator’s reasons adequately explained the basis for his conclusion on this issue.
The submission that the primary purpose of staying at Cootamundra was to permit the men to attend the Christmas drinks was wrong and ignored the test in Hatzimanolis. The test does not require consideration of the primary or secondary purpose for staying at a particular place or spending time in a particular way. It requires consideration of whether the employer induced or encouraged the worker to spend his or her time at a particular place or in a particular way during an interval between periods of work.
Having regard to the principles in Hatzimanolis, and Mr Coady’s responsibilities as Mr Britt’s driver, the Arbitrator was satisfied that “the employer, expressly or impliedly… induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way” (Hatzimanolis at [16], quoted by the Arbitrator at [48]) until Mr Britt arrived at his residence. Having regard to the further conversation at the Family Hotel, about the invitation to Christmas drinks, and about Mr Britt and Mr Coady staying overnight and working on Sunday, which the Arbitrator accepted took place, the Arbitrator’s conclusion was open to him and disclosed no error.
It follows that the submission that Mr Coady and Mr Britt “determined upon a course of action unrelated to [Mr Coady’s] employment duties” is unsustainable.
Even if it were accepted that the decision to stay overnight was a mutual one, as Ms Cassidy submitted, it is difficult to see how that makes any difference to the outcome. The evidence in support of that conclusion must be read with Mr Coady’s later (unchallenged) statement that Mr Britt said they would stay the night and do some setting up work the next day ready for Monday. The “mutual decision”, if there was one, was Mr Coady’s agreement with that suggestion from Mr Britt.
Topic 5 – The finding that Mr Coady had no choice but to stay in Cootamundra
Submissions
This issue relates to the Arbitrator’s finding (at [47]) that Mr Coady:
“could not independently proceed home from a workplace such as the abattoir at Cootamundra, for two reasons – his own vehicle was parked many kilometres away at Mr Britt’s home in Gundagai [57 kilometres away], and he was required to drive Mr Britt home.”
Ms Cassidy submitted there was no evidence that the distance from Cootamundra to Gundagai was a distance that would prevent Mr Coady travelling home independently. She said the evidence demonstrated that Mr Coady was not in a place which was isolated from his usual residence such that he was dependent on Mr Britt for transport. Mr Coady was clearly able to arrange alternate means of transport home.
Ms Cassidy argued that the Arbitrator failed to consider the proposition that Mr Coady was not required or constrained to remain in Cootamundra on 11 December 2010. He could have gone home and returned to collect Mr Britt the following morning. Even if the Arbitrator was correct to find that Mr Coady’s duties could not be varied, such that he remained bound to drive Mr Britt home, the Arbitrator failed to identify any evidence to support the proposition that those duties could not have been performed in an alternative manner. This is particularly so where Mr Coady and Mr Britt had evinced the intention to vary the usual practice by:
(a) travelling separately from the abattoir to the Family Hotel;
(b) both men declaring their intentions to make an alternative arrangement;
(c) both men taking steps to carry out their respective intentions;
(d) Mr Coady’s consumption of alcohol prior to any suggestion he would remain the night at Cootamundra, and
(e) both men travelling home from Cootamundra after making alternative arrangements.
Last, Ms Cassidy submitted that the Arbitrator failed to identify those considerations which could be said to make the circumstances in this matter analogous to cases such as Hatzimanolis, which relied upon the worker’s remoteness from his usual place of residence, to conclude that Mr Coady was induced or encouraged by Mr Britt to remain in Cootamundra.
Discussion
I reject the above submissions.
The question of whether Mr Coady could independently proceed home was incidental to the Arbitrator’s main finding and therefore of limited relevance to the conclusion. He did not limit his finding that Mr Coady stayed in Cootamundra to the two reasons noted at [47] of the decision. The Arbitrator found that Mr Britt had told Mr Coady that they would go to the Christmas drinks, stay in Cootamundra and work the next day setting up for Monday.
Thus, as the Arbitrator found, Mr Coady was in Cootamundra at the direct inducement and encouragement of his employer for reasons directly related to his employment. That was the critical finding, not whether alternative transport was available. It was open to the Arbitrator to find, as he did, that Mr Coady did not go home because of Mr Britt’s statement to him that they would stay the night, as they had on previous occasions, and would work on Sunday.
The Arbitrator considered the proposition, as put by Ms Goodman, that the working day ended at 1.30 pm and that Mr Coady was therefore not required to drive Mr Britt home. He rejected that proposition for the reasons already discussed above. While it is undoubtedly correct that Mr Coady could have gone home, and collected Mr Britt the next day, that is not the point. The Arbitrator appears to have accepted, as he was entitled to do, that Mr Coady attended the Family Hotel to collect his wages, as per the usual practice. While at the hotel, Mr Britt (effectively) told Mr Coady that he could continue drinking because they would stay the night and work on Sunday. It is difficult to imagine a clearer case of inducement or encouragement to be at a particular place or to engage in a particular activity.
The submission that the Arbitrator failed to identify any evidence to support the proposition that Mr Coady’s duties could not be performed in an alternative manner is unsustainable. This was not a matter on which Ms Goodman made any submissions and not a matter the Arbitrator had to address. In any event, that Mr Coady’s duties (as Mr Britt’s driver) could have been performed in an alternative manner is irrelevant. The issue was whether Mr Britt had encouraged and induced Mr Coady to be at a particular place and to spend his time in a particular way. The evidence accepted by the Arbitrator clearly establishes that he did.
Even if it were accepted that travelling separately to the Family Hotel evinced an intention to vary the usual practice, several things happened after the men arrived at the hotel. Considering those things, in particular the unchallenged conversation about staying the night and working the next day, it was open to the Arbitrator to reject Ms Goodman’s submission that the working day ended at 1.30 pm and to find that Mr Britt induced and encouraged Mr Britt to stay at Cootamundra for work purposes.
The principals in Hatzimanolis are not restricted to work in remote locations. Priestley JA (Clarke and Meagher JJA agreeing) in Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250 at 255 concluded that Hatzimanolis gave guidance to cases which extended beyond those of an employee required to work in a remote camp. In Haider v JP Morgan Holdings Aust t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, Basten JA said (at [23]) there is no doubt that Priestley JA was correct in concluding that Hatzimanolis gave explicit guidance in relation to cases extending beyond its own circumstances.
It follows that it was open to the Arbitrator to apply the principles in Hatzimanolis. He did so by determining that the period after work finished, and up to the time of the assault, was an interval between periods of actual work and that Mr Coady had been induced or encouraged to spend his time in that interval at a particular place and in a particular way. Those findings were open and disclosed no error.
Topic 6 – The finding [that the] injury occurred during an interval or interlude
Submissions
Ms Cassidy’s submissions on this point were dependent on her earlier submissions, which I have already considered and rejected. She added that, as a consequence of the foregoing, the weight of the evidence does not support a finding that Mr Coady was assaulted during an interval between two periods of employment and he was not in Cootamundra because his employer encouraged or induced him to be there as part of his employment duties. Mr Coady was there of his own accord to attend a social function.
Discussion
The substance of this submission has already been considered and rejected. Given that Mr Britt’s evidence failed to deal with the critical parts of Mr Coady’s case, Ms Cassidy’s submission that the weight of the evidence did not support the Arbitrator’s finding is without merit and is rejected.
Given the Arbitrator’s factual findings, which were open to him, and which I have discussed above in detail, the submission that Mr Coady was “there of his own accord to attend a social function” is untenable and is rejected.
Topic 7 – The application of Hatzimanolis and PVYW
Submissions
Ms Cassidy submitted that, even if it is accepted that Mr Coady was in Cootamundra as part of an interval or interlude between two periods of employment, as contemplated in Hatzimanolis, the evidence does not support a finding that Mr Coady was in the course of his employment when the injury occurred.
She said that, broadly speaking, the Arbitrator found that Mr Coady suffered injury whilst participating in an activity which consisted of travelling to Wallendbeen, attending Christmas drinks and travelling back to the Family Hotel at Cootamundra. This was “entirely separate to the presence of [Mr Coady] at the Hotel in Cootamundra”.
Ms Cassidy added that, at the arbitration, Mr Coady had not argued that Mr Britt had induced or encouraged him to travel to Wallendbeen on the courtesy bus to have drinks with the maintenance crew from the abattoir and the Arbitrator did not find that Mr Britt so encouraged or induced Mr Coady. She submitted that the evidence does not support such a finding.
Ms Cassidy pointed out that PVYW referred, with approval, to the statement by Dixon J in Humphrey Earl Ltd v Speechley [1951] HCA 75 at [4]; 84 CLR 126 (Speechley) in which his Honour said the employer’s liability for injuries suffered by a worker during an interval “cannot be stretched to make everything he chooses to do during the interval … incidental to his employment”.
Ms Cassidy noted that the majority judgment in PVYW added, at [60]:
“An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.”
Ms Cassidy said that the High Court found that the employer must have induced or encouraged the activity engaged in by the employee at the time she (or he) suffered injury. She argued that, in the present case, there was no finding that Mr Britt induced or encouraged the activity in which Mr Coady was engaged at the time he suffered injury and, as a consequence, the Arbitrator erred in law in finding Mr Coady was injured during an interval whilst in the course of his employment.
Discussion
As I have already noted earlier in this decision, the Arbitrator found that Mr Britt had encouraged or induced Mr Coady to spend the night at Cootamundra with him as Mr Coady’s employer. That encouragement included encouraging Mr Coady to attend the Christmas drinks at Wallendbeen Hotel. Those findings were based on:
(a) the Arbitrator’s acceptance of the undisputed evidence that Mr Britt said to Mr Coady, “you may as well have another one we will stay the night, we have been invited to Christmas drinks with a [m]aintenance [c]rew from the [a]battoirs and besides we can do a couple of hours tomorrow setting up for Monday” ([42] and [43]);
(b) the determination (at [49]), based on the evidence, that it was Mr Britt, as the employer, not Mr Coady, “who would decide whether to go to the pub before Mr Britt was driven home, the time when they would leave the pub, or, as occurred on 11 December 2011 [sic, 2010] (and on previous occasions which are not in dispute) whether they would go home, or spend the night where they happened to be drinking”, and
(c) the determination (at [50]), based on the evidence, that the “interval [at the Family Hotel] was extended when Mr Britt determined that they would ‘stay the night’ in Cootamundra and would ‘do a couple of hours tomorrow setting up for Monday’” (emphasis added).
As a result, given the employer’s statement, as recounted by Mr Coady, the Arbitrator found that the interval was to continue until work resumed on Sunday and the circumstances in which Mr Coady found himself “at the time of the assault were therefore incidental to his employment”. It is clear from these findings, which were open on the evidence, that the circumstances in which Mr Coady found himself at the time of the assault were incidental to his employment as he was at that place, and engaged in that activity, having been expressly encouraged or induced by the employer to go to the Christmas drinks at Wallendbeen Hotel and to stay the night at Cootamundra. That encouragement or inducement was for a work purpose, namely, to do work the next day. (In this sense, the facts are much stronger in the present case than in Hatzimanolis because, in that case, the visit to Wittenoom Gorge was a recreational trip with no direct work benefit or connection.)
The submission that, at the arbitration, Mr Coady did not submit that Mr Britt had encouraged or induced him to travel on the courtesy bus to Wallendbeen Hotel to have Christmas drinks was wrong. It is sufficient to refer to Mr Hickey’s submissions at T14-16, though there are other relevant references. After referring to Mr Coady’s evidence summarised at [137(a)] above, Mr Hickey said, at T15.2:
“it appears on that evidence that the worker is being encouraged or being induced in the sense required by the authorities to partake in an activity which the employer himself wanted to partake in outside of normal work hours but an encouragement, an inducement, by the employer himself in order to facilitate returning to a workplace in the vicinity of Cootamundra on the very next day and in order to facilitate the employers [sic] own…”
At T16.16, Mr Hickey said:
“So in that sense, the worker submits that his, if I can call it this, an excursion with the employer on that night, was incidental to his employment and in that sense he was encouraged and induced to go with his employer with the intention on the part of the employer expressed to the worker that that would facilitate the return to work the next morning.”
Read in context, Mr Hickey’s reference to “an activity” and to “an excursion” was a clear reference to the Christmas drinks at Wallendbeen Hotel.
The passage Ms Cassidy quoted from PVYW (see [135] above) does not advance Mr Britt’s position. That passage would apply if, having been induced or encouraged to stay at a particular place, Mr Coady had been injured while engaged in an activity at that place and participation in that activity had not been induced or encouraged by the employer. That is not the situation in the present case.
As the majority in PVYW noted (at [38]), if the injury was suffered while not engaged in actual work, and clearly it was not in the present case, the next enquiry is what the employee was doing when injured. Their Honours explained, at [38] and [39]:
“[38] …The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
[39] It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.”
Mr Hickey submitted that, while only one test needed to be satisfied, Mr Coady’s injury was brought about by him being present at a place (the Family Hotel) and by engaging in an activity, and that both being at that place and engaging in the particular activity were induced and encouraged by Mr Britt. That is clearly correct.
The injury was “brought about” by Mr Britt’s unprovoked assault when Mr Coady was either sitting on the bus at the Family Hotel, or standing outside the bus, immediately after it had brought the men back from the Wallendbeen Hotel. It follows that, consistent with PVYW, the injury occurred “at and by reference to the place” where it occurred. That is so because being on the bus, or standing outside the bus, and therefore being in close proximity to Mr Britt when he was well affected by alcohol, occurred because Mr Coady had been induced or encouraged by his employer to go to Wallendbeen Hotel and to stay at Cootamundra so work could continue on Sunday. In other words, the injury was referrable to the place where the Mr Britt, the employer, had induced or encouraged Mr Coady to stay.
As explained by the majority judgment in PVYW at [43]:
“The principle in Hatzimanolis focuses upon what the employer might be taken to have induced or encouraged the employee to do. That question is to be determined by reference to the matters identified in Danvers and restated in Hatzimanolis as relevant: the general nature, terms and circumstances of the employment.”
As noted earlier in this decision (see [37], [61] and [73] above), the Arbitrator had regard to the general nature, terms and circumstances of Mr Coady’s employment. PVYW confirms that he was correct to do so.
The majority further explained (at [44]) that test does not “inject notions of causation into the application of the principle”. The principle:
“simply identifies the circumstance in which the injury is suffered. It is that circumstance which must be the subject of the employer’s inducement or encouragement.”
The majority added, at [52]:
“The relevant connection or association created by the Hatzimanolis principle is between that activity and the employer’s encouragement to engage in it. Likewise, when an injury is sustained by an employee at a place and by reference to that place, in the sense earlier discussed, the connection between that circumstance and the employment is provided by the fact that the employer induced or encouraged the employee to be present at that place.” (footnote omitted)
The reference to “in the sense earlier discussed” was a reference to [40] where it was noted that “[a]n injury occurs at a place when the circumstance of the injury is referrable to the place”.
I accept that the second limb of Hatzimanolis is also satisfied. The activity in which Mr Coady was engaged, at the time of the injury, was either sitting on the bus or standing outside the bus after it had returned from the drinks at Wallendbeen Hotel. While that was not an activity in the sense of playing football, it was part of the activity of drinking and socialising, which included him undertaking the bus trip from the Family Hotel in Cootamundra and back again. That was an activity that Mr Britt had induced or encouraged Mr Coady to do. It follows that the connection between that activity and the employer’s inducement or encouragement to engage in it is clearly established.
In other words, the “circumstance in which the injury [was] suffered”, namely, being at the Family Hotel, after having attended drinks at the Wallendbeen Hotel, was the subject of Mr Britt’s inducement or encouragement. In contrast to PVYW, where the worker was injured while undertaking an activity that the employer had not in any way encouraged the worker to undertake, though she was at a place where the employer had encouraged her to be, Mr Coady was injured while undertaking an activity that Mr Britt had encouraged him to undertake.
Ms Cassidy’s reliance on Speechley has ignored the unchallenged evidence from Mr Coady that I have discussed in detail above. Liability is not being extended to everything Mr Coady chose to do on the evening of 11 December 2010. Having regard to the general nature, terms and circumstances of Mr Coady’s employment, it is extended to cover an injury brought about by reference to Mr Britt’s inducement and encouragement of Mr Coady to be at a particular place and to engage in a particular activity.
It follows that Mr Coady was injured at a place (the Family Hotel at Cootamundra) where his employer had induced or encouraged him to be and while participating in an activity his employer had induced or encouraged him to do (attending the Wallendbeen Hotel and the Family Hotel and drinking) and that the Arbitrator’s conclusion is consistent with PVYW and Ms Cassidy’s argument on this ground fails.
In view of the above findings, it is not necessary to deal with Mr Coady’s “notice of contention”.
CONCLUSION
The appeal is unsuccessful. Essentially, Ms Cassidy has attempted to conduct the appeal as a rehearing. She has presented several arguments that were not raised at the arbitration and pressed several arguments that were contrary to uncontested evidence. She attempted to overcome significant and glaring omissions in Mr Britt’s evidence (which she failed to acknowledge) by relying on alleged inconsistencies in Mr Coady’s case. Such inconsistencies, if they existed, were not relied on at the arbitration and, had they been, they may well have been the subject of an application to call oral evidence.
Parties are reminded that they are bound by the conduct of their case at arbitration and that arbitrations are not a trial run. For good reasons, Ms Goodman ran the case in a certain way and it was not open on appeal to attempt to run it on a different basis. Notwithstanding that Ms Cassidy has raised several new arguments and issues on appeal, I have considered those issues and, for the reasons stated above, I reject them.
DECISION
The Arbitrator’s determination of 17 October 2013 is confirmed and the matter is remitted to the Arbitrator for determination of all outstanding matters.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.
Bill Roche
Deputy President
30 January 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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