Gregory J Britt and Leanne Britt v Coady

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

1. 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

1. 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.

2. 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.

3. This much is uncontroversial. However, in view of how the appeal…