Hattenfels v Richards Panel Pty Ltd
[2022] NSWPIC 213
•12 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Hattenfels v Richards Panel Pty Ltd [2022] NSWPIC 213 |
| APPLICANT: | Jason Hattenfels |
| RESPONDENT: | Richards Panel Pty Ltd |
| SENIOR MEMBER: | Elizabeth Beilby |
| DATE OF DECISION: | 12 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Consideration of defence pursuant to section 14(2) of the Workers Compensation Act 1987 Act (1987 Act); defence failed as clear that the applicant has sustained a serious and permanent disablement; characterisation of environment where the applicant sustained injury was found to be a seamless continuation of work Christmas function at the respondent’s family residence; Held- finding that injury was sustained within the meaning of section 4 of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant’s injury occurred within the meaning of s 4 of the WorkersCompensationAct1987. 2. The defence pursuant to s 14(2) of WorkersCompensationAct1987 Act fails. 3. The matter is remitted to the President to be referred to a Medical Assessor for whole person impairment assessment of the nervous system. The date of injury is 7 December 2019. The application, reply and late documents dated 22 February 2022 and 14 March 2022 are to be provided to the Medical Assessor. 4. The matter should be listed for telephone conference upon receipt of the Medical Assessment Certificate in relation to weekly benefits. |
STATEMENT OF REASONS
BACKGROUND
Mr Jason Hattenfels was employed by Richards Panel Beating. The respondent company is owned by Tracey and Todd Richards.
The applicant was invited by his employer through a “Teamly” app and verbally to a Christmas party on 6 December 2019. The Christmas party took place at the South Dubbo Tavern, partners were also invited to attend.
The respondent provided a meal together with alcoholic beverages which included beer, wine and spirits.
At approximately 12.30am, the staff at the Tavern were closing the premises and a group of employees travelled to the residence of the Richards where more alcohol was provided.
The Richards residence backs on to a golf course. Presumably as there is direct access to the golf course from their home, they own a golf cart. The golf cart was deigned to hold two passengers together with golf clubs at the rear of the cart.
At around 3am, there was a conversation about kangaroos on the golf course, a discussion to which Tracey Richards was a participant. One of the employees, Kelly Guadalupe was of Philippian background and had never seen kangaroos. A discussion took place about
Lewis Richards, Mr Guadalupe and another employee called Mitch travelling on the golf cart around the golf course to see the resident kangaroos.Mr Hattenfels jumped on the back of the golf cart and fell off the golf cart sustaining a serious injury.
Mr Hattenfels cannot assist, due to the nature of his injury, with how he came to be on the back of the golf cart or how he fell off.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) did the injury arise in the course of employment as required by s 4 of the Workers Compensation Act 1987 (the 1987 Act)?
(b) does the respondent have a valid defence pursuant to s 14(2) of the 1987 Act because the injury was solely attributable to serious and wilful misconduct?
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties agreed that there should be a liability determination before the dispute in relation to weekly benefits was agreed or determined.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute;
(b) Reply to the Application to Resolve a Dispute, and
(c) late documents dated 22 February 2022 and 14 March 2022.
Oral evidence
There was no application to adduce oral evidence.
Lay/factual witness evidence
I will now turn to the lay evidence in this dispute. Mr Hattenfels is unable to assist with the circumstances of his accident as he has no memory regarding it. So far as he has provided evidence in relation to the index event, his evidence has been excised from the material before me.
Danielle Hattenfels
Danielle Hattenfels is married to the applicant. She has provided a statement dated 14 April 2020.[1]
[1] Application page 7.
Mrs Hattenfels described that at 12.30am the staff at the Tavern asked everyone to leave as they prepared to close their premises. Mrs Hattenfels says she saw Tracey Richards arrange for a bus to take her and the employees to the residence.
Mrs Hattenfels says that she thought that Todd Richards, Tracey’s husband, appeared to be aware of the arrangement. He was in the carpark when the bus arrived. He travelled in another employee’s ute from the Tavern to the family residence.
Mrs Hattenfels felt welcomed on to the bus and says that when they arrived at the family residence more alcohol was provided for everyone however no food was provided.
At approximately 3am, there was a conversation about kangaroos, and it was decided that a few employees would get on the owner’s golf buggy to go and have a look.
Mrs Hattenfels said about 3.45am she received a telephone call stating that there had been an accident. On arrival she observed her husband to be unresponsive yet in a stable condition.
Mrs Hattenfels has provided a further statement dated 5 February 2021.[2] Mrs Hattenfels describes her husband’s condition at that time and the difficulties that he is experiencing.
[2] Application page 9.
So far as the events on 6 December 2019 were concerned, Mrs Hattenfels provided some more detail in respect of the events. She says that when the van arrived in the carpark,
Mrs Richards directed everyone to get in and everyone did. Mrs Richards then directed the driver to her residence and paid for the taxi.Mrs Hattenfels says that she was made to feel welcome and was shown a memory box of Tracey’s children and given blankets and heaters were turned on for the guests. She felt comfortable and welcome.
Mrs Hattenfels also observes that it was a regular occurrence to have some drinks on a Friday afternoon at work at the Richards’ home. This did not occur every week but every so often.
Mrs Hattenfels has also provided a statement dated 10 February 2020, presumably to the respondent’s investigator.[3] The detail in that statement is generally consistent with evidence she has given in her other two statements. In relation to the discussion at 3am,
Mrs Hattenfels does provide some further detail when she says that there was a general discussion about the kangaroos on the golf course which could be quite aggressive. One of the employees, of Philippian background, nicknamed Kelly, had not seen kangaroos.Mrs Hattenfels said that Mrs Richards instructed the employees to get in the golf cart and drive Kelly around in it to show him the kangaroos on the golf course. They included Jason who then went in the golf cart. She remained at the residence.[3] Application page 39.
Tracey Richards
Mrs Richards has provided a statement dated 10 February 2020. She confirms that she was both the office manager and shareholder in the respondent company.
Mrs Richards says that the Christmas party, which employees and their partners were invited to, took place on 6 December 2019 at the South Dubbo Tavern.
Around 10.30pm people started leaving the party, some were picked up by family and some were pregnant and drove home.
Mrs Richards says that there had been no conversation about people coming back to her house after the function at the Tavern.
Mrs Richards remained out the front of the Tavern waiting for a taxi which took some time to arrive. When the taxi arrived, various employees including the applicant and his wife got into the taxi. Mrs Richards says there was no actual discussion about them coming back to the home, but it seemed that they decided to “come anyway”.
Mrs Richards described a previous Christmas party where people had attended the home and been disrespectful. She understands that her husband had told employees at work that there was to be no party at their home, it was to be at the South Dubbo Tavern.
Mrs Richards said that she paid for the taxi home.
When she arrived home at around 1.15 to 1.30am, she observed her son Lewis had been dropped off by a friend’s son. She observed that her son Lewis had had a fair bit to drink as had other guests. Indeed, she described herself as moderately affected by alcohol.
In that respect she said she had had probably about six glasses of red wine but generally didn’t drink to any significant extent because of gastric sleeve surgery and after returning to her home she may have had a couple of glasses of red wine.
Not long after they arrived home, she heard her husband arguing with her son because Lewis had taken the golf cart out without permission.
At around 2.45 to 3am Mrs Richards says that she was present when Lewis, Mitch and Kelly took the golf cart to show Kelly the kangaroos on the golf course. Mrs Richards said that she had given permission for Lewis to take the golf cart but only with Mitch and Kelly.
Mrs Richards heard an argument between the applicant and his wife about leaving to go home because Mrs Hattenfels felt cold and tired.
Mrs Richards has provided a second statement dated 14 June 2020.[4] In that statement
Mrs Richards provides further detail in relation to the index incident.[4] Reply page 86.
Mrs Richards provides further detail in respect of the first occasion where Lewis had taken the golf cart out. She recalls Todd swearing at him saying words to the effect of “What the fuck are you doing, you know I do not want anyone in that golf cart, you’re not to take it out, that’s enough I’m done I want to go to bed”.
Mrs Richards said that this was said in the presence of the applicant and his wife. It was quite clear she said that her husband was very unhappy with Lewis having taken the golf cart out.
In relation to taking the golf cart out on a second occasion, Mrs Richards said that Lewis asked her if he could take it out quickly to show Kelly the kangaroos, there was a brief argument about it, and she eventually gave permission. It was clear she says to everyone that the permission was only granted to Lewis, Kelly and Mitch for a quick trip.
She said there was no need to specifically prohibit anyone else from getting on because she felt that Todd had already made it quite clear that it was expressly forbidden. Mrs Richards says she made it clear that this was an exception for only three people to go.
Mrs Richards expressly states that at no time was Jason encouraged, permitted or induced to go on the golf buggy.
In relation to attendance at the party Mrs Richards said that they never planned for anyone to come back to the house and hadn’t stocked the fridge with alcohol or prepared to provide food.
Mrs Richards said that the people who attended the party made that decision on their own possibly thinking it was ok because a party had been in our house in past years. Though she wasn’t happy about the attendance, she attempted to be hospitable enough by not asking everyone to leave immediately.
Todd Richards
Todd Richards has provided a statement dated 10 February 2020.[5] He is the Managing Director of the respondent company.
[5] Reply page 49.
Mr Richards refers to the Christmas party and confirms that the respondent offered for courtesy buses and taxi to travel to and from the venue at the Christmas party.
Over the night Mr Richards consumed alcohol but says he wasn’t really affected by alcohol.
Mr Richards left the Tavern before his wife. He was home when the taxi arrived with his wife and a few other employees. He recalls that he wasn’t happy about the arrival but was still hospitable. From memory he thinks he had a glass of wine and there was some music on, and they sat around the top deck talking.
A short time after Mr Richards noticed a couple of boys were missing so he went down to the back shed to see what they were up to and noticed his golf cart was gone.
When the golf cart returned Jason, Brett and Lewis were told that Mr Richards was not happy with them taking the golf cart. He observed that the applicant was quite intoxicated however his son seemed to be ok.
There was then a discussion about kangaroos on the golf course and he understood that Lewis wanted to take Kelly out in the golf cart to look at the kangaroos and he promised not to be silly but just to have a look.
Mr Richards said he heard his wife grant permission to go on the golf cart but said “alright no one else is to go, just the two of you” and there was some discussion about Mitch going.
Mr Richards said he didn’t see the cart leave and did not know that Jason and Brett had gone with them. At no time did he give any permission to Jason and Brett to go on the golf cart.
Mr Richards says that his son Lewis confirmed with him that they were just travelling along at a steady pace when they discovered that Jason had fallen off the back of the cart.
Mr Richards has provided a further statement dated 16 June 2020.[6] Mr Richards provides a little bit more detail about the events at their residence. He says that when the cart was taken out the first time, he made it extremely clear that he wasn’t happy that they had taken the golf cart on the golf course and said words to the effect “Fuck me, thank God you’re here, don’t fucking take that cart out again, you know how I feel about that”. Mr Richards said that the applicant was within earshot of this and there could be no misunderstanding that he did not want the golf cart going out again. Indeed, it was not encouraged but specifically discouraged.
[6] Application page 92.
Mr Richards said he is aware that his wife later allowed Lewis to take Kelly out in the cart together with Mitch. That is, his wife made one specific exception for three people only.
Lewis Richards
Lewis Richards has provided a statement dated 10 February 2020.[7] Mr Lewis Richards is also an employee of the respondent company and the son of the owners of the company.
[7] Application page 55.
During the events at the Tavern, Mr Lewis Richards said he had about 10 schooners of Hahn mid-strength beer and ate so he didn’t feel he was significantly affected by alcohol.
At around 11.30pm he went to the Pastoral Hotel with two other attendees and didn’t have anything more to drink there and arrived at the family residence at 1.30am.
Mr Lewis Richards has no knowledge of any invitation being extended to those left at the Tavern to continue to the party.
He says that at some stage a suggestion was given that they take the golf cart for a ride around the golf course.
When they returned home, he said that his father was very unhappy as he didn’t like anyone mucking around especially if they had been drinking and he expressed that anger directly.
Later in the evening there was a discussion that took place between Kelly and Mrs Richards about kangaroos on the golf course. Mr Lewis Richards said he then took the golf buggy with Kelly and Mitch but can’t remember if his dad gave his permission or if his mum had said anything about taking it.
As he was driving Jason and Brett ran after the golf cart and both jumped on the back step of the buggy where the golf clubs go. He described Jason as being significantly affected by alcohol.
The golf buggy continued the golf course and Mr Lewis Richards described the speed was not fast and the headlights were on. As they were heading back toward the house along the granite path, they were travelling at maybe 15kph and it was discovered that Jason had fallen off the back of the cart.
The applicant was then seen on the ground behind the golf cart unconscious.
Lewis Richards has provided a second statement dated 15 June 2020.[8] Further to his previous statement Lewis Richards states that when Jason and Brett jumped on the back of the cart, he didn’t stop the cart because Jason had been intoxicated and they didn’t jump on the back until they were approximately 30 to 40 metres away from the residence.
[8] Reply page 90.
Lewis Richards said he didn’t encourage Jason to go with them and a decision to jump on had nothing to do with him.
Kelly Guadalupe
Mr Kelly Guadalupe has provided a statement dated 10 February 2020.[9] Mr Guadalupe was also employed by the respondent company. He had attended the staff Christmas party and had consumed only a couple of light beers.
[9] Reply page 60.
He says that at no stage was he invited by the boss or his wife to the family residence however they just went in a taxi to the boss’s home.
In the early hours of the morning, he was sitting talking to Mrs Richards about the Philippines and about kangaroos on the golf course and he was invited to have a look around the golf course at the kangaroos.
He was seated in the cart with Lewis driving and Mitch was also there. Before they drove off, Jason and Brett jumped on the back of the cart. The cart then moved onwards, and they saw kangaroos and at some time later he looked around and Jason was not there. It was then discovered that Jason was lying on the ground unconscious.
Mr Guadalupe describes Lewis’ driving as slow, and he has no understanding as to how Jason fell off.
FINDINGS AND REASONS
I will now turn to the issues in the case.
Serious and willful misconduct
The respondent submitted that s14(2) of the 1987 Act may have some application as a defence to the claim.
Section 14(2) of the 1987 Act provides:
“(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.”
It is trite to observe that in relation to this defence, the employer carries the onus of proof of establishing serious and wilful misconduct.[10]
[10] Karim v Poch Engineering Services Pty Ltd [2013] NSWCCPD 24.
The other observation should be made that “serious and wilful misconduct” comprehends more than just negligence, carelessness or the mere disregard of others.[11]
[11] Johnson v Marshall Sons & Co Ltd [1906] AC 409 (Johnson); Higgins v. Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45 (Higgins).
Further, the word “wilful” imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment.
To my mind the section has no application in the present case as it is indisputable that the applicant has sustained ‘serious and permanent disablement’.
One only needs to look to the respondent’s qualified neurosurgeon, Dr Casikar[12] who says that the applicant has sustained “a traumatic brain injury” and then goes on to say that he is not sure the applicant will be able to work independently in any kind of capacity. Dr Casikar describes the applicant as sustaining 29% whole person impairment which in any view is one of a serious and permanent disablement.
[12] Reply page 135.
I therefore reject any defence pursuant to s 14(2) of the 1998 Act.
Section 4 of the 1987 Act
The second limb to the respondent’s case is that the injury did not arise out of or in the course of employment.
Section 4 of the 1987 Act provides:
"injury" --
(a) means personal injury arising out of or in the course of employment”
It appeared to me that this is the ground where the real dispute is. I will briefly outline the parties’ respective positions.
Applicant’s case
The applicant’s case is that the applicant was in the course of his employment at the respondent’s family home, even though he may have embarked upon a foolish or silly act of high jinks or frivolity. It was submitted that such conduct did not change the character of the legal relationship at the time. Further, the applicant says that the context of the environment is relevant, that is the applicant was induced, authorised or encouraged to attend his employer’s home.
The applicant has submitted that the change of venue from the Tavern to the family home was one that was largely militated by the unavailability of the Tavern to continue the party. The applicant has then attended the Richards’ family home and further consumed further alcoholic drinks, which were provided to him by his employer.
It should also be observed that Mr Hattenfels was present at the respondent’s residence for some two to three hours, a significant time, after the closing of the formal venue at the Tavern. This suggests an encouragement to be there. At no time were the employees asked to leave the premises, but were rather provided with alcoholic drinks, conversation and music.
The applicant submits that there was a continuity of festive activity and participation by employees of the respondent. There is no suggestion that the party was organised for the Richards’ neighbourhood or friends or the world at large and simply there was a cohort of employees that attended. That is the social activity was attended almost exclusively by employees of the respondent at the respondent proprietor’s home. There was no significant interruption, or interference with the nature of the social event just because there was a new venue.
The applicant’s case is that the social activity had been encouraged and authorised and induced by an employer particularly at the Tavern and then continued at the Richards home. The decision by Mr Hattenfels to mount the back of the golf cart is not the activity that was encouraged, authorised or induced but was simply part and parcel of the continuation of the Christmas party. In fact, it was conceded that there was no evidence that Mr Hattenfels was encouraged, authorised or induced to mount the golf cart.
Respondent’s case
In respect of the party itself, the respondent says that no invitation was given to the employees to continue to celebrate at the employer’s house. This is consistent with the evidence of Kelly Guadalupe who says that they specifically weren’t invited by his employers to attend their home.
Further, they say that not all attendees at the Tavern went to the employer’s home. Some people went home directly from the Tavern. It was suggested that this meant that there was no real encouragement to attend the family home.
The respondent says that the specific activity that caused the injury needs to be considered that is and was that induced or encouraged by the employer. The employer at no time encouraged the applicant to climb onto the back of the golf cart. The respondent says that the applicant decided to jump on the back of the golf cart, an act he did without permission and an act that was clearly dangerous.
The respondent’s case is that the conduct of the applicant on jumping on the back of the cart can be characterised as gross misconduct, and therefore the applicant is taken out of the course of his employment.
The respondent relied on the decision of Collins v Signature Blend Pty Ltd trading as Allira [2015] NSWWCCPD 22 (Collins). In that case the applicant had attended a workplace Christmas party and then a social engagement tool place after the party at Mr Collins home. Mr Collins sadly fell off the balcony of his home sustaining serious injury.
The respondent says that not only does the employment relationship need to be considered at the time of injury but also the actual act causing the injury, which in this rising on the back of the cart. Consideration needs to be given regarding whether the respondent induced or encouraged the applicant in relation that specific act.
Consideration and findings
A worker can only obtain benefits when they sustain an injury arising out of or in the course of employment as provided by s 4 of the 1987 Act. Therefore, for an injury to arise out of employment there must be a causal connection between the employment and the injury.
In Badawi[13] clear reasoning was provided that an injury arise out of employment connotes “a certain degree of causal connection between the accident and the employment”. There does not need to be a direct or physical causation for the applicant to be successful.
[13] Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Aust Pty Ltd (2009) NSWCA 324 (Badawi).
I accept that the continuation of the social activities at the respondents premises was seamless. To my mind there appears to be no interruption or deviation from the intended beneficial purpose to the employer of allowing a Christmas celebration to facilitate a harmonious working group.
In making this finding I rely upon the following facts which are undisputed on the evidence:
a. Mrs Richards ordered the taxi from the Tavern;
b. Mrs Richards directed the taxi to her residence;
c. On arrival at the residence, further drinks were provided to guests;
d. Music was played, creating a welcoming environment;
e. No one was asked to leave the premises, and they stayed there for some time and ;
f. The only participants at the residence were employees of the respondent.
I also consider that there was no reason for Mr Hattenfels to be at the premises other than furtherance of the party.[14]
[14] Hills v Pioneer Studios Pty Ltd (No 2) [2014] NSWCCPD 42.
I take in to account the evidence from Mr and Mrs Richards that they did not want guests at their house however, it does not seem to me that this was communicated clearly to employees considering the facts outlined in paragraph 101. A personal preference to not host the continuation of the function does not change my characterisation of the seamless continuation of the Christmas celebration.
In respect of the decision of Collins, there is a significant factual distinction between that case and the one before me. In Collins, the applicant fell from the balcony of the worker’s own home unit. It was not the respondent’s premises, such as in this dispute it was the respondent’s residential home.
The applicant says that attention must be directed to the place where the employee is required to be. I was referred to in the Hatzimanolis[15]. At paragraph 44 it was said:
“Attention must be directed to the circumstance of the employee’s death in Danvers. He died because the van in which he was required to live caught fire. His death occurred by reference to that place and that circumstance. The place where an employee is required to be assumes a particular importance when it is the cause of an injury or death. This is not to inject notions of causation into the application of principle, just as the statement that an injury occurred as a result of being engaged in activity does not involve such notions. To identify the relevant connection does not raise any question about causation. It 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. “
[15] [2013] HCA 41.
In the circumstances of this case, it appears that it was a decision made to travel on the golf cart in a light-hearted and fun manner. There was no evidence the vehicle was being driven at a fast pace and then Mr Hattenfels has jumped on, to the contrary there was evidence which is unchallenged from Lewis Richards that he was driving at a slow pace with the lights on.
The circumstance to which the applicant was in at the time of injury must be the focus of determining whether the applicant falls within the ambit of s4 or not. In this case I find that that the applicant was encouraged to attend the Christmas party at the tavern. The social activity continued to the respondent’s premises in a seamless fashion, I have outlined the facts that I have relied upon in my decision in paragraph 101. In those circumstances I find in favour of the applicant in relation to s4 of the 1987 Act.
Other matters
I have made my findings in relation to my decision however will make further findings that may be relevant later.
The respondent asked that I find that that the applicant was expressly prohibited from going on the golf cart. I am unwilling to make such a finding and rather find that he was not prohibited.
I accept that Mr Richards was angry and expressed his displeasure that the golf cart had been taken out earlier in the night. Any prohibition to use the golf cart was negated when permission was granted to use the golf cart on the second occasion.
I am unwilling to make a finding that the applicant was instructed to not join in the kangaroo sighting adventure as there is no reliable evidence that such a direction was given to him. Whilst it might be Mrs Richards assumption that the applicant was informed that only three people could ride on the buggy, there is no evidence that would make me make a finding that this was clearly communicated to the applicant. Simply put, just by being in the general area a discussion took place does not mean this was communicated to the applicant.
I also find that there is no evidence, but for the excess load the buggy was carrying, that it was being driven at an excess speed. I am persuaded by the evidence of Mr Kelly Guadalupe in this regard. I therefore make a factual finding that the cart was not speeding or being driven in a reckless manner ( but for the load).
As many accidents that occur after a night of festivities, alcohol can often be a factor. In this case there was no pharmaceutical evidence (as there was in Collins) to be considered.
SUMMARY
The applicant’s injury occurred within the meaning of s 4 of the 1987 Act.
The defence pursuant to s14(2) of 1987 Act fails.
The matter is remitted to the President to be referred to a Medical Assessor for whole person impairment assessment of the nervous system. The date of injury is 7 December 2019. The Application, Reply and late documents dated 22 February 2022 and 14 March 2022 are to be provided to the Medical Assessor.
The matter should be listed for telephone conference upon receipt of the Medical Assessment Certificate in relation to weekly benefits.
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