Holmes & Reynolds Pty Limited v Holmes
[2007] NSWWCCPD 49
•13 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Holmes & Reynolds Pty Limited v Holmes [2007] NSWWCCPD 49
APPELLANT: Holmes & Reynolds Pty Limited
RESPONDENT: Charles Gerald Holmes
INSURER:Employers Mutual Indemnity (NSW) Limited
FILE NUMBER: WCC9641-06
DATE OF ARBITRATOR’S DECISION: 22 September 2006
DATE OF APPEAL DECISION: 13 February 2007
SUBJECT MATTER OF DECISION: Whether injury arose “out of or in the course of employment” within the meaning of section 4 of the Workers Compensation Act 1987; Section 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Edwards Michael Moroney
Respondent: A J Dyer & Associates
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 22 September 2006 is confirmed.
2. Holmes & Reynolds Pty Limited, the Appellant, is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 18 October 2006 Holmes & Reynolds Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of the Commission Arbitrator dated 22 September 2006.
On 16 November 2006 Charles Gerald Holmes (‘the Respondent Worker’) filed a ‘Notice of Opposition to Appeal’.
The Respondent Worker was employed by his own consultancy company (‘the Appellant Employer’) a business that apparently specialised in advising organisations on risk management and occupational health and safety issues. In his statement dated 18 May 2006 annexed to his ‘Application to Resolve a Dispute’, the Respondent Worker stated: “As part of my work I am required to give presentations and work shops on a range of issues … to enable me to undertake these work related tasks I require the following equipment …”. Thereafter the Respondent Worker listed items such as a digital camera, ipod, lap top computer and other material related to the presentation of workshops.
The Respondent Worker stated that at about 6:00pm on Sunday 19 February 2006 he commenced work in his “designated office” at the rear of his home. Around 9:00pm he heard his wife call out, left his office and was confronted by a thief in the hallway of his home. The Respondent Worker stated that he realised the thief “… had been stealing equipment which included my tools of trade.” That equipment had been left at the front door that Sunday evening to assist an early departure to Sydney the next day.
The Respondent Worker stated that he confronted the thief who ran into the back yard. The thief climbed over a fence. The Respondent Worker heard a motorbike start up and then observed the thief driving off. The Respondent Worker then got into his vehicle and pursued the motor bike. The thief fell off his bike and was again confronted by the Respondent Worker. The Respondent Worker was then attacked by the thief and fell to the ground sustaining an injury to his right shoulder and arm.
As a result of that incident, the Respondent Worker was absent from work for the period 19 February 2006 to 7 August 2006.
On 27 June 2006 the Respondent Worker lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation in respect of the period of his absence from work, together with medical, hospital or related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 18 July 2006 the Appellant Employer filed a ‘Reply’ listing as the issues in dispute, inter alia, that any injury sustained by the Respondent Worker did not arise out of or during the course of employment with the Respondent or alternatively, that the Respondent Worker’s employment was not a substantial contributing factor to the injury.
The parties attended a conciliation/arbitration hearing on 20 September 2006. On 22 September 2006 a ‘Certificate of Determination’ was issued. Although purporting to attach a brief ‘Statement of Reasons’ in accordance with Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’) no such statement was attached. However, I note that the Arbitrator gave an extempore decision, and his reasons therefore are contained at pages 13 to 17 of the transcript.
The decision of the Arbitrator was as follows:
“1. There is an award for the Applicant in respect of the Applicant’s claim for weekly compensation pursuant to s.36 of the Workers Compensation Act 1987, for the period from 19/2/2006 to 7/8/2006, at the rate of $800.00 per week, calculated in the sum of $19,428.80.
2. There is an award for the Applicant, in relation to the Applicant’s claim for medical costs, pursuant to s.60 of the Workers Compensation Act 1987. The Respondent is to pay the Applicant’s claim for medical costs incurred to date, on production of accounts and receipts.
3. I determine that this matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.
4. The Respondent is to pay the Applicant’s costs as agreed or assessed.”
On 18 October 2006 the Appellant Employer filed an ‘Appeal Against Decision of Arbitrator’ identifying the issues in dispute on appeal as whether, in the circumstances of the case:
“h The act of the Worker in attempting to apprehend an intruder in order to protect the employer’s property was activity giving rise to an injury in the course of his employment;
hWere the Worker’s actions incidental to his employment with the Employer and did it arise out of it;
hDid the voluntary actions of the Worker remove him from the relationship of ‘Worker’?”
On 16 November 2006, the Respondent Worker filed a ‘Notice of Opposition to Appeal’. Briefly, the Respondent Worker submits that “… the findings of fact made by the Arbitrator were soundly based and his conclusions were correct in law.”
ON THE PAPERS REVIEW
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.”
The Appellant Employer submits that the matter is suitable for a determination ‘on the papers’. The Respondent Worker submits that this is not the case however, no reasons as to why the appeal should not be determined on the papers and why a hearing is necessary have been provided by the Respondent Worker.
Both parties have filed concise submissions on appeal with reference to the various authorities upon which they rely.
Having regard to these submissions, all the evidence and documents that are presently before me, 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.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount at issue on appeal satisfies the requirements of section 352(2), and the appeal was filed within the time limits prescribed by section 352(4) of the 1998 Act.
Leave to appeal is granted.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Arbitrator’s Determination
The Arbitrator gave an ex tempore decision contained at pages 13 – 17 of the transcript. Relevant portions are quoted as follows:
(Page 13 transcript)
“We have a simple issue that I need to determine, and that is whether the Applicant’s injury arose in the course of his employment.
The Applicant describes how he was working around 6:00pm in his designated office in the rear of his house as a consequence of needing to complete the preparation of a work shop which he was due to present on the following Monday and Tuesday in Sydney …
Mr Holmes notes that prior to commencing work he had collected all of his equipment for the following day and stored it adjacent to the front door to assist an early departure as he would normally leave for Sydney from his home at around 6:15am. He says he confronted the thief and realised that he had access to his tools of trade even though he was uncertain as to which of them may have been taken. The young man ran out the back door and he followed to retrieve the items he had taken. At the end of his statement he says:
‘In pursuing the thief my major reason was to identify and recover equipment which I needed for the following days work. The following tools of trade were stolen: A company credit card, a company Eftpos card, a digital camera, speakers and an ipod.’
(Page 14 transcript)
So I have got no doubt that this injury occurred in the course of the employment because the thief was sighted in the house taking equipment, that equipment was equipment that belonged to the company, and the Applicant pursued the thief.
The Applicant then followed in his car, and without going into too much detail, the young male fell off. He confronted the young male again. The young male attacked him and he fell to the ground, where he was attacked again and fell a second time causing him to fall heavily on his left wrist, which was then injured. There was also:
‘The third time the young male attacked me caused me to fall and there was considerable pain in [his] right shoulder.’
So, accepting that the applicant’s initial intervention was in the course of his employment, what should I then make of the circumstances which continued, namely, the pursuit of the assailant and the thief along some streets to where he was eventually cornered and the applicant was attacked and subsequently injured?
(Page 15 transcript)
[Counsel for the worker] refers me to the matter of Alvannex v Humphreys [[1999] NSWCA 291 (7 July 1999)], and I note in that case the decision of the Court of Appeal, the decision of Justice Cole, where … the Judge said:
‘It seems to me that irrespective of whether or not the evidence … was overstated there was an implicit obligation on an employee, having possession of his employer’s equipment, to take steps to take care of it if it was in danger of damage.’
Despite the contention of [Counsel for the Employer] that one should not characterise this behaviour as incidental to employment, I think, in my view, it is. The circumstances, which are uncontested, are that Mr Holmes was at home working; he is a consultant, … briefly engaged in providing presentations … and to do that effectively a great deal of equipment was required …
For part of that equipment to be stolen would have been detrimental for the Applicant – for the Respondent company to have properly delivered upon probably an agreement to provide that presentation … and one would think it was very reasonable, a reasonable action on the part of the Applicant to take steps to follow a thief that he had surprised in order to not wrest the equipment back but certainly to ensure that police were called and that the Applicant stayed in a place where the police could apprehend the Applicant [sic] and, therefore, recover the property.
(Page 16 transcript)
That action, one would think, was reasonable. It didn’t go too far; … his actions were reasonable and … I should therefore follow the decision in Alvannex v Humphreys to find that the actions of the Applicant in this case can be properly characterised as being actions that were incidental to his employment to secure the equipment that was stolen and, therefore arose out of it.
I noted earlier that the decision in Mercer [Mercer v ANZ Bank 48NSWCR 740] was such that where there is a finding that the action arose out of the employment, that was sufficient in the Court’s view to find that the injury was an injury in the course of his employment.
My finding is therefore on behalf of the Applicant and, therefore, I am going to award the Applicant a sum in relation to his weekly compensation …”
The Arbitrator then went on to enter an award in favour of the Respondent Worker pursuant to section 36 of the 1987 Act for the period claimed, together with section 60 expenses on production of accounts or receipts.
The Appellant Employer’s Submissions
The Appellant Employer makes reference to a number of authorities in support of his contention that the circumstances of the Respondent Worker’s injury were such that they could not be said to arise out of or in the course of his employment. I will refer to those authorities in more detail below. In brief, the submissions may be summarised as follows:
“In the present case the Worker was assaulted only after he elected to chase after the intruder in his own car some two kilometres from his home. The Worker volunteered to effect a ‘citizens arrest’ in circumstances where he must have reasonably anticipated was likely to result in an assault and/or injury through self defence. More importantly however he acted in circumstances where the chain of duty and responsibility, expected by the Employer was broken. He adopted the role of a vigilante. He took the law into his own hands, by avenging a crime, well outside the nature of his employment.
The Worker’s injury ceased to arise substantially out of employment the moment the intruder escaped over the fence and the Worker took after him.”
The Respondent Worker’s Submissions
The Respondent Worker in his submissions makes more detailed reference to the decision of Alvannex v Humphreys [1999] NSWCA 291 (‘Humphreys’). The Respondent Worker submits that the facts and circumstances of that case (to which I will refer in more detail below) were similar to those in the present case and that the Respondent Worker’s actions in attempting to secure his employer’s equipment were properly characterised as incidental to and arising out of his employment.
The Respondent Worker emphasises his statement, referred to by the Arbitrator, that: “In pursuing the thief my major reason was to identify and recover equipment which I needed for the following days work.”
The Respondent Worker submits that:
“… The stated reason must be accepted and that the consequential injuries sustained arose out of his desire to retrieve and/or protect his employer’s property. There is no evidence that Mr Holmes sought to make a citizens arrest or that he acted as a vigilante. Even if he had done so, it would not sever the test applied in Humphreys’ case.
Accordingly, the findings of fact made by the Arbitrator was soundly based and his conclusions were correct in law.”
The Relevant Authorities
‘Injury’ is defined in section 4 of the 1987 Act as “(a) … personal injury arising out of or in the course of employment;”
The Appellant Employer refers to a decision of Ostergaard v MacDiarmid [1959] 33WCR (NSW) 211 (‘Ostergaard’) where it was held that a taxi driver who stopped his car to go to the help of an accident victim interrupted the course of his employment and thus failed in his claim for compensation. The Appellant Employer submits:
“At 218 Dignam J cited McKinnon LJ in Dermody v Higgs & Hill Limited [1937] 4 All. E.R 379 ‘… if the chauffeur attempts to seize a burglar whom he sees attacking the (Master’s) house and is wounded by the burglar, that is not part of his employment, as not arising out of his employment as a workman.’”.
The Appellant Employer notes the provision of section 9A of the 1987 Act, relevant at the time of the Respondent Worker ‘s injury, to the effect that no compensation is payable unless employment is a substantial contributing factor to the injury.
The Appellant Employer makes the following submissions in relation to section 9A:
“In Weston v Great Boulder Gold Mines Limited (1964) 112 CLR 30, Owen J held that injury by assault while the worker is at work will be an injury arising in the course of employment, so long at least, as the Worker has not interrupted the course of employment by some extraneous act.
It is sufficient if the injury occurs while the worker is performing the work he is engaged to do or is doing something reasonably incidental to that work.”
The Appellant Employer then refers to a decision of Bill Williams Pty Limited v Williams [1972] 126 CLR 146 and summarises the circumstances of that decision in the following terms:
“Bill Williams was employed as Managing Director by his own one-man company, Bill Williams Pty Limited, at its premises in Bega. The Worker was injured by an irate husband who came to the company’s premises to vent his wrath upon Williams on account of some relationship between him and his wife. He assaulted Williams and went away but soon returned with a rifle. After further words, Williams ran from the premises into the street [and] he was shot in the back. Williams claimed workers compensation from the Appellant. The High Court held that the worker was unable to demonstrate that the injury arose out of employment.”
Thus, as the Appellant Employer submits:
“It is possible for the relationship between the injury and the employment, which would otherwise subsist, to be broken by what the Worker does or, by what another person does in respect of the Worker while the Worker is at the place of the employment and during the period of it.”
In support of that proposition, the Appellant Employer refers to the decision of the Court of Appeal in Blacktown City Council v Smith (1996) 14 NSWCCR 132 (‘Smith’) to which I will refer in more detail below.
It is the Appellant Employer’s submission that the facts and circumstances of the decision in Humphreys to which I have referred earlier ought be distinguished from the circumstances of the present case in that in Humphreys, the accident occurred after the Worker finished work for the day, returned home and travelled to a post office. The Appellant Employer submits that in Humphreys, “… the Worker was expected to look after the sign in the normal course of the Worker’s activities which included him taking the employer’s goods home in his private vehicle.”
It is appropriate at this point to consider in some detail the facts and circumstances of Humphreys’ case. They were summaries by Cole AJA as follows:
“Mr Humphreys lost an eye in an injury which occurred on 26 September 1996, when an octopus strap which he was using to secure an object on top of his tool box in the back of his utility outside the post office at Tuross Heads came loose. Having finished his work for the Appellant, he had driven from his work place to his home, collected a slip advising of a postal delivery for him, whistled his dog to get into the back of the utility, driven to the post office, parked his utility, entered the post office and collected his parcel and returned to place it in his utility. He observed that the dog was on the object and might scratch it and accordingly set out securing it to the top of his tool box so it would not be damaged. Having secured the octopus to one side of the utility, he pulled at the other side but it gave way and the catch on the octopus struck his eye.
The only connection with his employment was that the object that he was securing was a sign belonging to his employer, being a Wide Load sign which was sometimes attached to his utility when he drove it as a escort vehicle accompanying wide loads on other vehicles.”
Mr Humphreys claimed workers compensation benefits in respect of the injury to his eye. Quirk CCJ in the former Compensation Court found in his favour finding that, as Cole AJA quoted:
“The action of the Applicant in attempting to secure the sign in these circumstances arose out of his employment and also probably amounted to placing himself back in the course of his employment.”
Cole AJA concluded as follows:
“… There was an implicit obligation on an employee, having possession of his employer’s equipment, to take steps to take care of it if it was in danger of damage. The opposite notion seems to me to be unthinkable.
It follows that the finding which was made by the trial judge that the worker’s act in seeking to seeking his employer’s equipment so as not to permit it to be damaged is properly to be characterised as her Honour characterised it, namely as being an action which was incidental to his employment and as such arose out of it.
In those circumstances, it seems to me that no proper challenge can be mounted to that finding of fact.”
Meagher JA and Sheller JA agreed with Cole AJA.
A number of the decisions referred to by the Appellant Employer were considered by the Court of Appeal in Smith. The facts of that case were that the worker went to the rescue of a woman in an adjoining office, which was unconnected with the Blacktown Council, and was injured by the woman’s assailant. Bishop CCJ of the former Compensation Court concluded that the worker’s injury arose out of or in the course of the worker’s employment. The Court of Appeal confirmed Bishop J’s decision. Mahoney P made the following relevant observations:
“Compensation may be awarded when the worker’s injury arises out of or in the course of her employment. In this case, it does not arise ‘out of’ the employment. The worker contends that it arose ‘in the course of’ it.
That relationship, ‘in the course of the employment’ does not require that there be a causal relationship between the employment and the injury. Accordingly, it is ordinarily sufficient to show that the injury arose during the time when the worker was acting in her employment; ordinarily it will be sufficient if it occurred during the times when she was, as required by her employment, at the place of her employment for the purposes of it: See generally Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 … but this does not state the matter with complete accuracy. The relationship is not a mere time relationship. Some injuries which are outside the legislation may occur within the period of time during which the employment subsists and at the place of employment: See BillWilliams Pty Limited v Williams (1972) 126 CLR 246. It is possible for the relationship between the injury and the employment which would otherwise subsist to be broken by what the worker does, or as in the Bill Williams case, was envisaged, by what another person does to or in respect of the worker while the worker is at the place of the employment and during the period of it.
There does not yet appear to have been established – if it is possible for there to be such – a single ‘controlling principle’ (Hatzimanolis at 489) which will determine whether the relationship exists, either generally or in relation to particular classes of cases.”
Mahoney P made reference to the decision of Ostergaard to which the Appellant Employer referred in its submissions noting that: “… The law as subsequently developed in the High Court has adopted a somewhat different approach from that then adopted.” Mahoney P then said:
“It is, I think, relevant though not determinative to consider what, having regard to the nature or characterisation of the employment and of the events which led to the injury, would have been likely to have been the attitude of the employer to what the worker did … the general course of employment in this State is such that employers ordinarily tolerate what worker’s do when, for example, they temporarily cease work to smoke a cigarette outside a building, to look out of a window to watch a passing procession or look down the corridor of a building in which the place of work is situated to identify a noise or a disturbance … This in my opinion is the kind of thing that the employer would not have seen as a departure from the course of employment, one may speculate that the employer, if present, might have sent the worker to find out what was causing the noise.
However, I prefer to decide this appeal on the basis of principle. This area of the law has, as Hatzimanolis suggests, developed far beyond what it was in earlier times. One may look to the ‘practical necessities and mutual expectation of the parties’: Danvers v Commissioner for Railways (NSW) (1969) 122CLR 529 at 538.
It was, in my opinion, proper for a Judge of the Compensation Court to hold that the course of the employment extended to a worker, in the absence of the employer and so without being able to seek permission, going to attend to a cry for help a few paces away.
In the end, I am of the opinion that what occurred did not, in the sense referred to in the Bill Williams case, take what was done outside the course of the employment. Taking modern concepts of employment to be of a kind referred to in Hatzimanolis, I am of the opinion that the decision of Bishop CCJ was correct.”
The nature of the Respondent Worker’s employment, that is, essentially self employed and working from home, in my view fits the “modern concepts of employment” as referred to by Mahoney P in Smith. As Mahoney P pointed out, the courts, subsequent to the decision of Ostergaard and Dermody to which the Appellant Employer refers, have taken a different approach to that adopted earlier. It seems to me that the facts and circumstances of the present case are indeed in line with the decision of Humphreys to which I have referred earlier.
The Respondent Worker’s claim would, I think, have failed, if, for example, the thief had taken a television or bicycle from the Respondent Worker’s home. I am of the view that the Respondent Worker’s efforts to secure the employer’s equipment and tools of trade should, as Cole AJA said in Humphreys “… properly to be characterised … as being an action which was incidental to his employment and as such arose out of it.”
There was no real dispute between the parties as to the facts and circumstances of the injury, and no dispute that the Respondent Worker was seeking to recover his employer’s tools and equipment. His actions in those circumstances reflect, in my view, a sufficient connection with his employment.
I am not persuaded that, in the circumstances of this particular case, the relationship between the injury and the employment was broken either by the actions of the Respondent Worker or the thief.
The entire sequence of the Respondent Worker’s actions seem to me to reflect, as Mahoney P said in Smith, the “practical necessities and mutual expectation of the parties.” The Arbitrator’s determination reflects this approach which, in line with the authorities to which I have referred, was in my view the proper approach to the facts and circumstances of this particular case..
The Arbitrator’s finding of fact were supported by the evidence and I can see no error either or law, fact or discretion in his determination.
DECISION
The decision of the Arbitrator dated 22 September 2006 is confirmed.
COSTS
Holmes & Reynolds Pty Limited, the Appellant, is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
13 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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