Hong v GGPB Power Pty Ltd - [2024] NSWPIC 169

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hong v GGPB Power Pty Ltd [2024] NSWPIC 169
APPLICANT:	Pingle Hong
RESPONDENT:	GGPB Power Pty Ltd
MEMBER:	John Isaksen
DATE OF DECISION:	8 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation, medical expenses and permanent impairment for psychological injury, and medical expenses for damage to the teeth as a result of a physical altercation with a co-worker in the workplace; respondent disputes that injury was sustained arising out of or in the course of employment as worker abandoned his employment due to his actions; reference to Schinnerl v Commissioner of Police, Makko v Bullock Manufacturing Pty Ltd, and Stojkovic v Telford Management Pty Ltd; in the alternative, respondent relies on defence of the worker’s injury being solely attributable to serious and wilful misconduct; Held – upon review of the evidence, including five witnesses to the altercation, the worker acted outside the scope of his employment when he sustained injury; the worker has failed to establish that he sustained injury arising out of or in the course of his employment; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant took himself outside of the scope or ambit of his employment when he sustained injury on 3 October 2020 and therefore did not sustain an injury arising out of or in the course of his employment with the respondent. The Commission orders: 1. An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Pingle Hong, the applicant in these proceedings, claims that he sustained damage to his teeth and a psychological injury on 3 October 2020 while employed by the respondent, GGPB Power Pty Ltd, as a result of being assaulted by a co-worker.
Mr Hong ceased work immediately following this incident and claims that he has not worked since the injury he sustained at work.
Mr Hong was paid weekly benefits of compensation until 9 November 2021. Employers Mutual NSW Ltd (EML) issued a notice on behalf of the respondent on 15 October 2021 wherein workers compensation liability was disputed on the grounds that Mr Hong took himself outside the scope of his employment by being the aggressor in the altercation with the co-worker and, or in the alternative, that his injury was solely attributable to his own serious and wilful misconduct.
Mr Hong claims weekly payments of compensation from 10 November 2021 on the basis that he has had no current work capacity, the payment of medical expenses for treatment for his injury (which includes an implant bridge for his lower teeth), and a lump sum payment for 19% whole person impairment for psychological injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury arising out of or in the course of his employment with the respondent on 3 October 2020 (s 4 of the Workers Compensation Act 1987 (the 1987 Act));
(b) whether the applicant’s employment was a substantial contributing factor to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPIC 169
Decision Date: 8 April 2024

CaseChat Overview and Summary

In the matter of Hong v GGPB Power Pty Ltd, the respondent, GGPB Power Pty Ltd, was subject to a claim by the appellant, Hong, for weekly payments of compensation, medical expenses, and permanent impairment for a psychological injury, and medical expenses for damage to his teeth, which arose from a physical altercation with a co-worker in the workplace. The respondent contested the claim, asserting that the injury was not sustained in the course of employment as Hong had abandoned his employment due to his actions. The dispute was heard in the relevant workers compensation tribunal, which had to determine the legal issues pertaining to the scope of employment and the applicability of the defence of serious and wilful misconduct.

The court was tasked with determining whether the injury sustained by Hong was indeed sustained in the course of his employment. The respondent argued that Hong's actions amounted to abandoning his employment, thereby removing the incident from the scope of employment. The court considered relevant case law, including Schinnerl v Commissioner of Police, Makko v Bullock Manufacturing Pty Ltd, and Stojkovic v Telford Management Pty Ltd, to assess the boundaries of employment in relation to the incident. The court also considered the respondent's alternative defence that the injury was solely attributable to serious and wilful misconduct on Hong's part.

Upon reviewing the evidence, including testimonies from five witnesses to the altercation, the court found that Hong acted outside the scope of his employment when he sustained the injury. The court held that Hong had failed to establish that he sustained the injury arising out of or in the course of his employment. Consequently, the tribunal dismissed Hong's claim and awarded the respondent, GGPB Power Pty Ltd, the costs of the proceedings.

Orders