Hong v GGPB Power Pty Ltd

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 the injury sustained on 3 October 2020 (s 9A of the 1987 Act);
(c)    whether any injury sustained by the applicant on 3 October 2020 was solely attributable to the serious and wilful misconduct of the applicant, and was not an injury which has resulted in serious and permanent disablement (s 14 (2) of the 1987 Act);
(d)    the extent of the applicant’s incapacity for work as a result of any injury sustained on 3 October 2020 (ss 32A, 33, 36, and 37 of the 1987 Act);
(e)    whether the respondent is liable for reasonably necessary medical treatment incurred by the applicant as a result of injury sustained on 3 October 2020 (s 60 of the 1987 Act), and
(f)    whether the applicant is entitled to a lump sum payment for permanent impairment for psychological injury (s 66 of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 27 March 2024. 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.
Mr McEnaney appeared for the applicant, instructed by Ms Huang. Mr Stiles appeared for the respondent, instructed by Mr Stephen Lee.
Mr McEnaney amended the claim for weekly payments of compensation to a period from
10 November 2021 to 19 July 2023 pursuant to s 37 of the 1987 Act.
Mr Stiles objected to a further statement from Mr Hong dated 21 March 2024 being allowed as part of the evidence in this dispute. The statement was allowed to be admitted as evidence and my reasons were recorded.
Mr McEnaney objected to a document prepared by the lawyers for the respondent which was included in an Application to Admit Late Documents which was filed with the Personal Injury Commission (Commission) on 21 February 2024, and which set out a record of various transactions from Mr Hong’s bank statements. The document was allowed to be considered as an aide memoire, except for a column which set out remarks created by the author of the document. My reasons were recorded.
Mr Stiles raised concerns regarding various deposits recorded in Mr Hong’s bank statements, mostly of $1,000, with no explanation of these deposits being provided by
Mr Hong. Mr Stiles had particular concerns in regard to Mr Hong’s claim that he has not worked at all since the assault on 3 October 2020.
I was mindful of the time available to determine this dispute, the difficulties with cross examination of Mr Hong because he has now returned to China and requires the assistance of an interpreter, and that the primary issue to determine of whether Mr Hong did sustain an injury arising out of or in the course of his employment with the respondent, and that he is not otherwise barred from receiving compensation pursuant to s 14 (2) of the 1987 Act.
I therefore made a decision, which was agreed to by the parties, that the claim for weekly payments of compensation would be considered after the threshold issues regarding ss 4 and 14 (2) of the 1987 Act had been determined. The parties would be given further time to address the claim for weekly payments of compensation which might include further evidence from Mr Hong to explain the deposits recorded in the bank statements, evidence in reply from the respondent, the potential for cross examination of Mr Hong, and submissions by the parties in respect of this particular claim.
The parties did agree that Mr Hong’s pre-injury average weekly earnings (PIAWE) are $808.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the respondent on
21 February 2024 (with the exception of the document already referred to in paragraph 10 of this decision), and
(d)    Application to Admit Late Documents filed by the applicant on 22 March 2024.

Oral evidence

There was no application to adduce oral evidence from Mr Hong or from any other witnesses who have provided evidence.

The applicant’s evidence

Mr Hong has provided statements dated 1 April 2021, 20 April 2021, 16 December 2021 and 21 March 2024.
Mr Hong states that he commenced employment with the respondent in February 2019 as a poultry worker at the Baiada chicken processing plant at Tamworth. He states that his pay was based on hours of work undertaken, plus a cash payment for the total quantity of chickens which are processed.
Mr Hong states that on 3 October 2020 he was working at the Baiada plant at Tamworth with another 24 workers. He states that he could not get any chicken to process and he noticed that a co-worker, Sandi, and other workers on the opposite side of Mr Hong were trying their best to put as much chicken as possible on their plates. Mr Hong states that this affected his work and the workers behind him because his “cash reward” depends on the quantity of chickens that are processed.
Mr Hong states that he asked Sandi to take less chicken and Sandi responded in anger: “it’s none of your business”, and Sandi put up a pose to beat Mr Hong. Mr Hong then states: “I argued with Sandi, who immediately became angry and began to attack me with both hands.”
Mr Hong states that Sandi punched him several times with iron gloves. He states that he had no resistance and no ability to fight back, and he could not leave the workplace because there were plastic plates stacked around him. He states that another worker climbed onto the conveyor belt and pulled Sandi away. Mr Hong states that he had a tooth knocked out and a haematoma to his right eye, and bleeding to the right elbow which had come in contact with the iron frame of the conveyor belt.
Mr Hong states that the foreman for the respondent, whom Mr Hong knows as Tony, attended the site of the altercation after Sandi had been taken away by another worker. He states that Tony talked with Sandi in the restroom for about half an hour. He states that Tony then sat down with him and Sandi, and that Sandi admitted that he was the first to start hitting.
Mr Hong states that Tony said that the only way to avoid dismissal was to disguise the incident as a minor event and told Mr Hong to state in an incident report: “Sandi pushed me and I stepped on a chicken skin and my teeth touched the iron frame.” A copy of that hand written incident report dated 3 October 2020 is included in the Application to Admit Late Documents filed by the applicant. Mr Hong also states that Tony took him to see a dentist later in the morning of 3 October 2020.
Mr Hong states that his work card for work at the Baiada plant was confiscated by his supervisor on instructions from the plant manager. He states that he attended Tamworth police station on 8 October 2020 with a friend who could assist with interpreting to report what happened on 3 October 2020.
Mr Hong states: “I express my strong dissatisfaction and anger over the handling of this incident, which is to shield and connive at the criminal and seriously discriminate against and bullying the weak.”
Mr Hong has provided a photo of his face taken soon after the incident on 3 October 2020 which depicts Mr Hong having bruising around his right eye and the loss of some lower teeth.

The evidence of Yu An Shih (Sandi)

Yu An Shih has provided a statement dated 3 May 2021. I accept that Mr Shih is the person Mr Hong refers to as ‘Sandi’.
Mr Shih states that on the day of the incident he was working alongside Mr Hong. He states that he was taking a bird off the moving belt when Mr Hong said to him in an angry voice to stop taking the birds and: “do you want a fight?” Mr Shih states that he thought Mr Hong was looking for trouble because Mr Shih was faster at deboning than Mr Hong.
Mr Shih states that he then said to Mr Hong: “if you want, okay”, and Mr Hong then put his knife down and quickly walked up to Mr Shih. He states that he thought Mr Hong was going to hit him because he had an angry look on his face, and he pushed Mr Hong back away to protect himself. Mr Shih states that Mr Hong then threw a punch with his right fist towards his face, but Mr Shih leaned back and the punch missed him. He states that he then threw a punch with his right fist to the lower part of Mr Hong’s face to defend himself.
Mr Shih states that Mr Hong then started throwing punches with both fists. He states that
Mr Hong was not stepping away or trying not to hurt him. Mr Shih states that Mr Hong threw six or seven punches at his face before someone came between them and broke them up.
Mr Shih states that he threw about the same amount of punches as did Mr Hong, but that this was only to defend himself. He states that there was one punch which he threw that struck the lower part of Mr Hong’s face.
Mr Shih states he did not think that Mr Hong was serious when Mr Hong asked if he wanted a fight. He states that he was only trying to defend himself. He states that he lost his job because Mr Hong was bleeding a little bit.

The evidence of other witnesses

There are statements from several witnesses who were working in the vicinity of where the altercation between Mr Hong and Mr Shih occurred. Mr Hong is identified in those statements as employee 2385 and Mr Shih is identified as employee 2061.
A witness named ‘Serena’ has provided a statement dated 7 October 2020. Serena states she was halfway into her cutting when she heard Mr Hong say to Mr Shih on two occasions to stop taking the chicken from the middle because that leaves no chicken for others. She states that Mr Shih said to Mr Hong: “Are you telling me what to do. Now you want to fight do you?” She states that Mr Hong replied: “if you say so” and then she saw Mr Shih hit Mr Hong first, and then they started hitting each other.
La Bang La has provided a statement dated 7 October 2020. La Bang La states that
Mr Hong said to Mr Shih that he was not leaving any chicken for the others and Mr Shih replied: “Are you telling me what to do. Telling me how many to take.” La Bang La is not sure who said: “do you want a fight?”, but saw Mr Hong put down his knife and walk up to Mr Shih and get into a fight and argument with Mr Shih. La Bang La states that Mr Hong slipped and fell against the conveyor belt, and Mr Shih charged at Mr Hong and hit him.
Dongliang Zang has provided a statement dated 7 October 2020. Dongliang Zang states that Mr Hong asked Mr Shih how other workers would do any cutting if Mr Shih was taking the chickens. Dongliang Zang states that Mr Hong said to Mr Shih: “so you want a fight?” and
Mr Shi replied: “if you say so. Who is afraid of you?” Dongliang Zang states that Mr Hong then put down his knife and walked up to Mr Shih and the two of them started pushing and shoving and started to hit each other.
Yen Tzu Yang has provided a statement dated 7 October 2020. Yen Tzu Yang states that
Mr Hong said “You take so many chickens. What will those people behind me cut? What you are doing is wrong.” Yen Tzu Yang states that Mr Shih said: “are you telling me what to do?” and Mr Hong then said: “are you asking for a fight?” Yen Tzu Yang states that Mr Hong walked up to Mr Shih and pushed him, and then Mr Shih pushed Mr Hong, and then Mr Hong threw a punch at Mr Shih and a scuffle occurred between the two of them.
Tun Tun Aung has provided statements dated 7 October 2020 and 4 May 2021. Tun Tun Aung states that he works as a boner at Baiada Poultry and that boners work either side of a bench facing a moving belt which chickens come down on. Nearly all the workers have someone standing either side of them and there is about 1.5m between the workers.
Tun Tun Aung states that the altercation between Mr Hong and Mr Shih was over the taking of chickens off the belt. Tun Tun Aung states that he heard Mr Shih say: “are you telling me what to do?”, and that Mr Hong replied: “you asking for a fight aren’t you?”, and Mr Shih said “okay” straight away.
Tun Tun Aung states that Mr Hong put his knife down and moved quickly to be very close to Mr Shih. Both Mr Hong and Mr Shih started pushing each other and Mr Hong then threw a punch at Mr Shih, which Mr Shih was able to dodge. He states that he saw both men throw one or two punches.
Tun Tun Aung states that he was standing opposite Mr Hong and Mr Shih and he dashed over to stop them from fighting. He states that Mr Hong was still trying to charge at Mr Shih and Mr Hong hit Mr Shih. He states that he told Mr Shih to leave because Mr Hong was still trying to fight him and was ranting with words such as “who is afraid of you?”
Tun Tun Aung states that Mr Hong slipped on some chicken skin or fat during the fight but did not fall to the floor. He states that Mr Hong did fall onto the basins and belt behind him.
Tun Tun Aung states that the workers were using knives to do their job and he was trying to prevent either Mr Hong or Mr Shih picking up a knife while fighting. Tun Tun Aung describes Mr Shih as “just a friend”.
Daidong ‘Tony’ Liu has provided a statement dated 4 May 2021. Mr Liu states that he is employed as a supervisor with the respondent to work at Baiada Poultry at Tamworth.
Mr Liu states that he was in the box room making boxes when he heard his name being called to go to the boning room. He states that Mr Hong and Mr Shih had already stopped what they were doing when he got there. He states that Mr Aung was standing between the two of them. He states that Mr Hong was bleeding from the mouth.
Mr Liu states that he took both men out of the room. He states that he told Mr Shih that he could no longer work there. He states that he took Mr Hong to a dentist in Tamworth.
Mr Liu states that he returned to work after taking Mr Hong to the dentist and worked out who were witnesses to the incident and obtained statements from those witnesses over the next two or three days.
Mr Liu states: “I would like to have made the fight at work less of an incident and then I might have been able to keep both of them working there.”
Chaoxin Ren has provided a statement dated 2 September 2021. Chaoxin Ren did not see the beginning of the incident, but did see Sandi hitting Mr Hong’s head for two minutes or so until another worker from the opposite side jumped over the belt and pulled Sandi away from Mr Hong.
Changmin Hu has provided a statement dated 9 September 2021. Changmin Hu did not see the beginning of the incident between Mr Hong and Sandi, or any of the fight which ensued.

The medical evidence

Dr Stephenson from Marius Street Family Dental has provided a report dated 14 March 2021 wherein it is stated that Mr Hong attended that practice on 3 October 2020 and saw
Dr Allwood who recorded: “Pt fell over this morning and knocked front tooth out, also other front tooth very loose and sore.”
Mr Hong’s general practitioner, Dr Poya, records on 8 October 2020 that Mr Hong was attacked at work and “broke his frontal teeth”.
Dr Poya records on 25 October 2020 that Mr Hong: “feels depressed, concerned about getting a job, sleep disturbance because of the assault and stress at work.”
Colin Kong, psychologist, writes in a report dated 5 November 2021 that he has seen
Mr Hong on a regular basis since 14 May 2021. Mr Kong writes that Mr Hong has been physically and psychologically traumatised “due to being terribly assaulted”.
Dr Young, consultant psychiatrist, has provided a report at the request of Mr Hong’s previous lawyers dated 17 May 2022. Dr Young diagnoses Mr Hong as having an adjustment disorder due to the assault occasioned to him on 3 October 2020.
Dr Kumagaya, consultant psychiatrist, has provided a report at the request of Mr Hong’s current lawyers dated 2 June 2023. Dr Kumagaya diagnoses Mr Hong as having post-traumatic stress disorder as a result of his employment with the respondent, and specifically as a result of the workplace incident on 3 October 2020.
Dr Bisht, psychiatrist, has provided reports at the request of the respondent dated
30 August 2021 and 19 October 2023. Dr Bisht diagnoses Mr Hong as suffering a major depressive disorder as a result of his involvement in the altercation with Mr Shih on
3 October 2020.

FINDINGS AND REASONS

Whether the applicant sustained an injury arising out of or in the course of his employment with the respondent

Although the psychiatrists who have provided their opinion in this dispute differ on the diagnosis of the particular psychological condition suffered by Mr Hong, all of those psychiatrists opine that Mr Hong sustained a psychological injury as a result in the incident involving himself and Mr Shih on 3 October 2020.
Although Dr Allwood records that Mr Hong fell over on the morning of 3 October 2020 and knocked his front teeth, the observations from the witnesses and the record made by
Dr Poya on 8 October 2020 provides compelling evidence that Mr Hong did sustain damage to his teeth as a result of his altercation with Mr Shih.

I can therefore conclude that Mr Hong did sustain a psychological injury, as well as damage to his teeth, as a result of the incident involving Mr Shih in the workplace on 3 October 2020.
However, Mr Stiles submits on behalf of the respondent that Mr Hong’s actions during that incident took Mr Hong outside of the scope of his employment whereby Mr Hong did not sustain an injury arising out of or in the course of his employment with the respondent.
A very good summary of the law as it applies to an injury sustained in the workplace as a result of an assault and the authorities relevant to this issue up until 1997 is set out by Armitage CCJ in Makko v Bullock Manufacturing Pty Ltd [1997] NSWCC 43; (1997) 15 NSWCCR 308 (Makko) at [314F-315C]:
“…Assault cases have been the subject of argument in this Court and its predecessor, the Workers' Compensation Commission, for many years. The view was taken that injuries occurring in the course of arguments resulting from matters in the workplace may arise out of and are certainly in the course of the worker's employment: see Jamesv. South Maitland Railways Pty Ltd (1943) 67 CLR 476, Evans v. Australian Gas Light Co [1958] 32 WCR (NSW) 30, and Tarry v. Warringah Shire Council [1974] 48 WCR (NSW) 1 (CA). On the other hand there is another line of cases where it was held that where the worker precipitated the violence by throwing the first punch, or provoked the assault by engaging in dishonest or grossly improper conduct, the injuries sustained in the resulting assault did not arise out of the employment and were not in the course of it: see McCord v. Commissioner for Railways [1943] 17 WCR (NSW) 116, Beavan v. Howard Smith Ltd [1945] 19 WCR (NSW) 81 and Ward v. Kellogg (Aust) Pty Ltd [1953] 27 WCR (NSW) 137.
There is yet another line of cases that establishes that where an assault occurs while a worker is actually performing the tasks he is employed to do or something incidental to them, the injuries resulting are compensable, notwithstanding that the assault occurred as a result of something outside the course of the employment: see Weston v. Great Boulder Mines Ltd [1964] HCA 59; (1964) 112 CLR 30, Inverell Shire Council v. Lewis (1992) 8 NSWCCR 562 (CA) and McCurry v. Lamb (1992) 8 NSWCCR 556 (CA).”
The question is which category or categories identified by Armitage CCJ fit the circumstances of this dispute.
There are five witnesses who have described what they saw in the altercation between
Mr Hong and Mr Shih on 3 October 2020 – Serena, La Bang La, Dongliang Zang, Yen Tzu Yang, and Tun Tun Aung.
All of those five witnesses state that the altercation between Mr Hong and Mr Shih was preceded by Mr Hong questioning Mr Shih as to the amount of chickens that Mr Shih was taking.
All of those five witnesses heard words spoken to the effect of: “do you want a fight?” Dongliang Zang, Yen Tzu Yang, and Tun Tun Aung state that Mr Hong said those words. La Bang La is not sure who said those words. Serena is the sole witness who states that
Mr Shih said those words. Mr Shih also states that Mr Hong said those words. The only witness who does not state that those words were spoken is Mr Hong.
There is therefore overwhelming evidence that the words “do you want a fight?” were spoken. The weight of the evidence from three of the five witnesses not involved in the altercation, along with there being no contrary evidence from Mr Hong despite a total of six people hearing the threat of a fight being uttered, supports a finding that those words were uttered by Mr Hong.
Four of the five witnesses to the altercation - La Bang La, Dongliang Zang, Yen Tzu Yang and Tun Tun Aung – all state that Mr Hong walked up to Mr Shih after the words regarding a fight were uttered. Mr Shih also states that this is what occurred. Serena provides no evidence of whether Mr Hong approached Mr Shih or whether it was the reverse situation.
The weight of evidence from four witnesses to the altercation strongly favours the finding that Mr Hong approached Mr Shih and that this was after Mr Hong had asked Mr Shih if he wanted to fight.
The witnesses to the altercation are divided on who first engaged in physical contact or attempted physical contact between Mr Hong and Mr Shih. Serena and La Bang La both state it was Mr Shih who threw the first punch. Dongliang Zang and Tun Tun Aung both state that Mr Hong and Mr Shih started to push each other, and Tun Tun Aung states that
Mr Hong threw the first punch. Yen Tzu Yang states that Mr Hong pushed Mr Shih and then Mr Shih pushed Mr Hong and then Mr Hong threw the first punch.
It is therefore difficult to determine whether it was Mr Hong or Mr Shih who commenced the physical altercation between the two of them. However, my finding that it was Mr Hong who made the threat of a fight, which is then immediately followed by Mr Hong approaching
Mr Shih, and at least three witnesses seeing Mr Hong pushing Mr Shih, leads me to conclude that Mr Hong instigated the altercation between the two of them.
The decision of Neilsen CCJ in Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; 16 NSWCCR 165 (Stojkovic) was referred to by counsel for both parties in this dispute. His Honour said at [97]:
“The authorities to which I have referred, and no other authorities have been referred to me by counsel, do not support any contention that a worker who instigates an altercation, either oral or physical for reasons unconnected with his employment and in the course of doing that, sustains injury, suffers injury arising out of or in the course of employment. As I have said, I am satisfied the applicant abandoned his employment by his conduct when he overturned the first wheelbarrow and remained out of his employment when he fell and fractured his right leg.”
In my view what is crucial in this dispute is that the evidence supports a finding that Mr Hong moved towards Mr Shih soon after Mr Hong threatened Mr Shih with a fight. Those actions by Mr Hong meant that he intended to engage in a fight with Mr Shih or was acting in such a reckless manner that a fight with Mr Shih was likely to ensue. Once Mr Hong had threatened a fight with Mr Shih and moved towards Mr Shih and then engaged in a fight with Mr Shih, then Mr Hong was acting in what Neilsen J in Stojkovic said [at 91] “was inimical to his employer’s interests and contrary to his duty as an employee.” The injury that Mr Hong has then sustained during this altercation with Mr Shih cannot have arisen out of or in the course of his employment because Mr Hong was acting outside the scope of his employment.
The behaviour of Mr Hong therefore comes within the category identified in Makko of:
“…where the worker precipitated the violence by throwing the first punch, or provoked the assault by engaging in dishonest or grossly improper conduct, the injuries sustained in the resulting assault did not arise out of the employment and were not in the course of it.”
The behaviour of Mr Hong also fits a principle was set out by Geraghty CCJ in Schinnerl v Commissioner of Police [1995] NSWCC 12; 11 NSWCCR 278 (Schinnerl) [at 285C]:
“Consequently, not only can gross misconduct take one outside the ambit of employment, but doing something which is not incidental to employment also achieves the same end. Performing some activity which one is not reasonably required, expected or authorised to do in order to carry out one's duties will also take one outside the course of employment.”
Mr Hong was not reasonably required, expected or authorised to threaten to fight Mr Shih, approach Mr Shih after making such a threat and then engage in a fight with Mr Shih.
Mr McEnaney submits that Mr Hong was only remonstrating with Mr Shih regarding the amount of chickens being taken by Mr Shih and that such remonstration and the injury which followed to Mr Hong remains within the course of Mr Hong’s employment. He submits that this is supported by what was said by Wall J in Evans v Australian Gas Light Co [1958] 32 WCR (NSW) 30 (Evans) at [31]:
“…the workman is entitled to make such a remonstration and I think it arises in the course of his employment when it occurs. There is nothing in the evidence as I see it, to suggest that the as applicant was the assailant who struck the first blow, or really brought the fight upon himself, and that has been used as a ground for determining whether the facts come within the phrase, ‘in the course of employment’.”
It is apparent from what I have just quoted from in Evans, that Wall J was satisfied the worker in that dispute did not strike the first blow or bring on the fight. If Mr Hong had not threatened Mr Shih with a fight and had only moved towards Mr Shih to remonstrate with him regarding the amount of chickens he was taking, and it was then Mr Shih who made the first physical act of aggression, then Mr Hong would be assisted by what was said in Evans.
However, the findings which I made on the evidence in this dispute is that Mr Hong made threats of a fight to Mr Shih, followed up such threats by moving towards Mr Shih and then engaged in a fight with Mr Shih, and that these actions caused Mr Hong to abandon his employment.
Mr McEnaney also submits that where the fight or altercation involves an issue arising from work then an injury sustained is compensable because it arose out of or in the course of employment. He submits that this is the situation in this dispute because the issue between Mr Hong and Mr Shih which leads to the fight is in regard to the amount of chickens being taken by Mr Shih. Mr McEnaney relies upon what was said by Basten JA in Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 (Kelly) at [27]:
“Where it is the common employment of two workers which leads to the outbreak of aggression in the course of the employment, in circumstances where such an incident would probably not have occurred absent the common employment, the source of the grievance felt by the aggressor is less likely to be relevant and less likely, if relevant, to carry significant weight.”
I have already noted that all five witnesses to the altercation state that the altercation between Mr Hong and Mr Shih was preceded by Mr Hong questioning Mr Shih as to the amount of chickens that Mr Shih was taking. I accept that this action by Mr Hong on its own, consistent with the dicta in Kelly, would come within the course of his employment.
However, the threat made by Mr Hong to fight Mr Shih on this issue, and then subsequently moving towards him and engaging in a fight with Mr Shih, placed Mr Hong outside the course of his employment or what might arise from his employment, in particular the issue of how many chickens Mr Shih was taking, and was contrary to Mr Hong’s duty as an employee of the respondent.
Another submission made by Mr McEnaney is that the statements provided by the five witnesses to the altercation need to be approached with caution because none of those witnesses describe where they were situated when the altercation occurred. Mr McEnaney submits that these statements do not provide enough particulars as to how they came to view the altercation, such as where they stood in relation to the altercation, and that those witnesses, with the exception of Serena, had their heads down and were working when the altercation occurred.
I do not agree with that submission. Firstly, Tun Tun Aung provides quite specific details in his statement dated 4 May 2021 of where workers would be standing. He states that nearly all the workers have someone standing either side of them and there is about 1.5m between the workers. That evidence places the witnesses in close proximity to the altercation.
Secondly, all of the five witnesses were sufficiently close to Mr Hong and Mr Shih to hear the threat of a fight being made. If those witnesses were close enough to hear what was said between Mr Hong and Mr Shih then it is also reasonable to conclude that those witnesses were able to see what occurred between Mr Hong and Mr Shih.
I do note that Tun Tun Aung describes Mr Shih as “just a friend” and that Mr Hong states that Tun Tun Aung is a friend of Mr Shih. Mr Hong in his statement dated 1 April 2021 states that he was shown the testimonies of the five witnesses by his wife in a car and states that: “The testimonies of the five witnesses were in conflict, and they were basically good friends of the attacker Sandi (one his roommate, three are his fellow countrymen from Myanmar, and one is from Taiwan province).”
The statements from Tun Tun Aung dated 7 October 2020 and 4 May 2021 do not, in my view, read as advocacy on behalf of Mr Shih and his account of what occurred appears even handed. Mr Aung’s evidence that he heard Mr Hong make the threat of a fight is consistent with the evidence of two other witnesses. His evidence that Mr Hong then approached
Mr Shih after those words were uttered is consistent with the evidence of three other witnesses. His evidence that Mr Hong and Mr Shih started to push each other is consistent with the evidence of two other witnesses. He states that both Mr Hong and Mr Shih threw one or two punches. I find no reason to query the evidence provided by Tun Tun Aung.
Mr McEnaney submits that the bruising around the right eye and loss of teeth suffered by
Mr Hong, as well as Mr Hong’s evidence that Tun Tun Aung pulled Mr Shih away from
Mr Hong, supports a conclusion that Mr Shih was the aggressor. However, the damage suffered by Mr Hong and the intervention by Tun Tun Aung to stop the fight only occur after actions taken by Mr Hong which I have already referred to which caused him to abandon his employment.
I also do not consider that the findings which I have made are affected by the statement written by Mr Hong following the incident and at the suggestion of Mr Liu that Mr Shih pushed Mr Hong and he then slipped on a chicken skin after Mr Hong questioned Mr Shih about the amount of chickens being taken. I accept that this was an attempt by Mr Liu soon after the incident occurred to try to have both men retain their jobs.
It is the evidence of those persons who were engaged in and witnessed the altercation which is paramount in making findings of fact regarding the circumstances which led to Mr Hong sustaining damage to his teeth and a psychological injury. A review of that evidence leads to the conclusion that Mr Hong abandoned his employment by his actions on 3 October 2020.
Mr Hong has therefore failed to establish that he sustained injury arising out or in the course of his employment with the respondent as prescribed by s 4 of the 1987 Act.
Having made that finding, it is not necessary to address the defence raised by the respondent pursuant to s 14 (2) of the 1987 Act.
There will be an award for the respondent.

[2024] NSWPIC 169

8 April 2024