Jr & Di Dunn Transport Pty Ltd v Wilkinson - [2015] NSWWCCPD 38

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	JR & DI Dunn Transport Pty Ltd v Wilkinson [2015] NSWWCCPD 38
APPELLANT:	JR & DI Dunn Transport Pty Ltd
RESPONDENT:	David Wilkinson
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4319/14
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	20 January 2015
DATE OF APPEAL HEARING:	2 June 2015
DATE OF APPEAL DECISION:	30 June 2015
SUBJECT MATTER OF DECISION:	Altercation on employer’s premises during working hours; whether CCTV images support factual findings; whether injuries sustained during altercation arise out of or in the course of employment, s 4 of the Workers Compensation Act 1987; serious and wilful misconduct; serious and permanent disablement: s 14(2) of the Workers Compensation Act 1987; sufficiency of evidence to support finding of injury to lumbar spine in the absence of contemporaneous complaints of back injury
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Callaway, instructed by Gillis Delaney Lawyers
Respondent:	Mr W Carney, instructed by Walker Law Group
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 20 January 2015 is confirmed.

INTRODUCTION

The worker and a fellow employee were involved in a physical altercation at the employer’s premises which resulted in the worker allegedly sustaining injuries to his left shoulder, neck and back.
The issues on appeal concern, firstly, whether there is sufficient evidence to support the Arbitrator’s finding that the worker sustained the alleged injuries in the course of his employment, and whether his employment was a substantial contributing factor to those injuries. Secondly, the Arbitrator’s finding that the injuries were not solely attributable to the serious and wilful misconduct of the worker. Thirdly, the Arbitrator’s finding that the injury resulted in serious and permanent disablement. Last, whether, as the Arbitrator found, the worker suffered an increase in back symptoms as a result of the injuries received in the altercation.

BACKGROUND

David Wilkinson, the respondent to this appeal, was employed by the appellant, JR & DI Dunn Transport Pty Ltd, as a truck driver. His duties also included palletising goods and driving fork lifts.
On 29 January 2014, Mr Wilkinson suffered injury when he was involved in a fight with another employee, Allan Linsley, who was also a truck driver employed by the appellant, in the yard of the appellant’s premises.
On 7 February 2014, Mr Wilkinson submitted a WorkCover worker’s injury claim form. He claimed to have suffered injuries to his left shoulder and neck as a result of being punched in the arm, head and neck during the course of the fight (mistakenly alleged to have occurred on 30 January 2014).
On 12 February 2014, Mr Wilkinson’s employment was terminated for misconduct concerning his involvement in the fight. Mr Linsley’s employment was also terminated for the same reason.
QBE Workers Compensation (NSW) Ltd (QBE), as WorkCover scheme agent for the employer, served three notices pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The first s 74 notice, dated 10 March 2014, denied liability for a number of reasons including:
(a) Mr Wilkinson had not suffered an injury arising out of or in the course of his employment within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b)     he did not require medical treatment;
(c)     the employment was not a substantial contributing factor to the injury (s 9A of the 1987 Act);
(d)     that no permanent impairment had been sustained as a result of the alleged injury;
(e)     any injury sustained was solely attributable to Mr Wilkinson’s serious and wilful misconduct (s 14 of the 1987 Act), and
(f)      the alleged injury did not result in any incapacity.
On 29 April 2014, a second s 74 notice was issued in which QBE denied that the injury resulted in any serious or permanent disablement. The notice expanded the evidence upon which the employer would rely including the evidence of a number of persons employed by the employer.
On 19 August 2014, Mr Wilkinson lodged an Application to Resolve a Dispute (the Application) in the Commission. He sought weekly payments of compensation from the date of the alleged injuries on 29 January 2014 to date and continuing. Mr Wilkinson also sought treatment expenses and lump sum compensation in respect of injuries to the neck, left shoulder and lower back. An allegation of psychological injury was identified in the Application but was subsequently withdrawn. The injuries were alleged to have been sustained “during an attack by another employee Allen [sic, Mr Linsley] at his place of work”.
On 25 August 2014, QBE issued a third s 74 notice. In addition to the denials referred to in its earlier s 74 notices, QBE specifically denied liability for compensation for pain and suffering pursuant to s 67 in light of the recent High Court decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213.
On 9 September 2014, the employer filed a Reply to the Application confirming its reliance on the s 74 notices referred to above.
The matter proceeded to a conciliation and arbitration hearing on 25 November 2014 in Wollongong. In addition to the documentary evidence, the Arbitrator granted an application by the employer to cross-examine Mr Wilkinson. The cross-examination was limited to the conflicting evidence between Mr Wilkinson and Mr Linsley concerning the circumstances surrounding the fight in light of the CCTV footage. After hearing the evidence and submissions the Arbitrator reserved his decision.
On 20 January 2015, the Arbitrator issued a Certificate of Determination and a Statement of Reasons. He found in favour of Mr Wilkinson. The Arbitrator concluded that Mr Wilkinson was in the course of his employment at the time of the fight, or, in the alternative, that his injuries arose out of the employment given that the fight was provoked by a dispute concerning work related matters. The Arbitrator was satisfied that the employment was a substantial contributing factor to the injuries. He rejected the submission that Mr Wilkinson’s injuries were solely attributable to serious and wilful misconduct. The Arbitrator concluded that Mr Wilkinson suffered injuries to his left shoulder, neck and an aggravation of a pre-existing back condition as a result of his involvement in the fight.
The Certificate of Determination is in the following terms:
“The Commission determines:
1. The Application to Resolve a Dispute is amended:
(a)to delete the date of injury in Part 4 and 5.1 ‘02/01/2014’ and insert in lieu ‘29/01/2014’, and
(b)to delete the claim for lump sum compensation at Part 5.6, that claim having been discontinued.
2. The respondent is to make payments pursuant to section 36(1) of the Workers Compensation Act 1987 to [Mr Wilkinson] in the sum of $1506.49 per week from 12 February 2014 for the duration of the first entitlement period as defined by section 32A of the Workers Compensation Act 1987.
3. The respondent is to make payments pursuant to section 37(1) of the Workers Compensation Act 1987 to [Mr Wilkinson] in the sum of $1268.62 per week from the expiration of the first entitlement period to date and continuing in accordance with and subject to Division 2 of Part 3 of the Workers Compensation Act 1987.
4. The respondent is to pay [Mr Wilkinson’s] reasonably necessary treatment expenses in respect of injury to the left shoulder, neck and lumbar spine pursuant to section 60 of the Workers Compensation Act 1987.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ISSUES ON APPEAL

The appellant alleges that the Arbitrator erred in:
(1)     his treatment of the CCTV images and the worker’s oral evidence relating thereto;
(2)     failing to have regard to the matters raised in the appellant’s written submissions of 2 December 2014 in relation to the CCTV images;
(3)     finding that Mr Wilkinson was injured in the course of his employment;
(4)     finding that Mr Wilkinson’s injuries were not solely attributable to serious and wilful misconduct;
(5)     finding that Mr Wilkinson’s injuries resulted in serious and permanent disablement, and
(6)     finding that Mr Wilkinson injured his lumbar spine in the incident on 29 January 2014.

LAY EVIDENCE

The Arbitrator conveniently summarised the lay evidence in his reasons. I propose to essentially adopt that summary, highlighting some crucial points of evidence below.

David Wilkinson

In evidence is Mr Wilkinson’s completed and signed hand written incident notification form dated 30 January 2014, together with his signed statement dated 25 August 2014. Mr Wilkinson also prepared a further document entitled “sequence of events”, which is undated. These documents similarly describe the events that took place on 29 January 2014 and are discussed below.
Mr Wilkinson states that he was the victim of an assault on 29 January 2014. He had been requested by Mr John Dunn, the appellant’s director, to have Mr Linsley put some boxes onto a pallet so that it could be loaded on to a particular truck. Mr Wilkinson said that when he asked Mr Linsley to do so he “got upset straightaway”, looked at him with a smirk and turned his back to him. Mr Wilkinson then asked Mr Linsley if he had heard him and in response Mr Linsley shook his head. Mr Wilkinson said that he walked away at that point. (Mr Wilkinson claims that he had to routinely or on a daily basis “pull up” Mr Linsley for failing to do his job properly.)
About 10 minutes later Mr Wilkinson said that he saw Mr Linsley in the shed. He got off his forklift and said to him “Allan when is this going to stop, we need to sort this out”. Mr Linsley said “sort what out?” and Mr Wilkinson then said “what do you mean sort what out”. At that point Mr Linsley became aggressive, stood very close to Mr Wilkinson and Mr Wilkinson felt intimidated. Mr Linsley said, “you’re the f---ing one that told me that I could drive all the trucks in the yard”. This was a reference to an earlier disagreement between the two concerning the extent of Mr Linsley’s physical limitations due to an earlier injury. An argument ensued but, as it wasn’t achieving anything, Mr Wilkinson said that he walked away to get on with his work. He added that Mr Linsley continued to “rant and rave”.
Mr Wilkinson subsequently got onto a forklift and drove out of the warehouse. In his statement, Mr Wilkinson said the following events then took place:
“…as I was driving my forklift driving past Allan [Linsley] who was off to my left and then all of the sudden I noticed pain in my left shoulder. I had been struck by Allan. I then stopped my forklift and I got off as I was in a lot of pain. I asked him why he had struck me. His response was ‘You tried to run me over.’ I did not try to run him over. Allan then started throwing punches at me and he grabbed me. I was saying to him Allan please stop. My natural reaction was to put up my arm to try and prevent him from punching me. I put my arms with my palms open to try and prevent him striking me. He would not let me go and he continued to throw punches at me. I weigh 70 kilograms. He weighs about 120 kilograms. I would say he is close to double my weight. I was panic-struck and I knew that he was much heavier and that if he got on top of me I would be crushed. I have suffered a [sic] very significant injuries as a consequence and I have a very significant tear in my left shoulder and I have other injuries that are the subject of medical evidence.
The fight arose because Allan struck me. I did not start the fight and I did not play any role in the continuation of the fight. I merely defended myself from an employee who was attacking me.”
Eventually the fight was broken up by a co-worker, Mr White. After the fight Mr Wilkinson got back up and continued on towards the shed. He then reported the fight.
During cross-examination, counsel for the employer, Mr Callaway, asked Mr Wilkinson why he stopped the forklift. In response, Mr Wilkinson stated (at T17.34): “I was struck in the shoulder, I had intense pain…reaction of being stopped”. Following further questions, Mr Wilkinson said that “if I had have turned my back to [Mr Linsley] and put myself in a more dangerous situation I could have possibly had a chance to walk away” (T22.29). Mr Wilkinson then clarified what he meant by “a more dangerous situation” (at T23.3):
“Well, if I had have turned my back toward him I would have had to have walked across the uneven concrete where the tines of the forklift were sticking out as well.”
Mr Wilkinson attempted to see his general practitioner the day after the fight but was unable to get an appointment until 31 January 2014. He stated that after seeing his doctor he claimed the expenses on Medicare as he “wanted to keep it away from WorkCover if possible”. He later underwent x-rays and an ultrasound performed on his left shoulder, following which he claims that he was informed he had a massive tear in the shoulder “where Allan had first punched me and two vertebrates had moved dangerously”.

Mr Allan Linsley

Mr Linsley provided a signed statement of evidence dated 1 April 2014. Mr Linsley described a history of work-related incidents, in which Mr Wilkinson behaved towards him “as if he was my boss” although he was not. He described having a disagreement with Mr Wilkinson over certain paperwork, about two months before the fight, when Mr Wilkinson allegedly became “fairly irate”. Thereafter he tried not to associate with Mr Wilkinson.
Mr Linsley also described an altercation with Mr Wilkinson on a Saturday, on a date which is unspecified. He described Mr Wilkinson’s manner as loud and rude, during the dispute which concerned which trucks Mr Linsley was fit to drive.
Mr Linsley said that on 29 January 2014 he had been instructed by Mr Wilkinson (relaying an instruction from Mr Dunn) to load certain boxes onto a pallet and then onto a truck. Mr Linsley said that he listened to Mr Wilkinson but did not answer him. Sometime later he was approached by Mr Wilkinson who said to him “is this the way it’s going to be is it?” Mr Wilkinson stood with his face about one centimetre from Mr Linsley’s. The following discussion then ensued, in which Mr Wilkinson’s attitude is described as “aggro”:
Mr Linsley: “Listen you’re not my boss, John’s my boss and Scott’s my boss, you’re not my boss.”
Mr Wilkinson: “I’m going to make your life a misery and I’m not scared of you.”
Mr Linsley: “I’m not scared of you either and you’re not a doctor and can’t tell me what I can do and what I can’t.”
After he finished shrink-wrapping the pallet load of boxes, Mr Linsley was walking from the shed across the yard. He stated that Mr Wilkinson came out of the first shed on the forklift and drove it towards him within a metre of his left side. He said that as there was a trailer parked to his right he could not move away from the approaching forklift. He said “I thought Dave was going to hit me with the forklift”. He added “I flicked my left arm and hand at Dave and said, ‘piss off Dave’”. He felt his left hand touch the shirtsleeve or arm of Mr Wilkinson but the impact was not hard or forceful.
Mr Linsley then described the confrontation. He said that Mr Wilkinson was yelling and that he was cranky. Mr Wilkinson had blocked his way towards the office. Mr Wilkinson “grabbed the front of my shirt with one hand and then my throat with the other hand”. Mr Linsley said that he tried to push Mr Wilkinson off but he “pushed me back and then pushed my glasses off and drove his thumb into my right eye. He continued to hold his hand around my throat”. Mr Linsley then started “swinging to make [Mr Wilkinson] release his hand from my eye socket”. Mr Linsley claims that he was then on his back on the cement driveway with Mr Wilkinson “sitting on top of [him] with his knees over [his] shoulders and hitting [his] face and head”. The fight was broken up by co-workers and he was subsequently taken to hospital.
Mr Linsley rejected the suggestion that he started the fight. He said:
“no I didn’t start the fight. [Mr Wilkinson] threatened me insude [sic, inside] the shed and ordered me out of the gate to siort [sic] this out now. That was before the actual fight occurred. As far as I am concerned Dave was looking for a blue. I did not talk to him and stayed clear of him to avoid confrontation. I am too old for that garbage.”
Mr Linsley denied having punched Mr Wilkinson in the shoulder. He said:
“I used my left arm that is injured and weak from that injury [resulting from a previous work-related motor vehicle accident]. I did not clench my fist and used my flat palm. All I did was emphasising saying to Dave ‘go away’. If I was going to hit him I would have used my right arm.”
Mr Linsley stated that he was on his way to the office to report Mr Wilkinson’s conduct but was blocked by Mr Wilkinson who was between him and the office. He stated that he had not reported Mr Wilkinson’s behaviour earlier because he doesn’t “like creating dramas” and if someone has an attitude problem he steers clear of them.

Cameron White

Mr Cameron White provided a signed statement dated 2 April 2014. Mr White is Mr Wilkinson’s cousin and employed by the appellant as a yardsman and driver. He said that after the lunch break and about half an hour before the fight broke out, he saw Mr Wilkinson and Mr Linsley having a heated argument. He could not hear what was being said but described it as an angry exchange.
Mr White said that in the course of his normal duties he saw Mr Wilkinson and Mr Linsley fighting in the yard. He saw them standing throwing punches at each other. He stopped his forklift and approached them but before he could reach the pair Mr Linsley was on the ground. Mr Wilkinson was kneeling over him and appeared to be trying to knee Mr Linsley in the head. Mr White stated that he pulled Mr Wilkinson off Mr Linsley. As he did so they continued to argue and spoke in raised voices. Mr White stated he had no knowledge of what provoked the fight. He was not able to say who started the fight as it was already in progress when he first saw the two men fighting. Mr White completed a signed hand written incident notification form, dated 29 January 2014, in which he similarly describes the fight.

Scott Talbert

Mr Scott Talbert, the appellant’s fleet manager, provided a signed statement dated 2 April 2014. He stated that the yard is used for loading and unloading of trucks and that there is no “yard boss”. Mr Talbert said that Mr Wilkinson tried to act like he was the senior yard man and “seem[ed] to think he was in charge of the yard”. He also had the attitude that he was the only employee doing any work.
Mr Talbert stated that there had been three or four complaints from Mr Linsley, over the few months before the fight, about Mr Wilkinson’s behaviour and the fact that he was giving him instructions, particularly instructions for duties that he was not fit to undertake. Mr Talbert referred the complaints to Mr Dunn.
Mr Talbert did not witness the fight. However, after the fight Mr Talbert witnessed Mr Linsley crying and holding his hand. His face was swollen, he had bruising to his eye and his thumb was bent as if it had been dislocated.

John Dunn

Mr Dunn provided a signed statement dated 2 April 2014. He confirmed that Mr Wilkinson’s duties were to load and unload vehicles and to carry out regular truck driving activity. He stated that Mr Wilkinson had no authority to give instructions to Mr Linsley, as he did not occupy a senior or managerial role. However, from time to time Mr Dunn gave instructions to Mr Wilkinson to pass on to Mr Linsley.
Mr Dunn was aware that there had been some disagreements between Mr Wilkinson and Mr Linsley prior to the fight but not of a serious nature. Mr Dunn described an incident that occurred in September 2013 between Mr Wilkinson and a worker known as Willy Johnson which involved some “pushing and shoving”.
Mr Dunn did not witness the fight between Mr Wilkinson and Mr Linsley. After the fight was broken up he observed that Mr Linsley was shaken and was thought to have a broken thumb. The following day Mr Wilkinson reported that his left shoulder was sore “due to the fight”, but said to Mr Dunn “don’t worry I’m not going to make a workcover claim. It’s from an old injury and Allan knew about it and targeted it in the fight”.

Shayne Dixon

Mr Shayne Dixon, employed by the appellant as a truck driver, provided a statement dated 3 April 2014. The only incident Mr Dixon witnessed on 29 January 2014 between Mr Linsley and Mr Wilkinson was in the wash bay at the appellant’s premises. He stated that Mr Wilkinson instructed Mr Linsley to place some boxes on a pallet and then load them on to a truck. Mr Wilkinson walked away without waiting for a reply. Mr Dixon stated:
“I thought Wilko [Mr Wilkinson] spoke to Al [Mr Linsley] with a bit of an attitude. The attitude was that Wilko was being real bossy.
Wilko did not say he was passing on a message from John Dunn or Scott Talbert.
Wilko spoke as if the instruction was his idea. Also his attitude was that Al should stop whatever he was doing and carry out the instruction straight away.”

Calvin Sharp

Mr Calvin Sharp provided a statement dated 7 April 2014. Mr Sharp is employed by the appellant as a truck driver. Two or three weeks prior to the fight, Mr Sharp witnessed Mr Wilkinson and Mr Linsley engaged in a disagreement about Mr Linsley’s ability to drive certain trucks within the yard.
While Mr Sharp did not see the fight on 29 January 2014, following the fight he drove Mr Linsley to hospital for treatment. He said that Mr Linsley had told him that he put his arm out “to say to Dave that the forklift was too close and then Dave started to fight”.

Other evidence

As the Arbitrator noted, included in the factual investigation material in evidence were two documents headed “1 Allan” and “2 Dave”. The documents are unsigned and appear to be questions sought in advance and answers supplied during the course of interviews. As the Arbitrator noted, these documents add little to the factual background except that during the course of the exchange before the fight, Mr Linsley said: “he [Mr Wilkinson] was talking in my face. He threatened me saying ‘I’m going to make your life a misery’. He wanted to fight me outside the gate. He said ‘let’s take this outside’”.
When asked why Mr Linsley put his arm out towards the driver of the forklift as he went past, he said “he was driving straight towards me so I moved over towards the truck. I threw my arm out as if to say move over. I touched his shirt. I didn’t touch his shoulder”.
In the document headed “2 Dave”, Mr Wilkinson denied driving the forklift in a dangerous manner. He said “Allan knew I had a bad shoulder. He had asked about it previously. He hit it on purpose. It hurt. I reacted to that”. When asked why he grappled with Mr Linsley instead of reporting the fight, Mr Wilkinson said “I went to ask him why he did that”. But when asked why he grappled with Mr Linsley instead of trying to get away from him, Mr Wilkinson said “he was attacking me and I couldn’t get away”. He added “I only hit him once. Allan was going aggro. He hit me seven times before I hit him. Allan was getting the better of me so I thought I had to defend myself. He was going to flog me”.

MEDICAL EVIDENCE

Dr Salauddin

In evidence are the clinical notes from Mr Wilkinson’s treating general practitioner, Dr Salauddin. A history of a “bad back” is recorded in an entry dated 8 August 2005 and the following is noted: “trauma 15 yr old disc protrusion in lumbar spine L5”. A Centrelink medical certificate issued by Dr Gahni dated 8 December 2005 is also in evidence, certifying Mr Wilkinson unfit to work from 8 December 2005 until 8 January 2006. Mr Wilkinson is there diagnosed with “depression” and “lumbar disc” (lesion).
On 31 January 2014, Mr Wilkinson attended on Dr Salauddin complaining that he was attacked at work. The entry records: “neck pain”, “U/S left shoulder” and “assault C spinal review”.
On 5 February 2014, Mr Wilkinson again attended on Dr Salauddin regarding the assault “at work”. It was noted that an MRI of the spine was needed and left shoulder RC (rotator cuff). Dr Salauddin there recorded that Mr Wilkinson was “unfit for duties”.
On 13 February 2014, Dr Salauddin issued a WorkCover NSW – certificate of capacity certifying Mr Wilkinson to have no current capacity for any employment from 14 February 2014 until 28 February 2014. The diagnosis of the injury was recorded as: “Left Rotator Cuff tear, neck pain, Assault at work”. A further five similar WorkCover NSW – certificates of capacity are in evidence, dated 24 March 2014, 10 April 2014, 13 May 2014, 15 July 2014 and 12 August 2014, certifying Mr Wilkinson to have no current capacity for any employment from 14 February 2014 to 11 September 2014.
Mr Wilkinson attended on Dr Salauddin over 12 occasions from 31 January 2014 until 20 August 2014. The first recorded entry of back pain during that period appears on 20 August 2014, where a reference to a referral to a physiotherapist for “back pain” is recorded.

Radiological investigations of the cervical spine

On 3 February 2014, Mr Wilkinson underwent an x-ray of his cervical spine. A report, by Dr Brett Napier, dated 4 February 2014, concluded:
“[t]here is alteration in alignment within the mid cervical spine at the C4/5 level associated with congenital vertebral anomaly suggesting this is long standing, however in the presence of acute injury CT should be considered to further investigate/correlate this finding.”

Dr P Endrey-Walder

Mr Wilkinson attended on Dr P Endrey-Walder, general and trauma surgeon, at the request of his legal representative. Dr Endrey-Walder provided a report dated 20 May 2014. In that report he details Mr Wilkinson’s medical history and provides a background to the fight.
Dr Endrey-Walder records that approximately 22 years ago Mr Wilkinson suffered an injury to his back in a lifting incident for which he claimed workers compensation. He also records that Mr Wilkinson “had back problem since 1992, no doctors, it didn’t affect me in any way”. However, it is also recorded that Mr Wilkinson slowly recovered from the back injury but “in the mid-1990’s he was off for two years because of recurrence of the back symptoms”.
Dr Endrey-Walder further noted that over the last five to ten years Mr Wilkinson would get “intermittent niggly, dull ache at the left shoulder, especially in the colder months of the year”. He also said that Mr Wilkinson had “daily lower back pain” before the assault which he “managed with anti-inflammatories and painkillers since the injury more than 20 years ago”. It is further recorded that Mr Wilkinson would do his own exercise every day and that the problem now is “that because of the shoulder [he] can’t do the exercises” and that he is “a lot more sore than before, [he] used to do [his] physical exercises six or seven times a day”.
Dr Endrey-Walder also noted a history that Mr Wilkinson suffered injuries as a result of the fight. He records that after the fight Mr Wilkinson “subsequently drove his forklift to the warehouse ‘to get myself together, I was upset, shaking, I was very sore, my shoulder (left), my neck, my back was killing me’”.
Dr Endrey-Walder concluded that:
“Mr. Wilkinson suffered an acute blow to his left shoulder and soon thereafter multiple blows to his head, neck and left shoulder region while grappling with the other employee, eventually crashing to the ground, further altercation ensued.…
Mr. Wilkinson suffered soft tissue injury to the cervical spine, an acute full thickness tear of the supraspinatus at the left rotator cuff, suffered some aggravation to his lower back, but the latter is mainly a function of his inability to perform the physical exercises which he did routinely on a daily basis over the years for a previous back injury.
Mr. Wilkinson has remained unfit for the kind of work he performed at his job in which the injuries occurred, and is currently unfit for any physically even moderately demanding work, as certified.
This man has difficulties rotating his head from side to side, looking up, he has much restricted range of movement at the left shoulder and even that limited rotation at the shoulder is accompanied by pain.
He has remained with increasing symptoms in his lower back as an indirect consequence of the assault impacting on his functionality.”
Dr Endrey-Walder stated that the long term prognosis regarding Mr Wilkinson’s functionality on the open labour market remains rather guarded. He noted that Mr Wilkinson would have “difficulty rehabilitating his back after some months of lack of exercises for his chronic condition, it is most unusual to regain a full range of symptom-free movement at the shoulder even with the most successful operation”.
Mr Wilkinson was assessed by Dr Endrey-Walder to have a combined whole person impairment of 18 per cent, comprising of five per cent permanent impairment to the neck, four per cent permanent impairment of the back and 10 per cent permanent impairment of the left shoulder.

THE ARBITRATOR’S REASONS

The Arbitrator outlined the issues for determination before referring to the documentary, medical and oral evidence in detail.
In his findings and reasons, the Arbitrator first addressed the issue of injury. He considered Deputy President O’Grady’s decision in Vinidex Pty Ltd v Campbell [2012] NSWWCCPD 6 (at [45]–[46]) regarding the approach that must be adopted in circumstances where reliance is placed upon s 14 of the 1987 Act. The Deputy President there considered it appropriate first to deal with the issue of s 4. Only then, upon the assumption that injury has been established and s 9A is satisfied, is it appropriate to consider s 14.
The Arbitrator noted that there are “major discrepancies in the versions of what occurred on 29 January 2014 between [Mr Wilkinson] and Mr Linsley” ([100]). However, he noted that Mr Wilkinson and Mr Linsley agreed that prior to the fight they had exchanges over work tasks. The Arbitrator accepted that there was a source of friction between Mr Wilkinson and Mr Linsley and was satisfied that the disputes between them were related to employment tasks ([101]).
The Arbitrator described the images depicted in the CCTV footage (at [103]). He said:
“The time clock shows that six seconds elapsed between the time that the forklift first comes into view to the time that the protagonists confront each other at arms length. In that time the forklift is driven past Mr Linsley who was walking to the left of the forklift. Mr Linsley’s left arm is seen in one frame as extended and apparently touching [Mr Wilkinson]. The forklift comes to a halt whilst Mr Linsley walks forward. He is seen to be looking back over his left shoulder towards [Mr Wilkinson]. Mr Linsley's left arm is raised in pointing in the direction of [Mr Wilkinson]. [Mr Wilkinson] advances directly towards Mr Linsley. Neither arm appears to be raised in anything other than a natural swing while walking. By the elapsed time shown on the clock attached to the images, only three seconds elapsed between the moment when Mr Linsley’s left arm is raised towards the shoulder of [Mr Wilkinson] as he drives the forklift and the frame showing [Mr Wilkinson] and Mr Linsley confronting each other with Mr Linsley’s left hand appearing to be in contact with the mid upper chest of [Mr Wilkinson]”.
Where there was a conflict between that which is depicted in the CCTV images and versions of events as recalled by Mr Wilkinson and Mr Linsley he preferred the to rely on the former ([103]). The Arbitrator was “satisfied that Mr Wilkinson stopped the forklift and descended because he had received a blow to his left upper arm as he passed Mr Linsley” ([105]). He was not able to make a finding as to the speed of the forklift driven by Mr Wilkinson at the relevant time. He found that the forklift was driven close to, but not at, Mr Linsley ([104]). He found that the CCTV images could not establish a real danger of collision. He concluded that he could not accept the CCTV “as evidence that [Mr Wilkinson] had driven his forklift in a manner which justified a conclusion that he departed from the course of his employment” ([106]).
The respondent’s submission that by failing to proceed directly to the office, Mr Wilkinson had abandoned the course of his employment was not accepted by the Arbitrator ([107]).
After quoting Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; 16 NSWCCR 165 (Stojkovic), the Arbitrator stated (at [109]–[112]):
“[109] My conclusion is that, as [Mr Wilkinson] drove the forklift past and close to Mr Linsley, Mr Linsley struck Mr Wilkinson with his left hand at about the region of the left upper arm. As a result of the blow Mr Wilkinson stopped the forklift and walked towards Mr Linsley. There is nothing in the manner of the approach by Mr Wilkinson towards Mr Linsley that suggests an attack or intention to have a fight. It is consistent with Mr Wilkinson’s explanation given at the time and since that he was seeking an explanation as to why Mr Linsley had struck him.
[110] I do not accept the version given by Mr Linsley in his statement to the effect that he tried to move towards the office but was blocked by Mr Wilkinson. That version is simply not supported by the visual images in evidence and did not occur. The images also contradict Mr Linley’s [sic, Linsley’s] assertion that he could only fight with one arm.
[111] I do not accept the oral evidence of [Mr Wilkinson] that Mr Linsley walked towards him. That is contrary to what are [sic] shown in the CCTV images. I do not accept [Mr Wilkinson’s] answers as to why he did not go immediately to the office as being matters that occurred to him at the time that he got off the forklift. The incident happened over a span of a few seconds. I am satisfied the explanation given in [Mr Wilkinson’s] statement is more likely; that he was seeking an explanation as to why Mr Linsley had struck him.
[112] I accept the series of images depicted from the CCTV as being a reasonable representation of what occurred. In the circumstances I am satisfied that [Mr Wilkinson] suffered injury to his left shoulder, neck and aggravation to his pre-existing back condition in the course of his employment with the respondent.”
The Arbitrator made an alternative finding that it was open on the evidence that Mr Wilkinson’s injuries arose out of employment as Mr Linsley and Mr Wilkinson were in dispute about work tasks ([113]).
The Arbitrator secondly addressed whether the evidence satisfied the provisions of s 9A of the 1987 Act. Having considered that the injury occurred during work hours in the workplace and the dispute related to work tasks, the Arbitrator was satisfied that the evidence established a causal connection that was “real and of substance” between the work activities of Mr Wilkinson and the injuries ([118]).
Thirdly, the Arbitrator considered the operation of s 14(2) to the circumstances of the matter. He considered the general principles identified in Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24, which relate to questions of onus and the meaning of “serious and wilful misconduct” (which are not challenged on this appeal).
The Arbitrator did “not accept that any pathology (apart from purely transitory) was caused directly by the blow to the upper arm experienced by Mr Wilkinson while still on the forklift” ([124]).
In rejecting Mr Linsley’s evidence, and relying on the CCTV images, the Arbitrator found that he could not be satisfied on the balance of probabilities that Mr Wilkinson’s manner of driving the forklift at the relevant time was such as to amount to misconduct ([125]–[127]).
Applying Stojkovic, and bearing in mind the CCTV evidence and short timeframe in which the fight occurred, the Arbitrator was not “satisfied that there was any moment of deliberation on the part of [Mr Wilkinson] when he stopped the forklift, got off and walked back to where Mr Linsley was standing” ([129]). Further, the CCTV images were found “not inconsistent with Mr Wilkinson’s stated intention to seek an explanation as to why Mr Linsley had struck him”.
Further, again relying on Stojkovic, the Arbitrator was not satisfied that “the failure to go directly to the office rather than confronting Mr Linsley was serious misconduct” ([130]).
The Arbitrator stated (at [131]):
“I take into account not only the explanation given by [Mr Wilkinson] in his written statement, his demeanour as depicted in the CCTV images and the substantial discrepancy in the physical build of the two men. [Mr Wilkinson] is said to weigh approximately 70 kg and his appearance at hearing was consistent with that. Mr Linsley acknowledged his weight to be 120 kg. I do not accept the evidence of Mr Linsley that [Mr Wilkinson] approached him in a threatening manner and blocked his retreat. Having regard to those matters, I am not satisfied on the balance of probabilities that [Mr Wilkinson] approached Mr Linsley with the intention of assaulting him.”
The Arbitrator was “not satisfied on the balance of probabilities that [Mr Wilkinson’s] injuries were caused solely by [his] serious and wilful misconduct” ([133]).
He considered the uncontradicted evidence of Dr Endrey-Walder and Dr Salauddin, in respect of Mr Wilkinson’s level of disability. He then found that the evidence supported a finding that Mr Wilkinson suffered “serious and permanent disablement as a result of the injury” ([135]–[138]), which would excuse any serious and wilful misconduct had such a finding been made.
Fourthly, the Arbitrator considered the issue of work capacity as a result of the subject injuries. He accepted the evidence of Dr Endrey-Walder and Dr Salauddin, that Mr Wilkinson has no current work capacity as a result of his injuries, there being no evidence to the contrary ([140]). He then made findings in respect of Mr Wilkinson’s entitlement to weekly payments of compensation. He also made a finding that the respondent pay Mr Wilkinson’s reasonably necessary treatment expenses in respect of injuries to the left shoulder, neck and aggravation of a pre-existing condition to the lumbar spine.

SUBMISSIONS AND DISCUSSION

The factual issues (Grounds one and two)

At the oral hearing of the appeal Mr Callaway clarified the gravamen of his submission in relation to the Arbitrator’s factual findings. He submitted that it was not open to the Arbitrator to conclude that when Mr Wilkinson alighted from the forklift he was not intending to assault Mr Linsley. He submitted that the Arbitrator should have found that Mr Wilkinson was the main aggressor whose actions provoked the altercation, which should have led to a finding that Mr Wilkinson’s injuries were not sustained either arising out of or in the course of employment.
Security cameras located at the appellant’s premises captured the altercation in which Mr Wilkinson was involved. At the hearing of the arbitration, on 25 November 2014 at Wollongong, due to technical difficulties, the images on the CCTV footage could not be seen clearly. In those circumstances the Arbitrator granted the parties leave to provide further written submission, if required, following their viewing of the CCTV footage.

In response to the leave granted, Mr Callaway lodged written submissions dated 2 December 2014. Mr Callaway alleges that the Arbitrator erred by making no reference to having received, or to addressing matters referred to in, the appellant’s written submissions dated 2 December 2014. Further, it is submitted that the Arbitrator’s analysis of the CCTV images does not properly reflect their contents and understates Mr Wilkinson’s culpability. The appellant maintains its position, as outlined in its written submissions to the Arbitrator, that the CCTV images support the following:
“i.     Another forklift seen passing a pedestrian shortly before the incident makes it clear that [the] worker could have given Mr Linsley a lot more space to walk than he did. In this regard the shadow is a good reference point in assessing the distance.
ii.      The video cannot be interpreted as depicting Mr Linsley punching the worker as the worker drives past. His arm goes out rather than his body weight leaning into a punch. The police interpretation at page 11 of the Reply fairly describes the movement.
iii.     The worker apparently takes no time to respond to the pain allegedly inflicted or to consider whether driving on would be dangerous because of unsafe terrain and his alleged arm injury – something he said he concluded at the time.
iv.     The worker does not demonstrate any movement consistent with an arm injury as he approaches Mr Linsley.
v.      It is clear the worker approaches and confronts Mr Linsley. He appears to take 5 steps towards Mr Linsley who does nothing more than hold his ground. It is Mr Linsley who could not turn his back.
vi.     The worker appears then to lean into Mr Linsley twice and the fight continues thereafter.
vii.    At one stage the worker throws a punch with his left arm and he later pushes himself up from the ground with his left arm – all of his actions are consistent with the arm not being injured whilst he was in the forklift and, importantly are inconsistent with the level of pain and disability he claims to have experienced whilst still in the forklift.
viii. The worker appears to be the main aggressor throughout and indeed in the arbitrator’s view gained the upper hand before the fight was broke[n] up.
ix.     The fact the worker confronts Mr Linsley and thereafter shows no sign of injury during the fight belies his explanation for stopping because it would have been unsafe to drive on.
x.      The fact the worker returns immediately to the forklift from the right hand side makes it clear he could have avoided Mr Linsley by leaving the forklift from that side at the outset if for some reason he could not have driven on.
xi.     The CCTV depicts the worker driving off immediately after the fight which fact completely contradicts his reasons offered in oral evidence for not continuing on initially.” (footnotes omitted)
Whilst the Arbitrator did not expressly refer to counsel’s written submissions, those submissions, in substance, merely repeat the submissions made by counsel at the hearing. As the following analysis demonstrates, the Arbitrator’s reasons clearly indicate that he considered the substance of Mr Callaway’s submissions. Therefore, any failure to expressly refer to the written submissions cannot and does not involve error.
As to (i), the manner of the driving of the forklift in close proximity to Mr Linsley was the subject of cross-examination (at T23.20 and 24.10). Mr Callaway submitted (at T35.25):
“…it’s apparent from the footage that there is, he could have given Al [Mr Linsley] a wider berth as it were. He’s chosen not to. And certainly that’s the view Alan’s taken in relation to what’s occurred. So he’s, he’s no longer just driving the forklift for the purposes of his work or employment as it were. He’s, he’s driven it at Al to intimidate Al. And that’s what he’s achieved.”
The Arbitrator dealt with that submission. He said (at [78]) “the forklift is then seen to pass close to Mr Linsley passing him to the left of the forklift”. He added (at [106]) “I accept the forklift was driven close to Mr Linsley but not at him”. That description of the manner of the driving of the forklift was an accurate description of the CCTV footage and provided a solid foundation for the Arbitrator’s findings.
As to (ii), Mr Callaway made the following submission (at T49.24):
“That is, that is consistent with not a punch but, not a forceful impact, stick his arm out as opposed to hitting him, punching him.”
The Arbitrator accepted that the CCTV image did not support the allegation that Mr Wilkinson was punched in the shoulder whilst on the forklift, as Mr Callaway submitted. He found (at [79]) that Mr Linsley was seen “to have his left arm directly out from the shoulder and apparently in contact with [Mr Wilkinson].” That finding is consistent with the CCTV footage and was open to the Arbitrator to find as a matter of fact.
The submissions made at (iii) and (iv) were also the subject of submission to the Arbitrator. Mr Callaway submitted (at T36.1):
“…[Mr Wilkinson] doesn’t display any signs of injury in his shoulder when he gets out of the forklift and walks towards Al [Linsley]. His conduct is not consistent with him experiencing any injury at that point. He says that he couldn’t drive forward because it was uneven ground and it, as I understand his evidence he’s trying to give the impression that it would have been dangerous or unsafe. But an injured person such as he was at that point would have driven the vehicle, in my submission, across it because what you might expect if he was injured he would sit there for a moment and regroup and then consider what he’s going to do next. The uneven ground in front of him played no part in that decision. And nor did he - access in terms of the way he chose to walk nor did he fear of putting his, turning his back to Al. If he was truly injured at that point you would expect he would have stayed in the forklift for some time, you would certainly expect he would not have walked towards Al as he did.”
The substance of the submissions referred to at (iii) and (iv) were dealt with by the Arbitrator at [103], [111] and [123]. He agreed that the interval between Mr Wilkinson being struck and the altercation was just three seconds. The Arbitrator rejected Mr Wilkinson’s evidence that he could not proceed direct to the office because of the pain inflicted while he was driving the forklift. He also rejected the submission that the injury to the shoulder was sustained by a direct blow delivered by Mr Linsley while Mr Wilkinson was seated on the forklift.
Further, Mr Callaway submitted on appeal that the CCTV footage does not indicate that Mr Wilkinson took any time to respond to the pain allegedly inflicted upon him whilst still seated on the forklift, or that he demonstrated any movement consistent with an arm injury as he approached Mr Linsley. Both of those submissions may be accepted and they are also consistent with the Arbitrator’s findings. The Arbitrator said (at [111]), “I do not accept [Mr Wilkinson’s] answers as to why he did not go immediately to the office as being matters that occurred to him at the time that he got off the forklift”. In other words, the Arbitrator, correctly in my view, rejected Mr Wilkinson’s initial evidence that he could not proceed further on the forklift, after the alleged punch in the shoulder, because of the presence of uneven concrete and the risk of coming into contact with the tines of the forklift.
The submissions referred to at (v),(vi), (vii) and (viii) relate to the actual altercation. It is surprising that Mr Callaway would submit that the Arbitrator erred by failing to take those matters into account because Mr Callaway cross-examined on those matters and made submissions to the Arbitrator at the hearing. Mr Callaway submitted (at T34.23):
“Mr Callaway: At, at the point where he drives the forklift towards Alan and if not at that point the point where he gets out of the forklift and elects to then pursue Alan. And it’s my respectful submission from the, the footage that in fact it’s [Mr Wilkinson] who is the aggressor at that stage. He takes the five or so steps towards Alan, Alan stands his ground and then…”
The Arbitrator, correctly in my view, did not accept Mr Callaway’s submission as an accurate summary of the CCTV footage (see [63] above). I accept that Mr Wilkinson certainly took several steps, possibly five steps, and approached Mr Linsley. However, the CCTV footage clearly shows that Mr Linsley raised his hand and placed it upon Mr Wilkinson’s chest. That is the first physical contact between the two men and was initiated by Mr Linsley not Mr Wilkinson.
The submissions made at (ix), (x) and (xi) also repeat submissions made at the hearing. Mr Callaway submitted (at T36.5) that Mr Wilkinson’s conduct was inconsistent with experiencing injury when he alighted from his forklift. As I have indicated, he also submitted (at T36.7) that Mr Wilkinson was not to be believed when he said that it would have been dangerous or unsafe to drive over uneven ground in his allegedly injured state. The Arbitrator dealt with those submissions and rejected Mr Wilkinson’s evidence on those issues (at [111]).
Mr Callaway submits that the Arbitrator was correct to reject Mr Wilkinson’s evidence about the circumstances of the confrontation, however, the inconsistencies in his evidence were such as to force a conclusion that his evidence generally in relation to the fight could not be relied upon. Therefore, it is submitted that there was no basis upon which to accept the explanation in Mr Wilkinson’s statement concerning seeking an explanation for the blow on the shoulder rather than the initiation of an altercation. Therefore, the Arbitrator should have concluded that all his evidence was “untruthful or at best unreliable”. I reject that submission for the following reasons.
First, it does not follow that where an Arbitrator rejects certain parts of a witness’s evidence that he or she is therefore bound to reject all of that witness’s evidence. There is no requirement for a judge to accept the whole of the evidence of any one witness (Chanaa v Zarour [2011] NSWCA 199 at [86]).
Second, it was open to the Arbitrator to accept Mr Wilkinson’s evidence regarding his intention to seek an explanation for having received a blow on the shoulder. That evidence is supported by his statement made shortly after the accident and also in the notes taken by the investigator in the course of the factual investigation referred to as “2 Dave” (see [46] above).
Third, although Mr Wilkinson was cross-examined at length concerning the circumstances immediately preceding the altercation, he was not cross-examined on this issue. It was never suggested to him that he did not utter the words “Allen, what the f… did you do that for” as he claimed in his evidence. Given Mr Wilkinson’s unchallenged evidence on this issue, it was open to the Arbitrator to conclude that Mr Wilkinson’s purpose in alighting from the forklift and approaching Mr Linsley was to seek an explanation for the blow that he had received moments earlier and not to initiate an altercation.
Fourth, in Midcoast County Council t/as Midcoast Water v Reed Constructions Australia Pty Ltd [2011] NSWCA 268 Meagher JA (Basten and Beazley JJA agreeing) said (at [32]):
“The relevant principles as to fact finding on appeals by way of rehearing are not in dispute. This Court must set aside challenged findings of fact which are shown to be wrong. When addressing those challenged findings, the court must weigh conflicting evidence and draw its own inferences and conclusions from that evidence, giving due regard to the fact that it has not seen nor heard the witnesses. Specifically, if a finding might be affected by the trial judge’s impression about the credibility of a witness or witnesses, this court should respect the advantage of the trial judge in that regard. Usually such a finding should stand unless it is shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or acted on evidence which was ‘inconsistent with facts incontrovertibly established’ or ‘glaringly improbable’: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479, 480–481; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]–[27].”
In this case the Arbitrator had the advantage of seeing and hearing the witnesses give evidence. No submissions have been advanced which would support the conclusion that the Arbitrator “failed to use or palpably misused his advantage”. The Arbitrator did what he was required to do, namely, resolve the contested factual issues having regard to the witness’s evidence, the contemporaneous statements, and the CCTV images.
As I have indicated, the thrust of Mr Callaway’s submissions in relation to the factual findings is that the Arbitrator erred by not concluding that Mr Wilkinson was the main aggressor throughout the incident. Mr Callaway conceded (at T39.15 of the appeal transcript) that unless he is successful in establishing that error, these grounds of appeal must fail. The Arbitrator’s conclusions on this issue are found at [109] and [111], reproduced at [66] above. In my view, the Arbitrator correctly found that Mr Wilkinson was not attacking Mr Linsley or seeking to initiate a fight. His purpose in approaching him was to remonstrate over the blow to his arm while he was driving the forklift.
It follows that I am not satisfied that error has been established with respect to the Arbitrator’s factual findings, consequently grounds one and two fail.

Was the injury sustained in the course of or arising out of the employment? (Ground three)

The appellant’s grounds of appeal challenge the Arbitrator’s finding that the injury sustained by Mr Wilkinson was an injury in the course of his employment. At the appeal hearing, ground three was amended by consent as follows:
“The Arbitrator erred in finding that the respondent suffered injury arising out of or in the course of his employment.”
Unhelpfully, neither Mr Callaway nor Mr Carney made separate submissions in relation to the alleged errors regarding the Arbitrator’s findings on the alternative limbs of the definition of “injury” in s 4.
Mr Callaway argued that Mr Wilkinson’s conduct after stopping the forklift, getting out and walking directly towards Mr Linsley and physically confronting him and engaging in a fight was an abandonment of his employment. He submitted that “the background industrial issues” were insufficient to bring the fight within the course of Mr Wilkinson’s employment. I reject that submission.
In Tarry v Warringah Shire Council [1974] WCR 1 (Tarry) the worker was injured, and subsequently died of a cardiac arrest, after a fight with another worker about the performance of their work duties. The deceased worker was the foreman who had responsibility for allocating work to tanker drivers. A worker under his direction objected to not having been allocated certain work. After a verbal exchange, the two men went outside the gates of the depot and proceeded to take up fighting attitudes. Although neither struck a blow, the deceased worker began to have breathing difficulties and slumped to the ground and subsequently died. Hutley JA held that it was “quite clear” on the evidence that the injury from which the deceased died arose out of his employment. He concluded that it arose out of an altercation between two employees about a matter which concerned their respective duties and authorities, that is, it arose out of a work situation. His Honour held (at 6) that the facts established that the injury from which the worker died was “directly and unbrokenly connected with his employment, that is, things he was doing properly within the scope of his employment.” Glass JA agreed, finding that there was an unbroken sequence of events occurring within the space of ten minutes commencing with the disagreement about the allocation of work and terminating in the cardiac arrest of the deceased. His Honour stated (at 8):
“The proper test for determining whether the injury arose out of the employment has been stated by Jordan, C.J. in Nunan v. Cockatoo Docks & Engineering Co Ltd (1941) 41 S.R. (N.S.W.) 119 at 125, when he describes the employment as causing or contributing to the injury; by Fullagar, J. in the passage to which I have referred, when he states the need for a causal connection between the employment and the injury and by Starke, J. in South Maitland Railways Pty Limited v. James (1943) 67 C.L.R. 496 at 502, when he says ‘the words ‘out of’ require that the injury had its origin in the employment’.”
Samuels JA agreed with Hutley and Glass JJA, noting that the concept of arising out of plainly involves the notion of causality, but the second [in the course of] does not.
In Stojkovic, a decision of Neilson J in the Compensation Court of New South Wales, an authority on which Mr Callaway relied, his Honour drew the distinction between an altercation arising from employment related matters on one hand and an altercation arising from purely personal issues on the other. After examining many authorities, his Honour concluded (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.”
It is not open to dispute in this case that the origins of the conflict between Mr Wilkinson and Mr Linsley resulted from employment related matters. The genesis of the disagreement concerned Mr Wilkinson’s purported authority to direct workers, including Mr Linsley, in the performance of their duties. Further, it concerned the manner in which any purported authority was exercised.
As in Tarry, the antecedent background to the altercation took place within a short time. The final altercation occurred within ten minutes of an angry exchange over an instruction by Mr Wilkinson to Mr Linsley to load certain boxes. There was therefore an unbroken causal connection between the work related matters and the altercation. For that reason the “arising out of” test is satisfied.
Mr Callaway submitted that the facts in the present matter are distinguishable to those in Evans v Australian Gas Light Company [1958] WCR 30 (Evans), because, he submitted, “the background issues are insufficient to bring the fight within the course of employment”. He submitted that the Arbitrator placed undue emphasis on work issues and personal animosity between Mr Wilkinson and Mr Linsley and insufficient weight on the immediate circumstances of the fight itself.
In Evans the worker was injured while remonstrating with a fellow employee after having been repeatedly tripped by his co-worker during working hours. His Honour Judge Wall held that the worker was entitled to remonstrate with his fellow employee and that the resulting injury arose out of and in the course of the employment.
Mr Callaway’s submission, with respect, missed the point. The Arbitrator found that by getting off the forklift and confronting Mr Linsley, Mr Wilkinson was doing exactly that which Wall J held in Evans was an activity that was in the course of employment, namely remonstrating with a fellow employee. The Arbitrator expressly referred to his Honour’s comments (at 31) where his Honour Judge Wall said:
“There was in fact, skylarking, but this fracas had resulted in injury which arose out of a remonstration about that skylarking. As I have said, a workman is entitled to make such a remonstration, and I think it arises in the course of employment when it occurs.”
The facts in the present case are not dissimilar to those in Evans. Here there was a remonstration between co-workers regarding the striking incident while Mr Wilkinson was driving the forklift. The injuries were sustained as a result of the remonstration and subsequent altercation. For the reasons discussed in Evans, the worker was in the course of his employment when those events unfolded. Therefore I reject the submission that Mr Wilkinson abandoned his employment when he alighted from the forklift and confronted Mr Linsley. The Arbitrator’s conclusion to that effect was open and did not involve error.

For these reasons ground three fails.

Serious and wilful misconduct (Ground four)

In his written submissions, Mr Callaway submitted that, even if Mr Wilkinson’s actions were in the course of his employment, his involvement in the fight amounted to what could only be regarded as serious and wilful misconduct and that he had no entitlement to compensation.
However, at the oral hearing Mr Callaway quite properly conceded (at T43.31) that, if the Arbitrator was correct to conclude that it was not Mr Wilkinson’s intention to assault Mr Linsley when he alighted from the forklift, as I have found, the exclusion provided by s 14 of the 1987 Act would not apply.
In light of my findings on grounds one to three and in light of Mr Callaway’s concession it is not strictly necessary to deal further with this ground. However, even in the absence of the concession this ground of appeal could not succeed for the following brief reasons.
Mr Callaway does not take issue with the Arbitrator’s summary of the relevant legal principles. His argument is confined to a submission that even if the driving of the forklift alone did not amount to serious and wilful misconduct, the worker had ample opportunity to “deliberate” to the extent that his conduct was wilful.
In Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36 Deputy President Roche, after considering a number of authorities on what constitutes serious and wilful misconduct, concluded (at [73]) that:
“The word ‘wilful’ [in s 14] connotes that the worker must have acted deliberately. He or she must have had knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk (Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; (1999) 18 NSWCCR 109).”
The Arbitrator found that the span of time between Mr Wilkinson receiving a blow to his arm whilst on the forklift, subsequently bringing the forklift to a halt, and confronting Mr Linsley, took place within the space of seconds. He found that that span of time was insufficient to enable Mr Wilkinson to form the necessary intention to undertake a deliberately wilful act of misconduct. He said at [129] of the reasons:
“…I could not be satisfied that there was any moment of deliberation on the part of [Mr Wilkinson] when he stopped the forklift, got off and walked back to where Mr Linsley was standing. [Mr Wilkinson’s] gait and demeanour as shown in the CCTV images do not appear to demonstrate any characteristics supporting a hypothesis that Mr Wilkinson intended to assault Mr Linsley. The images are not inconsistent with Mr Wilkinson’s stated intention to seek an explanation as to why Mr Linsley had struck him.”
Having regard to all of the evidence and the CCTV footage, that finding was open to the Arbitrator and does not indicate error. Further, the Arbitrator did not err in concluding on the balance of probabilities that the driving of the forklift at the relevant time did not amount to serious and wilful misconduct. The forklift was certainly driven close to Mr Linsley, as the Arbitrator found, but it was not directed at him or used in any manner that was likely to cause injury to Mr Linsley.
For these reasons ground four fails.

Did the worker suffer serious and permanent disablement? (Ground five)

As the defence under s 14 has failed, it is strictly not necessary to deal with this ground. However, in light of the parties’ submissions, I make the following observations.
Pursuant to s 14(2) of the 1987 Act, 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.
Mr Callaway, relying on Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson), submits that the evidence of Dr Endry-Walder and Dr Salauddin does not support the finding of serious and permanent disablement.
It is alleged that the Arbitrator’s finding that the worker suffered serious and permanent disablement was erroneous because it depended, in part, on a finding that Mr Wilkinson suffered an injury to his back. The Arbitrator’s conclusions on this issue are found at [137]. He concluded, based on Dr Endrey-Walder’s evidence, that Mr Wilkinson is unable to perform physical exercises which he had formerly performed routinely. He has difficulties rotating his head from side to side. He experiences difficulties looking upwards. He has a restricted range of movement at his left shoulder and continuing pain in the shoulder. His long term prognosis is guarded by reason of his inability to perform exercises for his chronic back condition.
Dr Endrey-Walder noted the difficulties Mr Wilkinson has with the heavier aspects of household chores and said “this is in line with one’s perception of the significant physical handicap he would have in any employment”. Dr Endrey-Walder concluded that Mr Wilkinson had remained unfit for the kind of work he was performing at the time he was injured and stated that he is currently unfit for any physical or even moderately demanding work as certified.
As Mr Callaway submitted, the considerations relevant to a determination of whether a worker suffers a serious and permanent impairment are stated in Gregson (at [78]) where his Honour Judge Burke said:
“In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of [Mr Gregson’s] incapacity and losses before a considered answer to those previous questions is available.”
It was open to the Arbitrator to conclude, on the basis of Dr Endrey-Walder’s evidence, which is the only evidence on this issue before the Commission, that the requirements as stated in Gregson were satisfied. Mr Wilkinson suffers a disability. It is permanent which is evidenced by Dr Endrey-Walder’s assessment on permanent impairment and it adversely impinges on his capacity to work.
Even if Mr Callaway’s submission in relation to the Arbitrator’s finding of a back injury was upheld, the outcome would be no different. That is because Dr Endrey-Walder assessed that Mr Wilkinson suffered from a whole person impairment of 18 per cent. Only four per cent was attributed to the impairment in his back, five per cent whole person impairment was attributed to the injury to the neck and ten per cent whole person impairment was attributed to the left shoulder injury. (On the basis of the combined values chart that amounted to a whole person impairment of 18 per cent). As can be seen from Dr Endrey-Walder’s assessment, irrespective of the back condition, which he assessed as contributing the least to Mr Wilkinson’s overall impairment, he clearly suffers from a serious and permanent disablement with respect to the accepted injuries to his neck and left shoulder.
It follows that ground five must fail.

Did the Arbitrator err in finding injury to the lumbar spine? (Ground six)

The principal challenge under this ground concerns the Arbitrator’s acceptance of Dr Endrey-Walder’s opinion, which Mr Callaway submits is based on an incorrect history, namely, that Mr Wilkinson told the doctor that “my back was killing me” at the time of the alleged incident. That history, he submits, is not supported by any contemporaneous record or complaint.
Mr Callaway submitted that, notwithstanding several consultations with Dr Salauddin between 31 January 2014 and 20 August 2014, the first reference to back pain in the clinical notes is on 20 August 2014.
Even though the matter was pleaded as an injury to the lumbar spine occurring on 29 January 2014, it is clear that the matter was argued before the Arbitrator on the basis of either an aggravation of a pre-existing lumbar spine condition or as a consequential condition in the lumbar spine arising from an inability to carry out a regular exercise regime which had been a feature of Mr Wilkinson’s life for the control of back symptoms caused by an injury 22 years earlier.
I accept that a complaint recorded by Dr Endrey-Walder of immediate pain after the alleged incident is not supported by any contemporaneous objective evidence. However, it is not in dispute that Mr Wilkinson suffered from a long term chronic lower back condition for which he undertook regular exercise.
Dr Endrey-Walder, explained that Mr Wilkinson suffered from back symptoms for over 20 years after injuring his back. He had managed to keep the symptoms at bay by undertaking a regular exercise regime. By reason of the limitations imposed on Mr Wilkinson because of the shoulder injury, he was prevented from pursuing a regular exercise regime. This resulted in a complaint that his back became “more sore”. It was based on this history that Dr Endrey-Walder expressed his final conclusion (see [57] above). Although Dr Endrey-Walder recorded immediate symptoms in the back from a fair reading of his report as a whole he did not conclude that Mr Wilkinson suffered any trauma to the back on 29 January 2014. He expressed the relationship between the accident and the back condition as a consequential condition for the reasons stated in his report.
The matter is complicated because Dr Endrey-Walder variously expressed his opinion regarding any connection between the accident on 29 January 2014 and the back condition as an aggravation injury, and as a consequential condition. It is important to note that, applying Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) the Commission has consistently held that a condition that has resulted from a “personal injury” is not itself an “injury” within the meaning of s 4 of the 1987 Act but is a consequential condition (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Vivaldo v Uniting Church of Australia t/as Lucan Care [2010] NSWWCCPD 41; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8; Australian Traineeship System v Turner [2012] NSWWCCPD 4; Moon v Conmah Pty Limited [2009] NSWWCCPD 134; Precision Valve Australia Pty Ltd v Nanda [2012] NSWWCCPD 48).
The submission against a finding of a consequential back condition is that such a finding is not supported by reasoned opinion or change in pathology. I reject that submission. I am satisfied that the history recorded by Dr Endrey-Walder provided a fair climate for the acceptance of his opinion. That opinion was that Mr Wilkinson suffered a consequential back condition by reason of the accepted injuries to his neck and shoulder: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844.
Mr Wilkinson did not allege that he suffered a s 4 injury to his back in the altercation. His case was that, as a result of the injuries received in the altercation, he suffered an increase in the back symptoms caused by an earlier back injury. In other words his case (as argued at the arbitration) was that his back symptoms have, in part, resulted from the injuries received in the altercation (Kooragang). Dr Endrey-Walder’s evidence supports such a connection and the appellant called no contrary evidence. Therefore, Mr Wilkinson did not have to show that the altercation caused a pathological change in his back, such as to support a s 4 injury.
I note that the Arbitrator expressed his findings in relation to the alleged injury to the back at [112] as an “aggravation of his pre-existing back condition”. That was not an accurate description as the injury to the back was not pleaded as a s 4(b)(ii) aggravation of disease case. It was merely argued as a condition that resulted from the accepted injuries to the shoulder and neck. The Arbitrator effectively accepted that argument and it was open to him to do so.
For these reasons ground six fails.

ORDERS

The Arbitrator’s determination of 20 January 2015 is confirmed.

Judge Keating
President

30 June 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE