Kym Robert O’Loughlin and Linfox Australia Pty Ltd
[2014] AATA 577
[2014] AATA 577
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0846
Re
Kym Robert O’Loughlin
APPLICANT
And
Linfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 20 August 2014 Place Melbourne The Tribunal affirms the decision under review.
..........[sgd]..............................................................
G. D. Friedman, Senior Member
COMPENSATION – face and left knee injury – revocation of previously accepted liability – altercation while delivering fuel – whether injury arose out of or in the course of employment – decision affirmed
Legislation
Occupational Health and Safety (Commonwealth Employment) Act 1991 section 21(1)(a)
Safety, Rehabilitation and Compensation Act 1988 sections 5A(1), 6(1), 6(3)
Cases
Australian Leisure & Hospitality Group Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Campbell [2014] QIRC 105
Culpeck v Orient Steam Navigation Co (1922) 15 BWCC 178
McKenzie v William Holyman & Sons (1939) 61 CLR 584
REASONS FOR DECISION
G. D. Friedman, Senior Member
20 August 2014
Kym O’Loughlin, the applicant commenced working for Linfox Australia Pty Ltd, the respondent in mid-2010 as a tanker operator. On 7 September 2010 Mr O’Loughlin suffered an injury during an altercation with another person while delivering fuel to a service station. On 22 September 2010 the respondent issued a Determination in which it accepted liability to pay compensation for medical treatment and incapacity benefits for soft tissue injury face and left knee (the injury).
On 7 January 2014 the respondent issued a Reconsideration of Own Motion revoking the Determination and substituting a decision that denied liability for the injury on the basis that the injury did not arise out of or in the course of employment. Mr O’Loughlin seeks review of that decision by this Tribunal.
LEGISLATIVE BACKGROUND
Section 5A of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
5ADefinition of injury
In this Act:
injurymeans:
…
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment;
…
6Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
…
(3)Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
ISSUES
There was no dispute between the parties that Mr O’Loughlin suffered the injury. The issues before the Tribunal are:
·Did the injury arise out of Mr O’Loughlin’s employment?
·If not, did the injury arise in the course of Mr O’Loughlin’s employment?
·If not, does the extended meaning of injury arising out of or in the course of employment in s 6 of the SRC Act apply?
DID THE INJURY ARISE OUT OF MR O’LOUGHLIN’S EMPLOYMENT?
Mr O’Loughlin told the Tribunal in a written statement dated 28 April 2014 that he had worked as a tanker driver in the petroleum industry before commencing employment with the respondent and had completed relevant training. He said that on 7 September 2010 he commenced work at 4 a.m. and made a delivery of fuel before returning to the terminal in Yarraville to re-load. He then departed for his next delivery at the Mobil service station in Pascoe Vale, arriving at about 10:10 a.m. and he commenced delivery operation.
Mr O’Loughlin explained that he parked the tanker close to the opening of the storage tanks and set up safety cones in the area near the tanker and storage tanks to establish a perimeter around the loading operation. He then opened the storage tanks. He said that he had been trained to be aware at all times of the danger of fire and explosion from the release of petrol fumes. He stated that members of the public, as well as service station employees, might be careless with sources of sparks such as lit cigarettes, but also items such as mobile telephones if dropped, and any heavy object striking another object.
In respect of his actions in completing the unloading of fuel, Mr O’Loughlin stated that by about 11 a.m. he finished discharging the fuel but the hose was still draining in the storage tanks and petrol fumes were still being emitted. He said that, at this time, a car drove in to the service station and he observed the female driver tooting the car horn. A man (the assailant) appeared from the service station workshop and threw two objects at the car and proceeded to strike the car’s windscreen and one of the windows with his fist. Mr O’Loughlin said that he was shocked and alarmed at the assailant’s actions, particularly as he recalled a recent event in which a woman had died after being doused with petrol and set alight at another service station.
Mr O’Loughlin stated that he was concerned for the safety of the woman in the car and feared that the objects that had been thrown might have sparked, causing a fire around the tanker. He also feared that the assailant might attack him or throw something at him or at the tanker. He said that he yelled at the assailant to calm down. However, the assailant came at him and hit him in the face, causing soft tissue damage, before the assailant fell to the ground. Afterwards the assailant kicked Mr O’Loughlin several times, causing a serious injury to his left knee. Mr O’Loughlin said that after the altercation the Police were called and he completed his fuel delivery procedure. The assailant returned with a friend and accused Mr O’Loughlin of lunging at the assailant and causing the assailant to throw a punch. Mr O’Loughlin stated that he denied the accusation and the assailant and the friend left the scene.
Mr O’Loughlin referred to his written statement to the Police which he made on the day of the incident. In the statement he said:
…
On Tuesday the 7th of September 2010, I was delivering fuel to the Mobil Service Station at the corner of Bell Street and Reynolds Parade in Pascoe Vale South. I arrived at the service station at 10:10am.
At about 11:00am I was standing towards the rear of my truck when I saw a car drive in with a lady driving. ... The lady was tooting the horn and had parked near the Bell Street entrance.
I saw a male run out of the workshop towards the car, he was yelling abuse and I saw him throw 2 objects at the car. I think one object hit the windscreen of the car. The male then continued to run towards the car and hit the windscreen with his fist and then punched the drivers [sic] window. The male was still yelling abuse at the lady.
I yelled out "Hey you, cut it out". The male started to walk back towards the workshop and told me "Shut the f[***] up and mind your own business. I have the law on my side". I said to him something similar to "But you can't do that mate, just settle down".
The male started to walk towards me and was saying "Just keep out of it, mind your own business". The assailant stopped and turned back towards the workshop. I said to him "Don't speak to me like I am a piece of shit". The male turned back to me and said "You are a piece of shit". The male started to walk towards me, I was pointing my finger at him and said "Don't talk to me like that". The male turned away from me and headed towards the workshop the abuse was still coming. The male got about 5metres away and then again turned around and came back towards me. I was still pointing my finger at the male. He walked up to about 1 metre from me and he threw a punch at me. The punch hit me on the left cheek. I grabbed at the man to stop him hitting me, the assailant then hit me with another two punches, one on the right cheek and the other on the right side of my mouth. The man tried to throw another punch but lost his balance and fell backwards.
I stood over the male and pretended to throw a punch, I shaped up over the top of him. The man lashed out with his feet and kicked me 2 or 3 times. Only one of the kicks hit me, his kick got me on the left knee, my knee buckled backwards from the kick.
I walked away from the male toward my truck and he went back to his workshop.
In his oral evidence, Mr O’Loughlin stated that he was concerned that members of the public might inadvertently wander into the area near the storage tanks that he had marked with the safety cones, placing the safety of the public and others at risk. Under cross-examination he agreed that the assailant had on several occasions turned away in the direction of the workshop, but said that the assailant had not calmed down and had continued to abuse him verbally while walking away, and it was the assailant who had kept the issue going. He denied being in a dispute with the assailant, and stated that he was more concerned about the assailant’s reaction and the safety of the work site, although he agreed that he was in effect asking the assailant for respect. Mr O’Loughlin also denied that he was being aggressive by confronting the assailant verbally and then physically. He explained that when the assailant fell backwards he stood over the assailant’s feet and that his gesture in shaping up as if to punch the assailant was designed to encourage the assailant to calm down and speak respectfully to him. He claimed that he was assertive rather than aggressive, and it was the assailant’s abusive actions that had posed safety and fire risks.
Mr O’Loughlin maintained that the risk to public safety remained even when the assailant had turned away from the scene of the altercation and when the assailant was lying on the ground. He stated that his actions in interacting with the assailant and assisting the woman as a member of the public were in compliance with his employer’s expectations, although he confirmed that the woman had driven away from the service station at the time of the physical altercation. He said that he could not recall why his statement to the Police did not include a reference to his concerns about safety issues in respect of the assailant’s abusive behaviour, but indicated that the statement was written by a Police officer who may have omitted such matters because the officer might not have considered them to be relevant to a complaint of an assault committed by the assailant. Mr O’Loughlin told the Tribunal that his written statement made on 28 April 2014 for the purposes of these proceedings could be relied upon to a greater extent than his statement to the Police because the recent statement might have made him concentrate his mind on all relevant matters.
Mr Carey, on behalf of Mr O’Loughlin, submitted that an injury arises out of employment when it is sustained while the employee is doing work which he or she is employed to do and actions incidental to it. He said that Mr O’Loughlin was employed as a petrol tanker driver and that as part of his duties he had obligations to ensure that the transfer operations involving the delivery of fuel from the tanker to the service station’s storage tank were conducted in a safe manner. That obligation was met partly by the placement of safety cones to set out an exclusion zone around the transfer operation. However the assault on the woman’s car perpetrated by the assailant when he threw objects and then struck the car with his fist introduced a new and dangerous element of the possibility of creating sparks that could lead to fire or explosion. Because fumes from the transfer of fuel were still in abundance in the area, the scope of Mr O’Loughlin’s duty to his employer and to others in the vicinity concerning safety was enlarged by the circumstances.
Pursuant to s 21(1)(a) of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (the OHS Act) Mr O’Loughlin had an obligation to take all reasonably practical steps to refrain from any action, or make any omission, that created a risk or increased an existing risk, to himself or other persons at or near the place where he was at work. Mr Carey submitted that the sudden eruption of violence with the throwing of the objects and the risk of sparks created a situation of danger or emergency in which Mr O’Loughlin believed that he was required to take reasonable steps to control or diffuse the situation. Therefore, his action in calling to the assailant using the words Hey you, cut it out, was reasonable and appropriate in the circumstances to fulfil his duty. These steps led to the assailant attacking Mr O’Loughlin, and the assault arose out of the performance of Mr O’Loughlin’s service to his employer, imposed by law.
Mr Hanks, on behalf of the respondent, submitted that the injury did not arise out of Mr O’Loughlin’s employment. He noted that Mr O’Loughlin stated on 28 April 2014 (but did not tell the Police at the time of the incident) that he intervened because he was concerned about the safety of the petrol tanker that was in his care. Mr Hanks emphasised that even if there was a risk to the tanker, Mr O’Loughlin increased the risk by intervening a second time when the assailant was walking back to the workshop; again by intervening a third time when the assailant once more started walking towards the workshop; and finally by Mr O’Loughlin’s action in standing over the assailant and shaping up as if to throw a punch.
Mr Hanks said that there is no evidence that the respondent encouraged or expected Mr O’Loughlin, as part of his employment duties, to confront the assailant and persist with the confrontation in the way that he did. Mr Hanks also submitted that the injury was not sustained in an emergency situation (as arose in Culpeck v Orient Steam Navigation Co (1922) 15 BWCC 178 when an off-duty baker was injured when he admonished a person who had used inappropriate language towards female passengers, and in McKenzie v William Holyman & Sons (1939) 61 CLR 584 when a crew member drowned after assisting in the rescue of another crew member). He submitted that there was no evidence that the confrontation was incidental to Mr O’Loughlin’s duties, or that by engaging in the confrontation Mr O’Loughlin was doing something that he could reasonably have thought was part of his duty to his employer. Mr Hanks said that by the time Mr O’Loughlin sustained the injury, he had ceased to be engaged in carrying out his duty and could not have believed that he was still doing so.
In respect of the OHS Act, Mr Hanks submitted that the duty created by s 21(1)(a) is irrelevant to the events that occurred on 7 September 2010 because nothing that Mr O’Loughlin did, or could have done, in his interaction with the assailant diminished a risk to his own health and safety, or that of any other person at or near the scene. Mr Hanks submitted that Mr O’Loughlin would not have been liable to criminal prosecution for a breach of this section of the OHS Act if he had avoided, or walked away from, the confrontation, and the assailant had subsequently caused injury to another person.
The Tribunal accepts that when giving his statement to the Police on the day of the incident Mr O’Loughlin may have omitted certain details that he later believed to be relevant. However the contemporaneous statement is more likely to reflect accurately the sequence of events that occurred at the service station, and Mr O’Loughlin did not seek to amend or clarify the statement at any time after the event until his statement of 28 April 2014 that was made for the purposes of these proceedings. In the statement to the Police, Mr O’Loughlin made no mention of his concerns for the safety of the tanker or of members of the public in the vicinity. At the time of the incident, Mr O’Loughlin did not refer to any safety concerns when interacting with the assailant. In fact, he told the Tribunal that he was in effect asking the assailant for respect and when he was standing over the assailant he was encouraging the assailant to calm down and speak respectfully to him. Although initially there may have been some possibility of danger to public safety by reason of the assailant’s actions in throwing objects at the woman’s car and striking the car with his fist, the woman had driven away from the service station by the time the situation had escalated into a verbal and physical altercation. This might account for the lack of safety warnings or reference by Mr O’Loughlin to fire or other concerns that he may have had.
On the balance of probabilities, the actions of Mr O’Loughlin in calling to the assailant: Hey you, cut it out, were directed to concerns for the woman’s safety when the assailant was throwing objects at the car and he struck the car with his fist, rather than for the safety of the work site. Similarly, after the woman had driven away from the service station, Mr O’Loughlin’s words and actions did not refer at all to safety issues. Therefore, by becoming involved in the confrontation and continuing it, Mr O’Loughlin’s actions were not reasonable and appropriate in the circumstances to fulfil his duty.
In respect of the OHS Act, the Tribunal finds that the duty created by s 21(1)(a) does not apply because Mr O’Loughlin’s actions did not diminish a risk to his own health or that of any other person.
For these reasons, the Tribunal finds that the injury did not arise out of Mr O’Loughlin’s employment with the respondent.
DID THE INJURY ARISE IN THE COURSE OF MR O’LOUGHLIN’S EMPLOYMENT?
In Comcare v PVYW [2013] HCA 41 the High Court of Australia considered the question of whether an injury sustained by an employee in a non-work activity, outside of any working period, should be considered to have arisen in the course of employment. Similarly, in Australian Leisure & Hospitality Group Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Campbell [2014] QIRC 105 the injury occurred outside of work or any work period. Mr Carey submitted that Mr O’Loughlin was at his place of employment because he was in the act of transferring fuel to the storage tank at the service station when the injury occurred, and was engaged in his recognised duties, so the injury was not sustained outside of the work period. He said that the decisions of the majority in PVWY and Australian Leisure & Hospitality Group Pty Ltd do not apply to Mr O’Loughlin’s circumstances because the High Court in PVWY did not require that the activity voluntarily engaged in by an employee be subject to any principle that required an employer to induce or encourage the employee to be at a particular place or to engage in that activity. Therefore there is no need to establish a causal connection between employment and injury.
Mr Hanks submitted that in PVWY the High Court qualified this proposition significantly. The majority stated:
35. Because the employer's inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do… for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.
36. … Thus, where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
…
38. … When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
Mr Hanks said that the majority’s proposition is not confined to an injury suffered between periods of actual work, and the question to be asked in these proceedings is whether Mr O’Loughlin was doing the very thing that the respondent had encouraged him to do when, as a result of which, his injury occurred. He said that the respondent did not encourage Mr O’Loughlin to confront the assailant; correct the assailant’s behaviour; or continue the confrontation, and the injury occurred during that activity.
In the alternative, Mr Hanks submitted that if the majority’s proposition in PVYW is limited to the case of an injury occurring between periods of actual work, then Mr O’Loughlin’s injury was suffered in the short interval of his employment when he pursued the confrontation and continued it when the assailant walked away.
The Tribunal accepts that at the time the injury was sustained, Mr O’Loughlin was engaged in service to his employer because the hose was still connected to the underground tank at the service station and the process of delivery of fuel had not been completed. However, the Tribunal agrees with the respondent that the majority in PVYW held that for an injury to have occurred in the course of employment an employee must be doing the very thing that the employer encouraged the employee to do when the injury occurred. Therefore the question is whether the respondent induced or encouraged Mr O’Loughlin to engage in the activity at the time the injury occurred.
An employer might expect and encourage an employee to act responsibly by coming to the aid of a person in need. In this case, Mr O’Loughlin observed that the woman in the car was being subjected to a possible risk of harm because of the actions of the assailant in throwing objects at the car and striking the windscreen and window with his fist. Accordingly, Mr O’Loughlin’s immediate reaction in calling out to the assailant: Hey you, cut it out. might be considered appropriate in the circumstances as an action that could be considered to be induced or encouraged by the respondent (the first intervention). However the assailant then turned away and started to walk back to the workshop. Even though the assailant was apparently using inappropriate language, the confrontation would probably have ended at that point but for Mr O’Loughlin’s response: But you can’t do that mate, just settle down, (the second intervention) that caused the assailant to turn back to Mr O’Loughlin and reply: Just keep out of it, mind your own business. The woman had driven away by this time. The assailant then turned back towards the workshop and once again the confrontation would probably have ended but for Mr O’Loughlin’s response: Don’t speak to me like I am a piece of shit. (the third intervention).
This led to the assailant again turning back towards Mr O’Loughlin and saying: You are a piece of shit and he started to walk towards Mr O’Loughlin who was pointing his finger at the assailant and who told the assailant: Don’t talk to me like that. (the fourth intervention). In the Tribunal’s view, Mr O’Loughlin could have diffused the situation but he inflamed it by pointing his finger and making that comment. Although provoked by Mr O’Loughlin’s actions, the assailant walked away again, but after five metres he stopped and returned to approach Mr O’Loughlin, who was still pointing his finger at the assailant (the fifth intervention). Mr O’Loughlin’s action in continuing to point at the assailant only served to continue the confrontation.
When the assailant struck Mr O’Loughlin and fell to the ground Mr O’Loughlin stood over him and shaped up as if to throw a punch (the sixth intervention) without saying anything, and it was at this point that the significant component of the injury occurred (to the left knee) when the assailant lashed out at Mr O’Loughlin with his feet. The Tribunal does not accept that Mr O’Loughlin’s actions in pretending to throw a punch were designed to encourage the assailant to calm down and to speak respectfully to him, or were done in self-defence. Rather, Mr O’Loughlin was standing over him and was acting in a threatening manner. The assailant was lying on the ground and may reasonably have believed that he was about to be assaulted, particularly as Mr O’Loughlin did not say anything to calm the assailant or reassure him that there was no danger of an assault by Mr O’Loughlin. This led to the assailant kicking Mr O’Loughlin on the left knee.
In all the circumstances, Mr O’Loughlin was injured when, after the first intervention, he engaged in the activity of confronting the assailant and continuing the confrontation by initiating the other interventions, none of which was induced or encouraged by the respondent.
For these reasons, the Tribunal finds that the injury did not arise in the course of Mr O’Loughlin’s employment with the respondent.
DOES THE EXTENDED MEANING OF INJURY ARISING OUT OF OR IN THE COURSE OF EMPLOYMENT IN S 6 OF THE SRC ACT APPLY?
There is no doubt that the injury occurred as a result of an act of violence. Mr Carey submitted that, pursuant to s 6 of the SRC Act, the extended meaning of injury arising out of or in the course of employment applies in this case because the injury was sustained as a result of an act of violence which would not have occurred but for Mr O’Loughlin’s employment or the performance of his duties (s 6(1)(a) of the SRC Act); or because the injury occurred while Mr O’Loughlin was at his place of work, for the purposes of that employment (s 6(1)(b) of the SRC Act). Mr Carey submitted further that, even if Mr O’Loughlin ought not have acted beyond the ordinary sphere of his employment, he voluntarily performed an act in the interests of his employer upon an emergency while engaged in his employment and any injury suffered by him should be compensable. This involved him remonstrating with the assailant who had already assaulted the woman in the car. Mr Carey said that the means chosen by Mr O’Loughlin to deal with the situation were appropriate in the circumstances and were in pursuit of his duty to maintain safe operations while transferring the fuel. Mr Carey submitted that nothing about Mr O’Loughlin’s conduct was aggressive or confrontational, and that he had acted in self-defence.
In respect of s 6(3) of the SRC Act, Mr Carey submitted that Mr O’Loughlin was not aware of an unusual risk of injury, and he did not deliberately engage in the conduct, because he was attempting to calm a situation of danger created by the assailant when he called out Hey you, cut it out, and But you can’t do that mate, just settle down.
The Tribunal does not accept these submissions. Comments made by Mr O’Loughlin in the first intervention did not provoke the assault on him by the assailant. However, Mr O’Loughlin unnecessarily confronted and provoked the assailant verbally on a number of occasions (the second, third and fourth interventions) and physically (the fifth and sixth interventions) at the service station, and these actions led to the injury that was sustained by Mr O’Loughlin. His actions were voluntary and deliberate, and in carrying out these actions he was aware of an unusual risk of injury from assault by the assailant. In view of the nature of Mr O’Loughlin’s employment duties and the lack of persuasive evidence linking his actions with any possible danger to the tanker or fuel, or to other persons, the Tribunal concludes from Mr O’Loughlin’s actions that he sustained the injury because he voluntarily and unreasonably submitted to an abnormal risk of injury. Consequently s 6(3) of the SRC Act applies to exclude the application of s 6(1) of the SRC Act in this case.
CONCLUSION
The injury did not arise out of, or in the course of, Mr O’Loughlin’s employment with the respondent, and he does not satisfy the definition of injury pursuant to s 5A of the SRC Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member
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Associate
Dated 20 August 2014
Date of hearing
Date of final submissions
14 July 2014
15 August 2014
Counsel for the applicant
Solicitors for the applicant
Mr M Carey
Maurice Blackburn Lawyers
Counsel for the respondent
Solicitors for the respondent
Mr P Hanks QC
Dibbs Barker