Le Brocq v Australian Mushrooms Pty Limited
[2007] NSWWCCPD 136
•6 June 2007
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Decision confirmed on Appeal: Le Brocq v Workcover [2008] NSWCA 125; (2008) 6 DDCR 257 | ||||||
| CITATION: | Le Brocq v Australian Mushrooms Pty Limited & Ors [2007] NSWWCCPD 136 | |||||
| APPELLANT: | Marcus Le Brocq | |||||
| FIRST RESPONDENT: | Australian Mushrooms Pty Limited | |||||
| SECOND RESPONDENT: | WorkCover Authority of New South Wales | |||||
| THIRD RESPONDENT: | Metro Mushrooms Pty Limited | |||||
| INSURER: | GIO General Limited | |||||
| FILE NUMBER: | WCC7626-06 | |||||
| DATE OF ARBITRATOR’S DECISION: | 24 November 2006 | |||||
| DATE OF APPEAL DECISION: | 6 June 2007 | |||||
| SUBJECT MATTER OF DECISION: | Sections 4 and 9A of the Workers Compensation Act 1987; Interval or interlude in employment. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Julian Martin | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Kingston Swift Solicitors | ||||
| 1st Respondent: | No appearance on appeal | |||||
| 2nd Respondent: | Phillips Fox Lawyers | |||||
| 3rd Respondent: | No appearance on appeal | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 24 November 2006, is revoked and the following decision made in its place: | |||||
| “1. Award for the First, Second and Third Respondents. | ||||||
| ||||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 19 December 2006 Marcus Le Brocq (‘Mr Le Brocq’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 November 2006.
The First Respondent to the Appeal is Australian Mushrooms Pty Limited (‘Australian Mushrooms’).
WorkCover Authority of New South Wales (‘WorkCover’) is the Second Respondent, as Australian Mushrooms were not insured at the relevant time.
The Third Respondent is Metro Mushrooms Pty Limited (‘Metro Mushrooms’) who were joined to the proceedings as a result of an investigation by WorkCover. At the arbitration hearing Counsel for WorkCover informed the Arbitrator that Australian Mushrooms were to grow the mushrooms for Metro Mushrooms. As Australian Mushrooms were uninsured, the joinder was on the basis of section 20 of the Workers Compensation Act 1987 (‘the 1987 Act’). This Section provides that the ‘Principal is liable to pay compensation to workers employed by contractors in certain cases’. At the arbitration hearing section 20 was not seriously pressed by Counsel for WorkCover having regard to the facts of the case. The Arbitrator in his decision did not canvas the section 20 argument as he found that Mr Le Brocq was not injured in the course of his employment. It is presumably on this basis that there is no appearance for Metro Mushrooms on the appeal.
Mr Le Brocq commenced employment with Australian Mushrooms in August 2005 as a farm general hand. His duties included the use of a forklift. His hours of work included weekends, if needed.
On Sunday 18 September 2005 Mr Le Brocq was injured when the forklift he was driving rolled over. It was conceded by Mr Le Brocq that at the time of the injury he “was not engaged in any work on behalf of the employer”.
Mr Le Brocq suffered multiple injuries requiring hospitalisation for 16 days. Workers compensation benefits were denied from the outset.
On 17 May 2006 proceedings were filed in the Commission seeking weekly compensation on an ongoing basis together with medical expenses.
An arbitration hearing took place on 10 October 2006 and the Arbitrator found in favour of all three Respondents. Mr Le Brocq has appealed from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 24 November 2006 records the Arbitrator’s orders as follows:
“1. Award for the First, Second and Third Respondents in respect of the Applicant’s claim for weekly benefits and section 60 expenses.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· whether the Arbitrator failed to resolve a factual dispute leading to an incorrect application of the applicable law; and
· whether the Arbitrator applied an incorrect legal test, on three separate occasions, when determining that the injury did not arise out of or in the course of employment.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal is at least $5,000.00 (section 352(2)(a) of the 1998 Act).
No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5).
Accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks leave to introduce fresh evidence.
EVIDENCE
Mr Le Brocq suffered serious injuries as a result of the accident. The only medical evidence is a Hospital Discharge Summary and a number of medical certificates certifying that he is unfit to work. Clearly the primary issue was liability.
Mr Le Brocq asserts there was no work scheduled on Friday, 16 September 2005. He drove to the Farm on this day to pick up his pay from Mr Les Williams (‘Mr Williams’) who was the Manager of Australian Mushrooms. Mr Williams paid Mr Le Brocq and before leaving the Farm asked him to wash and disinfect the trolleys.
Mr Le Brocq further asserts that during a conversation with Mr Williams, he asked if he could use the forklift to remove some steel benches that were given to him earlier in the week. Mr Le Brocq states that Mr Williams replied “go for your life, but make sure that the trolley [sic] are done, because Lisa is starting work at 7.30 on Monday”.
Mr Le Brocq states that after Mr Williams left the Farm, the spray handle on the hose broke and therefore he stopped cleaning. He further states that as it was raining at the time, he left without finishing the trolleys.
On Sunday 18 September 2005 Mr Le Brocq returned to the Farm to finish cleaning the trolleys. He disinfected the trolleys and decided to leave them to soak before completing the job. At this time he decided to use the forklift to “sort out the steel benches”. Whilst using the forklift, it rolled over and he was injured.
The evidence consisted of three statements which were obtained at the instigation of the insurer for Metro Mushrooms. The first statement is from Mr Le Brocq. The second statement is from Mr Williams. Mr Paul Sassine (‘Mr Sassine’), the managing director of Metro Mushrooms has provided the third statement. The following was common ground between the parties:
·Australian Mushrooms occupied a portion of a farm owned by Mr Kerry Baker (‘Mr Baker’). Blue Mountains Welding occupied another portion of the farm adjacent to that occupied by Australian Mushrooms.
·Mr Le Brocq commenced employment with Australian Mushrooms as a farm general hand in August 2005. His duties included driving a forklift.
·His employment might involve some weekend work, if needed.
·There was no work scheduled for Mr Le Brocq on Friday, 16 September 2005. Around midday on that day Mr Le Brocq met Mr Williams at the Farm in order to pick up his pay.
·Mr Williams left the Farm at some time in the early afternoon on Friday, 16 September 2005. Before leaving he asked Mr Le Brocq to clean the trolleys. Mr Le Brocq was still at the Farm when Mr Williams left.
·Mr Le Brocq had told Mr Williams that he was given permission to take some steel benches, or metal racks, from the property owned by Mr Baker.
·On Sunday, 18 September 2005 Mr Le Brocq was using Australian Mushrooms’ forklift to remove the steel benches when he was injured.
·At the time of the accident on 18 September 2005 Mr Le Brocq was not engaged in any work on behalf of his employer.
The statement from Mr Sassine is of little assistance other than on the issue of ownership/occupation of the Farm. Mr Sassine concedes that he had no direct communication with Mr Le Brocq and therefore his statement appears to be largely hearsay.
The point of difference is contained in the statement of Mr Williams. Although he remembers that Mr Le Brocq told him that he was given permission by the property owner to take some “metal racks”, he states that Mr Le Brocq:
“never told me that he intends to come and remove some metal racks on that weekend”.
Mr Williams further states that Mr Le Brocq “never asked for my permission to attend the farm and use the forklift”.
Leave was sought and obtained by Counsel for WorkCover to ask Mr Le Brocq questions about two issues. Firstly in order to clarify the distance between where Mr Le Brocq lived and the Farm where the accident happened. The Farm is at a place called Yellow Rock. Apparently there is a place of this name in the Dapto area as well as the place in question which is in the Hawkesbury Shire. Mr Le Brocq confirmed that he lived about 20 minutes away from the mushroom farm.
The second issue was to ask questions on the aspect of Mr Le Brocq’s evidence about his reasons for going to the property. Mr Le Brocq in oral evidence explained that he did not work to a roster but on an “as-needed basis”. After explaining that he had not actually started on the trolleys on Friday, 16 September 2005, other than to start to hose them down, the following questions and answers are recorded in the transcript at pages 11 and 12:
“Q.Then you say you had it firmly in your mind on the Friday that you wanted to collect these benches on the Sunday?
A. I’m sorry, I didn’t understand you.
Q.You say you had it firmly in your mind on the Friday that you wanted to do something with these benches owned by the property owner on the Sunday?
A.No, no, not really. It was a toss-up whether to do it on the Friday or whenever. It was just a case of we were talking about the benches and the actual mushroom farm that I mentioned it to Les that I’d been given these fences and would it be right to load them with the fork - to use the fork-lift to get them out because they were really scrap.
Q.So you didn’t mention to him any intention of going to the farm on the Sunday?
A. No.”
SUBMISSIONS AND DISCUSSION
The Arbitrator found that it was reasonable for Mr Le Brocq to be on Australian Mushrooms’ premises on Sunday 18 September 2005. He also found that the injury took place in an interval between two periods on that Sunday. At paragraph 41 of the decision the Arbitrator found “The Applicant was acting in the course of his employment during those periods but not in the interval”.
At paragraph 47 of the decision the Arbitrator stated:
“The test has been reformulated in Hatzimanolis v ANI Corporation Limited [1992] 173 CLR 473 [‘Hatzimanolis’] in the light of later decisions where the Henderson-Speechley test was held to be too narrow. It was held that “it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment”. On that formulation, the Applicant would succeed as I have found that it was reasonable for the Applicant to be on the First Respondent’s premises on Sunday, 18 September 2005. I don’t think that his conduct amounts to “gross misconduct” within the ordinary meaning of those words. It is not a statutory concept.”
At paragraph 49 the Arbitrator then stated:
“I again have recourse to Mills at page 1010, “the Hatzimanolis test is not, however, to be applied in all cases where injury occurs outside actual work hours. The Henderson-Speechley test may still be appropriate in some cases.” I think that this is one of those cases. Mills discusses the case of Van Haeften v Caltex Oil (Aust) Pty Limited [1995] 12 NSW CCR 250 [‘Van Haeften’] and says “implicit in the reason of the Court of Appeal was that the injury had occurred between discreet periods of work, but during an activity which had sufficient connection with the employment for the injury to have arisen within the course of employment”. In this case, I do not think that there is “sufficient connection” with the employment and the Applicant’s activities during the interval.”
Van Haeften was a case where the worker was participating in a touch football game on a Sunday. He did not ordinarily work on Sundays in the period when the injury happened. As Priestley JA stated in Van Haeften, this was not “an injury occurring in an interval or interlude within the overall period or episode of work”.
Although not raised by either party, it is apparent from reading the two paragraphs, quoted above, that the Arbitrator has not come to terms with the two discrete concepts involved:
·“interval or interlude occurring within an overall period or episode of work”; and
·“interval between two discrete periods of work”.
The High Court in Hatzimanolis stated at paragraph 15:
“The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day’s work has ceased lies not so much in the employer’s attitude to the way the interval between the periods of actual work was spent but in the characterization of the period or periods of work of those employees. For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home.”
The Arbitrator initially characterised the period of work as an interval within an overall period or episode of work (paragraph 47 of the decision). In so doing he considered that Mr Le Brocq would succeed.
In the second paragraph I have quoted above (paragraph 49 of the decision), the Arbitrator then appears to have characterised the period of work as an interval between two discrete periods of work. In reaching this conclusion the Arbitrator determined that Mr Le Brocq did not receive an injury arising out of or in the course of his employment.
Having regard to the Arbitrator’s findings of fact and the test set down in Hatzimanolis, I am of the view that the Arbitrator’s determination on the issue of course of employment was an error of law. Accordingly it is necessary that the decision be revoked. Having made this finding I do not need to consider the further grounds of appeal.
A Presidential Member, where possible, should determine the matter fully unless there is some reason for the matter to be remitted to an Arbitrator for re-determination. Having the documentary material, transcript of the evidence and submissions of the parties, I am satisfied that I am in a position to determine the matter.
For the following reasons I find that Mr Le Brocq was injured in the course of his employment on 18 September 2005:
·The evidence, as accepted by the Arbitrator, was that Mr Le Brocq was an employee of Australian Mushrooms. He was asked by Mr Williams to sterilise some trolleys by Monday 19 September 2005. As the Arbitrator found, there was a loose arrangement between Mr Le Brocq and Australian Mushrooms as to when he would perform his duties and in this regard Mr Le Brocq had a reasonable amount of autonomy. In my opinion the whole of the time Mr Le Brocq spent at the farm on 18 September 2005 is properly characterised as an overall period or episode of work.
·At some stage during this period or episode of work, whilst the trolleys were soaking, Mr Le Brocq used his employer’s forklift in order to move some steel benches. Although this work was done entirely for Mr Le Brocq’s benefit, it was during an interval or interlude in his overall period or episode of work.
·Mr Le Brocq was either expressly or impliedly, induced or encouraged to use his employer’s forklift for the purpose of moving the steel benches as was found by the Arbitrator in paragraph 47 of his decision.
·Mr Le Brocq’s conduct on 18 September 2005 did not amount to “gross misconduct” such as to take him outside the course of his employment. This was again found by the Arbitrator in paragraph 47 of his decision.
Having found that Mr Le Brocq was injured in the course of his employment, it is necessary to consider the application of section 9A of the 1987 Act. As stated in ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257:
“Nothing in those cases suggested that s9A is satisfied merely because the injury arose out of or in the course of employment. Nor does Mercer. Section 9A(3)(a) explicitly states that a finding that the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.”
The Arbitrator having found that Mr Le Brocq was not injured in the course of his employment did not proceed to consider section 9A of the 1987 Act. A finding was however made that “The Applicant’s employment was not a substantial contributing factor to his injury”. Neither party has addressed this issue in their submissions on appeal. The parties, however, did address the issue at the arbitration hearing and having the benefit of the transcript of those addresses, I am satisfied that I am in a position to now consider this aspect of the case.
Section 9A of the 1987 Act provides:
“9ANo compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Mr Le Brocq submits that if the injury he suffered arose out of or in the course of his employment, then that would preclude section 9A from coming into operation. I do not agree with this submission. As Judge Neilson stated in Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632:
“However, since the enactment of s9A, it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorised to do in pursuit of his employment contract.”
In Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 Mason P said:
“…the words ‘employment concerned’ in s 9A reinforce the view that it is the work activity in which the worker was engaged at the time of the injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of ‘a substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s9A.”
Mr Le Brocq was employed at the time as a farm general hand. It is a question of fact whether section 9A is satisfied (Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46).
Having regard to these principles I make the following findings taking into account subsection 9A(2):
·‘the time and place of the injury’: The injury happened during an interval within an overall period or episode of work. The injury occurred on the Farm at Yellow Rock;
·‘the nature of the work performed and the particular tasks of that work’: It is conceded by Mr Le Brocq that at the time of the injury, he was not engaged in any work on behalf of his employer. He was “sorting out the steel benches” which neither belonged to or were used by his employer, Australian Mushrooms;
·‘the duration of the employment’: This is not a relevant factor to the injury;
·‘the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment’: The evidence is that the injuries suffered by Mr Le Brocq resulted from the forklift rolling over. Although this accident possibly could have happened in other similar circumstances, I do not view it as probable that at the same stage of Mr Le Brocq’s life he would have suffered a similar injury;
·‘the worker’s state of health before the injury and the existence of any hereditary factors’: This is not relevant in this case;
·‘the worker’s lifestyle and his or her activities outside the workplace’: Mr Le Brocq’s lifestyle and activities outside the workplace did not contribute to his injury.
Mr Le Brocq was not performing work for his employer at the time he was injured. In fact he was performing work for himself. The only connection with his employment was being on the Farm at Yellow Rock and using his employer’s forklift during an interval or interlude within an overall period of work. In my opinion it is relevant that Mr Le Brocq was not “performing positive employment duties” but was “merely in an interval between such duties” when the injury occurred (McMahon v Lagana [2004] NSWCA 164).
I am of the opinion that Mr Le Brocq’s employment was not a substantial contributing factor to his injury, for the purposes of section 9A of the 1987 Act.
DECISION
The decision of the Arbitrator, dated 24 November 2006, is revoked and the following decision made in its place:
1.Award for the First, Second and Third Respondents.
2.No order as to costs.
COSTS
No order as to costs of the appeal.
JULIAN MARTIN
Acting Deputy President
6 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
5
0