MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company
[2013] NSWWCCPD 26
•16 May 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company [2013] NSWWCCPD 26 | ||
| APPELLANT: | Lewis MacLeod | ||
| RESPONDENT: | John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company | ||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||
| FILE NUMBER: | A1-8552/12 | ||
| ARBITRATOR: | Mr Nolan | ||
| DATE OF ARBITRATOR’S DECISION: | 4 February 2013 | ||
| DATE OF APPEAL DECISION: | 16 May 2013 | ||
| SUBJECT MATTER OF DECISION: | Whether injury received in the course of employment; application of the principles in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Everett Evans Solicitors | |
| Respondent: | Gillis Delaney Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The determination of the Arbitrator as found in Certificate of Determination dated 4 February 2013 is confirmed. 2. No order in respect of the costs of this appeal. | ||
INTRODUCTION
The worker was injured in the surf at Manly when he fell from a stand up paddle board and suffered a spinal injury. The accident happened before normal working hours.
The board the worker was using belonged to his employer. He claimed his employer had directed him to gain experience with paddle boards by using rental or demonstration boards before work. The employer acknowledged it permitted the use of the boards by the worker, but denied he was directed to do so to gain experience.
The Arbitrator was unable to resolve the factual dispute and he concluded that the worker had failed to satisfy the onus of proof that the injury arose out of or in the course of the worker’s employment.
BACKGROUND TO THE APPEAL
On 8 December 2010, the appellant, Mr MacLeod, was employed by the respondent as a casual shop assistant, for a period of six weeks over the 2010/2011 Christmas/New Year period at their surf shop at Manly. It was agreed he would work six days per week commencing work at 9am and finishing at 6pm. The shop was known as the “Dripping Wet Surf Co”.
On 28 January 2011, at approximately 7.30am Mr MacLeod was surfing with a friend, Todd Baker at Manly beach when he fell from a stand up paddle board (SUP), which belonged to his employer. He suffered a blow to the head from the board which resulted in a fracture of the C6 vertebral body and fracture subluxation of the right C6-C7 posterior intervertebral joint.
As a result of the injuries sustained, Mr MacLeod submitted to a C6/7 spinal fusion on 30 January 2011.
On 14 February 2011, Mr Macleod completed a WorkCover claim form claiming weekly compensation from 31 January 2011. He alleged:
“I was trialing a stand up paddle board when I paddled onto a wave and then I fell off the board and suffered injury.”
On 21 March 2011, QBE Workers Compensation (NSW) Limited (QBE) issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability on the basis that injuries suffered by Mr MacLeod did not arise out of or in the course of his employment within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act). It also alleged that the requirements of s 9A of the 1987 Act were not satisfied.
On 10 November 2011, Mr MacLeod’s solicitors, Everett Evans, made a claim on his behalf in respect of the injuries sustained on 28 January 2011, for weekly payments of compensation from 28 January 2011 to 28 July 2011 and lump sum compensation in respect 29 per cent whole person impairment concerning the injury to the cervical spine pursuant to s 66 and s 67 of the 1987 Act.
On 27 July 2012, Mr MacLeod lodged an Application to Resolve a Dispute (the Application) in the Commission. He claimed the compensation benefits referred to in his solicitor’s letter of demand of 10 November 2011.
On 16 August 2012, the respondent filed a Reply to the Application. It denied liability for the reasons referred to in the s 74 notice.
On 31 January 2013, the dispute was heard before a Commission Arbitrator, Mr Nolan. At the hearing, Mr MacLeod gave evidence and two witnesses were called for the respondent, Mr Lye, who was the co-owner of the respondent, and Mr Plim, who was the manager of the North Manly store where Mr MacLeod was employed.
For reasons which are not apparent, the recording of those proceedings failed. As a consequence of which there is no transcript of the evidence.
On 1 February 2013, the Arbitrator gave an oral decision for which there is a transcript. He found that Mr MacLeod had failed to discharge the onus of proving that his injury was sustained in the course of his employment and accordingly he entered an award for the respondent. The Arbitrator, aware that the recording of the proceedings the day before had failed, and with reference to his detailed notes, set out in some detail the oral evidence that had been given by the witnesses.
On 4 February 2013, the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1. Award in favour of the Respondent.
2. No order as to costs.”
Mr MacLeod appeals the Arbitrator’s decision.
As the parties’s submissions made no reference to the absence of transcript, I caused a telephone conference between the parties’s legal representatives to be held on 2 May 2013. As a result of the discussion that ensued at the telephone conference I am satisfied that both parties accept the Arbitrator’s reference to the evidence as an accurate summary of the evidence that was given. Both parties clarified that they have no objection to the appeal proceeding in the absence of the transcript and on the papers.
THRESHOLD MATTERS
There is no dispute between the parties 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.
THE EVIDENCE
Lewis MacLeod
Prior to working for the respondent, Mr MacLeod was employed in the demolition industry. To take advantage of the fact that his employer was closing down over the Christmas period and also to gain experience for subsequent weekend work, he sought employment from a range of surfing equipment stores on the northern beaches. Mr MacLeod was successful in gaining employment with the respondent working at their North Manly store.
Among other things, the store sold and hired out surf boards and SUPs. Mr MacLeod made it known to Keiran Plim who managed the store, that he was an experienced surfer but had no experience with SUPs. He said at paragraph 28 of his statement, which is undated, that Mr Plim said to him:
“That is okay. We will get you out trialling the boards. Here is some literature, have a read up about SUPs. Do you surf in the morning?”
To which Mr MacLeod answered:
“Yes”.
He alleges that Mr Plim then said to him:
“Okay then, before work if you get the opportunity and you want to take one of the boards out [sic] so you can get a feel for the SUPs.”
He maintained that the purpose of trialling the SUPs was to become experienced in their use. Mr MacLeod said that it was a requirement of his job that he gain some experience in the use of a SUP.
For the six weeks prior to his injury Mr MacLeod spent about two mornings each week practising on SUPs. On each of those occasions he would go to the store before working hours and obtain one of the promotional or rental SUPs. Initially he began practising by himself but after about five weeks he invited either Stephanie Judd or Todd Baker to go with him. Both were personal friends. He said that Ms Judd was interested in purchasing a SUP.
Mr MacLeod gave evidence in relation to a conversation with Mr Plim concerning a method of selling SUPs. It consisted of taking potential purchasers for a practise paddle in the surf. It was with this in mind that he took Ms Judd with him on two occasions.
Mr MacLeod recalled that on one occasion Mr Plim took two older gentlemen who he recalled were from Port Lincoln in South Australia for a paddle around Manly, before working hours, using SUPs owned by the respondent. He stated that these gentlemen expressed an interest in buying high end SUPs. After returning to the store he alleged that Mr Plim said:
“Yeah, the paddle went really good and we’ll see if they buy the SUPs.”
On the day of the accident, Mr MacLeod went out for a paddle on a SUP, owned by the respondent, with his friend Todd Baker. Mr MacLeod states that Mr Baker was interested in purchasing either a malabu surf board or a SUP and indeed asked Mr MacLeod if any “deals” could be done for him.
On this occasion Mr MacLeod and Mr Baker were paddling around the southern end of Manly beach near the Shelley beach area. Before his accident he recalls seeing Mr Plim in the surf paddling on a SUP and acknowledging him.
After about an hour in the water whilst catching a wave, Mr MacLeod fell off the board and it struck him on the back of the head. He felt immediate shooting pain in his neck and down his right arm. In due course he was taken by Mr Baker to Manly Hospital. His scans confirmed that he had suffered a spinal injury and was immediately transferred to Royal North Shore Hospital where he underwent surgery the following day performed by Dr Randolf Gray. The surgery was an anterior cervical fusion at the C6/7 level.
Todd Baker
Mr Baker provided a statement of evidence dated 25 January 2012. He was not called to give evidence.
Mr Baker confirmed that he had discussed with Mr MacLeod an intention to either buy a long board surfboard or a SUP. Mr MacLeod was aware that Mr Baker had previously rented SUPs from the shop. In late January, Mr MacLeod suggested that he take Mr Baker out for a paddle on a longer SUP than he had previously rented because he thought it would be more suitable for him. He said that he had made it known to Mr MacLeod that if he was going to buy a board that he would more than likely buy it from the respondent. He confirmed the events of 28 January 2011 as Mr MacLeod had described them.
Stephanie Judd
Ms Judd stated that she is a friend of Lewis MacLeod. She stated that Mr MacLeod phoned her on a date she could not recall, to enquire as to whether she had any interest in going out for a surf with him on a SUP at Manly. She recalls that she accepted the invitation and they both went out on a SUP on or about 7 January 2011. She states that on that occasion Mr MacLeod collected her from her home at which time he had two boards with him. She stated she did not know where the boards had come from but said at [10] of her statement:
“I don’t know where Lewis got his board from, but my recollection is that the board that I was using was from his work.”
Two or three days later Ms Judd went surfing again with Mr MacLeod at his invitation.
On this occasion Mr MacLeod asked her if she had any interest in purchasing a SUP from the respondent. In her statement at paragraph 20 she said:
“I advised Lewis that I am not interested in purchasing a stand up paddleboard at this point in time.”
Andrew Lye
Mr Lye provided a statement of evidence dated 9 March 2011 and gave evidence at the arbitration hearing. He is co-owner of the respondent enterprise. Mr Lye gave evidence with respect to correspondence he had forwarded to QBE in an undated letter in which he said relevantly:
“I wish to advise:
(1)At the time of the incident, Lewis MacLeod was not in my employment or on the way to place of employment.
(2) At no time has Lewis been instructed to trial equipment.”
At paragraph 22 of his statement Mr Lye said that the letter was badly worded and what he meant to say was that at the time of the accident, Mr MacLeod was not employed because it was 7.30am in the morning and he was out surfing before he was due to start work. He went on to say “all staff own their own surfboards and use their own equipment. The board Lewis took was a board we use for rental and no one instructed him to use the board.” He acknowledged that it was Mr Plim who supervised Mr MacLeod’s employment.
Kieran Plim
Mr Plim provided a statement of evidence dated 9 March 2011 and gave evidence at the arbitration hearing.
At paragraph 16 of his statement, Mr Plim said:
“Lewis worked here for about a month. He was an okay worker in the shop. He had taken boards before that day but he was never instructed to. He knew that boards out the back were rental or demo boards and he took it upon himself to borrow the two boards, one for himself and one for his mate. He didn’t fill in any paperwork to say that he had it.”
In evidence, Mr Plim agreed that he was aware that Mr MacLeod had borrowed boards before and that he had not stopped him. He said he tolerated Mr MacLeod’s use of the boards privately, provided the equipment was back before 9.00am, clean, undamaged and ready for rental. He stated in cross examination that he regarded Mr MacLeod’s use of the boards as a “perk” of the job.
Contrary to his statement, Mr Plim apparently said in chief that he was not aware that Mr MacLeod had taken boards out with other persons. However, in cross examination when referred to his statement, he readily conceded that his oral evidence on this point was in error and that what he had said in his statement at [16] was correct, namely:
“He (Mr MacLeod) knew the boards out the back were rental or demo boards and he took it upon himself to borrow two boards, on for himself and one for his mate.”
Mr Plim agreed that there had been a discussion with Mr MacLeod concerning taking out potential customers to trial SUPs but he said he did not proceed with the idea as there was not enough staff to permit this to happen with prospective buyers.
Mr Plim said that the reason for employing Mr MacLeod was to get some help in the store and to enable him to have the odd day off, by having a sales assistant. He said that Mr MacLeod seemed to have the credentials and experience to do the job, acknowledging that he had been a surfer for over 10 years.
Mr Plim agreed that he had given Mr MacLeod literature to read regarding SUPs, however, he emphatically denied the suggestion that he had said to Mr MacLeod that he would “get you out trialling the boards”. He also denied saying “Okay then, before work if you get the opportunity and you want to take one of the boards out [sic] so you can get a feel for the SUPs.” He denied that he ever told Mr MacLeod that it was a requirement of his job that he gain experience using SUPs or that he instructed him to do so.
Mr Plim agreed that there was an occasion when he took two men from South Australia on an early morning paddle. They were experienced in the use of SUPs, they owned their own boards and were members of the South Australian SUP Club. He said that they had some free time whilst they were in Sydney and had not had the opportunity to paddle around the Manly area, so he took them but as part of a relationship building exercise, but more for pleasure than with the intention of selling boards to these individuals.
Mr Plim acknowledged that in addition to literature he provided to Mr MacLeod he agreed that a working knowledge of the use of SUPs would be of benefit but he insisted that he never told Mr MacLeod to try a board.
Dr Gray’s medical certificate
Dr Randolf Gray is a spinal surgeon at Royal North Shore Hospital. A WorkCover medical certificate dated 2 February 2011 was issued under Dr Gray’s name but was signed by Dr Daskopoulos who is apparently an intern for Dr Gray. As the certificate has been referred to throughout the submissions and the Arbitrator’s decision as Dr Gray’s certificate, I will continue to refer to it as such. The certificate records that Mr MacLeod was struck on the back of the neck while surfing on 28 January 2011. A diagnosis of C6-7 subluxation requiring anterior cervical disc fusion is noted. In answer to the question on the form “in my opinion the worker’s employment is a substantial contributing factor to the injury” the doctor ticked the “yes” option and added:
“yes, trialling retail product paddle board for manager.”
Dr Daskopoulos prepared a three page discharge summary (commencing at page 8 of the application). The document is undated, however, it is reasonable to infer that it was prepared prior to Mr MacLeod’s discharge from Royal North Shore Hospital on 3 February 2011. The document is a summary of the admission, history, examination, investigations, treatment, surgical outcome and discharge plan. Under the heading “summary of care” which is the only part of the document recording the history, Dr Daskopoulos stated:
“Mr MacLeod was transferred from Manly Hospital to RNSH 28.01.11 with an unstable C6-7 fracture and subluxation following a paddleboard accident. Mr MacLeod sustained a hit from a board to his head and neck after being dumped in the surf. He reports partial LOC but was able to paddle back to shore (at no time immersed underwater and did not require CPR).”
Manly Hospital notes
The clinical notes of Mr MacLeod’s admission to Manly Hospital are in evidence. Those notes include a letter dated 28 January 2011 prepared by Dr Gareth Andrews. Relevantly, in terms of the history, Dr Andrews recorded the following:
“He fell while paddle boarding on a wave this morning and the board hit him on the head and neck. He has amnesia of the event and partial amnesia of events leading up to coming to the hospital. It is unknown if Mr MacLeod lost consciousness but there was no immersion in the water …” “The CT brain was normal but the CT C-spine showed a fracture of the posterior margin of the vertebral body of C6 with minor subluxation and fracture subluxation of the right C6-C7 posterior intervertebral joint.”
SUBMISSIONS BEFORE THE ARBITRATOR
The Respondent’s submissions
The worker’s injury did not arise out of or in the course of employment within the meaning of s 4 of the 1987 Act nor had the worker satisfied the requirements of s 9A of the 1987 Act by establishing that his employment was a substantial contributing factor to the injury.
The evidence failed to establish that it was a requirement of Mr MacLeod’s employment that he use the SUPs even though he had used them on a number of occasions before work prior to the injury.
Mr MacLeod elevated the discussions that he had had with Mr Plim to be an instructional requirement to trial SUPs when in fact that was not the case.
There is no evidence to support the claim that Stephanie Judd was interested in buying a SUP. She was invited by Mr MacLeod on the two occasions that she went surfing with him and it was not with the intention of buying a board.
Mr Plim’s use of the SUPs with the two South Australian gentlemen was purely recreational and without any expectation by Mr Plim that those two gentlemen would purchase SUPs while in Sydney. Mr MacLeod’s interpretation of those events was based on a misunderstanding.
Mr Plim’s denials of the claims by Mr MacLeod should be accepted. Mr Plim is no longer employed by the respondent and had nothing to gain by his evidence. He had no financial interest in the outcome of the case. Mr MacLeod’s employment as a sales assistant over the Christmas period is inconsistent with attempts to encourage temporary casual staff members to take out potential customers for surfing trials on SUPs.
Both Mr Plim’s evidence and Mr Lye’s evidence were credible and dovetailed with each other.
Mr MacLeod’s submissions
The Arbitrator should place considerable weight on the medical certificate of Dr Gray. Mr MacLeod told Dr Gray five days after the alleged injury that he was trialling retail product SUPs for management. This evidence demonstrated a genuine belief by Mr MacLeod that he had been instructed, or at least there was an expectation of demonstrating, SUPs prior to opening hours.
Mr Lye’s evidence is of no assistance in determining the issues before the Arbitrator.
Mr Plim’s credit was in issue as he had given contradictory evidence in his written statement and his oral evidence concerning his knowledge of the use of SUPs by the applicant in the company of other persons. Further, Mr Plim has a vested interest in the matter in that that he may have an expectation of being re-employed by the respondent at some future time. Thus it was submitted his evidence is not “disassociated” with the matter as he claimed in evidence.
Where the worker was injured whilst undertaking both a work related and non-work related purpose, provided the work related purpose was operative at the time of the injury then the injury is compensible: GlenbuddahPty Limited v Williams (1995) 12 NSWCCR 468 (Glenbuddah).
The principles in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) applied in the circumstances of this case because the injury occurred during an interval in the worker’s employment and he was either expressly or impliedly encouraged to demonstrate SUPs by his employer
In reply Mr Baker submitted that the history of the WorkCover medical certificate was not a contemporaneous record compared with the Manly Hospital record which is contemporaneous. The worker’s failure at the Manly Hospital, when in the company of his close personal friend Mr Baker, to make any mention of a workers compensation element in his history is a telling factor against Mr MacLeod’s claim.
The authorities relied upon by the applicant are not particularly relevant or helpful in resolving the issues.
THE ARBITRATOR’S REASONS
The Arbitrator rejected the worker’s submission that the facts in this case fall within the principles enunciated in Glenbuddah on the basis that he was not satisfied that at the time of the accident the worker was undertaking both a work related and non-work related purpose.
The Arbitrator also rejected the worker’s submission that Hatzimanolis applied. He rejected the submission on the basis that at the time of the accident Mr MacLeod was not in an interval or interlude within an overall period or episode of employment. Further he was not satisfied that even if the accident did occur during an interval or interlude within an overall period of work, the necessary employment element was present.
The Arbitrator found that Mr MacLeod had only ever used the boards either on his own or in the company of close friends, namely Stephanie Judd and Todd Baker.
The Arbitrator was not satisfied that the worker had made out his claim that he was showing boards to potential buyers when the evidence showed that when using the boards he was in the company of friends with whom he was socialising “although there may have been some potential sale element” (T 18.4).
The Arbitrator concluded that Mr MacLeod may have misconstrued his conversations with Mr Plim in relation to the use of the SUPs.
The Arbitrator was not satisfied that Mr Plim’s credit had been damaged by his statement in evidence that he was unaware that Mr MacLeod had used the boards in company with others on prior occasions. The Arbitrator was satisfied that this was a reflection only of a poor recollection on the day of the hearing, because Mr Plim had stated in his written evidence that he was aware that Mr MacLeod had used the boards in company with others on prior occasions, and readily agreed that he was aware the Mr MacLeod had previously used the boards in the company of others when the discrepancy was put to him.
The Arbitrator accepted that the only contemporaneous evidence to support the worker’s claims was a medical certificate completed by Dr Gray on 2 February 2011.
However, the Arbitrator concluded that Mr Macleod’s entitlement to compensation depended upon an acceptance of his evidence. As the Arbitrator put it, it came down to a straight contest on the credit of Mr McLeod versus the credit of Mr Plim and in particular whether Mr MacLeod’s evidence referred to at [20]–[22] of this decision was accepted.
The Arbitrator concluded at (T 19.11):
“It has been very difficult to determine who is telling the truth. They both seem to have been unequivocal in their version of the facts and neither was seriously shaken despite strenuous cross-examination by competent counsel.
On balance I can’t decide as to who is correct in their testimony. The applicant unfortunately bears the onus of proof. In this particular case I feel the balance is at best equal but unfortunately that means the applicant fails in this particular case.”
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator:
(a) made an error of fact in determining that the injury was a leisure activity prior to work;
(b) made an error of law in deciding the question of whether the applicant was directed to trial the SUP, and
(c) made an error of law in deciding that the injury did not arise out of or in the course of employment.
Worker’s submissions
Ground one
Given the conflict in the evidence between Mr MacLeod and Mr Plim, the Arbitrator erred by not placing sufficient weight on the contemporaneous documentary evidence. The medical certificate issued by Dr Gray on 2 February 2011(but signed by Dr Daskopoulos, see [46]) noted in answer to a question concerning whether the employment was a substantial contributing factor to the injury:
“yes, trialing retail product paddle board for manager”.
The Arbitrator erred by interpreting Ms Judd’s evidence as indicating that she had no intention to purchase a SUP when in fact her evidence was that she had no interest in purchasing a SUP “at this point in time”. Such evidence it is submitted is consistent with the applicant’s genuine belief that Ms Judd was a potential purchaser of a SUP.
The evidence of Mr Plim was contradictory and flawed and should not have been preferred to that of Mr MacLeod. It is submitted that Mr Plim’s evidence is contradictory because he stated that he had considered but rejected the idea of providing potential purchasers with a trial of paddleboards, yet conceded that he took two South Australian gentlemen for a trial in an attempt to make a sale.
Mr Plim’s evidence was flawed in that in cross-examination he stated that he was not aware that the worker had taken paddleboards for the use of his friends when in fact he said in his statement of evidence that he was aware that this had occurred. It was submitted that in combination these errors should have been a sufficient basis for the Arbitrator to conclude that Mr Plim’s evidence was unreliable.
The combination of the lack of reliability of Mr Plim’s evidence and the existence of a contemporaneous document, namely the medical certificate of Dr Gray which supports the worker’s contention, should have led the Arbitrator to conclude that the worker’s evidence should be accepted and it should be accepted that Mr Plim in fact directed the worker to trial SUPs before work, and that such a direction and the performance of that trial occurred during the course of Mr MacLeod’s employment.
Ground two
In determining whether the worker’s injuries arose out of or in the course of his employment, the Arbitrator erred by directing his attention only to whether the worker’s evidence at paragraph 28 to 31 of his statement ([20]–[22] of this decision) was accepted.
Further, the Arbitrator erred in his failure to apply the principles in Hatzimanolis on the basis that the worker’s accident did not occur during an interval within an overall period of work. Mr MacLeod submitted that Hatzimanolis is authority for the principle that whether a worker is in the course of this employment is not solely based upon what an employer expressly directs the employees to do, but also relates to what the employer has impliedly induced or encouraged a worker to do.
Three matters are relevant to a consideration of any implied inducement or encouragement to trial paddleboards. First, Mr Plim conceded in cross-examination that a working knowledge the equipment would be of benefit. Second, Mr Plim acknowledged that on one occasion he trialled paddleboards with the two gentleman from South Australia. Third, Mr Plim acknowledged a discussion with Mr MacLeod around the demonstration method of selling equipment had taken place.
The appellant submits that in order to determine whether the worker was impliedly induced or encouraged to trial SUPs required the Arbitrator to turn his mind to the terms of the contract of employment and any express or implied instruction by his employer.
Ground three
It is submitted that the Arbitrator’s errors of fact and law support a conclusion that the Arbitrator erred in finding that the worker’s injuries did not arise out of or in the course of employment.
CONSIDERATION
Ground one
I reject the submission that the Arbitrator erred by failing to attach sufficient weight to the certificate of Dr Gray (Dr Daskopoulos) or by accepting the certificate as decisive in resolving the factual dispute between the parties, particularly as it was accepted as a contemporaneous document.
The most immediate contemporaneous records are the notes from Manly Hospital where the worker was taken immediately after the accident. Those notes record the circumstances of the accident but make no reference to any work related aspect or any use of paddleboards as directed by the employer. There is nothing in the worker’s evidence to suggest that he made any reference to a work component when describing the circumstances of his accident at the hospital.
There are, however, powerful reasons for not drawing any adverse inference from that omission. First, the worker had been involved in a very serious accident and was no doubt more concerned with receiving treatment for his injuries then providing a detailed account of any discussions with his employer concerning the use of paddleboards and second, he had suffered a blow to the head resulting in some degree of amnesia.
It can be reasonably inferred from the certificate issued by Dr Gray (Dr Daskopoulos) that within a matter of days after the accident Mr MacLeod had given a history which is consistent with his evidence in these proceedings. I accept the history contained in a medical report may be received as evidence of the facts, however, the notation recorded in the certificate merely records Mr MacLeod’s belief that he had been directed to trial the employer’s paddleboards (although I note that the more detailed discharge summary prepared by Dr Daskopoulos prior to 3 February 2011, makes no reference to any work related aspect of the accident).Whether or not that belief was an accurate statement of the fact was for the Arbitrator to determine.
I accept that reference to contemporaneous records is often a powerful tool in resolving a direct conflict on the facts. The Arbitrator approached the weighing of the evidence on that basis also. He described the notation contained on the medical certificate as “the strongest evidence in favour of Mr MacLeod’s case” (T18.54). However, it must be inferred from the Arbitrator’s decision as a whole that he concluded that the certificate alone was not of sufficient weight to tip the balance in Mr MacLeod’s favour in terms of resolving the factual dispute.
There is no substance to the submission that the Arbitrator incorrectly interpreted Ms Judd’s evidence. Ms Judd stated that she was a friend of Mr MacLeod. On the two occasions that she went surfing with him it was at Mr MacLeod’s invitation. She had not previously expressed any interest in purchasing a SUP prior to receiving Mr MacLeod’s invitations. Her evidence at paragraph 20 of her statement referred to at [34] of this decision could not possibly lead to a conclusion that there was any legitimate expectation by Mr MacLeod that Ms Judd was a potential purchaser of a SUP. This is so notwithstanding the addition of the words “at this point in time” at the end of her denials. The Arbitrator’s conclusion on this point was correct.
The worker submitted that Mr Plim’s evidence was contradictory and should not have been preferred to the worker’s evidence on the critical issue. He submitted that the evidence was contradictory because on the one hand Mr Plim said that he had dismissed the idea of using trials as a means of enhancing the sale of paddleboards, yet on the other hand he did provide a trial to the gentlemen from South Australia.
I do not accept that Mr Plim’s evidence on this issue was contradictory. The Arbitrator was correct to conclude that Mr Plim’s use of the SUPs on the occasion referred to was not undertaken to enhance the prospect of selling SUPs. That conclusion was correct for the following reasons; First, the two gentlemen concerned already owned their own SUPs. Second, the surf with those gentlemen occurred before working hours. Third, they were members of the South Australian SUPs Club, so they were already experienced users of SUPs. Fourth, they had free time on their hands whilst visiting Sydney and wished to see certain parts of Manly by SUP, and last, Mr Plim regarded it as a social occasion and according to the employer Mr Plim has remained friends with one of the gentlemen to the date of giving his evidence.
Mr MacLeod submits there is another reason for preferring his evidence to Mr Plim’s and that concerns what he has termed a credit issue with relation to Mr Plim’s evidence. In oral evidence Mr Plim denied that he was aware that Mr MacLeod had been using the respondent’s paddleboards with his friends. However, in his written statement he confirmed that he was aware that this practice had taken place. When the discrepancy was drawn to his attention he readily conceded that he had made an error when giving evidence and agreed that his earlier written statement on this issue was correct, namely, that he was aware that the worker had been using the respondent’s paddleboards in the company of his friends. Having heard and seen Mr Plim give evidence, it was open to the Arbitrator to conclude on balance that the discrepancy did not seriously diminish the weight to be attached to Mr Plim’s evidence.
In a case such as this, where the Arbitrator is confronted with divergent cases being advanced by the parties, he was not bound to make a finding one way or the other. It was open to him to find, as he did, that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. Suvaal v Cessnock City Council [2003] HCA 41; 77 ALJR 1449, Rhesa Shipping Co SA v Edmunds (“The Popi M”) [1985] 1 WLR 948. The Arbitrator’s conclusion does not disclose any error.
For the reasons given, it follows that ground one fails.
Ground two
The Arbitrator was correct to conclude that the principles in Hatzimanolis, in the circumstances of this case, do not assist in resolving the critical question concerning any directions given to Mr MacLeod and the trialling of SUPs.
In Hatzimanolis, the High Court was concerned with the principles to be applied in circumstances where the worker was injured during an interval occurring within an overall period of work and with activities that were engaged in with the employer’s inducement or encouragement. At [15] Mason CJ, Deane, Dawson, & McHugh JJ stated:
“An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.”
The evidence establishes that Mr MacLeod was engaged to work six days a week between 9.00am and 6.00pm. The accident in which he was unfortunately involved occurred before normal working hours. It was not a circumstance, as in Hatzimanolis, where the injury was sustained during an interval within an overall period of work and the Arbitrator was correct to reject the worker’s Hatzimanolis submission on that basis alone. However, even if the injury was sustained in an interval between two discrete periods of work it is still necessary for the worker to establish that he was encouraged or induced to engage in that activity by his employer at the time of his accident.
Mr MacLeod argued that he was encouraged or induced to trial the SUPs before normal working hours. The evidence relied upon by the worker to establish an implied term was the concession by Mr Plim in evidence that the use of equipment would be of benefit, Mr Plim’s use of the SUPs with the South Australian gentlemen and the discussion in relation to the demonstration method of selling SUPs.
The evidence referred to in the preceding paragraph does not support a conclusion that Mr MacLeod was encouraged or induced to trial SUPs. Although Mr Plim agreed that trialling the equipment would be of benefit there is no evidence that he communicated that to the worker. The evidence is to the contrary. The Arbitrator’s conclusion that the episode involving the South Australian gentleman was predominately a social occasion was open on the evidence and the discussion about demonstrating the SUPs was not pursued.
The Arbitrator was correct to observe that whether the activity engaged in by the worker at the time of this accident was at the direction of his employer, involved an acceptance of the worker’s evidence at paragraphs 28 to 31 of his statement ([20] to [22] of this decision). Although not expressly stated, it may reasonably be inferred from the decision as a whole, that the Arbitrator did not accept the worker’s evidence on this point for two reasons. First, because he concluded that the worker only used the SUPs when he was in the company of friends and that on those occasions he was socialising. And second, because he concluded that Mr Macleod had misconstrued his conversation with Mr Plim concerning the use of SUPs.
Mr MacLeod’s submission that the Arbitrator erred by not focusing on matters beyond an acceptance of whether the discussion referred to at [20] to [22] is without merit and I reject it. The Arbitrator went beyond merely considering whether the alleged discussion took place in the terms alleged. He also considered the circumstances which Mr MacLeod alleged lent support for the acceptance of his evidence. This included the Arbitrator’s acceptance that Mr MacLeod had used the SUPs before his accident but determined that those occasions were “necessarily socialising.” He did not accept that there was any genuine expectation of Ms Judd purchasing a SUP as Mr MacLeod claimed. The Arbitrator acknowledged the significance of the contemporaneous records from the Royal North Shore Hospital but was not satisfied that the medical certificate issued at the hospital was decisive in resolving the conflicting versions of events, for the reasons previously discussed. There was no other evidence advanced by Mr MacLeod to support the claim that trailing SUPs was an express or implied term of his employment.
In circumstances where the Arbitrator had the advantage of seeing and hearing the witnesses give evidence, respect and weight should be given to his to his conclusions; Warren v Coombes[1979] HCA 9; (1979) 142 CLR 531. See also Abalos v Australian Postal Commission[1990] HCA 47; (1988) 171 CLR 167; Devries v Australian National Railways Commission (1993] 177 CLR 472.
There is nothing in the evidence or the Arbitrator’s reasons that points decisively, or even persuasively, to error on the part of the Arbitrator.
For those reasons ground two fails.
Ground three
Ground three does not add any additional issues for determination on appeal and for the reasons given in dismissing grounds one and two, ground three also fails.
ORDERS
The determination of the Arbitrator as found in Certificate of Determination dated 4 February 2013 is confirmed.
No order in respect of the costs of this appeal.
Judge Keating
President
16 May 2013
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
5
0