Macroyannis v MAC Tipping Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Macroyannis v MAC Tipping Pty Ltd [2021] NSWPIC 263
APPLICANT:	Harry Macroyannis
RESPONDENT:	MAC Tipping Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	27 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum and section 60 expenses; owner/operator of truck driving business injured whilst purchasing goods from Coles; whether applicant had finished work for the day, or had another job to do; applicant alleged a further job in later statements, with a corroborative statement; further job was for nephew; evidentiary lacuna suggestive of recent invention; applicant in cross-examination produced contemporaneous email to investigator regarding the further job; whether section 11 applied; Held-contemporaneous email confirmed no recent invention; applicant on a section 11 recess; Britt v Coady considered and applied.
DETERMINATIONS MADE:	1. I amend the Application to Resolve a Dispute form to delete the date of injury there pleaded and substitute therefore “2 October 2018.” 2. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC notice of charge. 3. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 2 October 2018. (b) Matters for assessment: Thoracic spine, lumbar spine, TEMSKI/scarring. (c) Evidence: (i) Application to Resolve a Dispute and attached documents, and (ii) Reply and attached documents. (d) I exclude from the remittal the following documents: (i) Application to Admit Late Documents (ALD) dated 15 June 2021 (admitted during the hearing); (ii) ALD dated 10 June 2021, and (iii) Email dated 10 September 2019 from the applicant to the insurer’s investigator – exhibit A.

STATEMENT OF REASONS

BACKGROUND

Harry Macroyannis, the applicant, brings an action for lump sum compensation and payment of s 60 expenses against MAC Tipping Pty Ltd, the respondent, regarding an injury he suffered when shopping at Coles Supermarket in Chipping Norton on 2 October 2018.
Dispute notices were issued on 15 November 2019 and 12 June 2020.
The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) Whether the applicant was temporarily absent from his place of employment on an authorised absence pursuant to s 11(a) of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

This matter was heard on 16 June 2021 via video link. The applicant was represented by
Ms Silva Ishak from Messrs Brydens Lawyers instructing Mr Ross Stanton of counsel. The respondent was represented by Ms Alice Davis of Gair Legal solicitors instructing Mr Paul Stockley of counsel. Also present was Ms Anna Venardos from EML. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 15 June 2021 (admitted during the hearing;
(c)    Reply and attached documents;
(d)    ALD dated 10 June 2021, and
(e)    Email dated 10 September 2019 from the applicant to the insurer’s investigator -exhibit A.

Oral Evidence

At the teleconference I granted leave to the respondent to cross-examine the applicant.

FINDINGS AND REASONS

Mr Macroyannis was born in 1970 and has been self employed as a truck driver for over 20 years. The respondent was established by Mr Macroyannis about 10 years ago. He is the only director, and employee of the company.

It was not disputed that Mr Macroyannis worked for a varying number of clients, with some of whom he entered into formal agreements, but others on a more casual basis. It was not challenged that Mr Macroyannis worked about 50 weeks per year, with variable start and finish times which were dependant on the number of jobs he had to do. He would usual start work at about 7am on site and finish between 5pm - 6pm. He said in his statement of 6 May 2021 (at [12]) that because it was his own truck, he would sometimes do evening jobs if required (Page 2 of the ARD).

It was also common ground that on 2 October 2018 Mr Macroyannis was seriously injured when he slipped on spilt milk at a Coles Supermarket in Chipping Norton. Mr Macroyannis said at [16] of the same statement that he was not sure of the exact time but it was somewhere between 4pm - 5pm. He said that he had parked his truck across the road from Coles and that he and his wife walked to the supermarket. He was wearing his work fluoro shirt with the company’s name and number on it at the time.

The circumstances under which Mr Macroyanis came to be in Coles at the time became the focus of the case, as Mr Stockley advised at the outset of the hearing that the provisions of
s 10 of the 1987 Act, which had been alleged in the dispute notices, was no longer being relied on. The issue was accordingly as to whether Mr Macroyannis sustained an injury during an ordinary recess or authorised absence in accordance with s 11 of the 1987 Act.
The dispute arose because the insurer’s investigator, Mr Mike Richards, obtained an earlier unsigned statement dated 3 September 2018 from Mr Macroyannis. Mr Richards stated at page 12 of the reply that Mr Macroyannis told him that he wished to show the draft to his solicitor before he signed it. Mr Richards emailed the draft again on 5 September 2018 to
Mr Macroyannis after he was advised that Mr Macroyannis wanted to make a couple of corrections. Mr Richards said that as at the date of the report, 12 September 2018, he had not received the final version.
The unsigned statement of 3 September 2018 was annexed to the report. Relevantly,
Mr Macroyannis stated at [34]:
“We picked up a load around 2.00pm to 3.00pm and we drove to the dump. I cannot recall where the site was as I use a number of them. Once we dumped the load at the tip we drove to the Coles supermarket in Chipping Norton to grab some food.”
This statement was relied on in the dispute notice of 12 June 2020, which at Reply p.8 alleged:
“Your initial statement did not make any reference to an intention to perform any further work on the date of your injury.”
The dispute notice also alleged that Mrs Macroyannis, who had been with the applicant when he fell, advised Coles that:
“Harry and I went to our local Coles store at Chipping Norton to purchase a few groceries, as we shop there on a regular basis.”
This statement was also partially included in the factual report[1].
[1] Reply page 35.

Mr Macroyannis had earlier listed his action in the Commission, in matter 2443/20, but had discontinued before Arbitrator (as she then was) Toohey. The applicant lodged in his late documents the ARD form and statements from Mr Macroyannis which he then relied on. Shortly put, Mr Macroyannis averred that he still had work to do that evening. At [23][2]
Mr Macroyannis said:

“I have lodged a worker's compensation claim but this has been denied on the basis that I had completed my shift for the day. As previously stated, I have no clock off time, and I work flexibly. On 2 October 2018, I had to attend to another job that afternoon and collect excavation equipment from one of my clients, Con Diamond from Diamond Civil Earth Works. Arrangements were made through his brother, Terry, a day or two prior to the collection of the excavation hammer. I have supplied phone records confirming the calls I received from Terry. I was going to attend to that job after we had stopped at Coles to grab some food. I never attended to that job due to the fall I had at Coles.”

[2] ALD page 11.

In a supplementary statement of 3 June 2020 he said:[3]

“As for the sites/clients I had on the day of the fall, I wasn't able to recall those when the investigator came to take a statement from me however, when I went through my books later, I was able to check who my clients were on the day.
After the fall, I was on the floor for approx. 45mins. After we left the supermarket, I went to see my GP. I don't recall if any calls were made to Con or his brother to cancel the arrangements made between us. To be honest, I think calling Con or his brother would have been the last thing on my mind at the time as I was shaken up from the fall and I was in considerable amount of pain.”
[3] ALD page 13.

After the matter was discontinued the current proceedings were filed, and Mr Macroyannis made a further statement dated 6 May 2021. He said at [15][4]:
“We picked up a load around 2.00pm to 3.00pm and we drove to the dump . I cannot recall where the site was as I use a number of them . Once we dumped the load at the tip, we headed to Chipping Norton to pick up a sling for the job I had that evening. The truck yard where I park the truck and keep my equipment is in Chipping Norton. The address of the yard is rear of Childs Road , Chipping Norton. Before I went to the yard to pick up a sling. We stopped at Coles supermarket in Chipping Norton to grab some food.”
[4] ARD page 2.
Also attached to the ARD form was a statement from Mr Con Diamond, dated 27 April 2020[5]. Relevantly, he said at [13] that arrangements had been made for an excavation hammer to be collected on 2 October 2018 around 5 or 6 pm. Mr Diamond explained that the arrangement had been made between the applicant and Mr Diamond’s brother, Terry, from whom there was no statement.
[5] ARD page 5.
In a further undated statement lodged with a further application to admit late documents,
Mr Macroyannis said[6]:
“Con Diamond is one of my clients and he is also my nephew. Con has an excavation business which used to hire my truck services to remove excavation equipment for him to different building sites.”
[6] ARD page 1.
A further dispute notice issued on 12 June 2020[7]. It denied liability on the further grounds that the injury did not arise out of Mr Macroyannis’s employment as required by s 4 of the 1987 Act, nor was employment a substantial contributing factor pursuant to s 9A.
[7] Reply page 4.
The notice also said:
“We do not agree that you sustained injury during an ordinary recess or authorised absence in accordance with s 11 of the Workers Compensation Act, 1987”.
Liability for the payment of medical expenses pursuant to s 60 of the 1987 Act was also denied.
The notice then said:
“Given the contradictory statements that you have provided and the lack of corroborating evidence we are not satisfied that you were going to attend to a further job on the date of your injury.”
An application was made at the teleconference to cross examine Mr Macroyannis during the hearing, as the issue accordingly was whether Mr Macroyannis’s assertion that he had another job to go to at the time of the fall was a recent invention, it not being alleged in his original statement to Mr Richards. Accordingly leave was granted for the respondent to cross-examine the applicant.
At the hearing Mr Macroyannis was cross-examined by Mr Stockley. I found Mr Macroyannis to be a credible witness. He attended the questions and answered them in a frank and unassuming manner. If he was unsure of the question, he asked for it to be repeated, and he advised that was unable to remember on only a few occasions.
It was put to Mr Macroyannis that the first time he had mentioned that there was a further job to do following his visit to Coles, was after the insurer had declined liability on 15 November 2019. The notice stated[8]:
“Based on the available evidence, EML is of the opinion that the incident that occurred on 02 October 2018 you were travelling home from work, and there was no real and substantial connection between your employment and the incident.”
[8] ARD page 12.
It was put to Mr Macroyannis that before that dispute notice, he had not identified to any claims officer an intention to pick up the sling following the visit to Coles. It was put to
Mr Macroyannis that he had not notified the insurer of that further job.
Mr Macroyannis did not agree. He said that he had mentioned it before he received the notice. He firstly said that he told his solicitor and then he checked himself and said:
“To the investigator, that’s exactly who I mentioned it to”.
When questioned further, Mr Macroyannis said that the investigator “never remembered those changes.” When asked how he remembered, Mr Macroyannis said it was because he had an email.
Mr Stockley called for the email, which Mr Macroyannis produced, and it was marked exhibit A. The email was headed “Revised statement” and was dated 10 September 2019 at 4:23pm. It was addressed to Mr Mike Richards, the investigator, and it said:
“Hi Mike
Yeah mate, that’s fine. Just couldn’t remember if that was my last load. I am certain I was scheduled to pick up an excavator after that. That’s cool. I’ll sign it and send it back to you.”
In handwriting on the document are two comments. One says “This was not included” and the other said “this should have been included in a revised statement”.
Mr Macroyannis was then asked some questions regarding paragraph 15 of his statement of 6 May 2021 and he said that the address of the yard was at the rear of 10 Childs Road, Chipping Norton. He said that the “10” had been left out.
Some questions were asked of Mr Macroyannis as to the proximity of Coles Chipping Norton to where he kept his truck at 10 Childs Road and Mr Macroyannis said that it was two or three blocks away.
Mr Stockley then put to Mr Macroyannis that on 23 August 2019 he told “an EML person” that he had walked to the supermarket at Coles, having parked his truck in the yard. When
Mr Macroyannis indicated that he did not understand the question, it was put that he had reached the yard in his truck before his attendance at Coles. Mr Macroyannis said that he understood the question but he could not recall whether what was put to him was correct or not.
Mr Stockley’s question was based on a number of assertions set out in the dispute notice of 15 November 2019:
“EML contacted you on 23 August 2019 to confirm the circumstances around the injury and you confirmed the below:
- You were walking in the supermarket (Coles, Chipping Norton) along the dairy section and there was an excessive spill of milk at 4.30-5pm and had a fall on your back. Your wife asked for help and the manager came to assist you.
- You attended work the next day.
- You lodged a claim with Coles and were advised you will not be covered, Coles claim number Cl02949930.
- You confirmed Coles accepted the claim but have not paid any medical or ongoing costs
- You confirmed you are a self-employed truck driver and your wife works with you as an accountant and was with you at the time of the incident.
- You confirmed your truck was parked in the Chipping Norton yard.
- You confirmed you have had this company for 12 years and earn $92.04 x 50 hours per week.
- You confirmed you were not aware if you were entitled to claim and after talking with your brother, you lodged the claim.
- You advised there is CCTV footage available but Coles did not release the footage.”
Mr Macroyannis mentioned where his truck was parked several times in his statements. In the draft statement of 3 September 2018 that was lodged by the respondent, Mr Macroyannis said:[9]
“I was in my work shirt - a fluoro shirt with the company's name and number on it - and I parked the truck across the road from Coles and then Susan and I alighted from the truck and walked into the supermarket. I cannot recall the exact time at that point but it was between 4.00 and 5.00 pm.”
[9] Reply page 24 at [35].
At paragraph 38, when describing the immediate aftermath of his accident Mr Macroyannis said:
“I was still lying on the ground when Barbara approached me. She asked if I was ok and that I should take my time. She asked if I wanted an ambulance but I declined - I didn't want to make a scene and besides I was concerned about my truck being let outside for who knows how long if I went to hospital….”
Those two paragraphs were repeated in Mr Macroyannis’s statement in matter number 2443/20, and in the present matter.

Submissions

Mr Stockley distilled the issues for determination. Although he said that both s 78 notices relied on s 10 and that defence was not being pressed, the second dispute notice nonetheless indicated that Mr Macroyannis was not employed to go to Coles to do his shopping, which was not part of the duties of his employment. He also submitted that there was a question as to whether in fact Mr Macroyannis had returned his truck to the yard before going to Coles.
Mr Stockley relied on one of the above dash points in the s 78 notice of 15 November 2019 wherein it was alleged that Mr Macroyannis had confirmed that his truck was parked at the Chipping Norton yard at the time he went to Coles. Mr Stockley submitted that I would find that what the applicant told EML initially as recorded on 15 November 2019 was a true representation of the relevant facts. I would find that the day’s work had completed and that Mr and Mrs Macroyannis were just stopping in Coles on the way home. Whilst accordingly there may be liability against Coles there was none against the employer.
Mr Stanton referred to an old High Court decision of Humphrey Earl Ltd v Speechley [1951] HCA 75 (1951) 84 CLR 126 (Humphrey) as to the description of what the expression “course of employment” entailed, which he submitted was of workers doing what was expected of them given the nature of employment they were engaged in. He said that Mr Macroyannis was engaged by his company as driving a truck to transport various materials to various locations in the Sydney area. He said that work involved getting meals and things of that nature. He said that the applicant’s work involved him getting into a truck which he was in continuously during the course of the activities until he returned to the depot where it was kept.
Mr Stanton submitted that the evidence was that he drove his truck to Coles on 2 October 2018. I would be satisfied that the truck was in the carpark of the supermarket and it was further evidence, if such were needed, that Mr Macroyannis was in the course of his employment when he went to Coles.
He submitted that the respondent’s defence depended on an allegation that Mr Macroyannis had “confirmed” that his truck was parked in the Chipping Norton yard at the time of the injury. Mr Stanton observed that that this allegation was based on a line in the dispute notice of 15 November 2019 and was apparently based on a telephone conversation. Mr Stanton submitted that the record of the phone call was not in evidence, and that even if it were, it would be overshadowed by the weight of the applicant’s case.
He submitted that the fact that the truck was parked by Coles was significant as one did not drive a truck to buy groceries and the inference was clear that Mr Macroyannis was still in the course of his employment.
Mr Stanton said that although there was a tentative effort to assert that the remaining evening job deposed to by Mr Macroyannis had been a recent invention, the email of 10 November 2019 exploded that theory.
Mr Stanton submitted that s 11 had application. Mr Macroyannis was the director and sole employee of the company and was able to authorise his own recess, which the evidence showed he had done it in the present case.
In reply, Mr Stockley submitted that the second dispute notice nonetheless raised s 4 and
s 9A of the 1987 Act. Mr Stockley conceded that, if s 11 applied then those two sections would have no application. However he submitted that I would not accept that the visit to Coles was incidental to employment duties. A discussion followed in which Mr Stockley indicated that it was not certain that it was essential that during a recess governed by s 11 that a worker had to be involved in activities incidental to his/her employment.

Discussion

Section 11 of the 1987 Act provides:
“11 RECESS CLAIMS
(cf former s 7 (1) (e))

If a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service or training contract-
(a)     is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b)     does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c)     receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”
I am grateful for Mr Stanton’s reference to Humphrey, but I note there is more recent authority, which was referred to by DP Roche in Gregory J Britt and Leanne Britt v Coady [2014] NSWWCCPD 5 (Britt). Britt was a case that was more concerned with injury during an interval in an overall period of work, so that s 11 was not considered. However I accept that all that has to be proven to trigger its provisions is that the injury occurred whilst the applicant was temporarily absent from his truck during an absence which he authorised, and that in effect his accident was not caused through any fault of his. See Briggs from [143]. The purpose of the absence and the causes of the physical injury thus become irrelevant, as was conceded by Mr Stockley.
However, I accept the submission by Mr Stanton that Mr Macroyannis’s presence at Coles was an authorised absence. Mr Macroyannis made his living by driving his truck and it is reasonable to assume that he would from time to time have needed to leave the truck, his place of employment, for any number of reasons, including the obtaining of food and groceries. Because he was an owner/operator it is axiomatic that he could authorise his own absence. Mr Macroyannis’s absence was intended to be temporary, and he received a physical injury during that absence.
I also accept that Mr Macroyannis had parked his truck in the car park next to Coles. The appearance of an allegation in a dispute notice based on an undefined telephone conversation and entirely unsupported by further evidence, I do not regard with any weight. This is particularly so when Mr Macroyannis stated from when he first was interviewed by
Mr Richards on 3 September 2019 that his truck was in the car park, and that was the reason he did not wish to be taken to hospital.
As I indicated, I found Mr Macroyannis to be an impressive witness. He said he could not remember when asked by Mr Stockley whether his truck had been left at the depot, or whether it had been in the car park. That doubt has been settled by reference to the statements, as I have stated, and his answer is indicative of his frankness in making a statement that was potentially against his interest.

As I said, the focus of the case was as to why Mr Macroyannis was at Coles when he fell. The manner in which the evidence developed since the accident was unfortunate, and the question of recent invention was a live issue until Mr Macroyannis produced the email of 10 September 2019 which, as Mr Stanton submitted, “exploded” that theory.
It was agreed at the hearing that the ARD form nominated the wrong date of injury in stating that it occurred on 8 October 2018, and the date was amended by consent to 2 October 2018.
Accordingly I make the following orders:

(a)    I amend the ARD form to delete the date of injury there pleaded and substitute therefore “2 October 2018.”
(b)    The respondent will pay the applicant’s section 60 expenses on production of accounts, receipts and/or HIC notice of charge.
(c)    I remit this matter to the President for referral to a medical assessor for a whole person impairment assessment on the following bases:
(i)Date of injury: 2 October 2018
(ii)Matters for assessment: thoracic spine, lumbar spine, TEMSKI/scarring
(iii)Evidence:
a.ARD and attached documents;
b.Reply and attached documents;

(d) I exclude from the remittal the following documents:

(i)ALD dated 15 June 2021 (admitted during the hearing);
(ii)ALD dated 10 June 2021, and
(iii)Email dated 10 September 2019 from the applicant to the insurer’s investigator – exhibit A.

[2021] NSWPIC 263

27 July 2021