Mason v McClure Excavations - [2023] VMC 5

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER Division

Case No. L12220521

RICK LEE MASON	Plaintiff
v
R & R McCLURE EXCAVATIONS PTY LTD	Defendant

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MAGISTRATE:	M A HOARE
WHERE HELD:	Melbourne
DATE OF HEARING:	01 – 02 March 2023
DATE OF DECISION:	29 March 2023
CASE MAY BE CITED AS:	Mason v McClure Excavations
MEDIUM NEUTRAL CITATION:	[2023] VMC 5

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WORKERS COMPENSATION – Rejection of claim – Assault by co-worker - Employees socialising on the evening of an end of year staff workplace function – Whether injury in the course of or arising out of employment – Workplace Injury Rehabilitation and Compensation Act 2013, s 39(1).

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Mr A. Coote	Slater + Gordon
For the Defendant	Mr J. Batten	Russell Kennedy

HER HONOUR:

Introduction and Overview

Mr Rick Mason, the plaintiff, claims compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 for injuries suffered when assaulted by a co-worker on the evening of 20 December 2019 outside a pub in Castlemaine (the assault).

The assault followed an end of year workplace barbeque lunch held that afternoon by Mr Mason’s employer, R & R McClure Excavations Pty Ltd (McClures) (the barbeque). Both Mr Mason and the co-worker who assaulted him were at the barbeque and were employees of McClures.

In essence, it was submitted for Mr Mason that he was assaulted while doing the very activity that he was induced or encouraged to do by McClures, namely, to socialise and drink alcohol as co-workers to mark the end of the working year. On that basis, applying the principles enunciated by the High Court in Hatzimanolis v ANI Corporation Ltd (Hatzimanolis),[1] the location of the assault was irrelevant as there was a continuation of the activity.
[1](1992) 173 CLR 473 (‘Hatzimanolis’).

On the other hand, McClures’ case was that the assault occurred in circumstances that had no relationship or connection to employment given McClures was involved in no aspect of events following on from the barbeque.

Over seventy factual matters were admitted by way of the Plaintiff’s Notice to Admit. Additionally, by agreement, statements of several lay witnesses were tendered into evidence. The only witness called by McClures was Trent McClure, a former director.

The parties required the Court to determine the question of liability as a preliminary issue.

Agreed Facts or Matters Not in Dispute

It is convenient to begin by setting out matters not in dispute between the parties.

On or about 7 September 2018, Mr Mason, who is currently aged 39 years, commenced working for McClures as a plant operator.
McClures, a family owned and operated business, installed infrastructure for entities such as power companies and water authorities. The principal workplace was in Castlemaine (called ‘the yard’ throughout the proceeding).
As of 20 December 2019, McClures employed around 43 staff based at the yard. The managing director was Tim McClure and the office manager was his wife, Kelly McClure. Trent McClure, brother of Tim McClure, was also a director on that date.
Most of McClures’ staff were finishing up work for the year on Friday 20 December 2019 and would not resume work again until 6 January 2020.
Work began that day at the usual time of 7:00 am with most employees engaged in clean up duties around the yard for the morning. The morning’s work for most staff ended around 12:30 pm that day.
From about 12:30 pm, McClures put on a barbeque lunch for employees at the yard to mark the end of the working year. McClures had held similar end of year barbeque lunches in previous years.
Employees were not required to return to their usual duties after the barbeque ended.
Managers, Tim McClure, Kelly McClure and Trent McClure, all attended the barbeque. The McClure brothers’ parents (the owners of McClures) also attended the barbeque for a while and gave out Christmas cards and cash bonuses to staff.
Around twenty employees attended the barbeque at the yard including: Mr Mason, Daniel Wilson Hardy, Tim Solly, Daniel Lewis, Matthew Koch, Mitchell Stevens, Kaleb Kennedy, Matt Jewell and Anthony Green.
McClures provided barbeque food and beverages, including alcoholic beverages, for the enjoyment of staff.
There was a blood alcohol content testing device at the yard (the BAC device).
Kelly McClure gave one employee (Cameron Whatley) who had apparently had too much to drink a lift home.
At about 5:30 pm, several employees left the yard and went to the nearby Cumberland Hotel in Barker Street, Castlemaine (the Cumberland). About ten employees of McClures attended the Cumberland including: Mr Mason, Daniel Wilson Hardy, Matthew Koch, Kaleb Kennedy, Matt Jewell, Anthony Green and Trent McClure.
Mr Mason was captured on CCTV leaving the yard at around about 5:30 pm walking towards his car.
Mr Mason, who was then living in Kyneton, went directly from the yard to the Cumberland.
At about 6:30 pm, several employees left the Cumberland and went directly to the Criterion Hotel, also in Barker Street, Castlemaine (the Criterion). About ten employees of McClures attended the Criterion including: Mr Mason, Trent McClure, Matthew Koch, Daniel Lewis, Daniel Wilson Hardy, Tim Solly, Mitchell Stevens and Matt Jewell.
Leanne Williams, an employee of McClures, attended the Criterion for an evening meal independently, not having been at the barbeque nor at the Cumberland.
At around 8:00 pm, at the Criterion, Daniel Wilson Hardy assaulted Dylan Stevens, the brother of a McClures employee, Mitchell Stevens. Dylan Stevens was not an employee of McClures.
At 8:15 pm, according to the police statement of an independent eye-witness,[2] the assault of Mr Mason by Mr Wilson Hardy occurred in Barker Street in the vicinity of the Criterion.[3] The police attended and drove Mr Mason home.

[2]Carla Bessant’s statement dated 24 January 2020.

[3]Daniel Wilson Hardy pleaded guilty to unlawfully assaulting Mr Mason and was sentenced to a prison term.

Mr Mason was apparently concussed and unwell over the weekend after the assault and attended the Kyneton Hospital on the Sunday. He was ultimately transferred and admitted at the Royal Melbourne Hospital. He was an in-patient there until discharge about four weeks later.
In the years prior to 2019, employees of McClures had attended pubs together following the end of year barbeque.
I now turn to the evidence of Mr Mason and other witnesses (including Trent McClure) relevant to the liability dispute.

Mr Mason’s Evidence

As for whether Mr Mason had been at the end of year barbeque the previous year (in 2018), under cross examination, he agreed he went for a while but left soon after lunch. He did not go the pub afterwards because he had not known the other staff as well then.

31. As for deciding to go to the barbeque in 2019, Mr Mason had been present when it was discussed in Trent McClure’s office. That was about four days beforehand after finishing a job. Trent McClure, Anthony Green and Tim Solly were there and invited him to come along to the barbeque and then to the pub. Mr Mason had been unsure whether he would attend given he lived in Kyneton and did not want to drink and drive.

32. In cross examination, Mr Mason said there was no written notice displayed for staff about the barbeque on any noticeboard in the tea-room or the office.

In cross examination, Mr Mason said on 20 December 2019 there had been a ‘morning meet’ with staff as usual. Employees were told they were expected to work from 7:00 am until 12:30 pm when the barbeque would be held in the yard.
As for the barbeque not being compulsory for employees and there being no requirement to attend, under cross examination, Mr Mason agreed. Employees had been told staff would receive a bonus at the barbeque and to wait around for that. The bonus of a cash gift was handed out by the McClure parents during the meal at around 2:00 pm. Mr Mason conceded that once the bonus was handed out, he could have left and gone home to Kyneton at any time, but chose to stay.

35. In cross examination, Mr Mason said that his memory of events before the assault was ‘hit and miss’ and his memory of events after the assault was ‘not too bad’. However, he denied having gone around to people at the barbeque boasting about his boxing prowess and saying he was going to ‘bash them’.

Under cross examination, Mr Mason agreed that at one point during the barbeque he had ‘rugby tackled’ Matt Jewell into the Esky. He could not say when that happened as his memory was ‘blurry’. They were just mucking around and he and Matt Jewell made up straight away. He also agreed that at another point in the afternoon he had been hit or punched by another employee Cameron Whatley. That was due to Mr Mason ‘giving him lip’. They made up afterwards and he helped look after Mr Whatley when he was being sick.
As for the BAC device, under cross examination, he denied using it himself that day nor did he see anyone else using it. As for when it was used, the BAC device would be brought out by McClures every few months in the morning meet for staff to be randomly tested.

38. Prior to 20 December 2019, Mr Mason had never gone for after work drinks at either the Cumberland or the Criterion. He had been in the Cumberland previously to put on a sports bet.

39. As for why Mr Mason attended the Cumberland, everyone was going - people at the barbeque and Tim Solly, a friend and co-worker. At the Cumberland, he sat at a table with Tim Solly, Mr Wilson Hardy and Anthony Green having a drink whilst other people were on the pokies.

40. Under cross examination, Mr Mason denied he had gone to the Cumberland in the absence of any invitation, request or arrangement by any manager of McClures. He was invited in the discussion in Trent McClure’s office by Trent McClure, also by Tim Solly and Daniel Lewis, a supervisor. As for Daniel Lewis, Mr Mason conceded he was not ‘management’ in the sense of directing staff what to do.

41. As for why Mr Mason had then left the Cumberland and gone to the Criterion, others from McClures were doing that including Trent McClure and Daniel Lewis.

42. While at the Criterion, Mr Mason had introduced Dylan Stevens and Mr Wilson Hardy to each other because he was aware they had a shared interest in boxing. He thought they would get along. They were sitting down and chatting with each other shortly before Mr Wilson Hardy had assaulted Dylan Stevens. After that, Mr Wilson Hardy had walked out of the Criterion.

43. As for why Mr Mason went out into the street with Mr Wilson Hardy just prior to the assault, he decided to follow after Mr Wilson Hardy to warn him. He wanted to warn him because Mitchell Stevens had said he was going to kill him for assaulting Dylan Stevens.

44. Under cross examination, Mr Mason agreed that he decided to get involved because of Mitchell Stevens planning to retaliate on his brother’s behalf. He wanted to stop Mitchell Stevens and warn Mr Wilson Hardy that ‘twenty country boys were out to get him’. He denied that he flew sprinting after Mr Wilson Hardy out of the Criterion saying he was ‘going to smash him’. If Kaleb Kennedy was saying that, he was lying. However, Mr Mason conceded that he did run out of the pub after Mr Wilson Hardy in order to warn him.

45. In cross examination, Mr Mason agreed with the proposition that, at any time, including whilst at either of the pubs, he could have left and made his way home.

46. Mr Mason has continued to be impacted by the assault including suffering from post-traumatic stress syndrome, flashbacks and insomnia. He never resumed work with McClures and has not worked at all since the assault. He has recurring thoughts about the assault. He now lives in Melbourne and would find it difficult to return to Castlemaine because of the association with the assault. He takes various medications prescribed to manage his symptoms. There have been two in-patient admissions at the Alfred Hospital after suicide attempts (in February and March of 2022). He has since been under the care of the St Kilda Road clinic (attached to the Alfred) but has attended sporadically because of his psychological issues and also due to financial constraints.

47. Prior to the assault, Mr Mason had a history of anxiety and depression going back to adolescence. There had been acute episodes with suicidal ideation. He was taking anti-depressant medication prior to the assault and has continued to do so.

48. In cross examination, Mr Mason denied that he had spent the last few years being preoccupied or obsessed with his claim against McClures. He did not dispute, as the Alfred records reflected, having said to a psychologist that it was ‘him verses eight other ex-colleagues’ and that the others would ‘all be lying’. He had felt that way because everyone stopped talking to him after the assault. That included Tim Solly with whom he had been friends, but then they also had a falling out about something else.

Trent McClure’s Evidence

49. Trent McClure, currently unemployed, had finished up as a director with McClures in August 2021. That was due to a misalignment in forward-planning of the business. His role with McClures was ‘hands on’ and included directing operations such as excavations.

50. Mr McClure had no active role in organising the barbeque nor in encouraging staff to attend. At most, he might have confirmed it was happening if anyone asked him about it. He did not believe there was a notice displayed informing staff about the barbeque. Rather it was word of mouth.

51. Attending the barbeque was not compulsory for employees. It was not a highly organised event, just a barbeque lunch put on for staff on the last working day and people could participate or leave at 12:30 pm.

52. In cross examination, Mr McClure agreed that McClures had provided an Esky full of beers and other drinks and staff could help themselves at their own pace.

53. As for use of the BAC device kept at the yard, that was to ensure staff performing duties such as operating machinery had a zero BAC. He did not know whether it was used on the day of the barbeque.

54. After the barbeque concluded, there was no other McClures event or activity arranged for staff to engage in. Neither he nor any other McClure manager had arranged for staff to go somewhere else afterwards. There was no McClures event at the Cumberland nor at the Criterion. There was no money provided nor ‘put on the bar’ for drinks nor meals paid for at either pub by McClures.

55. Mr McClure had no specific recollection of a discussion in his office four days before the barbeque involving Mr Mason, Tim Solly and Anthony Green about Mr Mason coming to the pub after the barbeque. There were staff discussions in his office to de-brief after a day’s work all the time. In cross examination, he disagreed that he said to Mr Mason ‘come to the pub afterwards’.

56. Mr McClure had gone directly from the yard to the Cumberland with Matt Jewell, who was a friend. Matt Jewell’s partner had given them a lift from the yard to the Cumberland. In cross examination, he said the reason he went to the Cumberland was that he was invited to go by a few people at the barbeque.

57. As for whether he bought people drinks at either pub the evening of the barbeque, he did not believe he did but may have on other occasions.

58. Under cross examination, Mr McClure said he could not recall buying anyone else a drink. He did not recall Anthony Green buying seven jugs of beer at the Cumberland. He did not recall being in ‘a shout’ with others.

59. In cross examination, Mr McClure agreed that people attended the local pubs in previous years after the end of year barbeque. As for whether he had attended other years, he could recall being invited to go the pub after the barbeque one or two times over the previous eight years.

60. In cross examination, he agreed that he stated previously (to the Agent’s circumstance investigator) that there had been nothing apparent between Mr Mason and Mr Wilson Hardy to suggest that anything like the assault might occur. He was unaware of any conflict between them.

61. Mr McClure could not recall why there had been a change of venue from the Cumberland to the Criterion. There were a number of reasons why people might have migrated from one pub to another.

Other Lay Evidence

62. As stated at the outset, statements of eight lay witnesses made to police or to the Agent’s circumstance investigator were tendered into evidence by agreement. I now summarise from those statements factual matters relevant to the central dispute not already set out in the undisputed matters.

63. Both Kelly and Tim McClure stated that no arrangements were made with the local hotels regarding drinks or meals for McClures staff after the barbeque or at all. As for the barbeque, some staff stayed for that and some decided to finish up at 12:30 pm and start their holidays. There was no set end time and people left throughout the afternoon.

64. Kelly McClure stated that the barbeque lunch invitation was extended verbally. It was known among staff that McClures put on a barbeque lunch on the last working day of the year. It was not a formal event requiring people to RSVP. There was no expectation for employees to stay for the barbeque. She presumed people were going home afterwards. There was an offer to drive people home if they felt unable to drive and that was taken up by Mr Whatley. The BAC device was available and Mr Mason had used it that day before he drove. She was unaware of any prior personal conflict or animosity between Mr Mason and Mr Wilson Hardy. No funds were provided for staff for further drinks at local hotels or put ‘on the bar’ to cover the costs of drinks or meals.

65. Daniel Lewis went home after the barbeque to get changed. He then headed to the Criterion because a few others from work were going there. The first he knew of anything happening was someone saying there had been a fight between Mr Wilson Hardy and Dylan Stevens. Daniel Lewis had then walked Mr Wilson Hardy outside and noticed Mr Mason coming up to them. Just before the assault, Mr Mason had normal body language. He did not know if Mr Mason had said anything to Mr Wilson Hardy. He could not think of any reason why Mr Wilson Hardy would hit Mr Mason.

66. Anthony Green stated that at the barbeque Mr Mason was walking around aggressively. Mr Mason did not like Mr Wilson Hardy and had a chip on his shoulder about him. Mr Mason also had a chip on his shoulder about Matt Jewell which was the basis for him tackling him into the Esky. At the Cumberland, Anthony Green bought the first round of drinks (seven jugs of beer). Mr Mason and Mitchell Stevens were niggling at Mr Wilson Hardy. A few people including Mr Wilson Hardy and Mr Koch left and went to the Criterion. Mr Green stayed at the Cumberland to play the pokies.

67. Matt Jewell stated that at the barbeque Mr Mason was being aggressive and talking about bashing people which was what he was normally like. At the Cumberland, Mr Mason was still talking about how he could bash people and could break Mr Wilson Hardy’s jaw. Mr Mason had been aggressive all day and wore everyone down. Mr Jewell went onto the Criterion, but sat out in the beer garden and unaware of the assault on Mr Mason until afterwards.

68. Kaleb Kennedy stated that at the barbeque Mr Mason was getting ‘real chirpy’ and getting into everyone. Then, in a discussion about boxing at the Cumberland, Mr Mason talked about breaking Mr Wilson Hardy’s jaw. A group of them including Mr Wilson Hardy left to go to the Criterion mainly to get away from Mr Mason. At the Criterion, he saw Mr Mason sprinting out of the pub after Mr Wilson Hardy saying he was going to ‘smash’ him. He then witnessed the assault and Mr Wilson Hardy had looked like he wanted to get away, but Mr Mason was ‘still going at him’.

69. Matthew Koch stated that Mr Mason had been flexing his muscles and standing over people at the barbeque. They left the yard to get away from Mr Mason. Daniel Lewis’s wife gave him and a few others a lift into Barker Street near the Cumberland. At the Cumberland, Mr Mason was pushing Mr Wilson Hardy around and saying he would break his jaw. Mr Koch went to the Criterion with Trent McClure and was out in a smoking area. He also was unaware of the assault until afterwards.

70. Leanne Campbell stated that the atmosphere at the Criterion was fine, everyone was having a friendly drink celebrating the end of the working year. Everybody appeared in good spirits. There was no hint at all of any angst among anyone.

71. Having considered the lay evidence, I now turn to the legal principles and my findings in relation to the preliminary issue.

Analysis

Legal Principles

72. The evidentiary and legal burden of proof rested upon Mr Mason to satisfy the Court, on the balance of probabilities, of an entitlement to compensation under the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act).

73. Section 39(1) of the Act provides that if there is caused to a worker an injury arising out of or in the course of any employment, the worker is entitled to compensation in accordance with the Act.

74. There was consensus between Counsel that the assault occurred whilst Mr Mason was not engaged in actual work.

75. Accordingly, Counsel were in agreement that, unlike the factual scenarios in assault cases such as Martin v Bailey[4] or Gosaye v Damorange Pty Ltd,[5] the question of the relationship to work of the assault did not require findings as to the instigator or aggressor nor as to the origins of the fight.
[4](2009) 26 VR 270.
[5][2021] VMC 19.

76. Both Counsel submitted that a determination of liability in Mr Mason’s case was governed by the principles enunciated by the High Court in Hatzimanolis[6] and subsequently in Comcare v PVYW (PVYW).[7]
[6]Hatzimanolis (1992) 173 CLR 473.
[7](2013) 250 CLR 246 (‘PVYW’’).

77. Mr Mason’s case was not an ‘interval or interlude’ case given the assault did not occur on a break between two discrete periods of actual work. Nevertheless, the principle enunciated in Hatzimanolis applied given Mr Mason was engaged in an activity other than actual work at the time of the assault.

The plurality of the High Court in PVYW had this to say regarding the operation of the Hatzimanolis principle:

The starting point in applying what was said in Hatzimanolis, in order determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? … When an activity was engaged in at the time of the 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.[8]
[8]Ibid [38].

79. Accordingly, the central question for determination was this: whether the activity engaged in by Mr Mason on the evening of 20 December 2019 after he left the yard was one that McClures had induced or encouraged him to do.

80. In PVYW, the plurality made this observation regarding the way in which the Hatzimanolis principle effects a connection between the circumstances in which the employee sustains injury and the employment:

The principle may create a temporal element, in the notion of an interval, but it also creates a factual association or connection with the employee’s employment. It does so by the fact of the employer’s inducement or encouragement.[9]
[9]Ibid [50].

Finally, there is what the NSW Court of Appeal in Pioneer Studios Pty Ltd v Hills called an important limitation on the scope of the Hatzimanolis principle.[10]

[10][2015] NSWCA 222 [35].

The words of the principle articulated in Hatzimanolis are not to be applied literally to facts, as the plurality of the High Court observed in PVYW, without further consideration of what is conveyed by the reasoning of the principle and without bearing in mind the terms of the governing Act and the limit it seeks to place upon an employer’s liability for compensation.[11]

[11]PVYW (2013) 250 CLR 246 [15].

83. Each case involving a worker claiming injury in circumstances other than in a period of actual work must be decided on its own facts and by application of the guiding principles. That was the submission of both Counsel.

84. For example, in Berryman v Saferoads Pty Ltd,[12] His Honour Magistrate Garnett found that a worker assaulted by a co-worker after a Christmas work function was injured in the course of employment. Yet, although there were similar circumstances overall to this case, Counsel for Mr Mason did not seek to rely on that case. That was because the circumstances differed materially. Mr Berryman’s employer had organised, in addition to the off-site function, the transportation of the staff to and from the event on a chartered bus. The assault occurred on the bus and a manager was present on the bus accompanying and supervising the staff.
[12][2012] VMC 10.

85. Having considered the applicable legal principles, I turn briefly to the question of injury.

Injury

86. The particulars of injury relied upon by Mr Mason in his pleadings were: brain injury; vertigo; concussion; psychiatric injuries including anxiety, depression and PTSD.

87. The precise nature and diagnosis of Mr Mason’s current condition was unclear on the medical evidence. That was in part because of the significant prior and subsequent psychiatric history.

88. From extracts of hospital records, it is apparent that on 24 December 2019 Mr Mason was transported by ambulance from Kyneton to the Royal Melbourne. A history was given of the assault on 19 December 2019. Symptoms reported were nausea, lethargy, headaches, neck pain and blurred vision.

89. During the month-long admission at the Royal Melbourne, there were extensive investigations including a brain computed tomography and an MRI of the brain, both reported as normal. Upon Mr Mason being discharged on 20 January 2020, the discharge summary recorded: ‘Ongoing concussion symptoms – [however] inconsistent presentation’ and ‘No cause to explain patient’s symptoms identified’.

90. Dr David Weissman, psychiatrist, who provided medico-legal reports dated 1 October 2021 and 11 July 2022 for the plaintiff opined this was ‘a very complex case’. He assessed moderately severe to severe pre-existing psychiatric problems and vulnerability factors. He opined there was an incident-related cross-sectional chronic major depressive disorder with anxious distress, moderately severe.

91. Professor Simon Crowe, neuropsychologist, provided a very lengthy opinion for McClures’ lawyers including neuropsychological assessment in his report of 23 January 2021. He concluded there was no ongoing neuropsychological compromise and it was opined that cognitive function was not adversely affected. Yet he also recorded that Mr Mason had performed in the testing in an apparently profoundly impaired way and thus queried both effort and motivation.

92. Dr Weissman assessed Mr Mason as being totally psychiatrically incapacitated for all work but did not opine specifically as to whether current incapacity resulted from or was materially contributed to by the assault.

93. Counsel for Mr Mason conceded that there was a paucity of current treating material due to the lack of treatment both as a consequence of his condition and his financial constraints.

94. According to Counsel for McClures, the relationship between any current incapacity (which was not conceded) and any compensable injury (which was denied) was very much a live issue.

95. However, for the purposes of the liability finding, it was accepted by McClures’ Counsel that, based on contemporaneous ambulance and hospital records, Mr Mason had suffered a closed head injury as a result of the assault on 20 December 2019. However, beyond that, there was considerable dispute as to the diagnosis and nature of any current condition relevant to the claimed injuries.

96. Given these matters including the lack of current treating evidence, it was agreed that I would confine my decision to the preliminary liability question and make no formal findings in relation to injury in terms of nature and diagnosis (beyond that conceded) nor as to capacity.

Defendant’s submissions

97. In summary, it was contended that the plaintiff must fail on the preliminary liability hurdle. That was because there was barely a scintilla of evidence that connected the assault and the activity at the pubs to employment and, specifically, to anything that could be construed as encouragement or inducement by McClures.

98. In this case, employees including Mr Mason attended an optional barbeque lunch in the workplace which was over by about 5:30 pm. A group of about ten employees then chose to go on to the Cumberland and then several employees moved on to the Criterion.

99. The assault occurred three hours after the barbeque ended. Moreover, it was highly relevant that the assault of Mr Mason was preceded, just fifteen minutes before, by Mr Wilson Hardy’s assault of Dylan Stevens (not an employee) inside the Criterion. The earlier assault was the catalyst of the assault of Mr Mason and there was no nexus or relationship whatsoever between the Dylan Stevens assault and the events at the barbeque nor indeed to employment with McClures at all.

On Mr Mason’s own evidence, he introduced Dylan Stevens and Mr Wilson Hardy to each other at the Criterion. He had done so as he ‘thought they would get along’ having a mutual interest in boxing. Then, after Dylan Stevens was assaulted, Mr Mason, entirely of his own volition, involved himself by chasing after Mr Wilson Hardy into the street. That was to warn him about the potential for retribution by Mitchell Stevens and ‘twenty country boys’.

As for Mr Mason’s evidence about the conversation in Trent McClure’s office four days beforehand, that was self-serving and uncorroborated. It was not corroborated by Tim Solly (who was not called) nor by Anthony Green (who made no reference to it in his statement). As for Trent McClure, whose evidence was tested in cross examination, he also could not corroborate Mr Mason’s account of the conversation, having no recall of it at all.

The lack of corroboration was important for two reasons according to Counsel for McClures.

Firstly, Mr Mason’s credit was clouded by reason of his strong litigation focus. That was evident from his frequent assertions, whilst giving evidence under cross examination, that the others were liars and were ‘against him’. That was the same stance he had adopted in giving a history to a psychologist at the Alfred clinic.

Secondly, Mr Mason was not a reliable witness in the sense that his recollection was poor. His own assessment of his memory of events before the barbeque was that it was ‘hit and miss’.

Plaintiff’s Submissions

It was submitted by Counsel that the weight of evidence supported the conclusion that the employer had encouraged and induced staff, including Mr Mason, to socialise and drink with co-workers to celebrate the end of the working year.
Thus, on a proper application of the Hatzimanolis principles as articulated by the plurality in PVYW, the Court should find that Mr Mason was injured in compensable circumstances. That was because he was engaged in the very activity that McClures had induced and encouraged him to do on that date.
Mr Mason was not injured in circumstances that were independent of his employment. Rather, there was a compelling matrix of matters that collectively amounted to McClures’ inducement and encouragement of the activity of socialising and drinking.
First, whilst Mr Mason was not obligated to attend the barbeque at the yard, he was induced and encouraged to do so by way of the open invitation and the provision of food and alcohol. The barbecue’s purpose was for staff to come together to celebrate the end of the year. Importantly, there was no requirement for employees including Mr Mason attending the barbeque to resume the usual work duties afterwards.
Second, there was a continuation into the evening of the activity of end of year socialising and drinking as induced and encouraged by the employer. McClures’ employees, including Mr Mason, did not go home when they left the yard after the barbeque. Nor did they choose to do a different activity such as, for example, ten-pin bowling. The consistent observations of witnesses, such as Anthony Green (at the Cumberland) and Leanne Wilson (at the Criterion), was of a group or groups of McClures staff socialising and drinking together just as they had been at the barbeque.
Third, as for the change of place, again on applying the Hatzimanolis principle, it was necessary to consider distinctly the notions of place and activity. Accordingly, it was of no material consequence that McClures employees changed venues (moving from the yard to the Cumberland then to the Criterion). It was the activity which was the salient feature. Employees went to the pubs together from the yard to continue the encouraged activity.
It was no coincidence, it was submitted, that Mr Mason attended, in succession, the barbeque at the yard followed by the Cumberland then the Criterion. Rather, a continuation of the activity of drinking and socialising together was arranged amongst employees, including Trent McClure (a manager), to continue in celebrating the end of the working year. Mr Mason had given credible evidence of a discussion in Trent McClure’s office during which he was urged and encouraged to be at the barbeque and come to the pub afterwards.
Indeed, Mr Mason was only present at the Criterion because of his employer’s encouragement as he gave unchallenged evidence of not having previously attended pubs in Castlemaine for after work drinks. He would normally drive back home to Kyneton.
Fourth, Counsel pointed to statements of several witnesses which supported a conclusion of there being ‘bad blood’ or brewing tensions between two employees, Mr Mason and Mr Wilson Hardy, through the day and evening. That was further evidence of a continuation of an activity encouraged by McClures of socialising and drinking together through the day and evening and up leading to the assault.
Findings

I now turn to my findings on the evidence.

Weighing the whole of the evidence, particularly Mr Mason’s own evidence, I formed the view that he was a generally credible witness. My view as to Mr Mason’s credit was not without some reservations to which I will return. Overall, it seemed to me that Mr Mason was a credible witness in the sense that he was trying to be cooperative and not to mislead the Court deliberately.

For example, under cross examination, Mr Mason made various concessions against interest including:

a. McClures did not require him to attend the barbeque which was optional. Also, having attended, he was free to leave and go home at any point in the afternoon (particularly after the distribution of the bonuses at around 2:00 pm), but chose to stay;

b. He also agreed with the proposition that he could have subsequently left either pub at any stage and made his way home;

c. It was he who introduced Mr Wilson Hardy and Dylan Stevens to each other and it was also his decision to run outside after Mr Wilson Hardy following the assault of Dylan Stevens. He gave evidence of choosing to involve himself in the dispute to warn Mr Wilson Hardy.

Nevertheless, I agree with Counsel for McClures that Mr Mason could not be considered a wholly reliable witness given his poor recall of some matters. Mr Mason himself described his memory as ‘not too bad’ (for events after the assault) and ‘hit and miss’ (for events before the assault). At another point he described his recall as ‘blurry’ regarding events at the barbeque (tackling the co-worker).

As for Trent McClure, Counsel for Mr Mason submitted he was an unconvincing witness. Indeed, Counsel for McClures conceded that Trent McClure delivered his evidence with unusual hesitancy. It is true that Mr McClure had a flat and almost odd affect, having quite poor recall of some matters and even struggling at times to comprehend precisely what was being asked of him.

On the other hand, upon direct questioning, Mr McClure denied having any health issues and to my mind gave a credible explanation for ceasing employment with McClures.

My overall impression was that Mr McClure was endeavouring to answer questions very carefully. To my mind, his carefulness or hesitancy may be explained by him being called to give evidence by his former family business although no longer aligned with it. I also agree with Counsel for McClures that there was no basis for suggestion that his evidence was fabricated.

Additionally, in my opinion, given Trent McClure’s lack of ongoing involvement with McClures, his evidence, which was tested under cross examination, may arguably be considered less biased and more objective than that of Kelly and Tim McClure as current managers.

I found some aspects of the statements of Kelly McClure, in particular, to be self-serving. For example, she referred to the availability at the yard of the BAC device and stated that Mr Mason had used it after the barbeque. That was despite that issue (whether or not anyone was legally able to drive) having no direct bearing on the case. Another example was saying that she ‘presumed people were going home’ after the barbeque even though it was an admitted fact that staff had attended pubs together afterwards in past years.

For completeness, on that point, I prefer as more plausible the evidence of both Trent McClure and Mr Mason that the BAC device was for work purposes for random staff testing related to the operation of machinery. That is also, in my opinion, an example of Trent McClure’s evidence having more objectivity as I stated.

I otherwise accept background aspects of Ms McClure’s evidence which generally accorded with the admitted facts.

I also accept her evidence, as the office manager, of there being no awareness by management of any prior animosity or conflict as between Mr Mason and Mr Wilson Hardy. That was consistent with Trent McClure’s evidence under cross examination.

In a similar vein, Daniel Lewis, a supervisor, stated that the ‘first he knew of anything happening’ in the lead up to the assault of Mr Mason was learning of the fight between Mr Wilson Hardy and Dylan Stevens. He described Mr Mason as having ‘normal body language’ towards Mr Wilson Hardy right up until the assault. He could think of no reason why Mr Wilson Hardy would have assaulted Mr Mason.

On this issue, I also attribute weight to Leanne Campbell’s evidence. Although an employee of McClures (and so arguably in the defendant’s camp), she gave a relatively independent eyewitness account (in the sense of having arrived separately to the others) of the atmosphere at the Criterion. She stated that up until the ‘violent assault’ of Dylan Stevens which was ‘out of the blue’, the atmosphere had been friendly with ‘no hint at all of any angst among anyone’.

She also corroborated Mr Mason’s evidence that after Dylan Stevens was assaulted, Mitchell Stevens was agitated and seeking to retaliate.

In my opinion, the evidence of Ms McClure, Trent McClure and Daniel Lewis was in quite stark contrast to the evidence of another group of witnesses about the lead up to the assault. That was the evidence of Mr Green, Mr Jewell, Mr Kennedy and Mr Koch. They all stated that Mr Mason had been aggressive and provocative at the barbeque and also at the Cumberland.

Mr Mason’s Counsel submitted that these witnesses had ‘bunkered down’ together against Mr Mason in relation to their accounts.

Certainly, in my opinion, the police statements of these witnesses show at least some element of bias against Mr Mason and in support of Mr Wilson Hardy (who faced serious criminal charges because of the assault).

I say that because it seems to me highly significant that none of those police statements refer to Mr Wilson Hardy’s assault of Dylan Stevens fifteen minutes beforehand. The only quite oblique mention of it (‘something happened with Dylan’) is found in Mr Kennedy’s statement. However, he also stated that afterwards they shook hands and ‘everything was fine’.

Mr Kennedy makes no reference (nor do any of the others) to people in the pub (such as Mitchell Stevens) seeking retribution against Mr Wilson Hardy. Also, for example, Mr Kennedy appears to embellish his account of the assault stating that Mr Mason was ‘still going at [Mr Wilson Hardy]’ even after he was assaulted. That is in contrast to the independent eye-witness account of the assault (of Ms Bessant).

For these reasons, I prefer the evidence of Ms McClure, Mr McClure and Daniel Lewis on the circumstances leading to the assault.

I conclude that there was no animosity between Mr Mason and Mr Wilson Hardy that had any connection to the barbeque hosted by McClures at the workplace.

Of course, already stated, it was unnecessary for me to make findings about the origins of the fight nor as to who was the aggressor.

I have nevertheless addressed that issue because of Mr Mason’s Counsel’s submission (which I reject) regarding there being was ‘bad blood’ between Mr Mason and Mr Wilson Hardy which emanated from the barbeque and flowed from McClure’s conduct of encouraging and inducing employees to drink alcohol and socialising together at the barbeque.

It is convenient at this point to set out my factual findings regarding the barbeque at the yard:

a. On 20 December 2019, McClures hosted a barbeque lunch at the yard commencing at around 12:30 pm as they had done in previous years. This was to mark the break-up of working year for staff who wanted to participate.

b. Attendance at the barbeque was optional and staff were not required to attend. That was Mr Mason’s own evidence.

c. The staff were aware the barbeque would be held based on word of mouth and based on previous years. Nobody including Mr Mason clearly recalled a staff notice about it.

d. According to both Mr Mason and Trent McClure, during the barbeque, the senior McClures attended and handed out end of year bonuses of cash to staff.

e. Food and alcohol was freely available during the afternoon in an open Esky both Mr Mason and Trent McClure.

f. As Counsel for Mr Mason observed somewhat wryly, the barbeque ‘was not a dry event’. Indeed, on the evidence, there was some boisterous behaviour. Mr Mason himself gave evidence of having tackled a co-worker over; of being punched in the mouth himself by another co-worker and of one employee being sick. I will return to these specific matters later in these reasons.

Based on those factual findings, I conclude that, although optional, staff were nevertheless expressly or impliedly encouraged and induced to attend the barbeque by reason of the following circumstances:

a. the work day ending at 12:30 pm followed by the provision of free barbeque lunch and alcohol;

b. staff not needing to resume work that afternoon; and

c. the handing out of cash bonuses during the barbeque.

I now turn to Mr Mason’s uncorroborated evidence of the discussion in Trent McClure’s office in the presence of Tim Solly, Anthony Green and Trent McClure.

Trent McClure did not recall the specific discussion, but said that staff discussions and de-briefs on the day did occur in his office all the time. He also gave evidence that if he was asked by anyone about the barbeque, he confirmed that it was on.

As for Tim Solly not being called, both Counsel urged that an adverse inference be drawn about his non-attendance at Court. That was in accordance with the rule in Jones v Dunkel.[13]
[13](1959) 101 CLR 298.

It was submitted for Mr Mason that such an inference ought to be drawn against McClures who would have been expected to call Mr Solly, a current or recent employee.

Counsel for McClures did not provide an explanation as to Mr Solly’s availability nor was any prior statement made available for tender.

Mr Mason’s explanation for not calling him was that they had fallen out and lost touch over an unrelated issue to do with the timing of Mr Mason’s discharge from hospital.

I agree with Counsel for Mr Mason that the plaintiff was probably entitled to consider that Mr Solly was in the ‘camp’ of the defendant. Also, given there was no explanation given, I infer that Mr Solly was not called as his evidence may not have assisted McClures’ case.

As for Anthony Green, it is true his police statement made no reference to such a discussion happening in Trent McClure’s office. However, as I have already said, it is plain that the focus of those statements was the assault itself and the basis (as these witnesses saw it) for conflict arising between Mr Wilson Hardy and Mr Mason.

However, I draw no adverse inference regarding Anthony Green. I agree with Counsel for McClures that the plaintiff could not, on the one hand, agree to the tender of Anthony Green’s complete statement, then, on the other hand, urge that an adverse inference ought to be drawn regarding what Anthony Green might have said on a specific matter.

Weighing the whole of the evidence, therefore, particularly Mr Mason’s evidence, I find it likely there was such a discussion in Trent McClure’s office a few days before the barbeque in which Mr Mason was persuaded by the others present (mostly likely by his then friend Tim Solly) to stay for the barbeque.

To my mind, however, that finding of itself does not add much regarding the barbeque itself. That is because I have already found there was encouragement or inducement by McClures regarding the barbeque.

I also accept, weighing the whole of the evidence, that it was likely the discussion also extended to some staff going on to the local pubs after the barbeque. It is likely it was discussed given that was something that occurred in previous years (an admitted fact).

Importantly, however, weighing the whole of the evidence and considering my reservations as to the reliability of aspects of Mr Mason’s evidence, I am not persuaded that the discussion amounted to an invitation to Mr Mason to go to the pub from Trent McClure.

Instead, I make the factual finding that it is more likely that any reference in the discussion about going to the pub or any urging to go to the pub afterwards came either from Mr Solly as the co-worker with whom Mr Mason was friends or was simply part of the general discussion of the group.

In support of that, at one point in examination in chief, when asked why he went to the Cumberland, Mr Mason said: ‘everyone was going - people at the barbeque and Tim Solly’. Then at the Cumberland, he sat at a table with Tim Solly, Mr Wilson Hardy and Anthony Green.

Additionally, my finding is supported by and consistent with Trent McClure’s account (which I accept) that he himself, as a manager, only went along to the pubs because he was invited or included by staff with whom he himself was friends. Trent McClure’s unchallenged evidence was that he went to the Cumberland with Matt Jewell whom he described as a friend and was driven there by Matt Jewell’s partner. He also said at another point that he went to the pub because he was invited by people at the barbeque.

Accordingly, even having found there was such a discussion in the presence of Trent McClure, I find that the discussion could not properly be characterised as encouragement or inducement by McClures to Mr Mason to go to the pubs after the barbeque.

I conclude that, to re-cap, firstly, because I consider any urging was more likely to have come from Mr Solly or to have been a matter of general conversation in the group; and, secondly, because Trent McClure himself was invited to go the pub by staff with whom he had a friendship (rather than him taking the lead in inviting or encouraging others).

Of course, the discussion in Trent Mason’s office was not the only matter relied upon by Mr Mason’s Counsel as being encouragement or inducement.

I now turn to one of the key contentions relied upon by Counsel for Mr Mason. Counsel submitted that the assault occurred in the course of or arising out of employment in the sense that it was a continuation, albeit in another place, of an activity, encouraged and induced by McClures.

In his closing address, Counsel put it this way: that, in simple terms, a work break-up that moves to different venues is still a work break-up.

Of course, that argument does have a compelling simplicity.

However, it seems to me the submission for the plaintiff that the ‘activity’ of socialising and drinking (surrounding the assault) was the salient feature rather than ‘place’ really does not grapple with the requisite feature of the Hatzimanolis principle.

As I observed earlier, Mr Mason had the legal and evidentiary burden to establish ‘a factual association or connection’[14] between the activity in the evening after the barbeque and the encouragement or inducement of the employer.
[14]PVYW (2013) 250 CLR 246 [50].

In particular, having found that employees were encouraged or induced to attend the barbeque, Mr Mason needed to establish, on the balance of probabilities, that McClures’ encouragement or inducement extended to a continuation of the activity into the evening.

I now turn to my factual findings regarding the activity after the barbeque.

First, I find on Mr Mason’s own evidence that staff who chose to attend the barbeque were free to depart at any time during the afternoon and go home.

Second, I find that the barbeque had concluded by about 5:30 pm according to Mr Mason, Trent McClure and others.

Third, I find, unlike the barbeque at which food and beverages were supplied, on the unchallenged evidence of Ms McClure and Trent McClure, McClures made no bookings for tables or dinner bookings nor made any arrangements with either hotel for staff to attend. There were no funds provided by McClures for food or beverages and no money ‘put on the bar’ at either pub.

Fourth, whilst the evidence was that the hotels were a short walk away from the yard, I find there was no evidence of arrangements made by McClures for staff to travel or be conveyed to the Cumberland or the Criterion. Ms McClure drove one person home and not to any other venue. Some staff such as Mr Lewis and Mr Koch arranged for their partners to pick them up from the yard. Some staff drove and some walked.

Fifth, I find that there were loose social arrangements made by and between the staff to meet up at one or other of the local pubs after the barbeque concluded. That these arrangements were quite ad hoc is apparent from the following factual matters:

· Mr Mason’s own evidence of going to the Cumberland simply because others were going. As he said, ‘everyone was going - people at the barbeque and Tim Solly’.

· Daniel Lewis went home first after the barbeque and changed before going straight to the Criterion, but not to the Cumberland pub.

· Daniel Green went to the Cumberland and stayed there to play the pokies, but did not go onto the Criterion.

· Leanne Campbell went to the Criterion independently, not having been at the barbeque or the Cumberland.

· Small groups of people left the Cumberland at different points (for example Matt Jewell and others) and went to Criterion whereas others did so a bit later (Mr Mason and others).

Sixth, at both hotels, whilst there was evidence of groups of staff sitting together at both hotels (as both Leanne Campbell and Daniel Lewis stated), I find there was no evidence of anything more than rather nebulous socialising of people in local pubs. Some were McClures employees and some were not (Dylan Stevens and Trent McClure’s friend ‘Jess’ to whom Ms Campbell was introduced). Some had meals and some did not. There was no collective group arrangements such as ordering meals together. For example, at the Cumberland, some went off and played the pokies. At the Criterion, some were out in the beer garden such as Matt Jewell.

Seventh, I find there was no evidence that Trent McClure was present at either hotel in a management or supervisory capacity nor acted with any kind of authority at either hotel. That finding is supported by the lack of evidence of any prior arrangements by the employer and the absence of any evidence of a host-type role taken on by him during the evening regarding purchasing meals or drinks. (That is in contrast, for example, to the supervising manager on the coach in the case of Berryman). That finding is also supported by the accounts of Kelly and Tim McClure and by my previous finding that Trent McClure was himself invited to the pubs by employees based on friendship.

Based on all these matters, I conclude that some McClures staff, including Mr Mason, simply opted to meet up at one or other pub after the barbeque ended.

Also, based on these matters, I make the factual finding that staff, including Mr Mason did so in order to enjoy each other’s company and in the absence of express or implied encouragement by McClures nor by any implied inducement to do so such as by provision of funds for drinks or meals.

As for the assault itself, neither side called Mr Wilson Hardy, Dylan Stevens or Mitchell Stevens nor were statements tendered from any of these individuals. Whilst of course unnecessary to make findings about why Mr Mason was assaulted, for completeness, I make the following additional factual findings:

a. I find, on the evidence, that some three hours after the barbeque ended, at 8:00 pm, Mr Wilson Hardy assaulted Dylan Stevens violently and unexpectedly (on the accounts of Mr Mason and of Leanne Campbell).

b. I find that Mr Wilson Hardy and Dylan Stevens (not a McClures employee) had no connection with each other prior to that evening. Indeed, they were introduced to one another by Mr Mason because of a shared hobby interest of boxing.

c. I find, on Mr Mason’s own evidence as well as the evidence of Leanne Campbell and Daniel Lewis, that the assault of Dylan Stevens led to a flare up of aggression from Mitchell Stevens and others. Mr Mason gave evidence that it was this circumstance that led him to follow Mr Wilson Hardy outside into the street where he was assaulted himself.

Finally, and again for completeness, I return briefly to Mr Mason’s Counsel’s submission regarding the provision of freely available alcohol, the boisterous atmosphere and incidents of horseplay at the barbeque. He pointed to the evidence of one employee ‘over the toilet spewing’ after punching Mr Mason and Mr Mason himself tackling somebody.

It may indeed be observed that aspects of the barbeque would fall short when measured against twenty-first century workplace norms.

However, that does not lead to a conclusion that the employer encouraged staff, including Mr Mason, to continue socialising and drinking alcohol after the barbeque had ended and for hours into the evening.

Such a conclusion would, in my opinion, be contrary to the weight of evidence (as I have found). It would also ignore the absence of the ‘necessary correspondence’ between activity after the barbeque and encouragement (as I have also found) which is required as a matter of law.[15]

Conclusion

[15]Ibid [47].

For these reasons, I find that the plaintiff has failed to discharge the legal and evidentiary burden of proof that he was injured in the course of or arising out of employment.

Accordingly, I would dismiss the proceeding subject to hearing further from Counsel regarding final orders.

MAGISTRATE HOARE

29 March 2023

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Citations

Mason v McClure Excavations [2023] VMC 5

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Hatzimanolis v ANI Corporation Ltd [1992] HCA 21

Luxton v Vines [1952] HCA 19

Comcare v PVYW [2013] HCA 41