McDonald v Torrens
[2016] VCC 983
•15 August 2016
| IN THE COUNTY COURT OF VICTORIA AT WODONGA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-04782
| ROBYNE MAY McDONALD | Plaintiff |
| v | |
| DIANA TORRENS | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 23 June 2016 | |
DATE OF JUDGMENT: | 15 August 2016 | |
CASE MAY BE CITED AS: | McDonald v Torrens | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 983 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – ss82, 83 and 134AB – plaintiff injured when allegedly assaulted at place of employment – alleged assault not related to employment, but occurring at place of employment – plaintiff commences proceedings against person who assaulted her – whether injuries sustained arose out of or in the course of employment – whether serious injury certificate was required before proceedings commenced – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Dealehr | Graeme J Bailey |
| For the Defendant | Mr B Hutchinson | Gibney & Gunson |
HIS HONOUR:
General background
1 My Ruling in this matter has been held back in order to accommodate one of the counsel involved in it, who is very familiar with it, and who has been absent from the jurisdiction. Although it was completed considerably earlier, this request seemed to me to be a perfectly reasonable one and was by agreement.
2 This matter comes before me by way of an application for Summary Judgment, such application being made by the defendant. She seeks such Judgment against the plaintiff and seeks a Costs Order.
3 Any reference to findings of fact is made solely for the purposes of the present application and is not meant to be in any way conclusive as far as the overall merits of the claim are concerned. No oral evidence was given before me.
4 Mr D Dealehr of counsel appeared on behalf of the plaintiff, Ms Robyne McDonald (hereinafter referred to as “McDonald”). Mr B Hutchinson of counsel appeared on behalf of the defendant, Ms Diana Torrens (hereinafter referred to as “Torrens”) and whose application this was. As stated, no oral evidence was called. Each counsel made detailed, helpful submissions and various documents were put before me.
Factual background
5 The relevant incident occurred on 16 January 2014. On that day, the plaintiff was employed at the Walwa General Store, which is located in Walwa, a small town approximately 120 kilometres north-east of Wodonga. It shall hereinafter be referred to as “the store”. At the store, various goods and items can be purchased, but also hot drinks, cakes and refreshments are served. There are outdoor and indoor tables. McDonald’s normal employment duties consisted of serving customers, making and serving tea and coffee and occasionally helping with food preparation.
6 On 16 January 2014, the plaintiff was in the kitchen and food preparation area of the store. She left that area in order to get some meat from a refrigerator located in the public area of the store next to the indoor tables. She noticed that Torrens had entered the store. However, there was no conversation or contact between them. McDonald continued with her work duties. She took meat from the refrigerator, turned to go back to the kitchen and was assaulted by Torrens. As a result, she fell to the ground and sustained injuries, these including fractures of the left hand. Torrens then departed.
7 By way of background, McDonald was in a relationship with a gentleman who had previously been in a relationship with Torrens. There is no argument to the effect that the assault had anything to do with McDonald’s employment. For the purposes of the application before me, there was no suggestion but that the assault was unexpected or that physical contact between the two had been in any way initiated by McDonald. It was also not suggested that, at least on 16 January 2014, McDonald had done anything to provoke Torrens or to incite an attack by her. It was not argued that McDonald was doing anything other than going about her work duties as described above. There is no contention that, prior to the assault at the store on that day, Torrens had, for example, ordered anything from the store or was being served by McDonald.
8 McDonald claims that she did not believe that the assault and the injuries received were work-related, but was asked by her employer to make a claim for compensation under the Accident Compensation Act 1985 (hereinafter referred to as “the Act”). She did this, and the claim was accepted. She received a modest amount of weekly payments of compensation and payment of medical expenses pursuant to the provisions of the Act. I was told from the Bar table that she has asked her solicitor to make investigations as to the repayment of benefits.
9 On 8 October 2015, McDonald issued a Writ out of the Wodonga Registry of this Court. In it she seeks damages from Torrens in respect of injuries received in the assault. Torrens filed a Defence and, pursuant to an Order of 22 April 2016, an Amended Defence. In that Amended Defence, Torrens alleges that McDonald was a worker within the meaning of the Act and that the assault occurred in the course of her employment. Therefore, her entitlement to commence proceedings is governed by the operation of the Act. She has not complied with this, as she does not have a serious injury, has not been granted a serious injury certificate pursuant to s134AB(16)(a) or been granted leave to bring proceedings pursuant to s134AB(16)(b) of the Act. Therefore, it is asserted, she is not entitled to maintain her claim.
10 McDonald denies that the assault arose out of or in the course of her employment and that she is subject to the requirements and operation of the Act. That is essentially the ambit of the present dispute.
11 I turn now to a summary of the submissions made on behalf of the parties and I shall deal with them in the order in which they were presented.
The submissions on behalf of Torrens
12 The submissions of Mr Hutchinson on behalf of Torrens could be summarised as follows.
13 Torrens has served upon McDonald a Notice to Admit Facts dated 28 April 2016. That Notice asserts that the assault and injuries alleged occurred in the course of McDonald’s employment; that she made a claim for workers compensation with respect to it; that she received payments of compensation with respect to the assault and injuries; and that, prior to filing her Writ, she had not established that she had a serious injury within the meaning of the Act. No Notice disputing those facts has been served.
14 It is common ground that McDonald was at her place of work at the time of the assault and was performing employment duties.
15 McDonald was clearly a worker within the meaning of the Act and received compensation to which she was entitled in respect of the injuries. It is not suggested that McDonald was on a frolic of her own when the assault occurred. It is of no consequence that McDonald has asked her solicitor to investigate repayment of benefits received.
16 Section 82(1) of the Act provides as follows:
“If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.”
17 This test is not conjunctive. It is not necessary to show that the injury arose out of and in the course of employment for it to be compensable and come within the application of the Act. If that test is satisfied, the Act applies – see s4(1)(a). it is submitted that, in the present case, the injury arose in the course of employment and therefore the Act applies.
18 Reference is made to the decision of the Court of Appeal in Martin v Bailey [2009] VSCA 263. In that case, which also involved an assault at a place of employment, the majority stated the following at paragraph 22:
“If the altercation had its origin in a private quarrel or a personal grievance, then the injury is unlikely to be compensable unless the worker was carrying out the duties of his/her employment when injured, and was not the aggressor.”
19 Robson AJA dissented, but there are useful and relevant passages in his Judgment which are applicable to the present case.
20 In the present case, there is no circumstance which would suggest that McDonald had taken herself outside the scope of her employment.
21 Torrens is entitled to summary judgment in her favour, because McDonald has no real prospect of success. Reference is made to ss16-27 of the Civil Procedure Act 2010. In addition, reference is made to the decision of the Supreme Court of Victoria in Spaleta v ANH Nominees Pty Ltd [2016] VSC 104.
22 Torrens is entitled to summary judgement in her favour against McDonald.
The submissions on behalf of McDonald
23 The submissions of Mr Dealehr on behalf of McDonald could be summarised as follows.
24 Referring to paragraph 22 of the decision in Martin v Bailey, the altercation in the present case had its origins in a personal or private matter and not in an employment-related matter. This was clearly a personal dispute. It is not something that the employer could have contemplated.
25 What occurred was an attack of opportunity which simply happened to occur at McDonald’s place of employment. Matters of employment had no connection with Torrens and her aggression. Her attack was not related to work. It would be an injustice to either McDonald or her employer to find that this personal attack was something that arose in the course of employment. A burden should not be placed on the employer and McDonald should not be deprived of her rights. It would be against public policy. Causation should be examined and the cause of the assault is in no way work-related.
26 Reference is made to Martin v Bailey. A common sense approach should be adopted. The place of employment was simply a location of convenience for Torrens in relation to her attack upon McDonald. Questions relating to causation are to be determined as a matter of common sense – see Zlateska v Consolidated Cleaning Services Pty Ltd & NRMA Workers Compensation (Vic) Ltd [2006] VSCA 141. What should be looked at are such things as the time, place and circumstances of what occurred. In the present case, what occurred could not have been within the contemplation of the employer and was not anything that was part of or incidental to the employment. The Act is not designed to cover this type of behaviour.
27 Reference is also made to the decision of the High Court of Australia in Bill Williams Pty Ltd v Williams [1972] HCA 23. That case also concerned injury received as part of a private dispute. Admittedly, in that case, the injured party had been pursued from his place of employment to the street, where the injury was inflicted.
28 In the present case, there is no suggestion that McDonald was serving Torrens, selling her anything or the like. The place of employment just happened to be the location at which this assault for private reasons occurred. As was said in Martin v Bailey by Robson AJA, to establish that the injury arose in the course of the injured worker’s employment, it is not sufficient to merely establish that the injury occurred to the worker whilst at work.
29 In the present case, the assault was not incidental to employment. Reference is made to what was said by Dixon CJ in Kavanagh v The Commonwealth [1960] HCA 25, which involved comparable legislation. The accident must not be one which occurred independently of the employment and its incidents. What occurred may have occurred in any event elsewhere and was in no way related to the employment. The assault was not associated with the course of employment. It is not as if what occurred related to McDonald serving a customer or the like.
30 McDonald cannot obtain an award of damages pursuant to the Wrongs Act 1958, as what was done was intentional – see s28C(2)(a) of the Wrongs Act.
31 The assault is so far removed from the course of employment that it should be found that the Act does not apply. Common sense and public policy considerations would support this proposition.
The reply on behalf of Torrens
32 The reply by Mr Hutchinson on behalf of Torrens could be summarised as follows.
33 If the argument on behalf of McDonald is correct, there would be many people who would not be covered by the Act, but who should be. In the present case, there was a temporal link. McDonald was performing her work. A person does not have to step outside of their employment in order to lose the protection of the Act. The Act has no such exclusion in relation to deliberate acts as that to be found in the Wrongs Act. In Martin v Bailey, the majority found that the victim of the assault continued to remain in the course of employment, although having provoked the assailant by a remark that was made.
Ruling
34 I am of the opinion that the assault occurred in the course of McDonald’s employment and that, therefore, the provisions of the Act apply. If that be so, this proceeding has been issued without McDonald having taken the appropriate steps pursuant to s134AB of the Act. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(i) I would refer to what was said by Redlich JA in Martin v Bailey. Having referred to a line of authority, his Honour stated as follows:
“…where a worker suffers injury arising out of or in the course of their employment after 1 December 1992, the worker cannot maintain proceedings against a non-employer defendant to recover damages for such injuries without satisfying the pre-requisites of s 135A of the Act and that is so even if the non-employer defendant is the only defendant. That is to say a defendant who is not in any way connected to the worker’s employment is entitled to insist upon the worker’s compliance with the Act as a prerequisite to the commencement of common law proceedings.”
Thus, it is clear that the fact that Torrens is a defendant who is not the employer of the plaintiff, McDonald, does not in any way preclude McDonald from bringing an action against her pursuant to the Act. For the Act to operate, it is not necessary that the defendant also be the employer. Recovery extends beyond that.
(ii) Section 82(1) provides that, if there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act. If there were any doubt, s4(1)(a) makes it clear that the Act applies to and in relation to an injury to a worker on or after the appointed day arising out of or in the course of employment on or after the appointed day. Thus, if the injury arose out of or in the course of employment, an injured worker is entitled to compensation in accordance with the Act and the Act applies. As previously mentioned, this is so whether or not a proposed defendant is also the employer.
Thus, the issue is whether the injury arose out of or in the course of employment. In the present case, and bearing in mind the submissions which were presented, it seems to me that the central argument is whether the injury arose in the course of the employment, as opposed to arising out of it.
(iii) Section 83 deals further with the phrase “Out of or in the course of employment”. For example, s83(1)(a) reads as follows:
“(1)An injury to a worker is deemed to arise out of or in the course of employment for the purposes of section 82(1) and 82(2) if the injury occurs—
(a)while the worker on any working day that the worker attended at the place of employment having been present at the place of employment is temporarily absent on that day during any authorised recess and does not during that absence voluntarily subject himself or herself to any abnormal risk of injury;”
Other sub-paragraphs deal with such matters as a worker travelling for the purposes of employment, attending schools or training establishments or attending for the purposes of medical treatment, obtaining certificates and the like. Whilst it is not spelled out specifically, the inference to be drawn from provisions such as s83(1)(a) is that a worker on any working day attending and working at the place of employment, and remaining there and continuing so to work, is in the course of employment. This is further underlined by s83(2)(d) which essentially provides that, if a worker is injured when acting in contravention of an applicable regulation or without instructions from the employer, the injury is deemed to arise out of or in the course of employment if the act was done by the worker for the purposes of and in connection with the employer’s trade or business.
In other words, there seems to me to be a strong inference that, in the normal course of events, if a worker is injured whilst at the place of employment, such injury arose out or (more likely) in the course of employment. Of course, there can still be situations where a worker can remove himself or herself from the protection afforded to those injured whilst in the course of employment.
(iv) One such example of this would be if, for example, a worker was injured in an altercation which had its origins in a private quarrel or personal grievance. The origins of what occurred in the present case would appear to fit within this description. However, in Martin v Bailey, important qualifications were put upon this broad proposition. As was pointed out by Mr Hutchinson and referred to above, paragraph 22(2) of the Judgment of Maxwell P reads as follows:
“If the altercation had its origin in a private quarrel or a personal grievance, then the injury is unlikely to be compensable unless the worker was carrying out the duties of his/her employment when injured, and was not the aggressor.” (My underlining)
In the present case, it is common ground that McDonald was carrying out the duties of her employment when injured. There is also little dispute but that she was not the aggressor.
At paragraph 144 of Martin v Bailey, Robson AJA, whilst dissenting, set out certain relevant principles which would not appear to be controversial. Three of these are as follows:
“(d)To establish that the injury arose in the course of the injured worker’s employment, it is not sufficient to merely establish that the injury occurs to the worker while he is at work. It is necessary that the worker is doing something in the exercise of his functions although it need not be more than an adjunct to or an incident of his service.
…
(f)A worker who initiates a fight for personal reasons not associated with his duties and is thereby injured, may be considered not to be injured in the course of his employment.
(g)A worker who does not initiate a fight but is nevertheless assaulted for personal reasons at the work place will normally be considered to be injured in the course of his employment.”
As authority for principles (f) and (g) above, his Honour referred to the decision of the Compensation Court of New South Wales in Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8.
(v) Bearing in mind the material put before me in the present case, I am quite satisfied that McDonald was neither the aggressor nor the person who initiated the “fight”, but was nevertheless assaulted for personal reasons at the workplace. In accordance with what has been set out above, she is entitled to and attracts the coverage afforded by the Act, which applies to the circumstances in which she was injured.
(vi) The conclusion at which I have arrived seems to me to be in accordance with long-established workers’ compensation law relating to the phrase “arising in the course of employment”.
In Weston v Great Boulder Goldmines Ltd (1964) 112 CLR 30, the High Court of Australia was dealing with a situation where a mine worker operating a train on the mine floor stepped from the locomotive to adjust the points of the railway line and to have a drink. He was struck with a cudgel whilst so doing. It was said by Menzies J at page 35:
“If the appellant’s injury was by accident, then Kavanagh v The Commonwealth (1960) 103 CLR 547 compels the conclusion that as it happened while he was working, it was injury by accident arising in the course of his employment.”
There are marked parallels between what occurred in Weston and the present situation. The fact that the relevant Act at the time used the words “injury by accident” is of no relevance. What was said in Weston is applicable to the present case.
What was said by Menzies J in Weston was referred to by him in Bill Williams. In that case, an aggrieved husband entered the worker’s place of employment. An argument took place. The assailant departed, but returned subsequently with a gun. Further angry words were exchanged with the assailant threatening the worker with a rifle. The worker left the workplace, running from the premises into the street, where he was subsequently shot in the back by the angry assailant. The High Court of Australia effectively found that the course of employment could be interrupted by a discussion or argument concerning a private matter. However, it was pointed out that this was not what had occurred in Weston. As was said by Menzies J, it was common ground that the worker was not injured whilst he was working. Further, in BillWilliams, Walsh J stated the following:
“In judgments of this Court it has been laid down that an injury, which occurs to an employee whilst he is performing the duties of his employment or is doing something which is incidental to the performance of his duties, constitutes an injury ‘arising in the course of his employment’, although there is no causal relation between the injury and the employment or its incidents.”
The observations of his Honour appear to be directly applicable to the present case.
The Judgment of Stephen J in BillWilliams contains the following:
“Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work: Kavanagh v The Commonwealth per Fullagar J. (1960) 103 CLR at p559. It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, ‘there is nothing more in the concept than time measured by activity of a particular character’: Kavanagh v The Commonwealth per Menzies J (1960) 103 CLR at p570. It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker: so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of employment. (at p159)”
Again, emphasis is placed upon the activity in which the injured worker is engaged at the time of suffering the injury.
(vii) The conclusion at which I have arrived would also seem to be consistent with common sense and in accordance with the general way in which the Act operates. McDonald was carrying out her employer’s duties. She said nothing and did nothing to Torrens. She was not serving her as a customer and there was nothing put before me to suggest that Torrens was present for any reason other than her private grievance against McDonald. McDonald was injured in an unexpected attack, without warning, by Torrens whilst she, McDonald, was engaged in her employment duties. That seems to me to be the bottom line. Various examples can be drawn to illustrate why it would seem to make sense that the provisions of the Act operate in this way.
Suppose for the moment that a worker, going about the performance of his or her duties at the place of employment, is suddenly and unexpectedly attacked by a person who has made an identification error. If injuries are sustained, surely the victim would be entitled to the coverage of the Act. Alternatively, let us suppose that the attacker was a person with some form of mental health problem, who suddenly, and completely at random, attacked a worker going about his or her duties in the workplace. Yet again, let us assume that a dog had wandered into the store and bitten McDonald whilst she was going about the performance of her duties and she had in no way provoked it. Surely, in these instances the injury has occurred in the course of employment.
It seems to me that the wording of the Act, the decisions to which I have been referred and the operation of common sense all point to the conclusion that, if a worker such as McDonald is going about his or her employment duties at the place of employment and who, whilst not being the aggressor and initiating nothing, is suddenly and unexpectedly injured as the result of an assault, that person falls within the operation of the Act. Such person has suffered injury arising out of or in the course of employment and is entitled to compensation in accordance with the Act.
(viii) For McDonald, the unfortunate result is that the wording of the Act, to which I have referred above, operates and that, in order to initiate proceedings for damages, the requirements of s134AB must be satisfied. Serious injury must be established. Procedural compliance is required with the various provisions contained in s134AB. A person such as McDonald may not bring proceedings for the recovery of damages in respect of the injury unless the degree of her impairment as a result of the injury is 30 per centum or more – see s134AB(15) – or unless the alternatives set out in s134AB(16) are met. These include the granting of leave by this Court. There is no suggestion that the “serious injury” statutory requirements have been met in the present case. Therefore, McDonald was not entitled to commence proceedings for damages in respect of the relevant injuries. That continues to be the situation.
Conclusion
35 Torrens is successful. It seems to me that this proceeding has been wrongfully issued and that Torrens is entitled to summary judgment in her favour.
36 I shall hear the parties as to any ancillary orders that are required.
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