O'Loughlin and Linfox Australia Pty Ltd (Compensation)
[2016] AATA 606
•15 August 2016
O'Loughlin and Linfox Australia Pty Ltd (Compensation) [2016] AATA 606 (15 August 2016)
Division
GENERAL DIVISION
File Number
2014/0846
Re
Kym O'Loughlin
APPLICANT
And
Linfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 15 August 2016 Place Melbourne The Tribunal affirms the decision under review.
.................................[sgd].......................................
Egon Fice, Senior Member
WORKERS’ COMPENSATION – injury resulting from violence – whether injury arose in the course of employment – whether injury arose out of or in the course of employment – whether injury occurred in interval period – where injury arose in the course of employment – where injury resulted from voluntary exposure to an abnormal risk of injury – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 6, 14, 62(1)
Workers’ Compensation Act 1926-1951 (NSW) s 7(1)(e)
Cases
Comcare v PVYW (2013) 250 CLR 246
Commonwealth v Oliver (1962) 107 CLR 353
Deatons Pty Ltd v Flew (1949) 79 CLR 370
Fenton v J Thorley & Co. Ltd [1903] AC 443
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
John Stewart & Sons 1912 Ltd v Longhurst [1917] AC 249
Kavanagh v Commonwealth (1960) 103 CLR 547
O’Loughlin v Linfox Australia Pty Ltd (2015) 235 FCR 164
Re O’Loughlin and Linfox Australia Pty Ltd [2014] AATA 557
St. Helens Colliery Co Ltd v Hewitson [1924] AC 59
Taylor v Stapley (1954) 90 CLR 1
Trim Joint District School Board of Management v Kelly [1914] AC 667
Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30
Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22
REASONS FOR DECISION
Egon Fice, Senior Member
15 August 2016
Mr Kym O’Loughlin was employed by Linfox Australia Pty Ltd (Linfox) as a tanker driver. On 7 September 2010 he delivered a tanker load of fuel to the Mobil service station at Pascoe Vale. By 11 a.m. he had finished discharging fuel into the storage tanks but his hoses remained connected as they were draining. At that time, a female in a car drove into the service station, stopping at the bowsers and sounding her horn. A mechanic (Mr Demertzis) from the workshop came outside. When about level with the bowsers, Mr Demertzis threw two heavy objects at the car and started to beat his fists on the car window and windscreen. Concerned for the woman in the car, Mr O’Loughlin shouted at Mr Demertzis and told him to calm down.
Mr Demertzis stopped what he was doing and turned back towards the workshop. However, a verbal exchange followed between Mr O’Loughlin and Mr Demertzis after which Mr Demertzis apparently punched Mr O’Loughlin, hitting him on the left cheek. A fight ensued during which Mr Demertzis, on losing his balance, fell over backwards and Mr O’Loughlin stood over him. Mr Demertzis lashed out at Mr O’Loughlin with his feet, kicking him two or three times. One of those kicks hit Mr O’Loughlin’s left knee which buckled backwards.
On 8 September 2010 Mr O’Loughlin submitted a claim for compensation in respect of the injury he suffered to his face and left knee as result of the altercation with Mr Demertzis. In a determination dated 22 September 2010 Linfox accepted liability to pay Mr O’Loughlin compensation pursuant to s. 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act). Mr O’Loughlin had a number of medical treatments, including surgical intervention in respect of his left knee condition. These included two total left knee replacements after Mr O’Loughlin experienced complications with the first replacement surgery.
Section 62(1) of the SRC Act provides that a determining authority may, on its own motion, reconsider a determination made by it. Following the High Court of Australia (French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ) decision in Comcare v PVYW (2013) 250 CLR 246, Linfox sent to Mr O’Loughlin a Fair Opportunity letter dated 14 November 2013 seeking his response to its proposal to revoke liability.
After considering Mr O’Loughlin’s response, Linfox advised Mr O’Loughlin on 7 January 2014 that it had determined to revoke its determination of 22 September 2010 accepting liability. In substitution, Linfox decided to deny liability in respect of his claim for soft tissue injury to his face and injury to the left knee.
Mr O’Loughlin lodged an application with this Tribunal on 17 February 2014 seeking review of the 7 January 2014 decision. On 20 August 2014 the Tribunal (SM GD Friedman) affirmed the decision under review (Re O’Loughlin and Linfox Australia Pty Ltd [2014] AATA 557). Mr O’Loughlin then lodged an appeal with the Federal Court of Australia.
On 10 September 2015 the Federal Court (Bromberg J) set aside the Tribunal decision of 20 August 2014 (O’Loughlin v Linfox Australia Pty Ltd (2015) 235 FCR 164). On 25 September 2015 Bromberg J made this further order:
The case be remitted to be heard and decided without limitation, according to law.
In light of that order, I made directions on 12 February 2016 regarding the lodgement and service of further documents by both parties. I have taken into account the further documents lodged by both parties as result of that direction. Mr O’Loughlin also gave oral evidence on the re-hearing of this matter.
The only issue before me is whether Mr O’Loughlin’s injuries arose out of or were sustained in the course of his employment. This involves considering the secondary question of whether they occurred during an interval in his employment.
Prior to examining the common law principles dealing with what may be described as the course of employment or an interval in employment, it will be necessary to examine, in careful detail, the facts and circumstances in which Mr O’Loughlin sustained his injuries.
THE ALTERCATION
I have taken the following account of the event which led up to the injury suffered by Mr O’Loughlin from his statement given to the police on 7 September 2010, supplemented by his signed statement dated 28 April 2014.
On the day in question I had commenced work at 4.00 am and had already performed a delivery to Mount Evelyn. I had been back to the Yarraville terminal to reload and then departed for the Mobil at Pascoe Vale. I arrived there at about 10.10 am.
… I parked my truck close to the openings for the storage tanks to the side of the station parallel to Reynolds Drive. My first task was to set up safety cones or “witches hats” in the area around the tanker and the openings to the tanks to establish a perimeter around the loading operations.
…
I attach the hose from the tanker to the storage tank opening and commenced discharging fuel.
By about 11.00 am I had finished discharging fuel but the hoses were still draining into the storage tank opening. There were still petrol fumes being given off.
…
At about 11.00 am I was standing towards the rear of my truck when I saw a car drive in with a lady driving. It was an old car but I don’t recall the colour or type. The lady was tooting the horn and had parked near the Bell Street entrance.
I saw a male run out of the workshop towards the car, he was yelling abuse and I saw him throw 2 objects at the car. I think one object hit the windscreen of the car. The male then continued to run towards the car and hit the windscreen with his fist and then punched the drivers window. The male was still yelling abuse at the lady.
I yelled out “Hey you, cut it out”. The male started to walk back towards the workshop and told me “Shut the fuck up and mind your own business. I have the law on my side”. I said to him something similar to “But you can’t do that mate, just settle down”.
The male started to walk towards me and was saying “Just keep out of it, mind your own business”. The man stopped and turned back towards the workshop. I said to him “Don’t speak to me like I am a piece of shit”. The male turned back to me and said “You are a piece of shit”. The male started to walk towards me, I was pointing my finger at him and said “Don’t talk to me like that”. The male turned away from me and headed towards the workshop. The abuse was still continuing. The male got about 5 meters away and then again turned around and came back towards me. I was still pointing my finger at the male. He walked up to about 1 meter from me and he threw a punch at me. The punch hit me on the left cheek. I grabbed the man to stop him hitting me, the man then hit me with another two punches, one on the right cheek and the other on the right side of my mouth. The man tried to throw another punch but lost his balance and fell over backwards.
I stood over the male and pretended to throw a punch, I shaped up over the top of him. The man lashed out with his feet and kicked me 2 or 3 times. Only one of the kicks hit me, his kick got me on the left knee, my knee buckled backwards from the kick.
I walked away from the male towards my truck and he went back to his workshop.
... I went into the service station to tell the console operator to call the police but that call had already been made.
I went back to my truck to pack up the hoses and fill in the discharge paperwork. I was standing in the gap between the prime mover and the tanker when the mechanic came back out with a mate of his who accused me of lunging at the mechanic and causing him to throw a punch. I figured that they were trying to get a story together to tell the Police. I told the mechanic’s mate that I didn’t lunge at him and didn’t even hit him. They went off again.
In his statement of 28 April 2014 Mr O’Loughlin added explanations for taking the course of action which he did. He said the following:
The risk of fire or explosion is present at all times around tankers but most particularly around service stations when members of the public, and even service station employees, can be careless with sources of sparks. These dangers are most commonly associated with lit cigarettes but can also happen with using mobile phones, which, if dropped, can damage batteries and cause a spark. Any heavy object striking any other object can cause a spark which is potentially dangerous.
…
I was shocked and alarmed at what I saw. Like all other tanker drivers, I well remembered the case of the woman who had been stabbed at a petrol station in Bayswater and then set alight and burnt to death when the attacker doused her in petrol and set her alight. That fire was only dealt with by a passing trucker coming in to use his extinguisher to douse the flames.
I had no idea what the mechanic was going to do but I was concerned for the woman in the car and what he might further do to escalate his attack. The objects that he had been throwing might have sparked, causing a fire around the tanker where I was standing.
I also had in evidence a statement made by Mr Lucas James Cecchinelli, a legal assistant with solicitors for the applicant. Attached to that statement were a number of photographs and diagrams which show the location of the tanker and the other structures comprising Mobil service station. The distance between where Mr O’Loughlin was standing, referred to as the fill point, and where the altercation between the woman in the car and Mr Demertzis took place was about 30 metres. According to Mr Cecchinelli, the time taken to walk the distance according to the description of events given by Mr O’Loughlin was 38 seconds. I did not understand that timing to be the time in which the entire altercation took place.
The photographs also disclose that the area where the tanker was parked at the fill point is in an open-air environment, there being no roof above that area.
INJURY ARISING OUT OF OR IN THE COURSE OF EMPLOYMENT
The definition of the word injury as described in s. 5A of the SRC Act, relevantly, is as follows:
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or…
It should be clear that an injury arising out of an employee’s employment may be different to an injury arising in the course of that employment. Also, the statutory expression is clearly disjunctive. Long ago, when statutory workers compensation provisions were derived from British statutes, the legislation referred to arising out of and in the course of an employee’s employment. As Dixon J said in Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 when referring to the changed legislation, the reframed statute was in the alternative and not cumulative as the British statutes were.
Dixon CJ made clear the distinction between the expression arising out of an employee’s employment and in the course of the employee’s employment in Kavanagh v Commonwealth (1960) 103 CLR 547, where his Honour explained, at 556:
Whatever language was chosen to institute the contrast the first expression was treated as requiring a causal connexion between the employment or its incidents and the second as requiring that the pursuit of the employment should be an accompanying condition. I have seen nothing to suggest that within the expression “in the course of the employment” there had been discovered any element of causal relation with the employment and its incidents.
His Honour went on to explain that no direct, immediate, decisive, positive or dominant causal connection between the employment and the injury or accident was proposed as a necessary element to satisfy the concept of an injury by accident arising in the course of employment. He suggested it was best expressed by:
… saying that had it not been for the employment the injury by accident would not or might not have been sustained, or negatively by saying that the injury by accident must not be one which occurred independently of the employment and its incidents. It is not a conception which it is altogether easy to apprehend and it may be doubted whether in practice it could easily be applied.…
But for myself I think that the words “arising in the course of the employment” do not connote or imply even so slender a causal connexion. It is possible that those who substituted “or” for “and” were not alive to the consequences of the change and in particular to the manner in which the alternative “or in the course of the employment” might operate to compensate sufferers from injuries unconnected with industry if and only if the injuries occurred during working hours.
I should also refer to what Fullagar J said in Kavanagh on the distinction between the two expressions. His Honour said, at 558 – 559:
But what does emerge from a consideration of the cases is, I think, the significant fact that the effect of requiring a causal connexion between employment and injury is always attributed to the words “out of” and not the words “in the course of”. (The words “out of” do indeed import causation: the words “in the course of” do not.) The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such a causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the worker was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connection could be found between it and the employment. And it necessarily follows, I think, that the words “arising in the course of his employment” ought not to be regarded as meaning anything more or less than “arising while the worker is engaged in his employment”. For I can find no tenable half-way house between this view and the view that the words in question have the same meaning as the words “arising out of his employment”.
While I was referred to a number of cases as examples of where the Court found an injury had occurred in the course of an employee’s employment and in some cases where the finding was the opposite, it seems to me to be unhelpful to attempt to compare cases which are factually different. In Commonwealth v Oliver (1962) 107 CLR 353, Dixon CJ referred to what Lord Wrenbury said in St. Helens Colliery Co v Hewitson [1924] AC 59, at 91 – 92:
In every case the facts have to be ascertained and discrimination made between the time during which or the place at which the employment is and those during or at which it is not being carried on. ...
Dixon CJ also referred to Lord Buckmaster in John Stewart & Sons (1912) Ltdv Longhurst [1917] AC 249 where his Lordship said, at 258 – 259:
No authority can with certainty do more than decide whether a particular case upon particular facts is or is not within the meaning of the phrase. ...
INTERVAL OR INTERLUDE
I should also briefly mention the concept of an interval or interlude within an overall period or episode of work. This concept is simply a subset of the overarching description in the course of employment. Examples of accidents occurring in the course of an interval within an overall period of work arose in Whittingham and in Oliver.
In Oliver, the applicant was injured when playing cricket during a luncheon break at the premises where he was employed. Whittingham, although not playing cricket, was struck in the eye with a cricket ball while he was out walking on a luncheon break. The High Court found in favour of Oliver but not Whittingham. The facts in each case were different, hence the different conclusions.
There have been many other cases where employees had been awarded compensation for injury which has occurred away from the workplace, outside of or between working hours, and while the employee was engaged in activities performed for private necessity, convenience or employment (see Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473). The most recent case involving this question is the High Court decision in PVYW.
I shall deal first with the question whether Mr O’Loughlin was injured in the course of an interval within his overall period of work. For the reasons set out below, I find he was not.
The High Court (Mason CJ, Deane, Dawson, and McHugh JJ) in Hatzimanolis said this about an interval or interlude in the course of employment, at 484:
Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encourage the employee to spend that interval or interlude at a particular place or in a particular way.
In his statement of evidence, Mr O’Loughlin said that on the day in question he commenced work at 4 a.m. and had already performed one delivery of fuel to a service station in Mt Evelyn. After reloading, Mr O’Loughlin proceeded to the Mobil service station at Pascoe Vale. By about 11 a.m. he had finished discharging fuel although the hose was draining into the storage tank opening. Allowing the hose to drain before securing it to the truck and closing the storage tanks was clearly part of his duties as tanker driver.
Although not stated, it is undisputed that Mr O’Loughlin was required, after discharging fuel into the storage tanks, to ensure that the truck’s systems were properly and safely secured and the safety cones which were placed around the tanker stored. It is likely, although not stated, that upon completion of that delivery Mr O’Loughlin was required to return to the Yarraville terminal to reload and make a further delivery. All of these duties form part and parcel of his ordinary employment activities for that day.
It was while Mr O’Loughlin was in the process of conducting his employment duties that the altercation with Mr Demertzis arose. Mr O’Loughlin had not even completed all of his duties required for the safe delivery of fuel to the Mobil service station. The altercation cannot properly be said to have occurred in an interval or interlude in the Hatzimanolis sense. While it was submitted that the altercation arose after Mr O’Loughlin had finished discharging fuel from the tanker, that is incorrect. The fuel hose remained connected to the storage tanks and fuel was draining from the tanker hose into those tanks.
In my respectful opinion, it is incorrect to subdivide Mr O’Loughlin’s employment duty into discrete tasks and anything in between as an interval rather than consider those tasks simply as a part of his overall employment duty as a tanker driver. Nevertheless, as Linfox submitted, Mr O’Loughlin’s employment duties did not include engaging in fight with a member of the public. However, in my opinion, it cannot be said that the fight with Mr Demertzis did not occur while Mr O’Loughlin was engaged in his tanker driver duties. It occurred within a period or episode of work.
Accordingly, cases dealing with an interval or interlude in the course of an employee’s ordinary employment, such as Hatzimanolis and PVYW, have no bearing on this matter.
ARISING OUT OF EMPLOYMENT
It should be clear from the description I have set out above regarding the altercation and the injury suffered by Mr O’Loughlin that it cannot be said to have arisen out of his employment. The evidence does not disclose a causal connection between his injury and his employment. Although Mr O’Loughlin’s evidence was that he had safety concerns because petrol fumes were being released as a result of him discharging fuel into the storage tanks, with respect to Mr O’Loughlin, this reason for intervening in the dispute with Mr Demertzis has no merit.
In his claim for compensation, Mr O’Loughlin was asked on the claim form to explain what started the chain of events that led to his eventual injury.He simply wrote: Public Disturbance. On the incident notification report prepared on his behalf, the description given regarding the nature of the incident was that he had completed his delivery and noticed a personal altercation between a male and female member of the public. He asked the male to cease, upon which the male assaulted him. In the report prepared by the Injury Management Adviser for Linfox, it is simply stated that someone kicked him in the left knee following a domestic disturbance.
I also had in evidence a statement or letter handwritten to Mr O’Loughlin by Mr Demertzis. He stated: I fully understand you did the right thing in defending her while not knowing the true circumstances. In his report to the police, Mr O’Loughlin makes no mention of any safety concerns giving rise to the actions he took.
In her reasons for the reconsideration decision on behalf of Linfox, the Senior Case Manager obviously considered the circumstances giving rise to Mr O’Loughlin’s injury stating:
… I am of the view that your injuries did not arise out of or in the course of your employment. To this end, as detailed above whilst I am satisfied that you were required to be at the designated location for the purposes of your delivery, I am of the view that it is not a requirement of your employment, nor were you induced or encouraged by Linfox to intervene in private altercations between members of the public.
As such, I consider that your intervention and subsequent participation in a private altercation between members of the public could not be in the course of your employment, but rather constituted an action of your own volition, which was outside the scope of your employment.
Clearly, even by this time, which was some three years after the event, Mr O’Loughlin had not mentioned that he had safety concerns which caused him to intervene in the domestic dispute. The safety concerns issue raised by Mr O’Loughlin only arose following the reasons given for the reconsideration decision. This, on its face, appears to be an attempt by Mr O’Loughlin to link his actions in the altercation with his employment.
My opinion about this issue is fortified by the fact that the photographs depicting the location around where the tanker was parked and discharging fuel show it was in an open space, about 30 metres away from where Mr Demertzis had the altercation with the woman in the car. On observing that distance, it occurred to me that any fumes given off by the discharge of fuel would have well and truly dissipated, thereby not creating a hazard. I then noted that Attachment H, which is dated 17 October 2006, to the affidavit of Mr Peter Nemtsas sworn 2 March 2016 and taken into evidence, said this about the risk of ignition of fumes:
Under the ADG Code Edition 6, Tanker Operators are required to ensure ignition sources are excluded to a distance of 8 meters. ADG 7, due in 12 months, currently proposes a change to that distance. As drafted currently it will reduce that distance to 3 meters in the highest risk areas.
For the reasons I have mentioned above, I find that the injury suffered by Mr O’Loughlin did not arise out of his employment. The altercation did not arise because of Mr O’Loughlin’s concerns with fuel vapour ignition. However, whether it arose in the course of his employment is a more difficult question.
ARISING IN THE COURSE OF EMPLOYMENT
For an injury to have arisen in the course of employment, that injury need not have a causal relationship with the employment task or tasks and its or their incidents. Dixon CJ made that abundantly clear in Kavanagh. Furthermore, Fullagar J in that case said, at 559:
Whether the injury is sustained at the place of employment or elsewhere, it is not sustained “in the course of employment” unless it is sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work.
It is, in my opinion, not possible to conclude otherwise than Mr O’Loughlin’s injury was sustained while he was engaged in the work he was employed to do. In doing that work, particularly delivering bulk fuel to service stations, it is foreseeable he would come into contact with members of the public. Most would be polite and if asked to be cautious about approaching where the tanker was discharging fuel into storage tanks would be compliant but, inevitably, there will be others who may be confrontational. Contact with members of the public while performing these tasks is, in my opinion, an incident of that employment.
The problem, if there is one, is that it was submitted on Mr O’Loughlin’s part that his injury was sustained in the course of him conducting his duties and the assault was not provoked by him. With respect, the evidence points to the fact that had Mr O’Loughlin ceased his intervention when Mr Demertzis walked back towards the workshop after being told to cut it out by Mr O’Loughlin, the matter would have ended there. However, when told to mind his own business by Mr Demertzis, Mr O’Loughlin responded to that comment. It was Mr O’Loughlin’s response which resulted in Mr Demertzis turning around and walking towards him.
After again telling Mr O’Loughlin to keep out of it and mind his own business, Mr Demertzis turned and walked back towards the workshop. By that time, the woman in the car had left the service station. Again, if Mr O’Loughlin had simply left it at that, nothing further would have transpired. However, Mr O’Loughlin reacted and told Mr Demertzis not to speak to him in that way. It was that final comment which caused Mr Demertzis to
lose it and assault Mr O’Loughlin. In the course of that exchange, no mention was made about safety or petrol fumes. If that was indeed Mr O’Loughlin’s concern, ordinarily one would have expected something to have been said. In fact, in cross-examination Mr O’Loughlin agreed that he was in no physical danger after Mr Demertzis had walked away.Mr P Hanks QC, who appeared on behalf of Linfox, referred to the High Court decision in Deatons Pty Ltd v Flew (1949) 79 CLR 370. In that case, Mr Flew was injured when a barmaid employed by Deatons threw a glass of beer in his face following an abusive and insulting observation of her. As a result, Mr Flew lost the sight of one eye. He sought damages for assault. Latham CJ said it was clear that the barmaid had committed an assault and was liable. However the liability of her employer depended upon the scope of employment and the authority which her employment conferred upon her. His Honour went on to say, at 378:
An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or being an act which was incidental to his employment.
The problem with reliance upon this statement should be immediately apparent. It arose in the context of the liability of an employer for the act of a servant. Dixon CJ in Kavanagh referred to early decisions of the English Courts dealing with the expression in the course of where it was said: A master is responsible for all acts done by his servant in the course of his employment, though without particular directions. His Honour then said, at 556 – 557:
Familiar as they became in describing the limitation upon the wrongful acts of the servant for which the master is liable to others, they necessarily received a new and enlarged application when used to describe a limitation upon the injuries sustained by the servant for which the liability to the servant was imposed by statute upon the master. For it is one thing to use words of the description of the occasion when acts or omissions of the servants should render the master liable to strangers, and it is quite another thing to apply them to limit the occasion when the injury suffered by an employee should be compensated by the employer. Almost inevitably the latter use invites an enlargement of the notion of employment to include the incidence of the employment and the question whether an injury is suffered in the course of the employment can hardly be governed by the same considerations as the question whether one has been inflicted in the course of employment.
The decision of the High Court in Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30 is closer to the point in this case. Mr Weston was employed as a locomotive driver in a mine. While performing his duties in the mine he was assaulted and seriously injured by another of the employer’s employees who was not on duty at the time and who should not have been in the mine. The reasons for the assault need to be stated because, similar to Mr O’Loughlin’s case, there was a significant element of provocation and retribution involved.
Mr Weston and a male friend were concerned that the male friend’s wife was living with another man known as Mr X. Some weeks prior to the assault, Mr Weston, in the company of his brother and the male friend, visited the house where it was thought that the friend’s wife was living with Mr X. The purpose of the visit was to gain evidence upon which to base divorce proceedings against the friend’s wife.
... Mr X and the friend’s wife were found in bed together and a flashlight photograph of them was taken from a window. Mr X became enraged, jumped out of bed, and made threatening remarks including references to “Australian bastards”, an axe and that he would “get the 3 of us”.
Some three weeks after the event described above, when Mr Weston was working in the mine in the afternoon shift, he was set upon by Mr X. The attack caused him serious injuries including fractures of the right forearm and skull and serious concussion.
The Full Court of the Supreme Court of Western Australia overturned the primary decision which found that Mr Weston’s injuries arose in the course of his employment. The High Court unanimously allowed the appeal against that decision.
The High Court placed significant reliance on Kavanagh’s case. The first point dealt with by the Court (Menzies J) was whether the injury occurred by accident. It was argued that it was not an accidental injury because it was designed by someone, in this case the attacker, and the nature of the employment was not such as to expose the worker to risk of deliberate assault. It was also argued that the worker actually expected the attack that was in fact made upon him. Menzies J rejected both of these submissions. Relying essentially on earlier English cases and in particular Trim Joint District School Board of Management v Kelly [1914] AC 667, Menzies J agreed with Lord Reading who said, at 720:
Construing the words in their ordinary and popular sense, I think they mean an injury caused to a workman by some sudden and unexpected occurrence, whether the injury was inflicted by design or otherwise, as distinguished from an injury caused to him by some gradual process.
Windeyer J explained that the change in the legislation, particularly the change from arising out of and in the course of employment to arising out of or in the course of employment, has resulted in a significant departure from earlier principles and that earlier doctrine must be discarded. His Honour went on to say, at 39:
Admittedly the event was not of a kind that one would ordinarily expect might occur in the employment in which the appellant was engaged. Such a happening was not one of the ordinary hazards of that employment. Therefore, if the Western Australian Act still spoke of an accident arising out of and in the course of employment, it may well be that the employer would not be liable for the consequences of the accident in this case. But as the law now stands he is liable if the accident arose in the course of the employment. And that requirement, separately regarded, was I think satisfied here.
Windeyer J also referred to his decision in Kavanagh where he was of the opinion that the expression in the course of employment did not simply mean while at work. While he indicated he found it difficult to rid himself of that opinion, the majority of that Court was against him. His Honour then said, at 40:
As I understand their judgements, anything at all that happens to a man while he is at work happens in the course of his employment; and if it happens unexpectedly it is an accident in the course of the employment. That is enough to dispose of this case.… The assault as actually made upon him, the accident that in fact caused the injury, was made possible because his employment had taken him into the mine.
Owen J also referred to the High Court decision in Kavanagh and particularly to the statement that the words out of do indeed import causation while the words in the course of do not. He said, at 42:
The conclusion seems inevitable that the main object of the changing of the conjunction was to eliminate the necessity of finding such causal connexion. If there was such a causal connexion, the injury was to be compensable even though it did not occur while the work was engaged in his employment or anything incidental to his employment. If, on the other hand, the injury occurred in the course of the employment, it was to be compensable even though no causal connexion could be found between it and the employment. And it necessarily follows, I think, that the words ‘arising in the course of his employment’ ought not to be regarded as meaning anything more or less than ‘arising while the worker is engaged in his employment’.
In light of the passages from the judgements in Kavanagh’s Case (3) quoted above there is no longer room for the notion that the words “in the course of the employment” require the proof of some causal connexion between the employment and the injury. It is sufficient if the injury occurs while the worker is performing the work he is engaged to do or is doing something reasonably incidental to that work and,….
Owen J also dealt with the issue regarding an injury by accident. He said, at 44:
It is plain that, notwithstanding that earlier threat, the time, place and nature of the assault was, from the point of view of the appellant, completely unexpected. But even if the appellant had thought it possible or even probable that he would be attacked while at work, I would have regarded him as having suffered a personal injury by accident within Lord Macnaghten’s definition.
Lord Macnaghten had previously defined the word accident to mean an unlooked-for mishap or untoward event which is not expected or designed (Fenton v J Thorley & Co. Ltd [1903] AC 443).
In my opinion, given the way in which the High Court now regards the disjunctive expression arising out of or in the course of employment, I must find that Mr O’Loughlin’s injury occurred in the course of his employment with Linfox. At the time he sustained the injury, he was doing precisely the work he was engaged to do on behalf of Linfox, that is, delivering fuel supplies to service stations. The verbal altercation preceding the fight which resulted in Mr O’Loughlin staining an injury took place while Mr O’Loughlin was doing the work he was required to do to refuel the holding tanks at the service station.
Mr O’Loughlin did not initiate the fight but did retaliate after Mr Demertzis threw punches at him. Those circumstances do not take the injury sustained by Mr O’Loughlin outside of the statutory framework, that is, it occurred in the course of his employment. It did not have a causal relationship with his employment but, as the High Court has now clearly stated, that is not required.
SECTION 6 OF THE SRC ACT
As I understood Mr A Moulds QC, who appeared on behalf Mr O’Loughlin, s. 6 of the SRC Act was effectively raised in support of Mr O’Loughlin’s claim that his injury arose out of and in the course of his employment. The words of the introductory statement to s. 6 make it plain that it is not intended to limit the circumstances in which an injury to an employee may be treated as having arisen out of or in the course of his or her employment. Relevantly, it provides:
6Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
(c)…
(3) Subsection (1) does not apply where an employee sustains an injury:
(a)while at a place referred to in that subsection; or
(b)during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
Mr Moulds described s. 6 as an extension of s. 5A of the SRC Act. He also submitted that s. 6(1)(a) and (b) plainly applied to Mr O’Loughlin’s case and the exceptions set out in
s. 6(3) were inapplicable.
On the other hand, Mr Hanks submitted that s. 6(1)(a) was not relevant as it could not be said, on the evidence, that Mr O’Loughlin’s injury was sustained as the result of an act of violence that would not have occurred but for his employment or the performance of the duties or functions of his employment. In other words, it did not pass the but for test.
Mr Hanks accepted that Mr O’Loughlin’s injuries fell within the scope of
s. 6(1)(b). In other words, Mr O’Loughlin’s injury was sustained while he was at his place of work for the purposes of his employment. The expression place of work is defined in
s. 4 the SRC Act to mean, in relation to an employee, any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
However, Mr Hanks submitted that the exclusion in s. 6(3) applied. In fact, Mr Hanks submitted that the effect of s. 6(3) is that Mr O’Loughlin’s injury cannot be treated as arising out of or in the course of his employment, regardless of whether it would have fallen within that description independently of s. 6(1), assuming of course that s. 6(3) applied.
In my opinion, Mr Hanks’ submission on the application of s. 6 of the SRC Act must be correct. It would be inconsistent with the entire scheme of the SRC Act if an employee was able to choose not to rely on s. 6 so as to avoid the exclusion set out in s. 6(3). Mr Moulds did not take issue with that interpretation.
According to Mr Moulds, before s. 6(3) of the SRC act can be applied, the evidence must disclose that the employee:
(a)was aware of an unusual risk of injury; and being so aware,
(b)deliberately, not thoughtlessly, engaged in the conduct.
In support of that submission Mr Moulds referred to the High Court (Dixon CJ, Taylor and Webb JJ) case Taylor v Stapley (1954) 90 CLR 1. While in that case the employee was temporarily absent from his workplace during ordinary recess, the case was not about that point. It was about section 7(1)(e) of the Workers’ Compensation Act 1926-1951 (NSW). Relevantly, that subsection provided:
(e) Where a worker on any day on which he has attended at his place of employment pursuant to his contract of service or apprenticeship
(i) is temporarily absent therefrom on that day during any ordinary recess; and
(ii) does not during such absence voluntarily subject himself to any abnormal risk of injury; and
(iii) during such absence receives an injury without his serious and wilful misconduct, the worker (and in the case of the death of the worker, his dependants) shall receive compensation from the employer in accordance with this Act.
The issue before the Court was whether it could be found that the worker did not voluntarily subject himself to any abnormal risk of injury. While it is obvious that the provision is different to the current s. 6(3) of the SRC Act, the question regarding voluntary exposure to an abnormal risk of injury is identical. The only addition in the current Act is whether the worker unreasonably submitted to that risk.
A brief description of the facts will assist in understanding the majority’s conclusions. The worker along with two other youths had, during lunch interval, been to the river on a number of occasions and bathed. The worker was not a good swimmer. He could just dog paddle. On the day he drowned, the evidence did not suggest that he meant to go into deep water.
On previous occasions the youths had crossed the main stream in shallow water where the river broadened out forming a sandbank and a gravel island. On the day of the drowning the youths repeated their normal crossing but on returning they re-crossed lower down where the river was deeper. There had been some rain and the river had risen about 8 inches and was flowing more swiftly. The worker got into difficulties and was carried beyond his depth.
The Workers’ Compensation Commission found that the worker did not voluntarily subject himself to any abnormal risk of injury. An appeal to the Supreme Court was dismissed on the basis that it was open to the Commission on the evidence to find that the deceased had not voluntarily subjected himself to an abnormal risk. The employer appealed that decision to the High Court.
Dixon CJ and Taylor J said, at 8:
… of the word “abnormal” seems to mean no more than unusual and risk may be said to be abnormal where the doing of the act is, in particular circumstances, attended with an unusual degree of risk. But to say this is not to deny that risk should also be regarded as abnormal where it is a risk which is ordinarily incidental to the performance of some act which is itself inherently dangerous.
The plurality went on to say, at 9:
In truth all the circumstances of the particular case must be considered. The words “voluntarily subject himself” required that he shall have acted of his own free choice and intentionally done what involves the normal risk of injury.
In determining whether Mr O’Loughlin voluntarily and unreasonably submitted to the normal risk of injury, I need to examine in detail all the circumstances which led to that injury. I am aware that in doing so, I am likely to attract criticism on the ground that it is unrealistic to dissect those circumstances in the calm environment of my room while writing this decision. That is plainly not the same as the brief, emotional and rapidly escalating nature of what occurred. Nevertheless, I am required to look at all the circumstances in an objective way taking into account, as best I can, the brevity and emotional nature of the events which took place.
At the outset, I should mention that in the course of Mr O’Loughlin’s cross examination, he was taken to what is described as the red book, which is document produced by Linfox. A copy of that document was attached to the affidavit of Mr Nematsis which I had in evidence. Mr O’Loughlin agreed that he had a pocket version of that document. Clause 5.1 of the red book relevantly provides:
Linfox expects its staff to
…
· Be courteous and friendly in dealing with everyone.
Clause 5.7 deals with fighting and bullying. It provides:
· Employees found fighting or bullying, whatever the circumstances or provocation, may be subject to instant dismissal.
Mr O’Loughlin said he was aware of those provisions in the red book.
Mr O’Loughlin was also taken to document described as the Drivers Manual. In particular, he was referred to the statement dealing with relationships with customers and the public. This repeated what is said in the red book, that is, the need to be courteous in dealings with everyone which included suppliers and the general public. Under the heading Driver Standards, the Handbook states:
In dealing with customers, public and enforcement officers, it is vital that all operators remember they are representing Linfox. Thus attitudes such as courtesy, friendliness and politeness are to be encouraged.
Mr O’Loughlin appeared to agree that he was aware of the driver standards stated in the Handbook. He also agreed with a further document which dealt with interfaces and communication. It referred to maintaining the right mental attitude stating: never lose your temper. Keep a pleasant disposition of all times. Winning argument may lose a customer.
Finally, Mr O’Loughlin was referred to a memorandum produced by Linfox (attachment H) dated 17 October 2006. This dealt with personal security of tanker operators while controlling ignition risks at delivery sites. That memorandum relevantly states:
Under no circumstances are tanker operators to engage in arguments or respond with comments as this will not achieve your objective and may place you at risk of the incident escalating. Your safety, including your mental well-being is paramount, followed by the safety of others and then the consignment, in that order.
If at any time you consider you are at risk of assault close all valves if possible and secure yourself in the vehicle cabin or inside the delivery site. Immediately phone the police on 000 and then your line managers.
Mr O’Loughlin said he had not seen that memorandum before it was presented to him. Nevertheless, he agreed that in his training he was made aware of the requirement to be courteous at all times. He also agreed that his response on 7 September 2010 in respect of the incident which led to his injury was quite different.
There can be no question about the fact that Mr O’Loughlin voluntarily became involved in the dispute between Mr Demertzis and the female driver of the car. In intervening, he plainly acted of his own free choice and intentionally. There was no element of external compulsion whatsoever.
Subsequently, Mr O’Loughlin suggested that he was concerned with the possibility of a fire hazard being created as a result of petrol fumes continuing to be present in the area where he had discharged fuel into the storage tanks. I cannot accept that to have been a realistic concern at that time given that the distance between where the work was being conducted and where the altercation with the woman in the car took place was about 30 metres. Furthermore, the evidence before me discloses that the first occasion on which this issue was raised was in Mr O’Loughlin’s witness statement lodged with the Tribunal on 30 April 2014. If the risk of fire was Mr O’Loughlin’s primary concern when he intervened in what appeared to be a private dispute, I would have expected that to have been raised well before this matter commenced in the Tribunal.
Because of my finding regarding the lack of a fire hazard created by the initial altercation between Mr Demertzis and the female in the motor vehicle, Mr O’Loughlin’s intervention in that private dispute cannot be said to have been reasonable on that basis. Even if it may be regarded as the honourable thing to do in those circumstances, there is a further problem with the way in which Mr O’Loughlin intervened.
If Mr O’Loughlin had been concerned by the possibility a fire hazard existed, one would ordinarily have expected him to have calmed the situation and explained why he was intervening. If he was simply attempting to prevent the verbal and physical altercation from escalating, there was no good reason to continue his discussion with Mr Demertzis because Mr Demertzis began to return to his work and it appears the female in the motor vehicle had left. Despite that, Mr O’Loughlin had two further verbal exchanges with him. It was those verbal exchanges which resulted in Mr Demertzis assaulting Mr O’Loughlin. One can only conclude there was some provocation.
In conducting those further exchanges with Mr Demertzis, Mr O’Loughlin must have been aware of the risk of verbal exchange escalating into physical violence, particularly having observed his reaction to the female in the motor car. After the punches were thrown, Mr Demertzis apparently lost his balance and fell to the ground. Rather than desist at that point, Mr O’Loughlin stood over him, pretended to throw a punch and shaped up. This indicates he was willing to continue or to engage in a fistfight. If not before, certainly by that time, it cannot be said that Mr O’Loughlin did not unreasonably submit to the risk of injury. His actions clearly indicate he was prepared to engage in a fistfight and that necessarily means submitting to a risk of an injury.
Given his duties as a tanker driver and the duty imposed on him by his employer not to engage in altercations of any kind with members of the public, the risk to which he exposed himself can properly be described as an abnormal risk. It was an abnormal activity, not one which his employer required or encouraged him to engage in. It necessarily follows I must find that Mr O’Loughlin sustained his knee injury because he voluntarily and unreasonably submitted to an abnormal risk of injury.
CONCLUSION
I have found that the injury sustained by Mr O’Loughlin on 7 September 2010 was not sustained in an interval or interlude of his employment as a tanker driver for Linfox. I have found that it occurred in the course of his employment in the sense that it occurred while Mr O’Loughlin was at his place of work for the purposes of his employment and, in fact, was carrying out that work when the assault occurred. While the assault certainly interrupted Mr O’Loughlin carrying out his normal duties, that does not, in my opinion, result in the injury being sustained in an interval or interlude of his employment.
However, I have found that the exclusionary provision set out in s. 6(3)(a) of the SRC Act applies in this case. That is, Mr O’Loughlin sustained his injury because he voluntarily and unreasonably submitted to an abnormal risk of injury. Therefore, for the purposes of the SRC Act, Mr O’Loughlin’s injury cannot be treated as having arisen in the course of his employment.
I find that the decision made on behalf of Linfox on 7 January 2014 revoking liability for Mr O’Loughlin’s injuries sustained on 7 September 2010 was the correct decision. I affirm that decision.
I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
..........................[sgd]............................
Associate
Dated 15 August 2016
Date of hearing
26 April 2016
Counsel for the Applicant
Mr A Moulds QC with Mr M Carey
Solicitors for the Applicant
Maurice Blackburn Lawyers
Counsel for the Respondent
Mr P Hanks QC with Ms N Hassan
Solicitors for the Respondent Moray & Agnew Lawyers
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