State Transit Authority of NSW v Dobson
[2006] NSWWCCPD 101
•30 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Transit Authority of NSW v Dobson [2006] NSWWCCPD 101
APPELLANT: State Transit Authority of NSW
RESPONDENT: Marcus Dobson
INSURER:Self Insurer
FILE NUMBER: WCC1783-05
DATE OF ARBITRATOR’S DECISION: 20 May 2005
DATE OF APPEAL DECISION: 30 May 2006
SUBJECT MATTER OF DECISION: Section 4 of the Workers Compensation Act 1987; injury; arising out of or in the course of employment.
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION: Appellant: Abbott Tout Lawyers
Respondent: Steve Masselos & Co Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 May 2005 is confirmed.
The Appellant is to pay the Respondent’s costs.
BACKGROUND TO THE APPEAL
On 17 June 2005 the State Transit Authority of NSW (‘the STA’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 May 2005.
The Respondent to the Appeal is Mr Dobson.
Mr Dobson suffered injury to his right arm whilst attempting to pull out a weed on a footpath at a bus stop in Sydney Road, Balgowlah on 14 January 2004.
The following matters were not in issue before the Arbitrator, that the Respondent sustained the injury as he alleged; that the Respondent was incapacitated for the period of compensation claimed and; that he incurred medical and hospital expenses.
The only issue left to be determined before the Arbitrator and on Appeal is, whether the injury sustained by Mr Dobson on 14 January 2004, was an injury which arose out of or in the course of Mr Dobson’s employment with the STA.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 20 May 2005 records the Arbitrator’s orders as follows:
“1.The Respondent is to pay the Applicant weekly compensation as follows:
(a)$1,064.24 per week from 14 January 2004 to 29 January 2004 under section 36 of the Workers Compensation Act 1987.
(b)$157.01 per week from 1 March 2004 to 7 June 2004 under section 40 of the Workers Compensation Act 1987.
2.The Respondent to pay the Applicant’s section 60 expenses of the Workers Compensation Act 1987 upon production of accounts or receipts.
3.The Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is:
·Is the injury one which falls within the definition of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’)?
ON THE PAPERS REVIEW
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the STA and Mr Dobson that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act and meets the $5000 threshold and represents more than 20% of the amount in dispute as required by section 352(2) of the 1998 Act.
I grant leave to appeal.
DISCUSSION AND FINDINGS
The position the STA has taken throughout this case would seem, with respect, to confuse its legal obligation under the Occupational Health and Safety Act 2000 with its legal obligations under the 1987 Act. The defence to Mr Dobson’s claim seems to me to be that the STA has set up work procedures which, if followed by Mr Dobson, would have resulted in it being unlikely that he would have suffered the injury, the subject of this claim. These procedures may have fulfilled the STA’s obligations under the Occupational Health and Safety Act 2000, but have little to do with the issue as to whether a worker has suffered an injury; ‘in the course of or arising out of his employment’.
Most employers have instigated training programs in relation to safety issues. However, notwithstanding this, employees continue to suffer injuries when they act in contravention of this training, such as back injuries from unsafe lifting practices and hand injuries from failure to replace guards on machinery. It would not be suggested, in circumstances such as these, that the worker would not be entitled to compensation.
I believe that this case highlights the need to, from time to time, reflect on the overriding beneficial nature of workers compensation legislation. In Walker v Wilson (1991) 172 CLR 195 at [204], the majority, consisting of Deane, Dawson, Toohey and McHugh JJ confirmed the beneficial construction to be applied to workers compensation legislation:
“The ‘somewhat compressed’ provisions of s. 19 of the Act are intended to operate in a wide variety of circumstances (cf Whiting v BramblesIndustries Ltd (1976) 134 CLR 464 at 468). They should be construed and applied ‘liberally and practically’ in a way which will promote the underlying legislative purpose and object (cf. Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at p. 536)…”
I am of the view that whether there was a system whereby dangers to the public could have been reported by bus drivers, and remedial action taken by other sections of the STA’s organisation, is not determinative of the issue of whether the injury is compensable. The agreed facts, and the uncontested facts that Mr Dobson was within his normal hours of work when he was injured; he had an overall duty to ensure the safety of his passengers; together with his belief that he was carrying out that duty when he attempted to remove the weed, not only placed him ‘in the course of his employment’, when he sustained the injury, but also, in my opinion, means that the injury ‘arose out of his employment’.
I will now deal with the STA’s submissions in the order they appear in the ‘Application Appeal Against Decision of Arbitrator’ filed on 17 June 2005.
The Arbitrator erred in her understanding and application of the meaning of ‘arising out of or in the course of employment’
The Arbitrator clearly identified the correct issues. At paragraph [24] of her reasons she states:
“The first issue to be determined in this matter is whether the actions of the Respondent in attempting to remove the weed at the bus stop on 14 January 2004 were actions that arose out of or in the course of his employment with the Appellant.”
In a thorough and well reasoned judgment the Arbitrator at paragraphs [28 to 34] considered this issue and the law relating to this issue. The Arbitrator then applied, in my view, a correct analysis of the law to the mostly, uncontested facts, coming to the conclusion that Mr Dobson at the time of his injury was not only ‘in the course of his employment’ but the injury ‘arose out of his employment’. Having determined this issue in favour of Mr Dobson the Arbitrator, because of the way the STA had presented their case, went on to consider at paragraph [40], whether the Mr Dobson’s acts took him out ‘of the scope of his employment’. It is clear, contrary to the STA’s submissions, that the Arbitrator identified all relevant issues and her conclusions in respect to those issues were, in my view, correct.
In respect of paragraph [A2] of the STA’s written submissions, Mr Dobson had, in my opinion, overwhelmingly established the two limbs of section 4 of the 1987 Act. That is; he was in the course of his employment when he sustained his injury and; that the injury had occurred as a result of his employment activities. This is also the conclusion the Arbitrator came to. The Arbitrator’s reference to the failure, by the STA, to adduce any evidence contrary to this proposition, was not a reference to the overall onus of proof, but a reference to the shifting evidentiary onus. Mr Dobson clearly having discharged the overall onus of proof, it was up to the STA to adduce evidence in rebuttal.
At paragraphs [A3 and A4] of the STA’s written submissions reference is made to Hatzimanolis v ANI Corporation (1992) 173 CLR 473. This case is not entirely on point, as it concerns an injury to a worker during an interval or interlude whilst he was enjoying a recreational sightseeing trip at the Wittenoom Gorge some 400 kms away from his usual place of employment. However, a comparison of the facts in that case with the facts relating to this appeal (Mr Dobson, momentarily, alighted from his bus to remove what he perceived to be a danger to his passengers) is helpful in assessing the overall correctness of the Arbitrator’s decision. The majority at page [482] were of the view that the legal interpretation of ‘scope of employment’ needed to be redefined taking into account the development of a more liberal view of this concept which has evolved since Henderson v Commonwealth of Railways (WA) (1937) 58 CLR 281.
Applying the more liberal, Hatzimanolis approach to the ‘scope of employment’ it is clear that if a workman some 400 kms away from his workplace, carrying out recreational activities, is still within the ‘scope of his employment’ then, a fortiori, on the agreed facts of this case, Mr Dobson at the time of his injury was in the ‘scope of his employment’. Further it would seem to me that the combination of the agreed facts and the uncontested facts, of this case, would result in the STA having to prove that Mr Dobson’s injury occurred as a result of his gross misconduct, for the STA to be successful in defeating Mr Dobson’s claim. The majority in Hatzimanolis, at page [484] stated:
“Furthermore, an injury sustained in such an interval will be in the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.”
It is my view, consistent with the Hatzimanolis principles, that the modern approach is to apply a broad interpretation as to what is considered to be in ‘the course of a worker’s employment.’ This approach makes allowance for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act; Jackson v General Steam Fishing Company Limited (1909) AC 523. It is my view that the actions of Mr Dobson, when he sustained his injury, were actions which were, to use the terminology of that case, ‘the ordinary way in which those employed in such an occupation may be expected to act’.
In respect of paragraph [A5] of STA’s written submission, the submission, ignores the finding that the Arbitrator made at paragraph [43] of her decision:
“I accept the Applicant’s submissions that the agreed facts in evidence disclosed the Applicant’s intention in getting out of the bus and attempting to pull the weed out was in accordance with the duty of care imposed on the Respondent, undertaken for the purpose consistent with the proper conduct of his duties and in the interest of meeting the Respondent’s obligations to the public.”
In my opinion this finding was correct. This is a clear finding that Mr Dobson’s injury was an injury, which ‘arose out of his employment’ i.e. causally related to his employment. The Arbitrator did not find that Mr Dobson’s injury occurred during an ‘interval or interlude’ in his employment.
The Arbitrator formed opinions that had no basis in evidence and/or made findings,
contrary to the principle of procedure set out in Part 12 Rule 70 of Workers Compensation
Commission Rules 2003
The fact as found by the Arbitrator that the weed posed a potential risk to passengers was open to her on the evidence before her. The issue was raised by Mr Dobson in his statement, he was not cross-examined. The finding is part of the discretionary judgment of the Arbitrator, it is my view that the STA has not established, that the Arbitrator has acted upon a wrong legal principal; allowed irrelevant considerations to influence the decision; made a material mistake as to the facts or failed to take into account, relevant and material considerations (House v King (1936) 55 CLR 499 at 405 to 505; Norbis v Norbis (1986) 161 CLR 513 at 520; National Roads and Motorists’ Association Limited [2003] FCAFC 206).
Further, it is my view, that in applying the more liberal, Hatzimanolis test in respect of ‘in the course of employment’ the existence of the weed and Mr Dobson’s uncontradicted evidence that he was removing it for the safety of passengers, was relevant.
The Arbitrator’s understanding of the applicable law was flawed
As I have already stated the Arbitrator clearly identified the relevant issues, relevant onus and dealt with these issues comprehensively and correctly.
The Arbitrator did not reverse the onus of proof. Her reference to the STA’s failure to call evidence is a reference to the shifting evidentiary onus that occurs in any dispute. Mr Dobson by his statement and by the agreed facts, had clearly, in my view, established that he was ‘in the course of his employment’ and, additionally, that the injury ‘arose out of his employment’. If the STA, thereafter, wished to dispute this conclusion, it was incumbent upon them to call evidence that he had taken himself out of ‘the course of employment’, as a result of gross misconduct or for other reason.
The Arbitrator’s reasoning process was flawed
The criticism of the Arbitrator contained in paragraph [D] of the STA’s written submissions that she had acted on material not in evidence, is with respect, an unfair criticism. The evidence was before the Arbitrator and it was contained in the STA’s own evidence. The STA had tendered into evidence a handwritten statement of Mark Cruden, Depot Manager at Sydney Buses North Sydney Depot, relevantly Mr Cruden stated at paragraph [3] of his statement:
“I have been informed that Mr Dobson has stated that he decided to take matters in his own hands and attempt to remove the weed because when he had reported problems previously, to STA management, no action has resulted and nothing was done.
It is clear that it is STA’s own evidence which raised the issue which is dealt with in paragraph [40] of the Arbitrator’s decision. It is evidence contained in Mr Mark Cruden’s statement that the Arbitrator is dealing with at paragraphs [38 to 40] of her decision.
Her findings in regard to the matters raised by Mr Cruden were open on the evidence. Her reasoning process was not flawed, and as such, her decision in respect of this issue is not reviewable. In any event I would have come to the same conclusion as that of the Arbitrator.
In summary therefore, I am of the view that, the Arbitrator’s decision, was well reasoned and correct. The Appellant, the STA has failed to demonstrate any reviewable error.
DECSION
The Arbitrator’s decision of 20 May 2005 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs.
Robert Harrington
Acting Deputy President
30 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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