Toll Holdings Limited v McCaw
[2020] NSWWCCPD 14
•10 March 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Toll Holdings Limited v McCaw [2020] NSWWCCPD 14 |
| APPELLANT: | Toll Holdings Limited |
| RESPONDENT: | Justin McCaw |
| INSURER: | Self-insured |
| FILE NUMBER: | A1-2499/19 |
| ARBITRATOR: | Mr P Sweeney |
| DATE OF ARBITRATOR’S DECISION: | 5 August 2019 |
| DATE OF APPEAL DECISION: | 10 March 2020 |
| SUBJECT MATTER OF DECISION: | Whether a fight at work arose out of or in the course of employment, s 4 Workers Compensation Act 1987 considered; whether the employment concerned was a substantial contributing factor to the injury, s 9A Workers Compensation Act 1987 Act considered |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr Peter Moran, solicitor | |
| Colin Biggers & Paisley | |
| Respondent: | |
| Mr Ross Stanton, counsel | |
| Brydens Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s Certificate of Determination dated 5 August 2019 is confirmed. |
INTRODUCTION
This appeal considers whether or not a physical altercation which occurred at the appellant’s premises on 16 August 2018 in which the respondent, Mr Justin McCaw, was injured, occurred in the course of his employment, and if so, whether the employment was a substantial contributing factor to his injuries.
BACKGROUND
Mr McCaw was employed by Toll Holdings Limited as a freight handler at its premises at Eastern Creek. On 16 August 2018, he finished his shift at 10.00 pm. Shortly after he bundied off he was assaulted in the work carpark by a fellow employee, who I will refer to as JH.
The genesis of the conflict which culminated in the assault arose from Mr McCaw’s admiration of a female employee to whom I will refer as SB, who was JH’s fiancé. It is not disputed that in or around March 2018 Mr McCaw had made comments about SB to co-workers and had interactions with SB at work which were unwelcome and unwanted, which SB had reported to the appellant in April 2018. There is no evidence of any unwelcome or unwanted conduct by Mr McCaw, in respect of SB or otherwise, on the day of the assault, or in the days preceding the assault.
Mr McCaw sustained facial injuries in the assault. He developed a psychological condition as a reaction to the assault and its aftermath.
On 26 September 2018, Mr McCaw filed a claim for psychological injury, broken nose and sore jaw arising from the assault. On 7 November 2018, the appellant issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), denying that the injuries arose out of or in the course of Mr McCaw’s employment. It also denies that Mr McCaw’s employment was a substantial contributing factor to the injuries.
Mr McCaw filed an Application to Resolve a Dispute (ARD) on 23 May 2019, seeking weekly compensation and medical expenses.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
The evidence in this matter is in real terms not in dispute. Both parties make submissions as to the effect of the evidence, which is extracted at length in the Arbitrator’s decision.[1] Given the nature of the appeal, namely that the appellant is challenging the findings in favour of Mr McCaw pursuant to s 4 and s 9A of Workers Compensation Act 1987 (the 1987 Act), it is necessary to set out the evidence which was before the Arbitrator.
[1] McCaw v Toll Holdings Pty Ltd [2019] NSWWCC 264 (Reasons).
Mr McCaw’s evidence
Mr McCaw’s primary evidence is contained in a signed statement of 10 May 2019.[2]
[2] ARD, pp 1–4.
Mr McCaw says that he recalls saying to a fellow employee “she [SB] is nice”, “she is pretty. She is beautiful”. He says that he did not approach SB or say “anything to her of any significance”. By that he meant “[he] never advised Stephanie that [he] liked her or asked to go out with [him] or anything of that nature”. He did, however, say to a fellow employee that if he had a chance he would “marry SB” and “take her to the Bahamas”. There is no indication as to when these conversations took place, other than that they occurred at a time before the assault of 16 August 2018.
Mr McCaw describes the assault as follows:
“On 16 August 2018 I worked the shift at Eastern Creek which started at 2.00pm and I finished the shift at 10.00 pm
I bundied off at 10.00 pm. I walked over to the designated smoking area which is near the car park. As I was walking over [JH] got out of his car and approached me.
The body language of his approach to me was aggressive. He said to me ‘trying to find out where my missus lives?’ Then he started punching me. He started to punch me with both of his fists at my face. He hit me on my nose and on the left side of my face near my jaw. He hit the [sic] on the right side of my nose. He hit me on the top of my head.”[3]
[3] ARD, p 2.
Mr McCaw says that he was stunned following the assault. He entered his car and drove a short distance. Then he rang a fellow employee and informed him that he had been assaulted by JH. Mr McCaw says that he was advised to return to work and report the assault. He returned to the premises and informed his supervisors as to what happened.
He recounts that his employment was “suspended with pay”, pending an investigation of the incident. Following the investigation, his employment was terminated on 24 September 2018.
On 17 August 2018, the day after the assault, Mr McCaw attended his general practitioner, Dr Albadran. He was also referred to a psychologist, who he saw on several occasions. Mr McCaw has been unable to afford the cost of treatment since that time.
Mr McCaw says that he continues to feel stressed and depressed and does not think he “would be fit for any work at the moment.” Mr McCaw says the termination of his employment was psychologically distressing, however, the major factor in his distress is the assault.
Mr McCaw states that he does not recall enquiring of a co-worker where SB lives or suggesting that it was “around Campbelltown”.
SB email of 5 April 2018
There are no statements from the other workers who were involved in the circumstances leading up to the assault. There is, however, an email from SB to a supervisor dated 5 April 2018 reporting a number incidents which are relevant to the matter. In that email, SB states that:
“On more than one occasion others have reported back to me with things that have allegedly been said to them, who some wish to remain anonymous in this statement.
Due to these comments repeatedly being said and making their way back to me, made me choose the decision in reporting this matter and taking it further for my security and peace of mind”.[4]
[4] ARD, p 5.
SB then outlines a series of conversations with Mr McCaw and other employees in March 2018. These include an incident in which Mr McCaw attempted to give SB a Toll shirt and a conversation with another employee who allegedly told her that “Justin has a thing for me and constantly talks about me”. The same employee allegedly told her that Mr McCaw had said “I don’t care if she has a fiancé I’m still going to try.”[5] The statement reports that another employee told her that Mr McCaw said he couldn’t stand JH and wouldn’t work with him. SB noted that JH was new to IPEC and had never met Mr McCaw before.
[5] ARD, p 6.
In the email SB also states that on 4 March 2018, an anonymous employee had the following conversation with her:
“He started by saying I heard someone tried to give you a shirt the other week. I said yes but I left it in the café because I felt uncomfortable taking it home.
He said I heard your fiancé is working here I think he is in my section. I said yes he is in (B) tonight. He said that Justin found out whom he was and said I’m not working with him I can’t stand him and apparently Justin went to a different section.
After more talk began to continue from over the weekend been [sic] I decided to go to Anastaslos to seek further action.
My fiancé [JH] new to IPEC. I’d like to add that [JH] and Justin have never met before so I can’t see any reason possible for Justin to say such a thing if he did.”[6]
[6] ARD, p 7.
Notes of the employer’s investigation meetings with SB and Mr McCaw
The investigation meeting notes dated 17 August 2019 (sic, presumably 2018) are largely concerned with the assault. The notes from the employer’s meeting with SB note that “since the first report, [SB] would hear of talk on the floor about little things Justin is talking about to others eg: Justin told someone that if he could he would give me everything like his keys.”[7]
[7] ARD, p 45.
The notes from the interview with Mr McCaw on 20 August 2018 indicate that Mr McCaw said he found SB attractive but he didn’t provoke or talk to her. He said he has told a few co‑workers he liked her a few times, but can’t remember when, but denies asking where she lives. When asked if SB knows he liked her, Mr McCaw responded “I assume she knows I like her, the whole factory knows.”[8]
[8] ARD, p 47.
Termination
On 17 August 2018, Mr McCaw received notice of being stood down as a result of an investigation into a serious breach of his contract, in respect of the assault the previous night.[9] On 22 August 2018 he received further notice in respect of further serious misconduct involving his inappropriate behaviour towards SB.[10] The letter lists a number of allegations of inappropriate behaviour including asking for personal information of another Toll employee, such as where they live and do they have a boyfriend, and stating he was going to follow a Toll employee home, amongst other things.
[9] ARD, p 8.
[10] ARD, p 9.
On 24 September 2018, Mr Ellen, the Branch Manager of the respondent, wrote to Mr McCaw informing him that an investigation had found that he had engaged in “inappropriate behaviour”. Mr McCaw’s employment was terminated from Monday, 24 September 2018. The letter stated “the reason for this decision is you breached Toll’s Workplace Behaviours Policy and Standards by demonstrating aggressive and threatening behaviour”.[11]
[11] ARD, p 11.
THE ARBITRATOR’S REASONS
The Arbitrator noted that the first issue in this case is whether the assault occurred in the course of the employment. Contrary to the appellant’s submissions, the Arbitrator found that Mr McCaw was in the course of his employment at the time he was assaulted by JH.
The Arbitrator considered that the facts relevant to this issue were closer to those in Grierson v Poels & Co[12] and Pensiero v Farthing,[13] both of which refer to the judgment of Neilson J in Stojkovic vTelford Management Pty Ltd.[14] The Arbitrator considered that the principle arising from these cases is that a worker may interrupt the course of his employment by misconduct or by pursuing some private purpose. Conversely, he returns to the course of his employment when his private pursuit or misconduct ceases and he recommences the activities associated with his work. In this case, irrespective of whether Mr McCaw’s activities in talking about SB, and on one or two occasions approaching her, were outside the course of his employment, the Arbitrator found the evidence did not suggest that in the period leading up to the assault Mr McCaw was performing other than his ordinary work or activities incidental to that work. The Arbitrator reasoned that if Mr McCaw’s words and actions in respect of SB were private concerns, which interrupted the course of the employment, he had resumed his employment, when he returned to the activities of his employment. Equally, if they are construed as misconduct, it ended when he returned to those activities.
[12] [1943] 17 WCR (NSW) 90.
[13] [1981] 55 WCR (NSW) 197.
[14] [1998] NSWWCC 8; 16 NSWCCR 165 (Stojkovic).
The Arbitrator then moved to considering whether Mr McCaw’s employment was a substantial contributing factor to his injury. In his discussion, the Arbitrator considered the NSW Court of Appeal decisions in Badawi v Nexon Asia Pacific Pty Limited t/asCommander Australia Pty Limited[15] and Kelly v Secretary, Department of Family and Community Services,[16] noting that what is clear from the case law on s 9A of the 1987 Act is that the section requires a causal connection between the injury and the applicant’s employment that is “real and of substance”.
[15] [2009] NSWCA 324 (Badawi).
[16] [2014] NSWCA 102; 13 DDCR 111 (Kelly).
The Arbitrator found that whilst the evidence in this case did not all go one way, that on balance there was a causal connection between the employment and Mr McCaw’s injury. Firstly, SB, JH and Mr McCaw were all employed in the appellant’s factory, (though this fact merely sets the scene for the injury and is not of itself causal). Secondly, the assault took place on the appellant’s premises. As it is not clear that JH would or could have assaulted Mr McCaw elsewhere, the Arbitrator found that this was probably causative in accordance with the reasoning in Kelly. Thirdly, workers in the factory had, possibly unwittingly, fanned the flames of discord by repeating to SB comments made about her by Mr McCaw. It is not possible to sever these comments from the “employment” as that word is used in s 9A and in the 1987 Act more generally.
The Arbitrator found that the latter finding distinguishes the case from the example given by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd,[17] where a worker’s private enemy comes to the place of employment and assaults the worker, or the example given by Basten JA in Badawi. It also distinguishes those cases where a worker has made derogatory remarks about or engaged in a relationship with the spouse/partner of the assailant. It suggests that employment is a real and substantial cause of the assault. The Arbitrator noted that almost certainly there are other causes but that is so in respect of many employment injuries, and that in his view the employment was a substantial contributing factor to the injury.
[17] (1941) 41 SR (NSW) 119 (Nunan).
The Arbitrator also made findings in respect of incapacity which are not relevant to this appeal.
GROUNDS OF APPEAL
The appellant argues this appeal on the basis of two grounds:
(a) Ground One: That the Arbitrator erred in finding Mr McCaw had satisfied s 4 of the 1987 Act.
(b) Ground Two: That the Arbitrator erred in finding that Mr McCaw has satisfied s 9A of the 1987 Act.
LEGISLATION
The relevant legislation under consideration in this appeal is set out below.
Section 4 of the 1987 Act provides as follows:
“4 Definition of ‘injury’
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act provides as follows:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
SUBMISSIONS
Appellant’s submissions
As to Ground One
The appellant submits that the Arbitrator’s finding that Mr McCaw was in the course of his employment at the time of the assault is wrong in law. The appellant sets out at [10]–[14] of its appeal submissions in chief the factual matters which formed the basis of JH’s assault of Mr McCaw. The appellant states that the following three facts militate against a finding that the injury occurred in the course of his employment. They are:
(a) JH’s actions were motivated by Mr McCaw’s inappropriate acts and it cannot be said that the injury was thus occasioned in the course of his employment;
(b) the assault occurred after Mr McCaw had bundied off and whist the assault occurred on the appellant employer’s property, it did not occur while Mr McCaw was working and had nothing to do with his employment, and
(c) Mr McCaw’s own evidence that prior to being assaulted by JH he had never spoken to him.
As to Ground Two
The appellant alleges that the Arbitrator’s finding that employment was a substantial contributing factor under s 9A of the 1987 Act, based on the facts as found, was a finding that was wrong at law.
The appellant states that while technically JH and Mr McCaw were co-workers, they were not co-workers in the true sense of the word in that they had not worked together and had had no prior dealings with each other before the assault. The appellant submits that Mr McCaw’s actions towards SB were highly inappropriate in a modern workplace. It is further submitted that the facts as found in this case have more in common with the example given by Jordan CJ in Nunan than any differences as identified by the Arbitrator. The appellant asserts that JH was in fact Mr McCaw’s private enemy and they were not co-workers in the true sense of that word and hence employment was not a substantial contributing factor to the injury. Mr McCaw is also said to be at fault due to his indirect sexual harassment of SB; had he not behaved in this manner, the appellant states, the assault would not have occurred.
Respondent’s submissions
As to Ground One
Mr McCaw asserts that whilst it is alleged that the finding in his favour under s 4 is stated to have been an error of law, nowhere in the submissions does the appellant state why the finding is in fact wrong in law. Mr McCaw refers to paragraph [15] of the appellant’s submission in chief which says:
“If one accepts that [JH’s] actions were motivated by [Mr McCaw’s] inappropriate acts [it] can not be said that the injury occurred in the course of his employment.”
This, Mr McCaw says, is merely the appellant asserting that the Arbitrator should not have made this finding because it should be concluded that JH was motivated to assault Mr McCaw because of Mr McCaw’s inappropriate acts, and that by virtue of this fact, the making of the relevant finding is precluded. Mr McCaw asserts that the Arbitrator’s Reasons[18] correctly summarise the relevant evidence and apply precedents relevant to cases of this type and the reasoning behind the decision and findings as made. Mr McCaw states that no error of law has been identified.
[18] Reasons, [24]–[44].
As to Ground Two
As in Ground One, Mr McCaw complains that whilst an error of law has been alleged by the appellant, no error has been identified, rather it is submitted that the appellant’s submissions “merely cavil with some of the Arbitrator’s reasoning”.
Mr McCaw relies upon the decision of this Commission in Raulstonv Toll Pty Limited[19] regarding the nature of an appeal and the need for error in the relevant sense to be identified.[20] Mr McCaw states that the appellant’s real complaint is that the Arbitrator’s findings were contrary to its case rather than identifying any error of the Raulston type which would give rise to this Commission’s duty to intervene on appeal.
Appellant’s submissions in response
[19] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[20] Notice of Opposition, [2.4].
As to Ground One
The appellant submits in reply as follows:
“(a) there was no requirement or necessity for the Respondent worker, in or incidental to his employment, to have anything at all to do with [SB]
(b) he had never met [JH], and
(c) the assault could only have been about the inappropriate and not work related comments he had been making.”
The appellant states that as a result, the assault could not be considered to have arisen out of or in the course of his employment.
As to Ground Two
The appellant does not submit that the finding made by the Arbitrator which is sought to be impugned under this ground was an error of fact. The appellant confirms that an error of law has arisen and that this error has arisen because had a proper analysis of the facts and authorities been undertaken, the only conclusion or finding that could have been reached was that s 9A had not been satisfied. The appellant repeats its argument that there was nothing about the quarrel which could be said to have been related to any actual employment activities of any of the protagonists. It is asserted that Mr McCaw’s employment clearly did not require, necessitate or permit him to make offensive and obnoxious remarks about a female co-worker with whom he did not work. It is further asserted that Mr McCaw had no prior relationship or dealings with JH and that the submission regarding the private quarrel between JH and Mr McCaw is repeated.
DISCUSSION
Before turning to a consideration of the two appeal points, it is timely to set out the factual matters, none of which were issues of controversy between the parties. It is these factual matters as found by the Arbitrator which were then relied upon by the Arbitrator in reaching his decision in the matter. These issues are:
(a) no issue was taken that Mr McCaw, JH and SB were all employed by the appellant at the appellant’s Eastern Creek establishment;
(b) the assault of Mr McCaw by JH on 16 August 2018 at Eastern Creek occurred on the appellant’s premises;
(c) as outlined above under the subheading “The Evidence”, Mr McCaw had, in conversations with other employees of the appellant, described his attraction towards SB;
(d) SB, as she was quite entitled, was not impressed by and did not seek any attention whatsoever from Mr McCaw;
(e) at the relevant time JH and SB were engaged;
(f) Mr McCaw’s duties with the respondent did not require him to work with either SB or JH;
(g) prior to the assault, JH and Mr McCaw had had no cause to speak with or work with each other;
(h) the behaviour of Mr McCaw took place in March and April 2018 on SB’s unchallenged evidence;
(i) there is little, if any, evidence about what transpired between April and 16 August 2018. SB gave the post assault investigation an account that she had heard talk on the floor about little things Mr McCaw had said. But this evidence goes no higher than this broad statement. The appellant received an email complaint from SB[21] dated 5 April 2018 entitled “Work Incident” wherein SB describes Mr McCaw’s behaviour. This email was not apparently acted upon by the appellant until after the assault on 16 August 2018, and
(j) Mr McCaw’s stated views about SB were common knowledge at the appellant’s factory.
[21] ARD, p 5.
Ground One
The appellant’s complaint with respect to Ground One can be neatly stated. Namely, that Mr McCaw’s behaviour, unwanted and unwelcome as it was, was so far removed from his employment duties that it cannot be considered to have arisen out of or in the course of his employment. Mr McCaw states that this reasoning fails to reveal an error of law and the findings made by the Arbitrator were, consistent with authority and the facts, available to him.
The Arbitrator in his reasons[22] reviews the authorities and the facts presented in this case before reaching his ultimate conclusion that Mr McCaw was in the course of his employment at the time of the assault.
[22] Reasons, [24]–[44].
Tellingly, at Reasons [37]–[38] the Arbitrator found as follows:
“Irrespective of whether [Mr McCaw’s] activities in talking about SB, and on one or two occasions approaching her, were outside the course of his employment, the evidence does not suggest that in the period leading up to the assault [Mr McCaw] was performing other than his ordinary work or activities incidental to that work. If his words and actions in respect of SB were private concerns, which interrupted the course of the employment, he had resumed his employment, when he returned to the activities of his employment. Equally, if they are construed as misconduct, it ends when he returns to those activities.
There is nothing in the evidence to suggest that during the shift, which he worked on the day of the assault, [Mr McCaw] was doing other than performing the lawful commands of his employer. Up until the time of the assault, he was ‘engaged in his work or something incidental to it’ to use the language of Stephen J in in Williams.[[23]]. It is not suggested that he had any contact with SB or JH on this day.” (emphasis added)
[23] Bill Williams Pty Ltd v Williams [1972] HCA 23; 126 CLR 146.
At [43] the Arbitrator found as follows:
“In my opinion, the principle that arises from the cases set out above is that a worker may interrupt the course of his employment by misconduct or by pursuing some private purpose. Conversely, he returns to the course of his employment when his private pursuits or misconduct ceases and he recommences the activities associated with his work. In this case, I reiterate, the evidence is that [Mr McCaw] was carrying out an activity which was incidental to his employment at the time that he was assaulted by JH. In those circumstance[s], he was in the course of his employment.”
There is no error identified in this reasoning. Clearly on the facts, there was no conduct by Mr McCaw on 16 August 2018 which provoked JH or caused the fight. In the leading decision of Stojkovic, Judge Neilson of the Compensation Court reviewed at length the authorities as they pertain to fights or assaults in the workplace. At [60]–[62] of Stojkovic, his Honour reviews the authorities as to whether or not any conduct on behalf of the applicant for compensation interrupted the normal course of employment such as to deny the worker compensation. In this case the Arbitrator found, as was available to him, that Mr McCaw was working as normal on 16 August 2018 and there is nothing to suggest that there was any interruption to the course of his employment or any conduct on Mr McCaw’s part on that date that would otherwise disentitle him. Clearly, bundying off at the end of his shift and walking to his motor vehicle in the appellant’s car park was incidental to his employment, and the appellant makes no challenge to this finding. There is nothing in the evidence to suggest that Mr McCaw instigated the fight or himself struck a fighting posture which could be said to have taken him out of the course of his employment. In Stojkovic, Judge Neilson found that the applicant in that case was the instigator of the fracas and had thus taken himself out of the course of his employment. That is not the case here with regards to the 16 August 2018 assault.
The appellant’s real argument is that Mr McCaw’s various statements regarding his co-employee SB were of such a quality as to take Mr McCaw out of the course of his employment, apparently without limitation. This submission effectively invites what actually transpired on 16 August 2018 to be put to one side. That is, the appellant invites the decision maker to ignore the fact that nothing untoward occurred on 16 August 2018 or immediately prior to this date which could be said to have provoked the fight or otherwise interrupted Mr McCaw’s employment. The submission rather is to the effect that Mr McCaw’s antecedent conduct meant that when he was assaulted by JH, it was because of that antecedent conduct, and consequently put him outside the course of his employment. If one reviews the facts of 16 August 2018, it can be seen that this submission therefore relies upon the subjective intentions of JH as to why he assaulted Mr McCaw. The Arbitrator accepted that the attack perpetrated upon Mr McCaw by JH related to Mr McCaw’s statements about SB. This proposition about subjective intentions was dealt with by Basten JA in Kelly, where his Honour found as follows:
“The subjective basis of an attack by one co-worker on another, during the course of their common employment may be a relevant factor in some cases, but in many it will not be.”
This is such a case as flagged by Basten JA, where JH’s subjective intention is not a relevant factor. It cannot be the case that the subjective intention of JH, absent any conduct on 16 August 2018 on the part of Mr McCaw, operated automatically to remove Mr McCaw from the course of his employment. No error in the Arbitrator’s reasoning is thus identified.
Ground One has not been made out and is thus dismissed.
Ground Two
The essential argument maintained by the appellant under Ground Two was that the assault was a private quarrel between Mr McCaw and JH and was thus unrelated to Mr McCaw’s employment. The respondent states that this submission fails to demonstrate the type of error that is required under s 352 of the 1998 Act such as to enliven appellate intervention.
The relevant passages of the Arbitrator’s decision with regards to s 9A of the 1987 Act commence at [45] and conclude at [63]. Tellingly at Reasons [59]–[61], the Arbitrator recounts the key factual findings which support the finding that he ultimately made at [62] and [63] that Mr McCaw’s employment was a substantial contributing factor to the injury.
These factual findings were not only available to the Arbitrator, they were in reality not in contest. It is clear as was found by the Arbitrator that SB had heard about Mr McCaw’s remarks about her from her co-workers. The Arbitrator said as follows:
“Thirdly, workers in the factory had, possibly unwittingly, fanned the flames of discord by repeating to SB comments made about her by [Mr McCaw]. It is not possible to sever these comments from the ‘employment’ as that word is used in s 9A and in the 1987 Act more generally.”[24]
[24] Reasons, [61].
This is a compelling finding, particularly when taken with the fact that on 16 August 2018 there was nothing in Mr McCaw’s behaviour which instigated or promoted the assault. This finding about the involvement of co-workers, when looked at in this light, was a critical finding. No error in approach is identified. Further, the Arbitrator found that it was unclear as to whether JH would have assaulted Mr McCaw anywhere else. This is, with respect, a finding that was plainly available on the evidence. It was not coincidental that Mr McCaw and JH were at the same location. The evidence relied upon by the appellant was that JH and Mr McCaw did not know each other. It was therefore an available inference or finding that they were more likely to come together because of their common employment and that that was probably causative in accordance with the reasoning in Kelly.[25] There is no error in this approach, indeed it is difficult to discern how the Arbitrator could have found otherwise on the basis of the facts as found.
[25] Reasons, [61].
The allegation that Mr McCaw was JH’s private enemy, whilst superficially attractive, does not serve to displace the undisputed facts in this matter. This is particularly so when one accepts that Mr McCaw and JH were not known to each other outside of their common employment with the appellant. This evidence and the authorities, in particular the remarks of Jordan CJ in Nunan, were carefully considered by the Arbitrator who found that the “evidence in this case is not all one way”. However notwithstanding this remark, the Arbitrator accepted that Mr McCaw had established his case on the probabilities under s 9A of the 1987 Act. This is unsurprising in terms of the application of the proper approach to this question. In Bevan v Howard Smith Ltd[26] his Honour Judge Moffitt said that workers were not in the course of their employment to ventilate private affairs or to ventilate their private quarrels. However he did say the following:
“Each case must be considered upon the basis of the facts proved in that particular case”.
[26] [1945] 19 WCR (NSW) 81, [82].
This is precisely the path adopted, quite properly in my view, by the Arbitrator. No error in the Arbitrator’s approach has been made out and as a consequence Ground Two is dismissed.
DECISION
The basis of my power to intervene on appeal depends upon the identification of error as set out in s 352 of the 1998 Act as construed in cases like Raulston. In short, it is beholden on an appellant to establish that the Arbitrator was wrong, in this case wrong in law, on the issues contested on appeal. The appellant has failed in this task. To the contrary, the Arbitrator has in a detailed and reasoned way found the facts that were available to him and then assiduously applied the binding authorities consistent with their terms to the facts as found. This appeal is simply a restatement of the arguments which were unsuccessfully conducted before the Arbitrator, rather than a process where relevant error is identified.
The Arbitrator’s Certificate of Determination dated 5 August 2019 is confirmed.
Judge Phillips
PRESIDENT
10 March 2020
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