Toll Holdings Limited v McCaw - [2020] NSWWCCPD 14

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWWCCPD 14
Decision Date: 10 March 2020

CaseChat Overview and Summary

Toll Holdings Limited appealed a decision of an Arbitrator, who found that the respondent, Mr McCaw, was entitled to compensation for an injury sustained during an altercation at work. The appeal was heard by the NSW Court of Appeal. The central issue for the Court was whether Mr McCaw's injury arose out of or in the course of his employment, as required by sections 4 and 9A of the Workers Compensation Act 1987. Additionally, the Court had to determine whether Mr McCaw's employment was a substantial contributing factor to his injury.

The Court considered the findings of the Arbitrator, who had determined that Mr McCaw was engaged in his employment activities at the time of the incident, and that there was no evidence of any misconduct or private pursuits on his part that would have interrupted the course of his employment. The Court found that the Arbitrator's reasoning was sound and that there was no error in his conclusions. The Court further found that Mr McCaw's actions on the day of the incident did not provoke or instigate the altercation, and that he had not taken himself out of the course of his employment. The Court held that the Arbitrator's finding that Mr McCaw was in the course of his employment at the time of the incident was supported by the evidence.

ORDERS:
1. The Arbitrator’s Certificate of Determination dated 5 August 2019 is confirmed.

Orders

Orders of the court

1. The Arbitrator’s Certificate of Determination dated 5 August 2019 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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