Whittingham v Ascott Air Conditioning Pty Ltd
[2010] NSWWCCPD 36
•13 April 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36 | ||||
| APPELLANT: | Stephen Whittingham | ||||
| RESPONDENT: | Ascott Air Conditioning Pty Ltd | ||||
| INSURER: | Employers Mutual NSW Limited | ||||
| FILE NUMBER: | A2-8723/09 | ||||
| ARBITRATOR: | Mr J McDermott | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 December 2009 | ||||
| DATE OF APPEAL DECISION: | 13 April 2010 | ||||
| SUBJECT MATTER OF DECISION: | Extension of time to appeal; section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998; injury at a Christmas party at the employer’s premises; sections 4, 9A and 14 of the Workers Compensation Act 1987; alcohol supplied by the employer; excessive consumption of alcohol; whether worker’s conduct in the course of employment; gross misconduct; serious and wilful misconduct | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | P K Simpson & Co | |||
| Respondent: | Stephen Lee Legal | ||||
| ORDERS MADE ON APPEAL: | Time to appeal is extended until 28 January 2010. Paragraph one of the Arbitrator’s determination of 19 December 2009 is revoked and the matter is remitted to an arbitrator for such further orders as are appropriate consistent with the reasons in this decision. The Arbitrator’s determination of 19 December 2009 is varied to add: “3A. The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987 as a result of his injuries received on 19 December 2008, upon production of accounts or receipts.” All other orders by the Arbitrator are confirmed. | ||||
| The respondent employer is to pay the appellant worker’s costs as agreed or assessed. | |||||
BACKGROUND
The appellant worker, Mr Whittingham, started work as a casual sheet metal offsider with the respondent employer in November 2008. On 19 December 2008, the respondent employer held a Christmas party at its Glendenning workshop. About nine or ten people attended the party, which commenced at about 12 midday.
What happened at the party is the subject of sharply conflicting evidence. Mr Whittingham alleges that the respondent’s managing director, Mr Michael Scott, charged at him and “crash-tackled” him to the ground. He also alleges that Mr Scott clenched his fist as if he was going to punch him. Another worker, Darren Flood, allegedly intervened and dragged Mr Scott off the worker.
Mr Scott denies having tackled the worker and alleges that, at about 4.00 or 5.00 pm, Mr Whittingham ran across the driveway outside the workshop, straight towards him, as though he was trying to crash-tackle him. Mr Scott stepped to one side and Mr Whittingham fell into a garden bed that has a raised concrete gutter around it, landing with the mid-section of his body on the concrete gutter.
Evidence from a third witness, Darren Flood, the worker’s supervisor, suggests that there were two incidents on the afternoon of 19 December 2008. Each involved Mr Whittingham either crash-tackling or attempting to crash-tackle Mr Scott.
Mr Whittingham alleges that, as a result of being tackled by Mr Scott, he injured his back, right shoulder, and fractured three ribs. He was off work for the Christmas vacation until 12 January 2009. After he returned to work, he suffered a serious laceration to his right thumb on 15 January 2009. Liability in respect of the thumb injury is not disputed, and is not dealt with in this appeal.
The employer’s insurer, Employers Mutual NSW Limited, has always disputed liability in respect of the incident on 19 December 2008. In a section 74 notice dated 8 September 2009, it disputed liability on the grounds that:
(a) Mr Whittingham had not suffered an injury arising out of or in the course of his employment;
(b) if Mr Whittingham did suffer an injury arising out of or in the course of his employment, his employment was not a substantial contributing factor to that injury;
(c) Mr Whittingham’s conduct was “serious and wilful” misconduct within the meaning of section 14(2) of the Workers Compensation Act 1987 (‘the 1987 Act’), and
(d) Mr Whittingham was not incapacitated as alleged or at all.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 27 October 2009, Mr Whittingham sought lump sum compensation in the sum of $17,902.50 in respect of a 12 per cent whole person impairment as a result of injuries allegedly sustained on 19 December 2008. He also sought lump sum compensation in respect of his right arm injury on 15 January 2009.
The Commission listed the matter for conciliation and arbitration on 18 December 2009, when counsel represented each of the parties. The Arbitrator gave leave for Mr Whittingham to be cross-examined and for oral evidence to be called from Mr Scott and Mr Flood.
In a reserved decision delivered on 23 December 2009, the Arbitrator made an award in favour of the respondent employer in respect of the incident on 19 December 2008. He remitted the claim for whole person impairment arising from the injury on 15 January 2009 to the Registrar for referral to an Approved Medical Specialist for assessment.
The Commission issued a Certificate of Determination on 23 December 2009 in the following terms:
“The Commission determines:
1. Award for the Respondent as regards the injury which occurred on 19 December 2008.
2. The matter to be remitted to the Registrar to be referred to an Approved Medical Specialist to assess the Applicant’s whole person impairment arising from the injury to the Applicant’s right upper extremity which occurred on 15 January 2009.
3. The Respondent to pay the Applicant’s reasonable medical expenses pursuant to Section 60 of the Act arising from the injury sustained to his right upper extremity on 15 January 2009 upon production of accounts or receipts.
4. The Respondent to pay the Applicant’s costs as agreed or assessed.”
In an appeal initially lodged by facsimile at 5.10 pm on 20 January 2010, Mr Whittingham sought leave to challenge the Arbitrator’s determination with respect to the incident on 19 December 2008.
LEAVE TO APPEAL
Monetary Threshold
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’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The last day for lodging the appeal within the time set in section 352(4) of the 1998 Act (28 days) was 20 January 2010. Though the appeal was lodged by facsimile on that day, it was not lodged until after 4.30 pm. Therefore, under Part 8 Rule 8.1(5) of the Workers Compensation Commission Rules 2006, the document was not “received by” the Commission until 21 January 2010. The appeal was therefore lodged outside the 28-day period in section 352(4). The Commission advised the worker’s solicitors by letter dated 27 January 2010 that the appeal had been lodged out of time.
The appeal was lodged again on 28 January 2010, and included submissions seeking an extension of time in which to appeal. It is submitted that the solicitor with the carriage of the matter was on leave between 22 December 2009 and 11 January 2010, and on 18 January 2010. Due to the limited time available to review the determination, consider the relevant case law, obtain instructions from the worker, confer with counsel, and finalise the grounds of appeal, the application to appeal and the submissions in support were not typed until 20 January 2010. Those documents were lodged with the Commission and forwarded to the respondent employer’s solicitor immediately upon finalisation.
The respondent does not consent to an extension of time. It submits that the worker’s submissions in support of the extension of time application “highlight the fact that care should have been taken to ensure that the appeal was filed in time”.
Rule 16.2 (11), governs an extension of time in which to appeal. It provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
I am satisfied that exceptional circumstances exist that justify the extension of time to appeal in this matter. My reasons are as follows:
(a)the discretion to extend the time to appeal must be exercised in order to do justice between the parties;
(b)the appeal was initially lodged only 40 minutes out of time on 20 January 2010;
(c)the respondent has pointed to no prejudice it will suffer if time to appeal is extended;
(d)the appeal raises issues that are arguable and, in these circumstances, strict compliance with the time limit may work a substantial injustice to Mr Whittingham, as he will lose the opportunity of having the matter determined according to its substantial merits, and
(e)Mr Whittingham’s solicitor acted promptly to again lodge the appeal once the Commission advised him that the original appeal had been lodged out of time.
Time to appeal is extended until 28 January 2010 and I grant leave to appeal.
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 Numbers 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.
THE EVIDENCE
Mr Whittingham
Mr Whittingham’s evidence is set out in his statement of 20 May 2009 and in his oral evidence before the Arbitrator on 18 December 2009.
In his statement, he said that his normal working hours were from 6.30 am until 2.30 pm. On 19 December 2008, he arrived at work at about 7.30 or 7.45 am and cleaned the workshop with other workers until about 11.00 or 11.15 am. He then helped his co-workers set up tables and a barbecue for the Christmas party. Mr Flood started cooking on the barbecue, and he and other workers sat down to have a beer between 12.00 midday and 1.00 pm.
After lunch, the party moved inside the garage area under the office, and workers sat on plastic garden chairs. Mr Whittingham spoke to Mr Scott about the work tools not being the proper tools for the job, and he asked him for some better equipment. He also asked him about getting a work t-shirt. He alleges that Mr Scott became angry and called him a “whingeing cat”. Mr Whittingham responded, “Who are you to call me a cat?”. Words were exchanged and Mr Scott walked away. By that stage, Mr Whittingham asserts that he had only had about two beers. After this incident, he started drinking Southern Comfort. At some point, while holding an empty bottle, Mr Scott said, “Who drank all my Southern Comfort?”. Mr Whittingham added at paragraph 28 of his statement:
“A short time later, I was standing up next to my chair and Mick [Mr Scott] just came charging at me and crash-tackled me. We landed on top of the chair and it was obliterated. Mick is a big man, he is fit and does weights. I was telling him to get off me. Mick arched back and balled his hand into a fist. He was going to punch me. At that time, Darren Flood intervened and dragged Mick off me. He said words to the effect, ‘Don’t do that mate’.”
Mr Whittingham did not feel any pain at that time and was “quite drunk”. He continued to drink, but did not recall much about the rest of the party. However, he allegedly does recall going outside to relieve himself and “stumbling into the shrub garden”. He described it as a “minor stumble” into the bushes, and that he did not have any cuts or grazes. He has been told that, at some stage during the party, he fell asleep for a while.
At about 3.00 or 4.00 am on the morning of 20 December 2008, he recalls getting up to go to the toilet and noticing that he had pain in the whole right side of his body. He went to Sutherland Hospital on 30 December 2008 and x-rays revealed three fractured ribs.
In cross-examination, Mr Whittingham conceded that he was drinking from the time the party started (T6.15) and that throughout the day he became quite drunk (T6.18). He had no recollection of “running at people”, but conceded that anything was possible (T6.23-27).
Mr Whittingham agreed that he had drunk some Southern Comfort, but he had no recollection of pouring a glass of Southern Comfort over his shoulder after it had just been poured for him by Mr Scott (T7.7). He conceded that it was possible he did do so.
When questioned about what had happened in the five minutes before Mr Scott allegedly charged at him, Mr Whittingham said (at T12.7):
“Oh, he basically called me a whinger for whingeing about the tools and whingeing about not owning a shirt and all of that”.
When asked if that was immediately before charging at him, Mr Whittingham said (at T12.11):
“No, as I said, I went and got a drink, and Mick came – it was just after Mick whinged about what do you call it, the Southern Comfort”.
Mr Whittingham did not recall how long after the complaint about the Southern Comfort that Mr Scott crash-tackled him, but agreed it may have been an hour. He also agreed that it was quite a long time after the exchanges he had with Mr Scott before Mr Scott crash-tackled him. Mr Whittingham’s allegation is that Mr Scott charged at him for no reason (T12.47). He did not recall any pain at the time he was crash-tackled by Mr Scott, and agreed that he was “quite drunk” (T13.9).
Mr Whittingham maintained that he could “still remember everything that happened that day” (T13.15), but then retreated and said that he remembered “most of the party” (T13.21). When he was reminded of paragraph 31 of his statement, where he had said he didn’t recall much about the rest of the party (after he had been crash-tackled), he said that his statement was wrong.
He agreed that he had no pain after stumbling into the garden bed and that he had wet himself (T14.8) at some stage during the party. He did not agree that he was severely intoxicated at the party or that he was talking loudly to people and abusing people. He denied charging at people by bending over and putting his hands up on his head like horns (T14.23). He denied charging at Mr Scott or Mr Flood. He also denied having fallen into the flower bed as a result of attempting to charge at Mr Scott. He denied being in pain after falling into the garden bed, and denied taking at least a minute to catch his breath because he had hurt himself.
Darren Flood
Mr Flood was Mr Whittingham’s direct supervisor at the Glendenning workshop. He provided a statement on 27 May 2009 and also gave oral evidence at the arbitration. He recalled the Christmas party on 19 December 2008. He left the workshop at about 11.30 am to purchase beer and other supplies for the party that started at about midday. In addition to beer, there were also bottles of spirits. He stated that Mr Whittingham was drinking heavily before he left to purchase beer and meat, and, when he returned, he saw that he was well and truly intoxicated. Mr Whittingham was “never without a beer in his hand”. In respect of Mr Whittingham’s behaviour at the party, Mr Flood said:
“17.Stephen was then charging people like a bull. He was trying to tackle his boss, Michael Scott, a few times. He was also trying to tackle other people.
18.He was doing footy-style tackles and he was trying to tackle me as well.
19. Stephen was being very loud and carrying on. He was being aggressive and annoying towards everyone.
20.The tackle where Stephen tackled Michael, he charged him like a bull and then they both ended up [on] the ground. Stephen was attempting this rugby league-type tackle on Mick a number of times.
21.I remember at one stage he ended up in the garden. As I said, he was trying to tackle everyone, and it was a number of times, so it wasn’t like it was just one tackle.”.
Mr Flood asked the worker “settle down”, and to stop drinking for 20 minutes and have some water, but the worker did not listen to him, and continued to drink beer. He thought Mr Whittingham was drinking “quickly”.
Mr Flood left the party at about 3.30 pm. He could not recall the exact words spoken by Mr Whittingham. He could, however, recall that Mr Whittingham was “just dribbling” and that he was “loud, rude, obnoxious and was just yelling and screaming and carrying on”. He described Mr Whittingham as being “very drunk”, and his behaviour as “disgraceful”.
In his oral evidence at the arbitration, Mr Flood said that, by the time he had finished cooking the barbecue, he had had one beer, and he was sober. He had a clear recollection of the events on 19 December 2008. When he attempted to take Mr Whittingham off alcohol and give him water, Mr Whittingham threw the glass of water at him, and continued drinking.
Mr Flood saw the worker charge at Mr Scott and saw them both go to the ground (T20.29). Mr Flood separated the two men, but did not see Mr Scott threaten to punch or move to punch the worker. Mr Whittingham got up and did not appear to be injured, and made no complaint of any injury. About 30 or 40 minutes later, he noticed that Mr Whittingham was on the kerb of the garden with part of his body in the garden bed. He did not get up immediately, but lay there for a couple of minutes until he received assistance. He complained that he was “a bit sore” (T21.47) because he had struck the kerb (T22.1) with his “mid-section” (T22.4) or “chest – the stomach” (T22.8). After that, there was no more charging because “he was injured” (T22.13) and he was back under control.
In cross-examination, Mr Flood said that the party started at around 11.00-11.30am, and he was not aware of any drinking before 11.00am. He maintained that Mr Whittingham was drunk by the time that he [Mr Flood] got back to the workshop. He was not aware if anyone had complained about Mr Whittingham having previously charged around like a bull. He agreed that alcohol probably had something to do with the worker’s behaviour. He agreed that he never offered to send Mr Whittingham home and that it was dangerous when people were “charging around” (T25.24).
Mr Flood did not recall Mr Scott charging at the worker and denied that Mr Scott was getting ready to punch the worker. In respect of the second incident (when the worker fell into the garden bed), Mr Flood conceded that he did not see the fall, but heard the commotion, and turned around and saw the worker in the garden and on the gutter. When challenged about the level of Mr Whittingham’s intoxication, Mr Flood responded, “You weren’t there, I was there, and he was gone” (T28.8).
Michael Scott
Mr Scott was the managing director of the respondent employer. Although he lives in Queensland, his company’s head office is at Glendenning. He was involved in the administration and financial side of the business, and had little to do with day-to-day activities in the workshop.
On 19 December 2008, he travelled to the head office to attend the staff Christmas party. Work finished at about lunchtime and one of the workers purchased some meat for a barbecue, a few cartons of beer, and a couple of bottles of Southern Comfort, Mr Scott’s regular drink.
Mr Scott had not met Mr Whittingham prior to 19 December 2008, and he knew nothing about him as a worker. He found Mr Whittingham to be “okay” until he got drunk. He asked Mr Scott about 20 times whether he still had a job after Christmas, as he was casual.
Through the afternoon, he saw Mr Whittingham “throw a couple of Southern Comforts”. Later in the afternoon, he saw Mr Whittingham run across the driveway towards him as though he was going to crash-tackle him. He stepped to one side and Mr Whittingham went past him, and fell over and landed with the mid-section of his body on the concrete gutter around the garden bed. It took him a while to get up, but Mr Scott did not think he had done any damage.
In his oral evidence at the arbitration, Mr Scott conceded that he became intoxicated to some extent at the party, and that he had no recollection of Mr Whittingham talking about inadequate tools (T30.9-13). He formed the impression that Mr Whittingham had “had a few drinks” by the way he was asking questions about whether he had a job the following year. Mr Scott did not recall Mr Whittingham charging at him, causing both men to end up on the ground.
He did recall Mr Whittingham running at him when he was standing in the driveway. He stepped aside, and Mr Whittingham ended up “flying through” (T31.48) into the gutter, where he stayed “for the best part of a minute”. Mr Scott said that nobody went to the worker’s assistance “because of the way he’d been acting all day” (T32.1). When Mr Whittingham ended up with the gutter “across his mid-section and he sort of struggled to get back up and he laid there for a while” (T32.9), the worker’s head was in the garden bed. Mr Scott didn’t recall if Mr Whittingham got assistance to get up, but thought he must have gotten up on his own. When he got up, he seemed okay, but Mr Scott did not pay that much attention.
Mr Scott had no recollection of charging at Mr Whittingham, but said that it was not in his nature. He agreed in cross-examination that he did not remember a lot about the incident. Specifically, he did not recall saying, “Who drank all my Southern Comfort?”. He agreed that, if somebody charged at him, he might charge back “just in the spirit of the game as it were”, but not with somebody he did not know. He thought he would remember if he had charged at somebody. He specifically recalled Mr Whittingham landing in the garden “because of how hard he hit the gutter”, thinking, “wow, that was a big hit” (T34.11).
Mr Scott stated that Mr Flood was usually the person who sat back and moderated his drinking and maintained the place. He agreed that Mr Whittingham had been “irritable” (T35.38).
THE ARBITRATOR’S REASONS
The Arbitrator recorded that the issues in dispute were:
(a)injury (sections 4 and 9A);
(b)wilful misconduct (section 14), and
(c)reasonable medical expenses (section 60).
He reviewed the evidence and the parties’ submissions. He recorded that Mr Flood appeared to be a “witness of credit” whose evidence gave no suggestion that he “went out of his way to support the respondent” though there were areas where his evidence assisted the respondent (Reasons at [23]). The Arbitrator found there was substantial agreement between the evidence of Mr Scott and Mr Flood and substantial inconsistency with that of Mr Whittingham. He found that Mr Whittingham did attempt the second charge on Mr Scott and that that led to him striking himself heavily, around the midriff area, on the kerb. On balance, that was when Mr Whittingham injured himself.
Had the worker fallen over when attempting relieve himself, the Arbitrator would have found the injury occurred in the course of employment and that it was compensable. However, as the injury occurred as a result of Mr Whittingham attempting to charge or tackle Mr Scott, his injury was outside the scope of his employment (Reasons at [30]).
In reference to the submission that, having regard to Mr Whittingham’s state of inebriation, the respondent had an obligation to send Mr Whittingham home, the Arbitrator stated that he was unaware of any such duty that overrode gross misconduct (Reasons at [33]).
The Arbitrator concluded (at [34]):
“On the basis that the Applicant’s self inflicted injury on 19 December 2008 was work-related (Section 4) but not substantially contributed to by his employment (Section 9A), I find for the Respondent as regards the injury to the Applicant’s lumbar spine which occurred on 19 December 2008.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)finding that the worker’s employment was not a substantial contributing factor to his injury;
(b)finding that the applicant’s conduct was outside the scope of his employment, and
(c)referring to the worker’s conduct as “gross misconduct”.
SUBMISSIONS, DISCUSSION AND FINDINGS
The Arbitrator’s reasons are inconsistent. Having found (at [30]) that Mr Whittingham’s conduct took him outside the course of his employment, it was not open to then find (at [34]) the injury was “work related”. If the worker took himself outside the course of his employment then, assuming that the injury did not arise out of the employment, something about which the Arbitrator made no finding, it was not necessary to consider whether employment was a substantial contributing factor. Though the Arbitrator referred (at [33]) to gross misconduct, he made no formal finding that Mr Whittingham’s conduct amounted to gross misconduct.
The submissions filed on behalf of Mr Whittingham rely on the principles discussed in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 relating to injuries occurring in an interval in an overall period of work during which the worker was spending the interval in a particular place or in a particular way, in a way in which he had been encouraged or induced to do by his employer. It is argued that the party took place in an interval between periods of work and that, in the absence of gross misconduct by Mr Whittingham, his injury should be viewed as having been received in the course of his employment.
The employer has not disputed the relevance of Hatzimanolis (though I doubt its application to the facts in the present case), but argued that it is not particularly helpful, especially given the concession made at the arbitration that, in general terms, attendance at a work Christmas party provided by an employer will be within the course of employment but that certain actions may take a worker outside the course of employment. It argued that Mr Whittingham’s actions in charging at Mr Scott took him outside the course of his employment and/or amounted to gross misconduct.
Mr Whittingham makes two points. First, as the employer supplied alcohol for the party and failed to stop Mr Whittingham from drinking to excess, his conduct while intoxicated lacked the “purposefulness necessary for a finding of ‘gross misconduct’” and he was in the course of his employment at the time of injury (Fekonja v Luscan Pty Ltd (1994) NSWCC 19; (1994) 10 NSWCCR 339 (‘Fekonja’); Powell v Intercapital Brokers (1998) NSWCC 16; (1998) 16 NSWCCR 259 (‘Powell’)). Second, in respect of the finding that the employment was not a substantial contributing factor to the injury, the injury would not have occurred if the worker had not been intoxicated.
The courts have considered the meaning of “gross misconduct” in several cases. In Schinnerl v Commissioner of Police [1995] NSWCC 12; (1995) 11 NSWCCR 278 at 288C Geraghty CCJ stated:
“Gross misconduct is a moveable feast, although some acts remain grossly inappropriate – selling illegal drugs, accepting bribes, assaulting a member of the public, for example.”
In Makko v Bullock Manufacturing Pty Limited [1997] NSWCC 43; (1997) 15 NSWCCR 308 (‘Makko’) it was held that because the applicant was the aggressor in an altercation that arose out of events unrelated to the worker’s employment, he was guilty of gross misconduct which took him out of the course of his employment, and was still outside the course of employment when struck in a fashion which could be characterised as self-defence.
In Walling v Mitchell Drilling Contractors Pty Ltd & Another [1997] NSWCC 22; (1997) 14 NSWCCR536 Truss CCJ stated, “given its ordinary meaning, misconduct involves some form of improper or unlawful conduct or some form of wrongful behaviour”. Her Honour’s finding that reckless riding of a motorbike was not gross misconduct was held on appeal to have been a finding of fact that could not be challenged.
In Dew v Maher (1996) 14 NSWCCR 56 (‘Maher’) a worker who was a party to misuse of his employer’s explosives to make a bomb which injured him was found to be guilty of gross misconduct. That purpose was entirely foreign to his employment and was held to remove him from that employment. Cole JA referred to Tiver Constructions Pty Ltd v Clair (1992) 110 FLR 239 at 246-248 where it was stated that the High Court in Hatzimanolis was not to be taken as laying down “a universal proposition of law that whenever gross misconduct occurs during an interlude between episodes of work, the employee must be outside the course of the employment”. His Honour also referred to the following passage in Hatzimanolis:
“In determining whether the injury occurred in the course of employment, regard must always be had ‘to the general nature, terms and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.’”
To the above, Cole JA added (at 63E) “the circumstances attending the gross misconduct”.
In Powell, Armitage CCJ held that a worker was not in the course of his employment when he received an injury when he tripped while affected by alcohol at a weekend social function organised by co-workers. His Honour added that, had the worker been in the course of his employment, his conduct in becoming intoxicated would not have amounted to gross misconduct, or serious and wilful misconduct, because the employer supplied the alcohol free to the worker, and managers not only took no action to restrain him from drinking but also consumed alcohol and became intoxicated.
In Fekonja, Bishop CCJ held the worker to be in the course of his employment when he was the driver of a car involved in a head-on collision while giving a lift to fellow workers. The worker’s car was on the wrong side of the road at the time of the impact. Noting that the ambit of the concept of “gross misconduct” had not been developed, his Honour stated (at 347D) that the ordinary meaning of the term “would seem to involve a degree of purposeful conduct” by the worker. Such conduct was not established in the evidence before him.
In Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165 (‘Stojkovic’), the worker received an injury in a fight with a co-worker during normal work hours in circumstances where the worker was the aggressor. Neilson CCJ held that the worker had abandoned his employment when, in a temper tantrum, he threw over a wheelbarrow, and that he remained outside of his employment up to and including the time of the fight. As the assault occurred during a normal period of work, as opposed to during an interval within an overall period of work, his Honour doubted that Hatzimanolis applied. If it did, he concluded that the employer had not expressly or impliedly induced or encouraged the worker to spend that interval in a particular way. What the worker did was contrary to his employer’s interests and to his duty as an employee.
Applying the above authorities to the present case it is necessary to look at the nature and circumstances of the employment and the circumstances attending the alleged gross misconduct. There are no particular features about Mr Whittingham’s employment that are of critical importance. He was employed as a casual in November 2008 and was invited to attend the employer’s Christmas party. He obviously had concerns about his job security and expressed those concerns repeatedly to Mr Scott. The respondent has properly conceded that the worker was (initially) in the course of his employment while he was at the party but argues that he took himself outside the course of employment when he attempted to charge at Mr Scott and fell over.
The circumstances leading up to and surrounding the incident when Mr Whittingham received his injury are of more importance. The party was organised and funded by the employer. The employer supplied alcohol free of charge. Though the evidence is unclear, it seems there was more than enough alcohol for the occasion and workers were not limited in the number of drinks they could have. Mr Scott, the respondent’s managing director, was obviously well affected by alcohol. Mr Flood asked Mr Whittingham to “settle down” and to stop drinking for 20 minutes and have some water. By the time he made that request, Mr Whittingham was obviously behaving badly and was well affected by alcohol. Mr Whittingham ignored that request and continued his inappropriate behaviour.
I accept that Mr Whittingham’s behaviour at the party was “obnoxious” and “irritable”,and that he was very drunk. The worker has not challenged the Arbitrator’s finding that he received his injuries when he tripped and fell on a kerb while trying to “charge” Mr Scott or that there had been no exchange between the worker and Mr Scott leading up to the “charge”. Even if Mr Whittingham had challenged that finding, given Mr Flood’s evidence, which I prefer to Mr Whittingham’s evidence, I would have no hesitation in making the same finding.
However, Mr Whittingham’s bad behaviour was fuelled by an unlimited supply of alcohol provided free of charge by his employer at a social function where his boss was also well affected by alcohol. The employer impliedly encouraged the excessive consumption of alcohol and took no effective steps to stop it when it was in a position to do so. Whilst Mr Whittingham’s conduct at the party may be characterised as boorish and inappropriate, it does not compare with the conduct in, for example, Maher, where the worker was a party to the inappropriate use of explosives.
Though it may be argued that Mr Whittingham’s conduct was analogous to the worker’s conduct in Makko, that case concerned an assault in circumstances where the worker was found to have been the aggressor. The injury in Stojkovic also arose from an assault during normal working hours where the worker was the aggressor. Neither Makko nor Stojkovic concerned activities at a social function organised by the employer with an unlimited supply of free alcohol. Mr Whittingham’s injury did not result from an assault where he was the aggressor, but from his inappropriate and foolish conduct while drunk at a work sponsored and funded social function. Having regard to the attendant circumstances of the incident I am not satisfied that Mr Whittingham’s conduct either took him outside the course of his employment or amounted to gross misconduct.
It follows that I am not satisfied that Mr Whittingham’s conduct amounted to serious and wilful misconduct under section 14 of the 1987 Act. The word “wilful” connotes that the worker must have acted deliberately. He or she must have had knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk (Sawle v Macadamia Processing Co Pty Ltd (1999) 18 NSWCCR 109). In view of his level of intoxication, Mr Whittingham was incapable of assessing the risk involved in his actions and his actions cannot be described as wilful.
The employer also argued that Mr Whittingham’s employment was not a substantial contributing factor to the injury under section 9A of the 1987 Act. The employer’s submission that the employment had nothing whatsoever to do with the fall that caused Mr Whittingham’s injuries ignores the authority of Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd [2009] NSWCA 324; (2009) 7 DDCR 75 (‘Badawi’), which directs attention to the “employment concerned” and not what the worker was doing at the actual time of the injury.
To satisfy section 9A, the causal connection between the employment and the injury must be “real and of substance” (Badawi). Given the time and place of the injury, and the general circumstances of the employment, I am comfortably satisfied that Mr Whittingham’s employment was a substantial contributing factor to the injury. The injury occurred at a social function organised and supervised by the employer. Whether Mr Whittingham’s conduct was out of character is irrelevant. His conduct (and injuries) resulted from the general circumstances of his employment. Employment was the relevant causal factor. The employer’s reference to section 9A(2)(f), which refers to a worker’s lifestyle and his or her activities outside the workplace, is of no assistance. Neither Mr Whittingham’s lifestyle nor his activities outside the workplace had anything to do with the injury.
CONCLUSION
Having conducted a review on the merits, I have determined that the true and correct position is that, on 19 December 2008, Mr Whittingham received the injuries alleged in his Application while attending a Christmas party organised by his employer and that his employment was a substantial contributing factor to his injuries. I am not satisfied that his conduct at the party took him outside the course of his employment, or that it amounted to gross misconduct or serious and wilful misconduct.
Mr Whittingham injured his back, right shoulder and ribs in the fall. Presumably because his right shoulder had not stabilised by the time of Dr Matalani’s report of 29 June 2009, he has made no claim for whole person impairment in respect of it. Given that eight months have passed since that report and given that the employer’s expert (Dr Rowe) has assessed the right shoulder in October 2009, it may now be appropriate for that part of the claim to be particularised and referred to an Approved Medical Specialist (‘AMS’) at the same time as the assessment of the lumbar spine. This will avoid the unnecessary delay and expense of a referral to a further AMS.
DECISION
Time to appeal is extended until 28 January 2010.
Paragraph one of the Arbitrator’s determination of 19 December 2009 is revoked and the matter is remitted to an arbitrator for such further orders as are appropriate consistent with the reasons in this decision.
The Arbitrator’s determination of 19 December 2009 is varied to add:
“3A.The respondent is to pay the applicant’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987 as a result of his injuries received on 19 December 2008, upon production of accounts or receipts.”
All other orders by the Arbitrator are confirmed.
COSTS
The respondent employer is to pay the appellant worker’s costs as agreed or assessed.
Bill Roche
Deputy President
13 April 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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