Huhu v Workers' Compensation Regulator
[2015] QIRC 17
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- Unreported Judgment
- Huhu v Workers' Compensation Regulator[2015] QIRC 17
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Huhu v Workers' Compensation Regulator[2015] QIRC 17
Huhu v Workers' Compensation Regulator[2015] QIRC 17
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Huhu v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 017 |
PARTIES: | Huhu, Winston (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) |
CASE NO: | WC/2014/240 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 22 January 2015 |
HEARING DATES: | 18, 19 and 20 November 2014 |
MEMBER: | Deputy President Swan |
ORDERS : |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - truck driver employed for short period of time - injury occurred over weekend outside of normal working hours - appellant took truck home to clean - employer had not permitted this to occur - found that employer did not induce or encourage worker to take truck home - not an 'interval case' - employer more credible witness. |
CASES: | Workers' Compensation and Rehabilitation Act 2003 Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 Comcare v PVYW [2013] HCA 41 (30 October 2013) Federal Broom Co Pty Ltd v Semitch (1964) 110 CLR 626 Oaks Hotels and Resorts (QLD) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) (First Respondent) and Natasha Knauer (Second Respondent) (WC/2012/121) Commonwealth v Oliver [1962] HCA 38 Comcare v PVYW [2013] HCA 41 Thiess Pty Ltd and Q-Comp (C/2010/11) Danvers v Commissioner for Railways (NSW) (1960) 122 CLR 529 Qantas Airways Limited v Q-Comp and Michelle Blanch (2009) QIC 20, 191 QGIG, 115 Hatcliffe v Q-COMP [2007] QIC 26 |
APPEARANCES: | Ms H. Blattman, Counsel, instructed by Shine Lawyers for the Appellant. Dr M. Spry, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
- [1]This appeal has been made by Mr Winston Huhu against the decision of the Workers' Compensation Regulator of 8 July 2014 which confirmed WorkCover's decision dated 5 March 2014 rejecting the Appellant's application for compensation.
- [2]This is a hearing de novo and the Appellant bears the onus of proof on the balance of probabilities.
Witnesses called by the Appellant
- Mr Huhu;
- Mr Jack Huhu - (Mr Huhu's son);
- Dr Scott Campbell - Neurosurgeon.
Witness called by the Regulator
- Mr Steven Windle - (owner and operator of Anything's Possible Transport - APT) and former employer of the Appellant.
The Appellant's claim
- [3]The Appellant's claim is that he has sustained a lower back injury during the course of his employment and that his employment was a significant contributing factor to his injury pursuant to section 32 of the Workers' Compensation and Rehabilitation Act 2003. The injury was described by Dr Campbell as "a disc protrusion without sciatica" [Exhibit 5, page 5].
The Appellant's evidence and Respondent's response
- [4]Around mid-January 2014, the Appellant commenced employment as a truck driver for APT.
- [5]A truck was provided for the performance of duties and this truck was kept at the premises of APT which was situated in Carole Park, Brisbane. The depot was run by a business named "Redox".
- [6]Initially the Appellant drove his car to work and left the truck overnight at the depot.
- [7]Mr Windle had advised the Appellant to drive safely and keep the truck cab clean.
- [8]On Sunday 9 February 2014, the Appellant had taken the truck home for the purpose of cleaning the inside of the cab.
- [9]While attempting to climb up into the cab, the handle of the truck snapped off in his left hand and he fell onto his lower back on the bitumen.
- [10]There were no witnesses to the Appellant's fall.
- [11]The Appellant submitted that he had reported the broken handle before he had started working for Mr Windle. He stated that until Sunday 9 February 2014 he had not used the handle to get into the truck because he knew it was broken. It was noted that he got into the truck at least three times per day from Monday to Friday.
- [12]Mr Windle said that the Appellant had told him on about three occasions he had gone to grab the handle, but stopped as he knew it was broken.
- [13]Mr Windle's evidence was that the broken handle was located behind the driver's seat and was not one that would usually be used for getting into the cabin.
- [14]The evidence shows that both the Appellant and Mr Windle were aware of the faulty left handle of the truck. The Appellant said the handle was cracked and Mr Windle said that a bolt was missing.
- [15]On 9 February 2014, the Appellant said he told his wife he had fallen out of the truck about an hour after it had occurred. The Respondent said that up until cross-examination, the Appellant had not made that claim.
[16] The Appellant advised Mr Windle of his accident on Monday 10 February 2014. Mr Windle confirmed this.
[17] The Appellant saw Dr Copeland, General Practitioner on 11 February 2014.
- [16]Dr Campbell's evidence confirmed the consistency between his findings of the injury sustained and the mechanism of the injury described by the Appellant.
- [17]A CT scan was taken on that day and it showed a significant disc protrusion (Exhibit 4].
Question to be answered
- [18]Did the Appellant's injury arise out of, or in the course of, his employment and was employment a significant contributing factor.
The Appellant's Evidence and the Respondent's response
Arising out of or in the course of employment
- [19]The Appellant's hours of work were from Monday to Friday. He stated that he did not work overtime. This is agreed by Mr Windle.
- [20]The Respondent says that because the Appellant confirmed that he never worked overtime, in effect he "fails the first hurdle" as the incident which is alleged to have occurred to the Appellant took place on Sunday 9 February 2014. Consequently, the Respondent claims that the Appellant's condition "did not arise out of, or in the course of his employment" [Hatzimanolis[1]; Comcare v PVYW[2]].
- [21]The Appellant claims that there are two alternative paths by which an injury may be found to have arisen out of or in the course of employment.
- Where the worker injures himself while doing something which can be described as work.
This issue was considered by Kitto J in Federal Broom Co Pty Ltd v Semitch[3]:
"When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
The issue was also considered in Comcare v PVYW where the majority stated that …"the course of employment covered not only the actual work undertaken by an employee, but what was incidental to it."
- The alternate position was considered in Hatzimanolis v ANI Corporation Ltd which deals with the question of where an injury was suffered but not when the worker was engaged in actual work. The essential question to be considered was "how was the injury brought about". Further consideration goes to the question of "whether the employer induced or encouraged the employee" to be engaged in that activity and where it relates to a particular place, did the employer induce or encourage the employee to be there [Appellant's submissions - points 6, 7, 8].
The rationale for this consideration is to determine whether there was a causal connection with employment where, but for the encouragement or inducement there would not be one [Appellant's submissions – point 9].
An injury sustained by reference to a 'place'
- [22]The Appellant's evidence was that he saw his truck as being his 'truck office'. His son, Jack gave evidence that since he was around the age of 4 or 5 he had helped his father clean out work trucks.
- [23]Mr Windle's expectation was that trucks remain clean. Within the trucks were cleaning products for that purpose.
- [24]The Appellant claims that the only reason he cleaned his truck was that it was in pursuance of his employment.
- [25]The Appellant said that the employer had not included in his job description that the cleaning of his truck fell outside of his employment duties.
- [26]The Respondent said that it would be 'artificial' to distinguish the cleaning of the truck from the many other core duties of being a driver.
- [27]The Appellant submitted that he was performing actual work when his injury occurred - regardless of the fact that it occurred on a week-end. Had he been at the workplace on any week day and he was performing the same job of cleaning his truck, then there would be no question that his claim would be compensable.
- [28]The Appellant detailed many examples of what was termed 'interval cases' where what had caused the injury was far removed from the normal scope of employment. Nevertheless, the claims had been successful.
- [29]Examples cited include, inter alia, the following cases:
- Oaks Hotels and Resorts (QLD) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) (First Respondent) and Natasha Knauer (Second Respondent) (WC/2012/121)[4].
- The circumstances of this case, briefly, are that an employee was injured when sharing accommodation supplied by the employer between discrete periods of employment.
- Commonwealth v Oliver [1962] HCA 38[5].
- The circumstances of this case were that a worker was injured playing cricket during a lunch break.
- [30]It is submitted that the 'interval test' is inapplicable in this case "where independently of that test there is already a causal connection between the activity causing injury and the employment" [Applicant's submissions - point 24].
- [31]It is claimed that if the Commission determined that the injury did not arise out of the Appellant's employment, then the test applied by the High Court in Comcare v PVYW applies.[6]
Did the employer induce or encourage the Appellant to perform work duties outside of his normal weekly working hours
- [32]The Appellant claims that the work of cleaning the interior of this truck was an act where the employer induced or encouraged him to do so and it was never specified where that activity should be performed.
- [33]This was evidenced by the fact that Mr Windle often referred to the expectation that his drivers would keep their trucks clean. Also emphasizing the point was that Mr Windle left cleaning products in the truck.
- [34]The Appellant's last conversation with Mr Windle was that he was going to clean the truck on the week-end and Mr Windle said words to the effect that was a good idea.
- [35]The Appellant said that the other two employees of APT (Charlie/Graham and Julian) cleaned their own trucks on the weekend and the Appellant saw this as a clear indication that was what employees were expected to do.
- [36]The Appellant says that the type of inducement could be express or implied.[7] The Appellant said this situation was considered by Hall P in Thiess Pty Ltd and Q-Comp[8]. That matter involved a remote mine worker who had injured himself while hanging washing on the line in an interval between periods of work. In that case it was found that the employer had encouraged this by providing washing facilities with a clothes line outside the employee's donga and by not directing the removal of the clothes line.
- [37]Reference was made to comments made by Mr Windle to WorkCover on 20 February 2014 where he stated "E advised other workers doing cleaning on weekend if they want on weekend" [Exhibit 6].
- [38]Upon the consideration of whether the injury is taken to have been sustained at and by reference to a 'place', the Appellant submitted that the 'place' can only be his truck as there was no permanent place of work.
- [39]An example of this was found in Danvers v Commissioner for Railways[9]. A worker had been provided a van in which to live by his employer. The van caught on fire and the worker was killed. It was determined that the place of injury was the van, and not the locality on which the van was parked. In Comcare v PVYW[10] (at 26), the High Court stated that Danvers "was the only case which turned on the employee's presence at a place".
- [40]The Appellant submitted that if it was found that he not been engaged in work, or in an activity which he was encouraged or induced to do, it is "submitted in the alternative that Mr Huhu's injury was sustained by reference to a 'place' in the sense that it was the broken handle on his truck that caused his fall. He was encouraged or induced to be in that place, because that was his place of work" [Appellant's submissions - point 32].
Significant contributing factor
- [41]In reliance upon Qantas Airways Limited v Q-Comp and Michelle Blanch,[11] Hall P considered the meaning of 'significant' in the context of section 32 of the Act and stated:
'"Significant' qualifies the expression 'contributing factor' and, although not to be
taken as meaning 'large', 'great', 'weighty' or 'substantial', is still a concept that may be understood to mean: 'of importance'; and/or 'of consequence' to the
occurrence of the injury."
Was the Appellant authorized to take the vehicle home?
- [42]The Appellant asserts that the fact that the truck was parked at his home when the injury occurred had no role to play in the causation of the injury.
- [43]Concerning the question of authority, the only point to be considered is whether the Appellant "could have been said to have engaged in 'gross misconduct' such as to take him outside the course of employment."[12]
- [44]The Appellant said in the last conversation he had with Mr Windle before the weekend in question, he had express permission to take the truck home.
- [45]The Appellant said he had taken the truck home before the incident on 9 February 2014. He says that Mr Windle had let him do that for the purpose of him placing a New Zealand flag in the back of the truck and to put seat covers/backrests in the front of the truck. Mr Windle had done this without having been to the Appellant's place before.
- [46]The Appellant said that of the four drivers Mr Windle employed, the other three were permitted to take their trucks home.
- [47]When Mr Windle had spoken to the Appellant on the Monday morning following the accident, the Appellant says there had been no mention of him having taken the truck home of bringing the truck back to work.
- [48]Within that context, the Appellant states that Mr Windle had acquiesced to the Appellant taking the truck home.
- [49]However, while there had been no initial discussion between the Applicant and Mr Windle concerning the truck at the Appellant's home, Mr Windle says that when he heard that the Appellant had said that he had fallen from the truck, he "exploded" and used expletives and demanded to know why the Appellant had taken the truck home.
- [50]Mr Windle's evidence was that usually drivers were not permitted to take their trucks home until they had been working for him for sometime. He said that he needed to inspect the place where they would be parked. His trucks were worth around $150,000 and he did not want the Appellant to take the truck home because he "didn't know this bloke from a bar of soap" [T2-18].
- [51]Mr Windle said that he had two workers who took their trucks home. One driver lived at Mr Windle's second house which was appropriately gated and locked. This worker had been employed by Mr Windle for 12 months before he let him take the truck home. The other driver had been known to Mr Windle for around 10 years and Mr Windle had gone to his home and checked the property to see if the truck could be properly parked there over a week-end or at other times.
- [52]The Appellant said he had taken the truck home on other occasions. He had dropped his car keys in his pool and couldn't drive his car to work. Another driver took him to work and the Appellant said he took the truck home every night after that [T1-12].
- [53]Mr Windle denied that the Appellant had taken his truck home every night after this incident [T2-19].
- [54]While Mr Windle permitted the Appellant to take the truck home over one week-end, he claimed that he wasn't happy about it.
- [55]On the Friday afternoon before the accident of 9 February 2014, Mr Windle met with the Appellant and was advised that the Appellant had finished his work for the day. Mr Windle said "you can finish up now" but he denied saying to the Appellant that he may as well go straight home [T2-22]. He said that at no time had he told the Appellant he could take the truck home for the purpose of cleaning it.
- [56]The Appellant queried why this explosion occurred three days after he had taken the truck home, when Mr Windle already knew and acquiesced to the Appellant taking the truck home.
- [57]When the Appellant told Mr Windle that he had hurt himself on the week-end, Mr Windle said the first thing he asked was whether the Appellant was "all right". He said the Appellant stalled for a while in his response before saying that he had fallen out of the truck.
- [58]Mr Windle says that is why he exploded and said "What were you doing with my truck on the week-end". He said that the Appellant was quiet and walked away and there wasn't much more said until sometime later Mr Windle told the Appellant that he should go to a Doctor because the Appellant had told him he was in some pain [T2-23].
- [59]The next conversation Mr Windle said he had with the Appellant was when the Appellant told him that he was going to make a workers' compensation claim. Mr Windle said the Appellant said to him words to the effect "Hey bro, hey bro, it's the only way I'm going to get any money. It's the only I can do it and I have to do it and it won't cost you a cent". Mr Windle said he was upset at the comments made and it was the last call he had from the Appellant.
- [60]
"If 'allowed' is taken to mean no more than not prohibited, it falls outside the language of Dixon J and is so wide as to rob "in the course of the employment' of any content."
Credit
- [61]The Respondent said that there were a number of matters to be dealt with when the question of 'credit' was concerned. The first related to the Applicant's medical record.
- [62]The Respondent questioned why the Appellant had not sought medical attention on the day of the incident. On that day, the Appellant said he had taken an Endone tablet. Dr Campbell had explained that Endone is a prescription medication and is at the higher end of pain relief medication.
- [63]The Appellant said he had one Endone tablet left over after previously having a sore tooth. The Respondent stated that there was no medical or hospital reports showing when the Appellant would have received a prescription for this medicine.
- [64]The Appellant gave evidence that he had only once been prescribed Endone, but records showed that the Appellant had suffered a back injury in February 2011 and for this he was prescribed Endone by his general practitioner, Dr Pynadath on 16 March 2011 [Exhibit 5].
- [65]On 23 March 2011, the Appellant saw Dr Pynadath where he complained of a swollen left foot.
- [66]On 31 May 2011, Dr Pynadath again prescribed Endone. At this point, Dr Pynadath advised that he could no longer continue to prescribe Endone [Exhibit 5].
- [67]The Respondent stated that the Appellant then changed Doctors. The Appellant had offered no reason for this change.
- [68]On 9 June 2011, the Appellant attended a different General Practitioner and Endone was again prescribed.
- [69]On 22 January 2013, the Appellant attended on his General Practitioner, Dr Hussain and was prescribed Endone for neck pains.
- [70]In the Respondent's view, the Appellant was not a reliable witness. The Respondent also states that the Appellant was in the possession of Endone at the time of his fall.
- [71]In light of the Appellant's evidence that he had only once been prescribed Endone, the Respondent said the evidence which was eventually elicited from medical records discovered that this was not the case. The evidence showed that one General Practitioner visited by the Appellant advised the Appellant that he could no longer prescribe Endone. The documentation shows that the Appellant went to other General Practitioners and usually Endone was prescribed.
- [72]The Appellant said that his response to the commentary with regard to his prior medical history was based upon the fact that some of the medical events occurred some four years prior and without any of the relevant records being put to him. The Appellant submitted that he was a truck driver and not a sophisticated witness.
- [73]The Appellant asserts that where there were disputes, the evidence of Mr Huhu should be preferred, as Mr Windle, when giving evidence, was 'emotional and angry'.
- [74]The Appellant provided instances where inconsistencies had occurred in Mr Windle's evidence. These were:
- While Mr Windle said he had 'rules' concerning where trucks were to be kept and whose job it was to do the cleaning, this was not obvious when one examined the circumstances of his workers, who were found to have kept their trucks at home.
- Mr Windle's evidence was that he had never had another conversation with the Appellant about taking the truck home other than on the one mentioned occasion. The Appellant said that the employer had agreed to his taking the truck home for the purpose of moving [Exhibit 6].
- Concerning that event, Mr Windle had said that he was not happy with permitting the Appellant to take his truck home and he said he did so because the Appellant had been complaining about his back and how it had taken the Appellant a long time to get into his seat. The Appellant had wished to put in seat covers/backrests in the front of the truck [T2-18].
- Mr Windle's evidence that there was a 'crack in one of the handles' conflicted with his evidence that both the Appellant and the Appellant had told him that a bolt was missing from the handle of the truck [Exhibit 6].
- The earlier mentioned occasion when Mr Windle said he had 'exploded' when he had heard about the truck being at the Appellant's home on the weekend of 9 February 2014.
- [75]On the significant question of whether the Appellant was permitted to take the truck home after that first event, I find that the evidence of Mr Windle is the more compelling. The significance being that if the alleged accident occurred on a week-end when the Appellant had not been permitted to clean his truck from home, then his claim was not compensable.
- [76]I have accepted Mr Windle's evidence for the following reasons:
- (a)Mr Windle was the owner/operator of a trucking business.
- (b)Mr Windle's trucks were very expensive - at around $150,000 and up to $300,000.
- (c)The two drivers who were permitted to take their trucks home did so only after either having worked for Mr Windle for some time or that they were known to Mr Windle for a long time.
- (d)The Appellant had worked for Mr Windle for a matter of some weeks and Mr Windle's concern that he did not know the Appellant "from a bar of soap" is completely understandable in the circumstances.
Consideration of the Evidence and Conclusion
- [77]I am unable to find in the Appellant's favour. I have preferred the evidence submitted by Mr Windle.
- [78]I have found that the Appellant was not permitted by Mr Windle to take the truck home on the week-end of 9 February 2013. Mr Windle's explanation as to how the cab of the truck should be 'cleaned' is accepted. The purpose of the 'clean' was to remove the type of rubbish which might be accumulated in the cab of the truck during the course of the day - i.e. cigarette butts, plastic bottles etc. I have accepted the Respondent's claim that it would be 'artifical' to distinguish the cleaning of the truck from the many other core duties of being a driver.
- [79]The evidence of Mr Windle as it related to two other employees is accepted. They had not been permitted at the outset of their employment to, of their own volition, take their trucks home when it suited them. One had to work 12 months beforehand and the other was well known to Mr Windle.
- [80]It is perfectly reasonable to accept Mr Windle's evidence that, since the trucks were very expensive to purchase, he would wish to monitor where they were placed. Mr Windle's evidence that he knew nothing about the Appellant also makes sense. It is believable that he would not wish a person unknown to him to take such an expensive truck home.
- [81]That Mr Windle permitted the Appellant to take his truck home on one week-end because the Appellant had been complaining about his back and wished to provide support for it in the cabin of the truck is understandable. He did not like doing it, but after the Appellant persisted with the request, he agreed.
- [82]In Hatzimanolis the questions which were considered were "how was the injury brought about?" and "whether the employer induced or encouraged the employee" to be engaged in the activity. Where the activity relates to a particular 'place', did the employer induce or encourage the employee to be there?
- [83]The answer to those questions in the circumstances of this case are as follows:
- The injury was brought about because the Appellant took his truck home from work and in the course of cleaning it, fell and injured himself. In my view, the employer did not induce or encourage the Appellant to take his truck home and clean it over the week-end. While cleanliness was encouraged by Mr Windle, his explanation of what was required was a minimal emptying of the truck of things such as cigarette butts, plastic etc. There is nothing unusual or onerous about this request when a truck returned to the depot at the end of a work day [See paragraph 78 of this decision].
- [84]I have found that the Appellant's injury "did not arise out of or in the course of his employment" [s 32(1) of the Act].
- [85]The appeal is dismissed.
- [86]The decision of the Regulator is confirmed.
- [87]The Appellant is to pay the costs of and incidental to the appeal.
Footnotes
[1] Hatzimanolis v ANI Corporation Ltd [1992] HCA 21.
[2] Comcare v PVYW [2013] HCA 41 (30 October 2013).
[3] Federal Broom Co Pty Ltd v Semitch (1964) 110 CLR 626.
[4] Oaks Hotels and Resorts (QLD) Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) (First Respondent) and Natasha Knauer (Second Respondent) (WC/2012/121).
[5] Commonwealth v Oliver [1962] HCA 38.
[6] Comcare v PVYW [2013] HCA 41.
[7] Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 at 491.
[8] Thiess Pty Ltd and Q-Comp (C/2010/11).
[9] Danvers v Commissioner for Railways (NSW) (1960) 122 CLR 529.
[10] Comcare v PVYW (at 26)
[11] Qantas Airways Limited v Q-Comp and Michelle Blanch (2009) QIC 20, 191 QGIG, 115.
[12] Comcare v PVYW at 32.
[13] Hatcliffe v Q-COMP [2007] QIC 26.
[14] Hatzimanolis v ANI Corporation Ltd [1992] HCA 21.