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[2009] VSCA 263
General information, not legal advice.
Court of Appeal (Vic)
2009-11-20
MAXWELL P, REDLICH JA and ROBSON AJA
Original judgment source is linked above.
Bailey v Martin (Unreported, County Court of Victoria, Judge Lawson, 8 February 2008)
ACCIDENT COMPENSATION - Common law proceedings - Whether proceeding barred by statute - Whether plaintiff worker entitled to statutory compensation - Whether injury 'arose out of' employment - Whether injury 'arose in the course of' employment - Whether dispute related to employer's business - Worker made racist remark - Whether worker abandoned employment - Whether private quarrel - (Vic) , .
WORDS AND PHRASES - 'arising out of employment'; 'arising in the course of employment'.
Background to the appeal and issues for determination
1 On 2 February 2007, the respondent ('Bailey') commenced proceedings in the County Court against the appellant ('Martin') seeking damages for assault. The statement of claim alleged three separate assaults, two on 16 September 2005 and the third on 5 September 2006.
2 Martin's defence contended that the claim in respect of the September 2005 assaults was barred by s 134AB of the Accident Compensation Act 1985 (Vic) (the 'Act'). That section prohibits - subject to specified exceptions - the commencement of a personal injury claim at common law if the plaintiff's injury arose out of, or in the course of, his employment, unless certain preconditions are met.
3 By consent the issue raised by the defence came on for preliminary determination before her Honour Judge Lawson. The submission for Martin was essentially as follows. At the time of the 2005 assaults, Bailey was performing his duties as a manager of a farm. Any injuries suffered by Bailey therefore arose out of, or in the course of, that employment. Accordingly, since Bailey had not brought himself within any of the exceptions in s 134AB, he was prevented by the Act from commencing proceedings for damages at common law in respect of those assaults.
4 Her Honour rejected the defence contention. She ruled that Bailey's injuries did not arise out of or in the course of his employment, and ordered that the relevant part of Martin's defence be struck out. Her Honour said:
my finding that Martin was the perpetrator of the assault I find that there is not a sufficient connection between the employment and the plaintiff's injury.
5 Martin now appeals against that ruling on two grounds, as follows:
6 It was common ground that, because this is an appeal by way of rehearing, this Court must reach an independent conclusion on the issue of whether Bailey's injuries arose 'out of or in the course of' his employment.[1] The appellant's burden of persuasion will be discharged, and the requirement to show error in the decision below will be satisfied, if this court reaches a different conclusion from that reached by the trial judge.[2] The position may be contrasted with that which obtained in many of the cases to which reference will be made below, where the appeal court was confined to deciding whether the decision below was reasonably open on the evidence.[3]
7 For reasons which follow, I have concluded that Bailey's injuries arose both out of and in the course of his employment, and that Martin should therefore succeed in his appeal.
8 At the time of the assaults, Martin lived on a farm block surrounded on three sides by a farm owned by Bailey. Access to the farm from the main road (McPherson's Road) was via a dirt road, which ran between the two farms. Up to the time of the assaults, Bailey and Martin had had an amicable relationship.
9 Kaarimba Bulk Logistics Pty Ltd ('Kaarimba') owned and operated a small dairy farm on Bailey's property. Bailey's de facto partner was the sole director of Kaarimba. Bailey was employed by Kaarimba to conduct the dairying business and run the farm.
10 On the day of the assaults, a delivery of hay for Kaarimba was being made via the dirt road between the farms. The hay was to be unloaded in an area in front of Bailey's farmhouse. Hay had been unloaded there twice before. On this occasion, Martin was present. He was standing on his side of the fence. He spoke to the delivery driver and another Kaarimba employee, Mr D'Agostino, saying that he did not want the hay to be unloaded in the intended location. He explained that having the hay distributed from that area had previously caused inconvenience to his family.[4] This prompted D'Agostino to go and get Bailey from the farmhouse.
Bailey walked up to Mr Martin and said: "What is the problem, John?"
Bailey then noticed Mr Martin to be agitated. He noticed that Mr Martin had a stubbie in one hand and could smell that he had been drinking alcohol.
Martin said: "I don't want you to unload hay there". Mr Bailey replied that he was going to.
Martin said words to the effect that putting the hay where it was being put was a danger.
According to Bailey's evidence, Martin's concern was based on what had happened on a previous occasion, when his wife was driving along the dirt road and had almost run into Kaarimba employees who were moving hay from the disputed location across the dirt road.
12 The agreed summary of the incident continues as follows:
Bailey responded by saying: "John, just drive slow past the gateways because there could be cows running out or tractors going out?"
Martin then said: "Don't go down that road or I'll come over and smack you in the mouth now."
Bailey said to Mr Martin in response: "I will do on the farm what we have to do."
Martin then threatened to come over the fence and Mr Bailey said: "I wouldn't do that because if I hit you, you would sue me because you have blackfellow in you."
Bailey then apologised for having so spoken and said: "I'm sorry, it's not meant as a racial slur, anyway."
Bailey then turned to walk away [towards the hay] when he heard a noise behind him. He turned back to see Mr Martin on Mr Bailey's side of the fence with his jacket off. Mr Martin then hit Mr Bailey below the knee and an altercation occurred on the ground until Mr Martin was dragged off Mr Bailey.
Bailey said: "You've broken my leg". Mr Martin replied: "Good, I'll do a better job of it now."
Martin was dragged off Mr Bailey by the truck driver and Mr Martin said: "You better die while you're there or I'll kill you when you come back, you racist so and so".
13 As Robson AJA has pointed out,[7] there was a dispute on the evidence about the precise words spoken. The agreed summary reflects Bailey's version rather than Martin's, the judge having said that she accepted the evidence of Bailey and D'Agostino in its entirety. Counsel appearing for Bailey on the appeal confirmed that her Honour should be taken to have accepted Bailey's account of what he said to Martin. What mattered, according to the submission, was that there had been a racist slur. Counsel for Bailey also confirmed that the Court could proceed on the basis that Martin had threatened to come over the fence, and that Bailey's racist remark was made in reaction to that threat.
14 Martin's evidence was that he had jumped the fence after Bailey had made the racist remark. The judge accepted - and it was common ground on the appeal - that it was that remark which had caused Martin to strike Bailey: [8]
cross-examination, Martin denied he was the aggressor, but conceded that Bailey was not exactly aggressive. He agreed that he was upset by the racist comment and that is why the fight took place. When asked "The only reason you jumped the fence was to physically have a go at him?" He answered, "In the heat of it all, yes, I was lost and confused and upset." "Because of the racial abuse?" he said "Yes".
15 Her Honour also found that Bailey's duties as farm manager included responsibility for positioning the load of hay.[9] Kaarimba's director gave evidence that Bailey was not authorised to racially abuse others in the execution of his employment.
the course of that discussion matters that had been simmering between the two men concerning other matters relating to the property for example, the unfinished shed and the near miss involving Martin's wife were ventilated. Martin then threatened to contact the council about the hay and the other matters concerning the property. The inappropriate racial slur came at the end of the discussion. Martin admitted that following the racist remark he hopped over the fence, took his jacket off and shaped up for a fight.
am satisfied that the trigger for the fighting was the racist remark made by Bailey and that caused [Martin] to climb over the [fence] and assault Bailey in the manner that he described in his evidence. I find that Martin struck Bailey and that caused him to fall to the ground. I am satisfied that Bailey only took defensive actions and he was not the person who initiated the physical fight.
find that Martin was the aggressor and that Martin's actions took this matter outside the realm of employment and into the area of private dispute between two individuals.
The s 134AB 'serious injury gateway' is applicable
17 At the commencement of the hearing, the Court raised with counsel the question whether the applicability of s 134AB was affected by the fact that - assuming that Bailey's injury did arise out of or in the course of his employment - the injury was caused by a stranger to the employment. It was common ground that this was immaterial.
18 The prohibition on proceedings at common law applies to 'a worker who is ... entitled to compensation in respect of an injury arising out of or in the course of ... employment.' The manifest policy of s 134AB (and its predecessor provisions) is that a person who is entitled under the Act to compensation in respect of a work-related injury may not bring proceedings at common law in respect of that injury. Subject to the exceptions in s 134AB, the bar on proceedings at common law is co-extensive with the entitlement to compensation under the Act. Section 82(1) of the Act provides:
there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
19 As Ashley J said in Hegedis v Carlton & United Breweries Limited,[12] no causal relationship between the injury and the employment is necessary in order for injury to be judged to have occurred in the course of employment. Provided the nexus with the employment is established, the injury is compensable however it is caused. Likewise with s 134AB. The decision of this Court in Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd[13] confirms that the 'gateway' provisions limiting common law proceedings apply in the usual way to cases where injury is caused by a third party.
'An injury arising out of or in the course of employment'
20 As the trial judge pointed out, there has over the years been a very great deal of litigation about the application to particular circumstances of the requirement that, in order to be compensable, an injury must be shown to have arisen 'out of or in the course of employment'. Her Honour referred in her reasons to the decision in Stojkovic v Telford Management Pty Ltd.[14] In that case, Neilson J of the New South Wales Compensation Court surveyed no fewer than 21 first instance and appellate decisions in cases involving injury to (or the death of) a worker as a result of an altercation in or near the workplace. Typically, but not universally, the altercation involved a co-worker. I have found his Honour's analysis of the cases most helpful. For ease of reference, I have sought to summarise the features of those decisions, and of the decision in Stojkovic itself, in Appendix A to these reasons.
21 As already noted, the prohibition on common law proceedings is the reflex of the entitlement to compensation under the Act. Without exception, the decisions under consideration are concerned with the scope of the entitlement, not with the scope of the prohibition. That is, the court or tribunal has been concerned with the question whether the worker (or in the case of death, his/her dependants) can successfully bring the circumstances of the injury or death within the entitlement provisions for workers compensation. The decisions are directly on point nonetheless.
22 It would appear from these authorities that two factors are of critical importance in determining whether the worker's injury has the requisite connection with the employment. The first is whether the altercation has its origin in an employment-related matter or in a personal or private matter. The second is whether, at the time the injury (or death) occurred, the worker was performing the duties of his/her employment. The following general propositions can be derived from the authorities:
1. If the altercation had its origin in an employment-related matter, the injury is likely to be regarded as having arisen 'out of the employment'.[15]
2. If the altercation had its origin in a private quarrel or a personal grievance, then the injury is unlikely to be compensable unless the worker was carrying out the duties of his/her employment when injured, and was not the aggressor.[16]
23 As noted earlier, the judge upheld Bailey's contention that his injury arose neither out of his employment nor in the course of his employment. Her Honour's key findings were that:
24 Her Honour's ultimate conclusion was expressed in these terms:[18]
reject [the] submission that anything Bailey was doing as part of his farm management duties was in the scope of his employment. I am satisfied that the cause of Bailey's injury was the assaults occasioned by Martin. Martin's actions were an independent act of personal retribution by way of vengeance in response to Bailey's inappropriate racist remark. The racist remark was not said in the pursuit of [his employer's] interests. [The director's] unchallenged evidence was that it was not authorised by the employer.
my finding that Martin was the perpetrator of the assault I find there is not a sufficient connection between the employment and [Bailey's] injury.
25 In the present case, the altercation which ended with Bailey being injured had its origin in a matter connected with Bailey's employment. Clearly, it was within Bailey's duties as farm manager to arrange for the delivery of the hay and, for that purpose, to decide where the delivery should take place. The dispute began when Martin objected to the delivery taking place in the nominated area in front of Bailey's farm house.[19]
26 In response to Martin's objection, Bailey made it clear that he proposed to proceed to carry out this part of the business of the farm as planned. 'I will do on the farm what we have to do'. As noted earlier, it was at this point that Martin threatened to come over the fence, presumably in order to use physical force to try to dissuade Bailey from unloading the hay at the proposed location. In turn, Bailey's response was, evidently, intended to dissuade Martin from doing so. 'I wouldn't do that because if I hit you, you would sue me because you have blackfellow in you'.
27 It may be accepted that the racist remark was the immediate 'trigger' for the assault, but it is quite artificial to separate that one remark from the heated dispute in the course of which it was made. After all, as I have noted, Martin had threatened to come over the fence to press home his point about the hay delivery.
28 There is, in my view, a close parallel with the circumstances addressed by the New South Wales Court of Appeal in Tarry v Warringah Shire Council.[20] In that case, an application for workers compensation had been made by the widow of a worker (W) who had been the foreman at a garbage depot. It was W's duty to allocate work to the various tanker drivers who reported for work early in the morning. One morning, when allocating work, W gave a particular job to N. A co-worker (U) said 'That's my work, I can handle it'. An argument then developed, during which W said to U: 'I will have to put you in your place'. U replied: 'When are you going to do it?'. W then said: 'One of these days you'll find out', whereupon U replied: 'When you're ready'. W said: 'Right now will do', whereupon the two men went outside the gates and proceeded 'to take up fighting attitudes'. W collapsed with a cardiac arrest, from which he died 10 days later.
29 The Court of Appeal was unanimously of the view that the injury from which W died arose out of his employment. In the view of Hutley JA (with whom Glass and Samuels JJA agreed), the injury[21]
out of an altercation between two employees ... about a matter which concerned their respective authorities and duties; it arose in a work situation. It does not follow that the injury did not arise out of the employment because in the course of what he was doing [W] was doing acts which were not in accordance with his duties as a foreman. It is, of course, misconduct in a foreman to settle matters of responsibility by engaging in fisticuffs with a man under you. That, however, has really nothing to do with the question.
facts proved and established by [the trial judge] show that the injury from which [W] died was directly and unbrokenly connected with his employment, that is, things he was doing properly within the scope of his employment.
30 In the view of Glass JA (with whom Samuels JA also agreed), the circumstances constituted
unbroken sequence of events occurring within a space of about ten minutes commencing with the disagreement about the allocation of work and terminating in the cardiac arrest of the deceased.
determining whether an injury arose out of the course of employment, ... whether the deceased at the time of the injury was within the scope or course or sphere of his employment is a relevant factor, but it is not a decisive factor. In a given situation the injury may arise out of the employment even though at the time it is sustained the deceased or the applicant is no longer in the course of his employment. So much was specifically stated by Fullagar J in his judgment in Kavanagh's Case.[23] The proper test for determining whether the injury arose out of the employment has been stated by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd,[24] when he describes the employment as causing or contributing to the injury; by Fullagar J in the passage to which I have referred, when he states the need for a causal connection between the employment and the injury and by Starke J in South Maitland Railways Pty Ltd v James,[25] when he says "the words 'out of' require that the injury had its origin in employment."
31 In my view, the circumstances in which this injury occurred should be similarly characterised. (I do not regard the fact that Martin was a stranger to the employment, rather than a co-worker, as materially affecting the analysis.) Adopting Hutley JA's formulation, the injury which Bailey suffered 'was directly and unbrokenly connected with his employment, that is, things he was doing properly within the scope of his employment.' The connection with the employment was not broken by the fact that Bailey insulted Martin, as Bailey was attempting to dissuade Martin from physically interfering with the proposed hay delivery (or from assaulting Bailey in order to achieve that result). Put another way, the use of insulting language in the course of a work-related dispute did not alter the character of the dispute.
32 The New South Wales Court of Appeal followed Tarry in the later decision of Davis v Mobil Oil Australia Ltd.[26] The injured worker was a member of the Storemen and Packers Union, which had instructed him to place a ban on the loading of trucks from a particular company when they came to the employer's depot. When one such truck arrived, the worker informed management of the ban. Following the worker's refusal of the superintendent's request to load the truck, there was 'an angry exchange' between the worker and the superintendent. As a result, the worker suffered anxiety and stress and had to take time off work.
33 The Court of Appeal was unanimously of the view that the worker was entitled to compensation. In the Court's view, no other conclusion was open but that his injury arose out of the employment. After referring to what Hutley JA had said in Tarry, Hope JA (with whom Priestley and McHugh JJA agreed) said:[27]
facts in Tarry are of course not identical to the facts in this case, but it seems to me it is apparent, in the light of that decision, that the necessary causal relationship between the injury suffered by [the worker] in his employment was established by the findings which [the trial judge] made. As it seems to me, it would not matter what type of test one applied to find that causal connection. It was undoubtedly there. The incident which led to the emotional condition of [the worker] was one which occurred during the hours of his employment, at the place of his employment, between his superintendent and himself, concerning the carrying out of work in the course of his employment. It is true that he had refused to carry out a particular instruction by [the superintendent] , but in my opinion that in no way denies that what happened arose out of the employment.
34 If a refusal to comply with a superior's order 'in no way' broke the link with the employment in that case, it can readily be understood why the making of a single insulting remark did not do so in this case.
35 For similar reasons, I consider that Bailey's injury also arose in the course of his employment. Contrary to the view of the learned judge, I do not regard Bailey's making of the racist remark as having constituted an 'abandonment' of his employment. The remark did not relate to a 'private matter', nor was this a 'private quarrel'. On the contrary, the remark was made - and the injury was sustained - while Bailey was performing the duties of his employment. The pursuit of his employment was 'an accompanying condition' of the injury.[28]
36 In South Maitland, members of the High Court used various different forms of words to define the connection which needed to be shown, between the injury and the employment, for it to be said that the injury arose 'in the course of employment'. In my view, each of those formulations can be applied to the present case, so as to lead to that conclusion.[29] That is to say, when Bailey was injured, he was:
37 In South Maitland, the fatal injury had been sustained after the worker sought to investigate a report that his work skills had been disparaged by a co-worker. Starke J said:[33]
the worker's act in seeking [the manager of the tool room] was not an act the worker was employed to do, still it was an act incident to his employment or not so far removed from the employment contemplated by the employer and worker as to exclude it from the course of his employment. It was a natural thing for any worker to do and not altogether foreign to the employer's interests.
Three members of the Court emphasised that, if the worker had been pursuing a private grievance or had gone 'to have a quarrel with' the manager, the injury would not have been compensable.[34]
38 I accept the unchallenged evidence given on behalf of Kaarimba that insulting a neighbour 'was not an act [Bailey] was employed to do'. I nevertheless consider that, for Bailey to have said what he did, in the context and for the purpose described earlier, was 'not so far removed from the employment contemplated by the employer and worker as to exclude it from the course of his employment'.
39 For these reasons, I consider that the first ground of appeal is made out. It is unnecessary to deal separately with the second ground.
40 The appeal must be allowed, and the order made below set aside. Instead it should be ordered that the proceeding so far as it concerns events on 16 September 2005 is incompetent, and must be dismissed.
41 I agree with Maxwell P for the reasons he gives that the action must be dismissed. I would make the following additional observations.
42 It is now settled by a line of authority commencing with Kidman v Sefa[35] and followed in Farrar v Western Metropolitan College of Tafe,[36] State of Victoria v Robertson[37] and Brambles Ltd v Wail; Brambles Ltd v Andar Transport Pty Ltd,[38] that where a worker suffers injury arising out of or in the course of their employment after 1 December 1992, the worker cannot maintain proceedings against a non-employer defendant to recover damages for such injuries without satisfying the pre-requisites of s 135A of the Act and that is so even if the non-employer defendant is the only defendant. That is to say a defendant who is not in any way connected to the worker's employment is entitled to insist upon the worker's compliance with the Act as a prerequisite to the commencement of common law proceedings. I assume that because of the similarities in the language of ss 134AB and 135 it has been accepted by the parties that if the injury to the plaintiff arose out of or in the course of his employment the plaintiff must in the present case also pass through the serious injury gateway prescribed in s 134AB notwithstanding that the only defendant was not connected to the plaintiff's employment.
43 Whatever the precise context and content of the offensive remark, and the trial judge's findings are not entirely clear as to either of these matters, the remark was either part of or so close in time to the conversation concerning matters related to the plaintiff's employment, that it could not be said that the remark or the ensuing assault upon the plaintiff did not arise out of or in the course of the plaintiff's employment.
44 Moreover the trial judge found that when the defendant first threatened to assault the plaintiff, the plaintiff told the defendant that he should stay on his side of the fence. Following the offensive remark, the plaintiff turned and walked away towards the hay. It could not be in doubt that he was walking towards that hay as
part of his employment. The defendant then trespassed and assaulted the plaintiff causing the injuries the subject of the claim for damages. As the trial judge found, these acts of the defendant were entirely independent of any act of the plaintiff. That finding precluded any conclusion that the plaintiff was engaged in some activity at the time of injury which lay outside his employment or that the assault did not occur in the course of or arise out of the plaintiff's employment.
45 This appeal concerns the meaning of 'arising out of or in the course of' employment. In particular, whether a farm worker who is assaulted as a result of racially abusing a neighbour is prevented from seeking damages for assault because his right of action is barred by the Act as his injuries arose out of or in the course of his employment.
46 For the reasons that follow, I find that the trial judge was correct in finding that the assault did not arise out of or in the course of the worker's employment and he is therefore not barred from seeking damages for the assault. I would dismiss the appeal.
47 The appellant, Garnet Bailey, brought proceedings against John William Martin in the County Court of Victoria at Shepparton in respect of a claim for damages for personal injury which he suffered following assaults alleged to have occurred twice on 16 September 2005 and once on 5 September 2006.
48 Bailey alleges that he was assaulted and battered by Martin at 425 McPherson Road, Wunghnu on 16 September 2005. He alleged that at the time of the first assault Martin struck him above the left temple of the head and generally pushed his
body, knocking him to the ground. He alleges that while on the ground Martin struck him three or four times in the left temple region and on the left jaw on one occasion and then twice on his mouth.
49 Bailey alleges that while he lay on the ground he told Martin to stop hitting him because he thought he had broken his leg but Martin did not stop assaulting and battering him until Martin was restrained by other persons.
50 Bailey alleges that after the first assault he rang for an ambulance on his mobile phone. While Bailey was waiting for an ambulance, Bailey alleges that Martin said to him, 'You had better die while you're away because I'll kill you when you get back'. Bailey describes this as the second assault. Bailey alleges he suffered loss and damage including a fracture to his leg and nervous shock because of the first and second assaults. A third assault was alleged to have occurred previously on 5 September 2006.
51 Martin pleads in defence to the first and second assaults that the actions were barred by s 134AB of the Act. Subject to certain exceptions that section provides insofar as it is relevant that a worker who is entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 shall not recover any damages for pecuniary or non-pecuniary loss.
52 Section 82(1) provides as follows:
there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act.
53 Thus, for Mr Bailey to be denied his common law right to sue, it is necessary to establish that he is entitled to compensation for his injury. I assume that the entitlement is to compensation under the Act. It is therefore necessary for him to establish that there is caused to him an injury arising out of or in the course of any employment.
54 By the consent of the parties, the validity of this defence was raised for preliminary determination by the trial judge.
55 Her Honour found that the background to the proceedings were not in dispute. I will adopt her description of these facts.
56 The parties are neighbours who live on adjoining properties located on McPherson Road, Wunghnu, Victoria. Wunghnu is a small rural town in the Goulburn Valley, it lies 30 kilometres due north of Shepparton.
57 The assaults occurred at 425 McPherson Road, Wunghnu ('the property'), in an area in front of Bailey's house, where it was proposed that some hay be unloaded. The area was described by Bailey as being in the 'teardrop' at the front of the house. It is opposite Martin's property. Hay had been unloaded at that spot on two previous occasions.
58 The residence on Martin's property was close to the common boundary between his property and Bailey's property. Bailey's house was also close to that common boundary and to Martin's house.
59 Kaarimba Bulk Logistics Pty Ltd ('KBL') owned and operated a small dairy farm on Bailey's property. The company purchased the property some time in 2003. It is now in liquidation. Sandra Fitzgerald, Bailey's de facto partner, is the sole director of KBL.
60 Bailey was contracted to KBL as the manager responsible for the day-to-day operation of the farm, including milking and all other duties associated with the running of the farm. His contract was by way of an oral agreement, and he was paid fair remuneration for the farm work. The method of payment was by way of invoicing and he had access to a credit card with a certain limit. He lived on the property with Ms Fitzgerald and was free to grow crops of vegetables from which he could potentially derive his own separate income stream. He used his own machinery for the purpose of the dairying business and growing his vegetables. The arrangements were very flexible.
62 Martin purchased his property in May 2002. He works full-time as the CEO of Koorie Employment Enterprises and also has an interest in greyhounds. He describes himself as a hobby greyhound trainer. He first met Bailey some time in 2003, following the acquisition of the property by KBL. At that time, Bailey commenced to live on the property.
63 Until the events giving rise to the proceedings, the parties had an amicable relationship. Martin would regularly attend the farm by prior agreement to purchase milk for his greyhound pups.
65 Martin said, in his defence, that Bailey's actual damages in respect of the first and second assaults (which assaults were not admitted but were expressly denied) were barred by the provisions of s 134AB of the Act.
66 The trial judge held that in the event that a finding was made that Bailey suffered injury arising out of or in the course of any employment with KBL, s 134AB of the Act applied and therefore, Bailey could only commence proceedings in respect of any injury suffered by him as a consequence of the first and/or second assault strictly in accordance with the Act and within the provisions of s 134AB.
67 The trial judge canvassed the history of the Act and the various methods by which leave could be obtained to bring a common law proceeding, including establishing that the injury was a serious injury. She concluded that Bailey had not sought leave to commence proceedings pursuant to the terms of the provisions of s 134AB of the Act, in accordance with ss 134AB(3) and (4), nor had he been granted consent or leave to commence proceedings pursuant to s 134AB(16).
68 The trial judge said that the issue for determination was therefore whether Bailey's injury arose out of or in the course of employment or deemed employment with KBL. She said that it was Martin's case that Bailey's injury arose out of a dispute between the parties concerning where a load of hay should be unloaded on Bailey's property. She said that the discussion initiated a verbal interchange between the two men, which then escalated to a physical confrontation between them that caused Bailey's injury.
69 The trial judge said that Martin's argument was that the hay was to be used to feed the cows that provided the milk and hence income to KBL, and essentially, therefore, the injury occurred in circumstances that arose in connection with KBL's business and a finding ought to be made therefore that the injury arose out of Bailey's employment.
70 She said that Bailey disputed this and said in response that, given the circumstances of the injury, it could not be held to have arisen out of or in the course of his employment. Alternatively, if such a finding was made by the Court, then Bailey submitted that a finding ought to be made that he was acting outside the scope of his employment, that is, his acts were not authorised and therefore the provisions of s 134AB of the Act should not apply.
71 The trial judge found that the injury occasioned by the first and second assault did not arise out of or in the course of Bailey's employment or deemed employment with KBL and that paragraph 7A (which contained the defence under s 134AB of the Act) should be struck out.
72 Martin appeals with leave of this Court from the interlocutory orders of the trial judge made on 8 February 2008. The orders appealed were:
(1) The injury occasioned to Bailey as a result of the first and second assault on 16 September 2005 did not arise out of or in the course of Bailey's employment or deemed employment with Kaarimba Bulk Logistics Pty Ltd.
(2) That paragraph 7A of the amended defence be struck out.
73 On 31 March 2008, leave to appeal was granted by Ashley and Neave JJA from that order. Initially, there were five grounds of appeal, but leave was only given on the condition that the grounds of appeal be confined to the following:
(1) Upon the facts found, the learned trial judge was compelled to hold that any injury sustained by Bailey by reason of the assault which allegedly occurred on 16 September 2005 arose out of or in the course of his employment by KBL.
(2) The learned trial judge misdirected herself by taking into account the conduct of Martin as the perpetrator of the alleged assaults in determining whether Bailey had sustained injury thereby arising out of or in the course of his employment.
74 As indicated above, the appeal is 'upon the facts found' and thus this appeal does not involve any dispute with the facts found by the trial judge.
75 The facts found by the trial judge were as follows.[39] Both parties were called and gave evidence. In addition, evidence was led from Joe D'Agostino, a KBL employee who was present at the time the assaults occurred and Sandra Fitzgerald, the director of KBL. The truck driver who was present at the time the hay was to be unloaded was not called and the parties agreed that no inference should be drawn concerning that fact.
76 The trial judge said that the evidence describing the lead-up to the assault was not in dispute. She said that on 16 September 2005, at about 4.00 pm, a load of hay was being delivered to KBL's property to an area in Bailey's front yard. She said that the loaded truck had arrived and D'Agostino had started with the tractor to pull in towards the truck, when Martin approached D'Agostino. Martin was standing inside his property behind a high cyclone fence. He said to D'Agostino, 'Are you unloading that hay there again?', and he replied, 'Well, this is where the hay has been unloaded, this is where I'm going to unload it'.
77 The trial judge found that thereafter, there was further discussion between the men about the appropriateness of unloading the hay at that particular spot. Martin told D'Agostino about the inconvenience his family had experienced in the past as a consequence of the hay being distributed from that area.
78 D'Agostino's evidence was that Martin smelt a little bit of alcohol and that he may have had something in his hands, a can or something, although D'Agostino was not sure. It became clear to him that Martin was not happy about the hay being unloaded at that spot, so he went and told Bailey.
79 He told Bailey, 'Garnet, the next door neighbour said something about not wanting the hay stacked here because of the light shining in and out of the house when you're picking up the hay to be - like, feeding the hay at night time'. Bailey was in the house drinking coffee, having a break before milking. The two men then went back to the spot where the hay was to be unloaded.
80 Bailey and Martin then had a discussion. Initially, Martin remained in his property behind the fence. The fence is a deer fence made of cyclone wire fencing and is approximately six feet in height.
81 Bailey explained to Martin that the reason he preferred that particular location was that it was too wet out back for the hay to be stored in the hay shed. The trial judge said that at this stage, both parties agreed that their conversation became heated. She said that there was a dispute on the evidence about what then transpired.
82 The trial judge said Martin alleged that Bailey told him, 'You won't be effing telling me how to run my farm'. Martin said that he tried to explain the difficulties that his family had experienced in the past, particularly at night, due to the noise of the tractor and the lights disturbing his family whenever the hay was being distributed from that spot. Martin agreed that the situation then got a bit heated and that his perception was that Bailey did not want to co-operate by moving the hay. Martin agreed that he then threatened the plaintiff, saying that he would ring the council about a shed that was half done and other certain unspecified things.
83 The trial judge said that Martin's evidence was that he started to walk away and that is when he says Bailey said, 'You would, you black cunt'. Martin then reacted by asking Bailey what he had said. Martin's evidence was that Bailey repeated what he had said and then Martin became so upset that he then climbed over the cyclone fence dividing the properties, took off his jacket, and that they both started shaping up. He said that Bailey swung at him, he ducked and then he was hit on the temple, then he retaliated by hitting Bailey back a few times. He was grappling with Bailey when he was pulled off by the truck driver and D'Agostino. He said that Bailey hopped back a bit, just like he was going to kick him and fell. The trial judge rejected this aspect of Martin's evidence, having regard to D'Agostino's evidence, which she accepted as being more reliable. D'Agostino said that he saw the men scuffling and that they fell to the ground.
84 Martin said that D'Agostino said, 'Look, this is enough, stop all of this' and Martin then left Bailey and walked off. As he left the scene, Martin called Bailey a 'racist bastard'.
85 During cross-examination, Martin denied that he was the aggressor and conceded that Bailey was not exactly aggressive. He agreed that he was upset by the racist comment, and that is why the fight took place. When asked, 'The only reason you jumped the fence was to physically have a go at him?', he answered, 'In the heat of it all, yes, I was lost and confused and upset'. 'Because of the racial abuse?'; he said, 'Yes'.
86 The trial judge said that when further questioned about the reason for the fight, Martin was asked, 'It didn't help - my word - him having a go about your wife and her driving of motor vehicles, did it?'and Martin said, 'No, the race part had come at the end of it all, when I was walking off and I mentioned about, the only way this is going to be resolved, leave it and I will contact the council', and it is at that stage that Martin alleges Bailey said the offending remarks and then Martin turned around and walked back over to Bailey.
87 The trial judge said that Bailey disputed this version of events. Bailey confirmed that when D'Agostino approached him, he was having his afternoon tea. D'Agostino alerted him to Martin's complaint about unloading the hay, and he went to speak to Martin to explain that it was very wet and slippery out the back and that the proposed location was more central for feeding the cows across the road as well as on the property.
88 Bailey said that he saw that Martin was standing inside the fence on his property. He walked up to Martin and said, 'What is the problem, John?' Bailey said that Martin was agitated, he had a stubby in one of his hands and Bailey could smell that he had been drinking. He said that it was obvious that Martin was upset about the hay being unloaded at that spot. The conversation then shifted to a discussion about Mrs Martin's driving and a near hit. Bailey said that Martin said, 'Don't go down that road or I'll come over and smack you in the mouth now'. He confirmed that he then told Martin, 'I will do on the farm what we have to do'.
89 Bailey specifically denied calling Martin 'a black cunt' and said that Martin then made a statement that he would come over the fence and Bailey said, 'I wouldn't do that because if I hit you, you would sue me because you have blackfellow in you'.
90 Bailey said he apologised for saying that Martin had blackfellow in him and went further and said, 'I'm sorry, it's not meant as a racial slur anyway'. Bailey said Martin then went berserk. Bailey said he turned to walk away and then he heard a noise behind him. He saw Martin on KBL's property with his jacket off and as he turned to step back, Martin caught him below the knee and he fell to the ground. Bailey said to Martin, 'You've broke my leg'. Martin replied, 'Good, I'll do a better job of it now', while he was on top of Bailey.
91 Martin was pulled off by the truck driver and D'Agostino, and then he returned to his property. Bailey says that Martin was shouting, 'You'd better die while you're there or I'll kill you when you come back, you racist so-and-so'.
92 Bailey conceded in cross-examination that the location of the hay was associated with the overall management of the farm.
93 D'Agostino's evidence was limited to the events leading up to the fight and following it. D'Agostino was not able to illuminate on what was said by either party because he had gone back to the tractor that was running and he could not hear the words that were spoken. He confirmed that Martin jumped the fence and that there was a scuffle between the two men and that they both fell to the ground. Bailey said to Martin that he had broken his ankle and his leg. That is when D'Agostino went over and pulled Martin off and told him to go against the fence.
94 D'Agostino said Martin was angry and after Bailey had fallen to the ground, Martin was screaming, calling Bailey a racist. Martin was threatening he would break Bailey's other leg. D'Agostino did not see Bailey strike Martin.
95 The judge said that Sandra Fitzgerald's evidence confirmed the arrangements between Bailey and KBL. She confirmed that Bailey was not permitted to racially abuse Martin in the course of his employment, nor was he permitted to assault Martin.
96 After setting out that evidence, the trial judge made the following findings.
97 Bailey was employed as a farm manager at the relevant time, and that position involved him in a broad range of duties associated with the running of the farm, including the responsibility for positioning the load of hay.
98 The judge said that she was satisfied that his employment was of a continuous nature and that he was required to attend to the duties of the farm on a continual basis, and that was so notwithstanding that he only invoiced for the milking. She said that the nature of his employment with KBL was such that he was responsible for the operations of the farm and the fact that he was on a break when the need for him to discuss the location of the hay arose did not, of itself, take this matter outside the scope of employment.
99 She said that there was a clear conflict on the evidence about what was said between the two men, but Bailey frankly conceded that whatever words were spoken, he accepts that Martin considered those words to be racial abuse.
100 Having regard to the evidence of both Bailey and D'Agostino, whose evidence she accepted in its entirety, she found that Martin was angry and agitated prior to the discussion between him and Bailey. She said that he became more agitated when it became apparent that Bailey was not going to change the location of the hay.
101 The trial judge found that in the course of that discussion, other matters that had been simmering between the two men relating to the property, for example, the unfinished shed and the near miss involving Martin's wife, were ventilated. She found that Martin then threatened to contact the council about the hay and the other matters concerning the property. She found that the inappropriate racial slur came at the end of the discussion. She said that Martin admitted that following the racist remark, he hopped over the fence, took his jacket off and shaped up for a fight.
102 The judge said that she was satisfied that the trigger for the fighting was the racist remark made by Bailey, and that remark caused Martin to climb over the deer fence and assault Bailey in the manner that he described in his evidence. She found that Martin struck Bailey, and that caused him to fall to the ground. She was satisfied that Bailey only took defensive actions and he was not the person who initiated the physical fight.
103 She found that Martin was the aggressor and that Martin's actions took this matter outside the realm of employment and into the area of a private dispute between two individuals.
104 The trial judge found that the words 'in the course of employment' have been the subject of many and varied decisions over the years. She said that the Courts have adopted a broader view of the concept of 'in the course of employment', especially in those cases involving injury during intervals or interludes in an overall period or episode of employment.
105 The trial judge said that misconduct may amount to conduct in the course of employment. She referred to the case of New South Wales v Lepore[40] where Gleeson CJ, following the review of the authorities, observed that in Australia and in the United Kingdom, as in Canada and the United States, the sufficiency of the connection between employment and wrongdoing to warrant vicarious liabilities is examined by reference to the course or scope of employment.
106 She rejected Martin's counsel's submission that anything that Bailey was doing as part of his farm manager duties was in the scope of his employment. She said that she was satisfied that the cause of Bailey's injury was the assault occasioned by Martin. She said that Martin's actions were an independent act of personal retribution by way of vengeance in response to Bailey's inappropriate racist remark. She said that the racist remark was not said in the pursuit of KBL's interests. She reiterated that Sandra Fitzgerald's unchallenged evidence was that it was not authorised by the employer. She concluded that, given her finding that Martin was the perpetrator of the assault, there was not a sufficient connection between the employment and Bailey's injury.
107 She therefore found that the injury occasioned by the first and second assaults did not arise out of or in the course of Bailey's employment or deemed employment with KBL and that paragraph 7A of the amended defence should be struck out.
108 Martin contends that the fact that the injury was the result of a quarrel of a private nature and not related to employment was not decisive of whether the injury arose in the course of employment. He said that Kavanagh v The Commonwealth[41] decided that an injury is sustained 'in the course of employment' if 'it is sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work.'[42]
109 He therefore argues that the trial judge applied the incorrect test.
110 He contended that for an injury to arise out of employment, a causal nexus between employment and the injury must be shown. He said that whether causation is shown is a matter of common sense and that employment factors need not be the sole or dominant cause. He argued that Bailey's employment as a farm manager gave him authority to direct the location of the hay. He said that this is the reason Bailey approached him. He said that it was this aspect of Bailey's employment that initiated his confrontation with Martin. He says that Bailey's refusal to alter the location of the hay and the escalation of the dispute by increasingly heated verbal exchanges led, ultimately, to the assault and the injury. He says that the employment nexus was the underlay for Bailey's involvement at every stage. He argues that the nexus was not broken by any racist comment made by Bailey. He says that although the racist remark itself was unauthorised, it was no more than an unauthorised way of communicating with Martin as a farm neighbour which was part of Bailey's employment duties. Martin contends that the temporal nexus was not broken by Bailey's racist comment.
111 Bailey contends that the relevant causal connection between Bailey's injury and his employment was not made out because:
(a) Martin was the perpetrator of the assault upon Bailey; and
(b) Bailey made inappropriate racist remarks which had resulted in an independent act of personal retribution by Martin.
112 Bailey says the racist remarks made by him were not permitted by his employer to be made in the course of or due to the nature of his employment. Bailey adopts the observations of Gleeson CJ in New South Wales v Lepore,[43] where in the context of assessing whether an employer was vicariously liable for the acts of an employee, Gleeson CJ said that the employer was liable for the conduct of the employee if it arose in the course of his employment. In assessing whether the conduct of the employee arose in the course of his employment, Gleeson CJ adopted the view of Salmond in The Law of Torts,[44] where he stated: [45]
An employer is liable even for unauthorised acts if they are so connected with the authorised acts that they may be regarded as modes - although improper modes - of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.
113 Bailey submits that he was the instigator of the assault by making the racist remark. The trial judge found that the racist remarks were the trigger for the fighting. He argues that it was not part of his duties to racially abuse his neighbour. He says that the assault was a part of a continuum which started with the racial abuse. Further, by his reliance on the passage of Gleeson CJ's judgment referred to above, Bailey contends that his unauthorised and wrongful act was not so connected with the authorised duties that it could be regarded as a mode of doing the authorised duties, but it was an independent act.
The authorities relied on by the appellant and the respondent
114 As the trial judge said, there are a great many authorities dealing with whether a worker was injured in the course of or arising out of his employment. The parties, however, relied on the following authorities.
115 In this case, according to the head note, shortly after commencing work a Commonwealth employee, Kavanagh, left the floor where he was performing his duties to go to the convenience. When he returned he said that he felt ill and had diarrhoea. Suddenly he vomited, and later was found to have suffered a ruptured oesophagus as a result thereof. The cause of the vomiting could not be explained. He died in hospital some six days later from broncho-pneumonia and heart failure supervening upon the rupture. His widow sought an award of compensation under the Commonwealth Employees' Compensation Act 1930 (Cth). To qualify for compensation, it was necessary for the widow to establish that the rupture of the gullet arose 'in the course of the employment'.
116 It was not disputed that the injury occurred during the time that Kavanagh was at work. This by itself was not sufficient to establish liability. The issue before the High Court was whether it was necessary to establish some connexion between the employment and the fit of vomiting or the failure of the gullet to relax to discharge the vomitus. Dixon CJ examined the history of the Commonwealth Employees' Compensation Act 1930 (Cth) and noted that the relevant words had been changed from 'arising out of and in the course of employment' to 'arising out of or in the course of employment'. He said the later words 'arising in the course of employment'[46]
a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more that an adjunct to or an incident of his service.
went onto say that the association satisfying 'arising in the course of employment'[47]
perhaps be best expressed by saying that had it not been for the employment the injury by accident would not or might not have been sustained, or negatively by saying that the injury by accident must not be one which occurred independently of the employment and its incidents... But for myself I think that the words "arising in the course of the employment" do not connote or imply even so slender a causal connexion.
effect of requiring a causal connexion between employment and injury is always attributed to the words "out of" and not to the words "in the course of".
saying that the words 'in the course of' do not import causation he concluded that: [50]
words "arising in the course of his employment" ought not to be regarded as meaning anything more or less than "arising while the worker is engaged in his employment."
118 Menzies J said after his review of previous cases: [51]
if a worker is injured while doing something incidental to what he was employed to do, that is sufficient and no other association between the injury and his work is necessary. So far then from these cases indicating any causal element covered by the phrase "in the course of", they seem to me to accept a temporal relationship as sufficient, and to extend the time from working time to the time of doing what is incidental to work.
Weston v Great Boulder Gold Mines Ltd[52]
119 The facts of this case are adequately set out in the head note, which I adopt and quote. The appellant was employed by the respondent as a locomotive driver in its mine. Whilst performing his duties in the mine he was assaulted and seriously injured by another of the respondent's employees who was not on duty at the time and who should not have been in the mine. The assault was a result of an incident which had occurred some weeks earlier and which was entirely unconnected with the appellant's employment.
120 The relevant section of the Workers' Compensation Act 1912 (WA) provided that compensation would be payable 'if in any employment personal injury by accident arising out of or in the course of his employment ... is caused to a worker'. The issue before the High Court was whether, in the circumstances of the case, the applicant suffered personal injury by accident. The Court held that he did. The court held that, given that the applicant suffered personal injury by accident, Kavanagh v The Commonwealth compelled the conclusion that as the injury happened while he was working, it was injury by accident arising in the course of his employment.[53] Owen J said, referring to Kavanagh v The Commonwealth:[54]
the light of the passages from the judgments in Kavanagh's Case quoted above there is no longer room for the notion that the words "in the course of the employment" require the proof of some causal connection between the employment and the injury. It is sufficient if the injury occurs while the worker is performing the work he is engaged to do or is doing something reasonably incidental to that work and, with all respect to the views of the majority of the Full Court, I am of the opinion that the Workers' Compensation Board rightly found that the appellant's injuries arose "in the course of" his employment [citation omitted].
121 As it is, the issue of whether Bailey suffered a personal injury by 'accident' does not arise in this appeal but the observations on 'in the course of employment' are of importance.
122 In this case a widow of a deceased worker had made a claim for compensation and the issue arose as to whether the injury from which the worker died arose out of his employment. The deceased worker was a foreman of a garbage depot and it was his duty to allocate work to various tanker drivers. During the allocation process, one driver, Ure, disputed the allocation of work to another driver. He said that he could handle it. An argument developed during which the deceased said to Ure 'I will have to put you in your place' and Ure replied 'When are you going to do it?' The deceased said, 'One of these days you'll find out', whereupon Ure replied, 'When you're ready', and the deceased said, 'Right now will do'. Thereupon the two men went outside the gates of the depot and proceeded to take up fighting attitudes and throw a few tentative blows but neither person struck a blow. Ure slipped and fell and thereupon the deceased threw himself upon him and Ure then noticed that the deceased appeared to be having difficulty in breathing and slumped to the ground. He was taken to hospital in an unconscious condition and died. It appeared that the deceased suffered a cardiac arrest.
123 Hutley JA found that the injury arose out of his employment. He reasoned as follows:[56]
my opinion it is quite clear on the evidence that the injury from which the deceased died arose out of his employment. It arose out of an altercation between two employees of the Warringah Shire Council about a matter which concerned their respective authorities and duties; it arose in a work situation. It does not follow that the injury did not arise out of the employment because in the course of what he was doing the deceased was doing acts which were not in accordance with his duties as a foreman. It is, of course, misconduct in a foreman to settle matters of responsibility by engaging in fisticuffs with a man under him. That, however, has really nothing to do with the question.
124 Hutley JA said that the court did not consider it necessary to deal with the question of whether the injury was one which was received by the deceased in the course of his employment. He said 'that has raised questions of considerable difficulty in light of' the judge's findings.[57]
125 Each of the judges identified, as an element of the test of whether the injury arose out the employment, that the injury had a causal connection with the worker carrying out his duties. Hutley JA said that 'the injury from which he died was directly and unbrokenly connected with his employment, that is, things he was doing properly within the scope of his employment'.[58] Glass JA said that the words 'out of' require that the injury had its origin in the employment. He said that 'the cardiac arrest had its origin in the disagreement about the allocation of work and there can be no question that that was part of the employment situation'.[59] Samuels JA said that the relevant question was 'whether there was a causal connection between the employment and the injury'.[60]
126 Glass and Samuels JJA distinguished the position with a situation where the injury arose in the course of employment where the appropriate test was whether the worker sustained the injury whilst he was doing the job which he was employed to do or something incidental to it.[61] Glass JA said that an injury may arise out of employment even though at the time it is sustained the deceased is no longer in the course of his employment, citing Fullagar J in Kavanagh v The Commonwealth.[62]
127 The critical issue in this case was whether the injury suffered by the deceased arose out of his employment and accordingly whether it had its origins in the deceased's allocation of work which was part of his duties.
128 In this case, the High Court of Australia (Mason CJ and Deane, Dawson and McHugh JJ) laid down new principles for determining whether an injury occurring between periods of actual work is within the course of employment. Previously, reference had often been made to the test laid down by Dixon J in Henderson v Commissioner of Railways (WA)[64] where he said that the test of whether an injury had been sustained in the course of employment ultimately depended upon whether the workman was doing something which he was 'reasonably required, expected or authorised to do in order to carry out his actual duties'.[65] The High Court said that the test no longer accurately covers cases where injury occurs between intervals of work and which are held to be within the course of employment.[66]
129 The High Court said the new test should be expressed as follows:[67]
it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.
130 Importantly for this appeal, the High Court recognised that gross misconduct could take the worker outside the course of employment.
Stojkovic v Telford Management Pty Ltd[68]
131 Both parties relied on this decision. It is an important and useful decision, not the least as Neilson J canvasses some twenty one cases where an applicant for compensation had been assaulted and sustained an injury, including Tarry v Warringah Shire Council[69] and Weston v Great Boulder Gold Mines Ltd.[70] His Honour also took into account the expanded meaning given to 'in the course of' by the High Court in Hatzimanolis v ANI Corporation Ltd.[71]
132 What is clear from Neilson J's review of the authorities is that a worker's conduct whilst at work may cause him to cease being treated as being in the course of his employment. The authorities and Neilson J's own reasons referred to and use terms such as 'interrupted his employment',[72] 'abandoned his employment',[73] 'gone outside the terms of his employment'[74] or 'remained out of his employment'[75] to describe the cessation. The authorities reviewed establish that the worker's actions may be such that while at his place of work the worker is nevertheless no longer 'in the course of his employment' and that any injury he sustains at work whilst not 'in the course of his employment' is not an injury incurred in the course of employment for the purpose of the relevant act.
133 Another consistent feature of the cases Neilson J reviews is that a relevant matter is whether the injured worker was the instigator of the fight that leads to the worker's injury. If for example, the injured worker starts the fight for purely personal reasons unrelated to his employment and as a result is injured, that circumstance usually takes the injury outside the two limbs, that is outside both arising out of his employment and outside arising in the course of his employment.
134 I take the relevant facts of the case from the head note. On a construction site there was an exchange of insults between the applicant and another employee, David, who was the son of the boss and the site foreman. The altercation had nothing to do with the employment of the applicant and was an interpersonal conflict influenced by the characters of the adversaries. A third employee, Z, became involved when he attempted to intervene to calm the applicant. According to the judge, the applicant through a temper tantrum had upturned a wheelbarrow of mortar and then one containing bricks which struck brickwork previously carried out by Z. There followed a physical brawl between the applicant and Z during which the applicant received an injury. The judge found that the applicant instigated the altercation. The head note accurately records that the trial judge held that the applicant was not in the course of his employment at the time he was injured. The judge found that the applicant had abandoned his employment when, in the midst of a temper tantrum, he threw over the first wheelbarrow, and remained outside the employment during all the time thereafter up to and including the time he assaulted Z and fell and sustained the injury. The judge held that the applicant was not doing anything to further his employer's interest or anything that was incidental to his 'employment', indeed he was acting contrary to his duty to his employer. In particular, Neilson J said:[76]
authorities to which I have referred, and no other authorities have been referred to me by counsel, do not support any contention that a worker who instigates an altercation, either oral or physical for reasons unconnected with his employment and in the course of doing that, sustains injury, suffers injury arising out of or in the course of employment. As I have said, I am satisfied the applicant abandoned his employment by his conduct when he overturned the first wheelbarrow and remained out of his employment when he fell and fractured his right leg.
Hegedis v Carlton & United Breweries Ltd[77]
135 The respondent relied on this authority. It does not address the issues raised in this appeal. It does, however, acknowledge the principle established in Kavanagh v The Commonwealth that an injury incurred in the course of employment does not require a causal relationship with the employment duties being engaged in. It also acknowledges the expanded meaning given to 'in the course of employment' by Hatzimanolis v ANI Corporation Ltd.[78]
136 This case was relied on by both the appellant and the respondent. The case concerned the liability of a school authority for damage caused by the sexual abuse of a pupil by a teacher employed by the school authority. In deciding the case the High Court considered the authorities on the vicarious liability of an employer for the tortious acts of an employee committed in the course of the employee's employment.
137 Some care must be taken in considering this authority as the High Court recognised in Kavanagh v The Commonwealth the different meaning the relevant words may bear in limiting the circumstances where an employer may be liable to an employee for injuries sustained by the employee. Dixon J explained:[80]
it is one thing to use words as a description of the occasion when acts or omissions of the servants should render the master liable to strangers, and it is quite another thing to apply them to limit the occasion when the injuries suffered by the employee should be compensated by the employer. Almost inevitably the latter use invites an enlargement of the notion to employment to include the incidents of the employment and the question whether an injury is suffered in the course of employment can hardly be governed by the same considerations as the question whether one has been inflicted in the course of employment.
138 Bearing this in mind, however, the observations of the High Court are of considerable relevance to the issue at hand on the appeal. The Court sought to resolve two leading cases on vicarious liability. In Lloyd v Grace Smith & Co[81] the employer of a managing clerk of a firm of solicitors was held liable for the clerk defrauding a client of the firm. Lord Macnaghten explained that the employer was vicariously liable for the employee's acts on the basis that the employer put the employee in the place of the employer to do a certain class of acts and the employer must therefore be answerable for the manner in which that agent has conducted himself in doing the business of the employer.[82]
140 Latham CJ held that the relevant issue was whether the barmaid was acting 'in the scope of her employment'.[85] McTiernam J said the issue was whether the barmaid assaulted the plaintiff 'in the course of fulfilling any duty which the appellant entrusted to her'.[86] Dixon J said the question turned on whether the assault was committed 'in the course of her employment'.[87] Williams J also said the test was whether the barmaid was 'acting in the course of her employment'.[88] Webb J said that 'The authorities make it clear that the appellant company would have been civilly liable for the consequences of any exercise by the barmaid of her express or implied authority as barmaid, even if she had employed an improper mode of exercising it, and even had committed a crime in so doing'.[89]
141 The High Court held that it was either a gratuitous unprovoked attack or an act of personal retribution. Either way, it was not incidental to the work she was employed to do. It was emphasised that it was not the duty of the barmaid to keep order in the bar nor was she doing so. Her conduct was not an excessive method of maintaining order. Dixon J said it was a 'spontaneous act of retributive justice'.[90]
142 Gummow and Hayne JJ in their joint judgment accepted, as did Gleeson CJ, Salmond's proposition - that an act is done in the course of employment if it is a wrongful act authorised by the employer, or a wrongful and unauthorised mode of doing an authorised act.[91] They sought to identify an underlying principle which would give greater content to the idea of 'course of employment'. They considered Deatons Pty Ltd v Flew[92] and Lloyd v Grace Smith & Co[93] which I have discussed above. They concluded that:[94]
vicarious liability may exist if the wrongful act is done in intended pursuit of the employer's interests or in intended performance of the contract of employment. Secondly, vicarious liability may be imposed where the wrongful act is done in ostensible pursuit of the employer's business or in the apparent execution of authority which the employer holds out the employee as having.
unites those elements is the identification of what the employee is actually employed to do or is held out by the employer as being employed to do. It is the identification of what the employee was actually employed to do and held out as being employed to do that is central to any inquiry about course of employment ...
contrast, in Deatons, the barmaid who threw the glass did so in retaliation for a blow and an insult, not in self-defence and not in any way in the supposed furtherance of the employer's interests (whether in keeping order in the bar or otherwise).[95] Nor, unlike Lloyd, was it a case where the act done was one to which the ostensible performance of the employer's work gave occasion, or which was committed under cover of the authority the employee was held out as possessing, or of the position in which the employee was placed as representative of the employer.[96]
concluded their analysis by saying:[97]
present purposes, it is enough to conclude that when an employer is alleged to be vicariously liable for the intentional tort of an employee, recovery against the employer on that basis should not be extended beyond the two kinds of case identified by Dixon J in Deatons: first, where the conduct of which complaint is made was done in the intended pursuit of the employer's interests or in the intended performance of the contract of employment or, secondly, where the conduct of which complaint is made was done in the ostensible pursuit of the employer's business or the apparent execution of the authority which the employer held out the employee as having.
Zlateska v Consolidated Cleaning Services Pty Ltd[98]
143 This case was relied on by the appellant for the authority that under the 'arising out' test, it is only necessary to establish that the employment was a cause of the injury and common sense should be used in applying the test.[99]
144 The relevant principles appear to be as follows:
(a) The relevant test to establish whether the injury arose out of the injured worker's employment requires a causal connection to the performance of his duties and responsibilities.[100]
(b) The injury must have its origin in his employment.[101]
(c) To establish the injury arose in the course of the injured worker's employment does not require any causal connection between the injury and the performance of his duties and responsibilities.[102]
(d) To establish that the injury arose in the course of the injured worker's employment, it is not sufficient to merely establish that the injury occurs to the worker while he is at work. It is necessary that the worker is doing something in the exercise of his functions although it need not be more than an adjunct to or an incident of his service.[103]
(e) A worker at work may, by his actions at work, sustain an injury but by those actions cease being in the course of his employment.[104]
(f) A worker who initiates a fight for personal reasons not associated with his duties and is thereby injured, may be considered not to be injured in the course of his employment.[105]
(g) A worker who does not initiate a fight but is nevertheless assaulted for personal reasons at the work place will normally be considered to be injured in the course of his employment.[106]
(h) An important consideration in determining whether the worker was acting in the course of his employment and had not ceased so acting is whether he was acting in the intended or supposed pursuit or furtherance of the employer's interests.[107]
Applying the principles to the judges' findings of fact
145 There does not seem to be any basis for finding that Bailey's injury had its origins in his duties. The trial judge found that Martin's actions were an independent act of personal retribution by way of vengeance in response to Bailey's inappropriate racist remark. She found that the trigger for the fighting was the racist remark. She found that Bailey only took defensive actions and he was not the person who initiated the physical fight. This last finding is relevant. As mentioned above, the identity of the person who starts the physical fight is of importance in determining whether the injured person was injured in the course of his employment.
146 This raises the central issue of whether at the time of the assault Bailey, by racially abusing Martin, had abandoned his employment or in other words ceased to be acting in the course of his employment.
147 This is a difficult issue. The trial judge found that Bailey was employed as a farm manager and that position involved him in a broad range of duties associated with the running of the farm, including the responsibility for positioning the load of hay. A complicating factor in the case is that Bailey's residence was also on the farm.
148 It is implicit in the trial judge's findings that Bailey's duties would include negotiating with his neighbour Martin about any concerns Martin had over the location of the hay. That would have been a duty incidental to running the farm. These duties would have included negotiating with Martin, as he did, over the location of the hay. Martin contends that the racial abuse by Bailey was merely a wrongful mode or unauthorised mode of doing an authorised act, that is negotiating with Martin. Bailey contends, however, that the racial abuse was not a mode of negotiating with Martin. In my view, there is merit in this argument. The racial abuse would have affected Martin as if he had been physically punched or probably more so. Bailey conceded that Martin went berserk and one can readily understand Martin's reaction.
149 In my view, the issue is resolved with the assistance of the observations of Gummow and Hayne JJ in New South Wales v Lepore.[108] Was the racial abuse made in the intended or supposed pursuit or furtherance of the employer's interests as part of his responsibility to negotiate with Martin?[109] It was not. Racial vilification can be a crime.[110] It is absolutely unacceptable in our society. Racially abusing Martin was the complete antithesis of seeking to negotiate with a neighbour over the activities of the farm. It might be going to extremes, but if during the negotiations Bailey had punched Mr Martin and injured his wrist, would that be characterised as furthering the negotiations?
150 In my opinion, the racial insult went beyond a mere offensive insult. The use of racial abuse in circumstances where Martin, a man of indigenous heritage, was agitated and annoyed at Bailey was reckless and dangerous conduct. It was likely, as in fact happened, that the abuse would lead to a physical altercation. Although the abuse may not justify Martin's assault on Bailey, Bailey bore the fruits of his own reckless and dangerous conduct.
151 The law recognises the difference between mere speech and speech that is likely to lead to violence. This difference has been the subject of much consideration by the United States Supreme Court in considering the First Amendment right to free speech. In Schenck v United States,[111] Oliver Wendell Holmes Jr J said:
most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree [citations omitted].[112]
152 In my opinion, the racial abuse used by Bailey in the circumstances created a clear and present danger of the physical altercation that in fact occurred. The trial judge's findings were clear. The assault arose out of the racial abuse. The assault did not arise out of the negotiations over the location of the hay. In the words of Dixon CJ, the injury occurred independently of the employment and its incidents.[113]
153 The racial abuse was not made by Bailey in the course of his employment. By racially abusing Martin, Bailey had abandoned his employment. There was no finding by the trial judge that Bailey had resumed his duties after the abuse and before he was assaulted on both occasions.
154 In my opinion, the trial judge on her findings of fact, was correct in finding that Bailey's injuries were not sustained arising out of or in the course of his employment. That disposes of the first ground of appeal.
155 As to the second ground of appeal, did the trial judge misdirect herself by taking into account the conduct of the appellant as the perpetrator of the alleged assaults in determining whether the respondent had sustained injury arising out of or in the course of his employment? As indicated above, it is important to identify who instigated the assault. The critical issue was that Bailey was the instigator of the assault with his racial taunt. That taunt led directly to Martin's assault. On the other hand, the trial judge's finding that there was no sufficient connection between the employment and Bailey's injury, on the basis that Martin was the perpetrator of the assaults, on the authorities does not appear to be correct. In my opinion, however, the facts found by the trial judge lead to the result that the defence ought to have been struck out.
W "boxed ears" of other because of non-work comment. But was working when attacked.
The stealing by W was outside the course of his employment.
Nothing to do with the employment - personal grievance - personal dispute
W remonstrated with fellow employee who annoyed him by tripping him from time to time
W was entitled to remonstrate. 'These types of personal difficulties' arise during 'the ordinary course of working life'
W was foreman. Dispute over work allocation. 'I will have to put you in your place'.
The subject matter of the fight was 'something to do with the employment'.
'Direct and unbroken connection with ... things he was doing properly within the scope of employment'.
Not altered by the fact that he was doing unauthorised things.
W was killed by husband, in an act of domestic violence.
W was attacked while she was carrying out the duties of her employment.
W was accused of adultery with the woman. Husband assaulted him, then shot him after he was out of the workplace.
Prima facie entitled to compensation because 'painting in the course of his employment'. No clear evidence that he had taken himself out of the scope of his employment by assaulting foreman.
W enforced union ban, resulting in angry exchange with superintendent
W insulted D. D insulted W →W lost his temper, overturned wheelbarrow and assaulted Z, in the course of which he injured himself.
W abandoned or interrupted his employment when he overturned wheelbarrow.
During the whole of his temper tantrum, he was outside his employment.
The reason W lost his temper had nothing to do with his work. It was a previously interpersonal conflict.
W instigated the altercation, for reasons unconnected with his employment.
Workmate's resentment over sexual relationship between W and co-worker
W was in the course of his employment when attacked. Right to compensation not affected by fact that injury resulted from deliberate and criminal conduct.
Injury after social function associated with training course at which W required to attend.
W was injured while at place where employer required him to be, and while doing something reasonably incidental to his temporary residence there.
W provoked the fight by pushing workmate. Private quarrel.
W was guilty of gross misconduct. He started the fight, and took himself out of the course of his employment.
Reid v British & Irish Steam Packet Co (1921) 14 BWCC 20
Sloan v FW Hughes Pty Ltd [1937] 11 WCR (NSW) 351
Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119
South MaitlandRailways Pty Ltd v James [1943] HCA 5; (1943) 67 CLR 496
Grierson v Poels & Co (Australia) Pty Ltd [1943] 17 WCR (NSW) 90
McCord v Commissioner for Railways [1943] 17 WCR (NSW) 116
Bevan v Howard Smith Ltd [1945] 19 WCR (NSW) 81
Kerr v Department of Prisons [1946] 20 WCR (NSW) 81
Walsh v NSW Government Stores Department [1950] 24 WCR (NSW) 1
Dunn v Macquarie Stevedoring Co Pty Ltd [1950] 24 WCR (NSW) 19
Ward v Kelloggs Australia Pty Ltd [1953] 27 WCR (NSW) 137
Evans v Australian Gas Light Co [1958] 32 WCR (NSW) 30
Tarry v Warringah Shire Council [1974] 48 WCR (NSW) 1
Weston v Great Bolder Gold Mines Ltd [1964] HCA 59; (1964) 112 CLR 30
Bill Williams Pty. Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146
Rantino v Collins & Moss Pty Ltd [1983] 57 WCR (NSW) 95
Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10
Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; (1998) 16 NSWCCR 165
McCurry v Lamb (1992) 8 NSWCCR 556
Inverell Shire Council v Lewis (1992) 8 NSWCCR 562
Makko v Bullock Manufacturing Pty Ltd [1997] NSWCC 43; (1997) 15 NSWCCR 308
[1] See Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592, [150] (Dodds-Streeton JA).
[3] See, eg, Weston v Great Boulder Gold Mines Ltd [1964] HCA 59; (1964) 112 CLR 30 ('Weston'); South Maitland Railways Pty Ltd v James [1943] HCA 5; (1943) 67 CLR 496 ('South Maitland'); Park v Peach [1967] VicRp 60; [1967] VR 558.
[4] Bailey v Martin (Unreported, County Court of Victoria, Judge Lawson, 8 February 2008) [22].
[6] In accordance with Practice Statement No 2 of 1995.
[8] Bailey v Martin (Unreported, County Court of Victoria, Judge Lawson, 8 February 2008) [31].
[12] [2000] VSC 380; (2000) 4 VR 296, 298.
[13] [2002] VSCA 150; (2002) 5 VR 169, [9].
[14] [1998] NSWCC 8; (1998) 16 NSWCCR 165 ('Stojkovic').
[15] Reid v British & Irish Steam Packet Co (1921) 14 BWCC 20; Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119; South Maitland; Evans v Australian Gas Light Co [1958] 32 WCR (NSW) 30 ('Evans'); Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10.
[16] Kerr v Department of Prisons [1946] 20 WCR (NSW) 81_; Walsh v NSW Government Stores Department_ [1950] 24 WCR (NSW) 1_; Stojkovic; McCord v Commissioner for Railways_ [1943] 17 WCR (NSW) 116_; Pensiero v Farthing_ [1981] 55 WCR (NSW) 197_; Deatons Pty Ltd v Flew_ [1949] HCA 60; (1949) 79 CLR 370; Grierson v Poels & Co (Australia) Pty Ltd [1943] 17 WCR (NSW) 90_; Evans; Rantino v Collins & Moss Pty Ltd_ [1983] 57 WCR (NSW) 95_; Weston_; McCurry v Lamb (1992) 8 NSWCCR 556; Inverell Shire Council v Lewis (1992) 8 NSWCCR 562; Makko v Bullock Manufacturing Pty Ltd [1997] NSWCC 43; (1997) 15 NSWCCR 308; cf Bill Williams Pty. Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146.
[17] Bailey v Martin (Unreported, County Court of Victoria, Judge Lawson 8 February 2008) [47]-[48].
[20] [1974] 48 WCR (NSW) 1 ('Tarry').
[23] Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 ('Kavanagh'), 558-9.
[24] (1941) SR (NSW) 119, 125.
[25] [1943] HCA 5; (1943) 67 CLR 496, 502.
[29] Although South Maitland was decided at a time when the test for compensability was conjunctive - 'arising out of and in the course of employment' - what was said about the separate limbs of the test remains relevant.
[34] Ibid 501 (Latham CJ), 503 (Starke J), 507 (Williams J).
[37] [2000] VSCA 113; (2000) 1 VR 465, [15].
[38] [2002] VSCA 150; (2002) 5 VR 169, [9].
[39] I have quoted extensively from the judge's reasons.
[41] [1960] HCA 25; (1960) 103 CLR 547 ('Kavanagh v The Commonwealth').
[42] Ibid (Menzies J) 559, (Dixon CH) 555.
[43] [2003] HCA 4; (2003) 212 CLR 511 ('Lepore').
[44] Salmond, Law of Torts (1st ed, 1907) 83.
[46] Kavanagh v The Commonwealth 556.
[53] Ibid 35 (Menzies J), 42 (Owen J), (Barwick CJ and Kitto J agreed with both), 39-40 (Windeyer J).
[61] Ibid (Glass JA) 7, (Samuels JA) 8.
[64] [1937] HCA 67; (1937) 58 CLR 281, 294.
[66] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 173, 482.
[72] [1998] NSWCC 8; (1998) 16 NSWCCR 165, [60], [61], [93].
[73] Ibid [66], [68], [79], [82], [97].
[80] Kavanagh v The Commonwealth 556-7.
[84] I adopt here the description of the case by Gleeson CJ in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, 539.
[85] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370, 378.
[91] Salmond, Law of Torts (1st ed, 1907) 83.
[94] New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, [231]-[233] (Gummow and Hayne JJ).
[95] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370, 381 (Dixon J).
[97] New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, [239].
[99] Ibid [76] and [82] respectively (Maxwell ACJ, Eames and Redlich JJ).
[100] Kavanagh v The Commonwealth; Tarry v Warringah Shire Council [1974] WCR 1.
[101] Tarry v Warringah Shire Council [1974] WCR 1.
[102] Kavanagh v The Commonwealth.
[103] Kavanagh v The Commonwealth; Weston v Great Boulder Gold Mines Ltd [1964] HCA 59; (1964) 112 CLR 30.
[104] Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473; Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; (1998) 16 NSWCCR 165.
[105] Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; (1998) 16 NSWCCR 165.
[107] New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511, [239] (Gummow and Hayne JJ).
[109] Ibid [239] (Gummow and Hayne JJ).
[111] [1919] USSC 62; (1919) 249 US 47; subsequently overruled by Brandenburg v Ohio [1969] USSC 139; (1969) 395 US 444 but Holmes J's test of 'clear and present danger' was retained.
[113] Kavanagh v The Commonwealth 557.
Martin
Bailey [2009] VSCA 263
(1943) 67 CLR 496
(1964) 112 CLR 30
(1972) 126 CLR 146
(1988) 12 NSWLR 10
(1998) 16 NSWCCR 165
(1992) 8 NSWCCR 556
(1992) 8 NSWCCR 562
(1997) 15 NSWCCR 308
(2007) 17 VR 592
(2000) 4 VR 296
(2002) 5 VR 169
(1949) 79 CLR 370
(1960) 103 CLR 547
(2000) 1 VR 465
(2003) 212 CLR 511
(1992) 173 CLR 473
(1937) 58 CLR 281
(1992) 173 CLR 173