PUBLISHED THE 21ST DAY OF AUGUST**, 1998.**

Judicial Determination - Whether injury arose out of or in the course of the worker's employment - Whether injury wholly attributable to serious and wilful misconduct on part of the worker - Whether the injury resulted in a serious and permanent disability - Worker employed as deckhand - cruise around Australia - Worker not an impressive witness - Worker fell when "monkey climbing" a mooring rope on return from a cliff face to vessel - Journey across the rope was not part of his employment as a deckhand - "Arising out of the employment" of wider scope than "duties of employment" - Worker in course of an interval between periods of actual work - Worker's behaviour so extreme that notwithstanding all circumstances to link it to the employment fall or consequential disability did not arise out of or in the course of his employment - "serious and wilful misconduct" "gross misconduct" - Corporation's determination to reject the worker's claim is confirmed.

Hatzimanolis v. A.N.I Corporation Ltd [1992] HCA 21; (1992) 173 C.L.R. 473

Foura v. State of South Australia (1981) 48 S.A.I.R. 635

Bill Williams Pty Ltd v. Williams [1972] HCA 23; (1972) 126 C.L.R. 146

Commissioner for Railways v. Ireland (1964) N.S.W.R. 938

Goward v. Commonwealth [1957] HCA 60; (1957) 97 C.L.R. 355

Ford v. Forrestry Commission of New South Wales (1961) 78 W.N. (N.S.W.) 1076

Sconce v. James Sandy Pty. Ltd. [1967] N.S.W.R. 699

Commissioner for Railways v. Lollback (1955), 55 S.R. (N.S.W.) 251

Workcover Authority(N.S.W.) v. Walling (unreported delivered 13 July 1998 N.S.W. Sup Ct CA)

This is a Judicial Determination of a dispute between Michael James Paparella (`the worker') and the WorkCover Corporation (`the Corporation') regarding the compensability of an injury that the worker sustained at the Kings Cascade Waterfall at the Prince Regent River which is located in the north of Western Australia.

It is conceded by the Corporation, that the applicant sustained a broken right arm (`the injury') on 15 July 1994 when he fell whilst traversing a rope which was connected to a vessel known as the `Lonnie Claire' (`the vessel') and a cliff adjacent to the Kings Cascade Waterfall.

The vessel was owned and operated by Kangaroo Island Ferries Pty. Ltd., (`the employer') whose proprietors at the time were Peter and Larraine March.

Although there was a serious contest about this for some time, it was conceded in these proceedings that at the time of the injury, the worker was employed as a deck hand on board the vessel.

The basis of the dispute between the parties is first, whether it can be said that the injury arose out of or in the course of the worker's employment with the employer. Secondly, if so whether the injury is wholly attributable to the serious and wilful misconduct on the part of the worker so as to be excluded by reference to section 30B(2)(b)(i) of the Workers Rehabilitation and Compensation Act 1986 (`the Act'). And thirdly, if so whether or not the injury has resulted in a serious and permanent disability for the purposes of section 30B(3) of the Act.

In order to deal with these issues it is necessary for me to retrace how it was that the worker came to be at the Kings Cascade Waterfall.

It would seem that Peter and Larraine March, as proprietors of the employer, decided to conduct a cruise circumnavigating Australia, leaving from the dock at Port Adelaide through various coastal towns and ports around the eastern seaboard, and on to Darwin and beyond. They proposed to collect passengers along the way who in turn would pay a fee for their transportation and sustenance. My impression is that Mr. March had access to a network of people who might be interested in this form of cruise and there did not seem to be any shortage of people who were willing to participate.

Prior to the cruise commencing, certain preparatory work had to be undertaken. The worker's evidence (which on this topic I accept) was that he commenced work on the vessel about two weeks before it was due to depart Port Adelaide, and that his duties at that time required him to paint the hull and clean the boat generally.

When the cruise commenced, there were about five or so others aboard the vessel, some of whom were paying passengers, others of whom were crew. The vessel proceeded east through Apollo Bay onto the Port of Melbourne and up the east coast of Australia to Sydney. Thereafter it proceeded to Cairns and beyond picking up and dropping off passengers along the way.

During the course of the cruise some unhappy differences arose between Peter March and his wife, which for present purposes are not particularly relevant. It is sufficient for me to note that Lorraine March left the vessel in Darwin and did not return.

The position initially adopted by the Corporation was that the worker came to be upon the vessel gratuitously and that he was not a paid employee. Although as I have said, those matters have now been resolved and it is conceded that the worker was employed by the employer as a deck hand, Mr. March has continued to maintain that the worker was not employed. I do not accept that evidence, but it has caused me some difficulty, because given Lorraine March's failure to give evidence, it has deprived me of the opportunity to test the worker's evidence concerning the nature of his employment duties by reference to the employer. In undertaking that exercise I have had to rely upon the evidence of some of the passengers upon the vessel at the time of the injury and my evaluation of the worker's credibility.

The worker in his evidence spoke of his duties with the employer in these terms. He said that throughout this journey, he was required to perform a variety of tasks ranging preparing meals for passengers and ensuring that they were comfortable to cleaning up the boat, putting up the sails, anchoring, ensuring that there were no leaks, greasing the propellers and the like. He said that he also was involved in lowering and lifting a portable rubber inflatable dinghy (`the rubber ducky') and assisting in ferrying people ashore at the various stops along the way. He spoke of showing passengers how to catch and fillet fish and carried food in his rucksack whilst passengers were exploring exotic destinations. He painted a picture of him being very much like Robinson Crusoe's boy Friday, quick to respond to the needs of others and to perform whatever was required of him, whenever that might be. He attempted to convey the impression that he was basically always on the job.

The impression that I gained from the other evidence was that that was not so. For the reasons which I have just outlined I do not place much weight upon what Mr March told me, but the evidence of others suggests that the worker was a general deck hand who was required to undertake specific tasks relating to the maintenance of the vessel and specific tasks in respect of the passengers and crew, such as assisting in the preparation of food and transporting them at the direction of the employer. It certainly does not indicate that he was permanently on the job.

At this point I need to make some observation s about the worker. I did not find him to be an impressive witness. My impression is that his evidence was coloured and tailored by him, to best support his claim. I do not discount all that he said, but I approach his evidence with much caution.

I now turn to consider the circumstances of the injury. I take the following from the written submissions filed on behalf of the Corporation. It is conceded that immediately prior to the worker sustaining the injury he climbed a mooring rope which was approximately 30 feet long, which ran from the bow of the vessel to a tree that protruded from the cliff face at Kings Cascade Waterfall. He `monkey climbed' along the mooring rope, hand over hand, foot over foot, until he reached the cliff face. When there, he was unable to gain a foot or hand hold and had no alternative but to monkey climb back to the vessel. The return journey became too much for him, and shortly after commencing it he fell from the rope a distance of approximately 20 feet onto a mud covered ledge at the base of the cliff face. As a result he sustained the injury and was rescued by Mr. Peter March and a passenger on the boat, Mr. Richard Illman. He subsequently was flown by helicopter to the Broome Base Hospital in Western Australia and thereafter was transferred to Darwin and ultimately to Adelaide.

In order to determine whether the injury occurred in compensable circumstances, I need to consider what preceded it. At that time, the vessel was in the course of a journey between Darwin and Broome. The Prince Regent is a tidal river, the depth of which varies significantly with low and high tides. The evidence establishes that the vessel arrived at the waterfall in the afternoon and that it was originally docked adjacent to the waterfall so that its diminishing water supplies could be replenished. The vessel was then moved to a point about 20 to 30 metres into the river and was securely anchored.

There was much focus upon who was where and doing what on the day of the injury, but in the end, I think that little turns on it. What is clear is that on that morning a group of passengers decided to go ashore. The worker said that he thinks that Peter March had taken them across in the rubber ducky. He said he thought that there were about eight or ten in the group and that none had taken any lunch with them. What is also clear is that the worker remained aboard the vessel but subsequently resolved to go ashore and see the passengers there. The worker said that he did so out of concern for them. He said that felt the need to warn them that if they did not return shortly, they would be unable to return for some time, because of the receding tide. His evidence was to the effect that he was concerned that the passengers ashore would miss the opportunity to return for lunch. He also said that he wished to go for a swim in a swimming hole located ashore. He said that he thought of and then rejected the idea of using the rubber ducky to get ashore. He said:-

Q. Now I suppose there are three ways you could have got over there. One was swimming, one was in the rubber ducky and the other one was using the rope. Can I deal with the rubber ducky. Did you ever consider going over to the shore using that.

Q. And have you got any memory now though of talking to anyone about using that rubber ducky.

A. I can - well, that was my first intention of how I was going to get across over - was by the rubber ducky but because I couldn't get over then because there had to be someone to bring the boat back for me, and I think Peter March had just taken someone else over before me and didn't want to go back over again, so I couldn't get over there by myself because there would have been no one to bring the boat back.

Another significant focus of the evidence that I heard centred upon alleged conversations that took place by those aboard the vessel immediately prior to the worker's journey across the rope. It was variously suggested that the worker had been specifically warned not to go across the rope or had otherwise been told that he was a `bloody idiot' for attempting to do so. Again, at the end of the day I do not find that those were matters of any particular significance.

The worker's case was that at the time of the injury he was carrying out the duties of his employment. I reject that. I find that the worker was employed by the employer as a general hand and that his employment duties required him to assist and attend upon the crew and the passengers of the vessel. But I do not find that those duties were so extensive so as to amount to him being constantly `on call', ever alert to the possible need to attend and serve the paying customers aboard the vessel. To the extent that the worker suggested otherwise, I reject his evidence. I find that the worker was obliged only to carry out those duties that were expressly or impliedly asked of him by his employer, but no more. And those duties did not include his journey across the rope. He was neither authorised nor required to carry out that journey. It was not something that he was employed to do. It was not something incidental to what he was employed to do. I reject the worker's evidence that one of the reasons why he wished to go ashore was out of concern for the passengers. I find that it was something that he decided to do for himself, and for his own purposes.

There is a difference between `duties of employment' and arising out of in the course of employment. I attempted to explain that difference in Conte v. WorkCover (J.D 48/98). For the reasons therein discussed, I think that the latter is a wider concept than the former.

A vexed question that arises here, is whether at the time of the injury the worker on a `journey' for the purposes of section 30(5). If he was, given the findings that I have just made, his claim must fail, because he was not at that time carrying out the duties of his employment.

The word `journey' is not defined in the Act but there is no reason to assume that it is limited to travels along public thoroughfares or the like, not that that would necessarily be decisive here. The Websters Dictionary refers it to being `the act or an instance of travelling from one place to another', but I think that more is required than that. If that were the position, then it might follow that whenever a worker was in motion and not stationery he or she would be regarded as upon a journey. I am inclined to think that the more restrictive meaning contained within the Oxford Dictionary, which refers to it being an expedition over some distances is more likely to reflect what Parliament had intended. Not that distance necessarily provides the answer. I say that because the word `distance' is as capable of as many shades of meaning as the words `place' or `journey'. But what I think it means is moving from one definite place or point over some distance to another definite place or point. The extent of the distance might depend upon the nature of the place or point. It will, be as is inevitably the case, a matter that will turn upon the relevant facts. The two places might be sufficiently unrelated that although geographically proximate, travel even over a short distance, might fairly be regarded as a journey. On the other hand, they might be so closely connected, that travel, even over some distance, might not be so regarded. The facts in this case do not point conclusively one way or the other. In a sense, the worker was moving between places that were unrelated, that is, the boat and the shore. In another sense, they were inextricably linked, not just by the rope that connected, but by the circumstances generally.

I accept that this is very much a matter of impression. But applying what I hope to be a practical and common sense approach, I think that there is a sufficient connection between the rope and the vessel and the shore, that having regard to all of the circumstances, no journey as contemplated by section 30(5) was involved.

In other words, it is sufficient for this claim to succeed for the worker to establish that his injuries arose out of or in the course of his employment.

On the basis of the findings that I have made I conclude that at the time of his injury, the worker was in the course of an interval between periods of actual work. In Hatzimanolis v. A.N.I. Corporation Ltd. [1992] HCA 21; (1992) 173 C.L.R. 473 at 482, Mason C.J. Deane Dawson and McHugh J.J. reformulated the principles to be applied in determining whether an injury occurring between such periods arises out of or in the course of employment. They said:-

`A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way. However, it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. That formulation would cover not only the case of the `lunch time' injury, as in Oliver, but the case of the railway worker as in Danvers, but also many cases involving injuries occurring during intervals between daily periods of work which could not fairly be regarded as within the course of employment.'

Their Honours then went on to consider the situation where a worker worked in a remote place and had to live in accommodation provided by his or her employer. They said:-

`Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary hours to an employee who performs his or her work at a permanent location or in a permanent locality. ... Moreover, Oliver and the cases which follow it showed that an interval or interlude in the overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spent the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment.'

Although the passages to which I have just referred are a reformulation of the law, I think it is helpful to reflect upon the law as stated by Judge Russell Q. C. in Foura v State of South Australia (1981) 48 S.A.I.R. 633 and His Honour's application of the law to the facts of that case. After referring to the judgment of Stephen J. in Bill Williams Pty. Ltd. v. Williams [1972] HCA 23; (1972) 126 C.L.R. 146 1t 158, His Honour said thus:-

`Every activity of an employee done within the sphere thus enlarged is not however necessarily done in the course of employment. The sphere is enlarged only in relation to particular acts, namely those which the employee is reasonably required, expected or authorised by his employer to do and not in relation to other things which he may choose to do concurrently. As Brereton J. said in Commissioner for Railways v. Ireland (1964) N.S.W.R. 938 at p.943-44:

"In order to determine whether the sphere thus enlarged includes any particular activity, one must find this necessary nexus between the activity and the employment. Where, for instance, as in Goward v. Commonwealth [1957] HCA 60; (1957) 97 C.L.R. 355, an employee is, to all intents and purposes, compelled to live in a camp, it may well be that things done as a necessary incident to living in that camp, will be done in the course of employment. (Cf., Ford v. Forrestry Commission of New South Wales (1961) 78 W.N. (N.S.W.) 1076; [1962] N.S.W.R. 45); but every activity undertaken while in camp will not, for the reason only that it is done in a place in which the employee is required to be, and at a time when he is required to be there be so regarded."

It is, to my mind, possible to say that if, at the time of the injury, a worker is engaged in something that may be identified as residing in a hotel, then his injury is capable of being described as having been received in the course of his employment. However, as Wallace P. and Holmes J.A. said in Sconce v. James Sandy Pty. Ltd. [1967] N.S.W.R. 699 at p.702:

"It is incorrect to say that all injuries sustained by a worker whilst living for employment purposes away from home, are compensable. It is still the law that even in the case of such workers, the injury must be received whilst doing something incidental to the requirements of the employment. A camp worker who receives injury whilst returning to a camp with necessary food is entitled to compensation. If, after an evening meal, and whilst returning to camp from a visit to the local cinema, he receives an injury, he should not receive compensation. Between these two somewhat extreme cases, there will be a field of circumstance and fact which is for the exclusive determination of the Commission."

In the latter case the widow of a deceased worker claimed compensation in the following circumstances.

The worker was sent by his employer to do work at a certain town which would take some days. At night the deceased stayed at a hotel of his own choosing with the concurrence of his employer. After the deceased had gone for a stroll around the town one night, he returned to the hotel and as he mounted the stairs in the hotel he fell and sustained fatal injuries to his head.

"The question whether the workman is acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants involves matters of degree and thus is a question of fact which, according to the state of the facts, may permit of only one finding or allow a finding either way (see Speechley's Case (supra), at p.134; see also Commissioner for Railways v. Lollback (1955), 55 S.R. (N.S.W.) 251 at pp.254-255). Whilst the deceased's use of the Union Hotel at Gosford may be regarded as an incident of his employment (see Goward v. Commonwealth [1957] HCA 60; (1957) 97 C.L.R. 355 at p.364) that fact does not make it available that an injury sustained by the deceased in the hotel premises was one arising in the course of his employment and it is essential to inquire what was the nature and purpose of his activities when he met with the injury which caused his death. Mr. Warburton, counsel for the respondent, has argued, and I think his contention is a sound one, that on the facts of the present case it was open for the Commission to make the finding that the deceased was not engaged at the time of his accident in any activity incidental to his employment, in any activity required, authorised or expected of him in order to carry out his duties but rather that he was pursuing his own purposes in his leisure hours from work. From a realistic point of view he was at the Union Hotel at the moment of receiving his injury because his employment took him to Gosford but it does not follow that every activity which he pursued in Gosford was within the sphere of his employment or could be regarded as part of his obligation to carry out any task for which he was employed."

In my opinion, at the time at which the applicant in the present case suffered his injury he was engaged in an unseemly brawl with his apprentice, which brawl arose out of an infantile argument in which he engaged with the apprentice and which argument he himself had provoked by needlessly continuing to taunt the apprentice about his (the applicant's) newly found expertise at 8 ball pool. In my opinion in no way can this be said to have been an activity which was incidental to the employment by the respondent of the applicant. Nor can it be said that it was an activity required. authorised nor expected of him in order to carry out his duties.'

His Honour then proceeded to dismiss the worker's claim.

The effect of the decision of the High Court in Hatzimanolis (supra) is I think, that a finding that a particular activity undertaken in these circumstances does not arise out of or in the course of employment is generally confined to cases of extreme behaviour and perhaps that behaviour might need to be more extreme than was the case in some of the cases to which Judge Russell referred. See for example Workcover Authority(N.S.W.) v. Walling (unreported delivered 13 July 1998 N.S.W. Sup Ct CA). But what is also clear, is that in a case of extreme behaviour it is open to find that an injury sustained as a result of it, does not arise out of or in the course of employment and one does not need go on and consider whether serious and wilful misconduct features, because the claim does not get to first base.

One might then ask, what is the point of excluding liability on the basis of serious and wilful misconduct if gross misconduct means that the resultant disability does not arise out of or in the course of employment anyway. I think there are at least two answers to this. First, gross misconduct in carrying out the actual duties of employment might nonetheless satisfy the expression `arising out of or in the course of employment' such that absent a finding of serious and wilful misconduct, any consequential disability will be compensable. But within the class of injuries occurring during the course of an interval at work, at times when the worker is not actually discharging his or her duties of his employment, a finding that at the time of the injury the worker was committing an act of gross misconduct, will generally render an enquiry as to whether the conduct can be described as serious and wilful misconduct, unnecessary. The case of Foura (supra) is one such example.

Secondly, although the expressions `serious and wilful misconduct' and `gross misconduct' are focused towards essentially the same things, they involve different enquiries. Serious and wilful misconduct is a statutory concept. Gross misconduct is not: Walling (supra) per Mason P. and Beazley J.A.. Misconduct can be serious and wilful and yet not gross. Behaviour can be gross, and yet not serious and wilful.

The facts in this case are a good example of that. The worker's behaviour in this case, in my view, plainly amounted to misconduct. By doing what he did where he did it, the worker not only endangered his own life but the lives of those that were with him, who necessarily had to take risks in order to rescue him. But that said, I would not regard the misconduct as serious and wilful. The evidence does not satisfy me that the worker was directed by the employer not to proceed across the rope. I think for misconduct to be wilful, there has to be some deliberateness about it. In this case, I do not think that that can be said because I do not think that the worker was disobeying specific instructions nor did he have any appreciation of the risks that he was taking and the dangers to which he exposed others, in undertaking this activity.

I now turn to consider whether the worker's behaviour leading to his injury ought be regarded as `gross misconduct'. It seems to me that this requires a factual assessment of the worker's behaviour that must take into account all of the relevant circumstances. The rope that the worker attempted to traverse, was attached to a sheer cliff face. It was at a height of 20 feet above the level of water and the worker could have had no knowledge as to what was below its surface. It was suggested that crocodiles were seen in the area. Whether or not there were, is not particularly to the point. In tropical waters in the north of Australia their presence was at the very least, a distinct possibility. In any event, the worker had no knowledge as to precise depth of the water other than the fact was it was low. He was not to know whether there were rocks or other protruding objects immediately below its surface. To have traversed a rope across it, was in all the circumstances, an incredibly stupid thing to do. The worker's fall into the water, was utterly predictable. Those who were required to rescue him were placed at risk of injury. The incident occurred in a remote part of Australia which meant that the procurement of medical assistance in the event of injury, was difficult to achieve. As it was, the worker had to be air lifted out of the area. It is not hard to imagine a variety of scenarios that might have seriously compromised the safety of those aboard and ashore. Mr. March might have been injured in attempting the rescue in a way that left the vessel without its skipper. The rubber ducky might have become bogged or damaged by rocks under the water's surface and if that had occurred it might have made it necessary for those who were rescuing the worker to go into the water to get him back to the vessel, which in all the circumstances would have been extremely dangerous. The evidence does not enable me to know whether there was a back up to the rubber ducky, but even if there was, it would have meant others had to become involved in the rescue operation, which would have amplified the risk. And what of those ashore? Depending upon what might have happened to the rubber ducky and if there was back up, what it comprised of, they too might have been compromised.

In my judgment the worker's behaviour in this case ought to be categorised as gross misconduct. It was behaviour that was completely beyond the pale. It was in my view, objectively so extreme, that notwithstanding all of the other circumstances that link it with his employment, his fall, and hence, the consequential disability, ought not be regarded as having arisen out of or in the course of his employment with his employer.

Accordingly, in my view, the Corporation was right to have rejected the worker's claim.

The findings and conclusion that I have reached makes it unnecessary for me to deal with the other aspects of the dispute.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.