Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24

Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24

Journey claim; s 10(1A) of the 1987 Act; whether personal injury (resulting in death) attributable to the serious and wilful misconduct of the worker; excessive speed; riding motor bike at double the speed limit in a suburban area; meaning of serious and wilful misconduct; failure to comply with Practice Direction No 6

Mr Amado died from his injuries and his de facto partner, Joanne Karim, claimed compensation under Pt 3 of Div 1 of the 1987 Act on behalf of herself and their daughter.

Accepting the evidence from the senior attending police officer, Sergeant Linda Bradbury, the Arbitrator determined that the deceased caused the accident by virtue of his excessive speed on a motor bike that he was too inexperienced to ride and which he was prohibited from riding because of the status of his licence. The Arbitrator was satisfied that the high speed at which the deceased rode his bike “was of such a character as to place the deceased well within the exception to liability – in this case, the category of serious and wilful misconduct”.

The Arbitrator did not accept that the respondent employer bore a “higher onus” to demonstrate that “the deceased was aware of the actual risk of death in driving at such high speed, and with such reckless disregard for his own safety”, but held that such awareness was “intrinsic in the fact that [the deceased] chose to ride such a powerful machine at such high speed”. The Arbitrator made an award for the respondent employer.

1. 
   concluding that the deceased worker “was engaged in serious and wilful misconduct which was the cause of his” death, and
   
2. 
   giving insufficient weight to evidence in a later statement from Mr Alan Blount.
   

1. 
   The Deputy President noted the following general principles at [12]-[16]:
   

1. 
   the employer carries the onus of proof of establishing serious and wilful misconduct (Johnson v Marshall Sons & Co Ltd [1906] AC 409 (Johnson); Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45 (Higgins));
   
2. 
   The phrase “serious and wilful misconduct” comprehends more than negligence, carelessness, or the mere disregard of orders (Johnson; Higgins). Breach of a traffic regulation may or may not be sufficient: a carrier who was injured while alighting from his truck, while it was double-parked on a public street, was found not guilty of serious and wilful misconduct (Thomas v Shelley & Sons Cordial Factory Pty Ltd [1965] WCR 104), but a worker who, having the opportunity to stop, deliberately drove through a red traffic light at high speed was (Levin v Moulhis [1965] WCR 177);
   
3. 
   In Johnson, Lord Atkinson observed (at 416–17) that not every violation by a worker of a rule would be regarded as necessarily amounting to serious misconduct. For “serious” to have any force, it must mean:
   

4. 
   The word “wilful” imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment (Johnson), or something done “with the intention of being guilty of misconduct” (Bist v London & South Western Railway Co [1907] AC 209). The worker must have had knowledge of the risk of injury and, in light of that knowledge, proceeded without regard to the risk (Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; 18 NSWCCR 109 (Sawle); Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36);
   
5. 
   The gravity of the conduct is not to be judged from the consequences of the act. As Lord James of Hereford explained in Johnson at 414:
   

2. 
   The position is summarised in the following statement by O’Meally CCJ in Sawle at [24]:
   

3. 
   The Arbitrator’s reference to the “higher onus” was a reference to a submission made by the appellant’s counsel at the arbitration that the respondent had to prove that the deceased was aware not just of the risk of injury, but the risk of death from riding in the manner in which he chose to do and, as the respondent failed to prove that matter, its s 10(1A) defence failed [19].
   
4. 
   Section 10(1A) states that sub-s (1) does not apply if the “personal injury” is attributable to the serious and wilful misconduct of the worker. The provision requires that the worker be aware of the risk of injury, not the ultimate sequelae of the injury [20].
   
5. 
   In any event, the Arbitrator found that “such awareness” (that is, the awareness of the risk of death) was “intrinsic in the fact that [the deceased] chose to ride such a powerful machine at such high speed”. It was nonsense to suggest that a motorcyclist, whether experienced or inexperienced, would not be aware of the risk of serious injury (or death) from riding a high-powered bike at double the speed limit on a suburban street [21].
   
6. 
   It was open to the Arbitrator to find that it was the deceased’s actions (in riding at high speed), not Mr Lynton’s driving, that caused the accident. In any event, as the Arbitrator noted, even if Mr Lynton’s conduct contributed to the accident, that would not have prevented a finding that the personal injury (that caused the death) was attributable to the deceased’s serious and wilful misconduct. That was because, unlike s 14, s 10(1A) does not require that the injury is “solely attributable” to the worker’s serious and wilful misconduct and an accident can be attributable to more than one cause [27].
   
7. 
   The Arbitrator’s conclusion that the deceased “was well aware of the danger he was in, but chose to ignore it” was open on the evidence and disclosed no error [28].
   
8. 
   The conduct was serious because the deceased was riding at about double the legal speed limit on a suburban road on a high-powered bike that he was not licensed to ride. Leaving aside that the deceased was not permitted to ride the bike, which, on its own may or may not have amounted to serious misconduct, the speed at which he rode the bike, and the area in which he rode it, carried a substantial risk of serious injury (or death) to himself and others [34].
   
9. 
   The conduct was wilful in that the deceased deliberately rode at high speed in circumstances where he was riding home via his usual route and was therefore familiar with the road and the speed limit. It followed that it was unlikely in the extreme that he had inadvertently or accidently exceeded the speed limit. The compelling inference was that he deliberately and knowingly road his bike at high speed in circumstances where the “clear inference” was that he was well aware of the risks involved, but chose to ignore those risks [35].
   
10. 
    The Arbitrator’s conclusions were open and disclosed no error [37].
    

11. 
    The appellant submitted that Mr Blount’s evidence (in his latest statement of three) was that the deceased was not travelling in excess of 120 km per hour and was not engaged in a race with Mr Blount at the time of the accident (which was inconsistent with his earlier statements). It was submitted that this evidence was not challenged in cross-examination. It was also argued that these factors militated against the deceased having the requisite intent and knowledge of the risk of injury and that the Arbitrator did not take this into account [40].
    
12. 
    There is no rule of law requiring that evidence not challenged in cross-examination must be accepted – a judge (or arbitrator) can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he or she accepted, or if it was inherently incredible (Spencer v Bamber [2012] NSWCA 274). That principle is especially applicable in the Commission, where cross-examination is only allowed by leave (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34) and where all evidence must be filed in advance of the hearing (see generally NSW Police Force v Winter [2011] NSWCA 330; Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3) [46].
    
13. 
    There was no basis for an adverse inference to be drawn from Mr Blount not having been summoned for cross-examination. That was especially so where Mr Blount’s statements were inconsistent with each other. In these circumstances, it was for the party seeking to rely on his later version of events to call him to explain the inconsistencies. Moreover, it was wrong to assert that the respondent had not challenged the assertions in Mr Blount’s latest statement [47].
    
14. 
    The submission that the concession (by counsel for the applicant at the arbitration) that the deceased was travelling too fast “in the circumstances” depended on an acceptance of the assertion that Mr Lynton drove dangerously. The Arbitrator did not make that finding. Moreover, such a finding was not open and would have been contrary to the accepted evidence [57].
    
15. 
    While it was correct that, after noting the content of Mr Blount’s third statement, the Arbitrator did not refer to it again, he did consider the thrust of the allegation in that statement, namely, that Mr Lynton made his U-turn east of Inglis Road and, therefore, in a dangerous position relative to the hill crest. After a detailed analysis of the evidence, he concluded that Mr Lynton made his U-turn “in the vicinity of the intersection [of Stennett Road] with Inglis Road”. While this was slightly further east than Mr Lynton said in his statement, it was still well clear of the hill crest and was a reasonable and safe position at which to make the turn. Other than the challenge based on Mr Blount’s third statement, the Arbitrator’s analysis and conclusion as to where Mr Lynton made his U-turn had not been attacked [58].
    

16. 
    The Arbitrator’s conclusions were open on the evidence and were correct. It was clear beyond doubt that the deceased’s personal injury (and death) was attributable to his serious and wilful misconduct in riding his bike at about double the speed limit in a suburban area [59].