DEW T/as AG AND PG DEW v MAHER [1996] NSWCA 154

DEW T/as AG AND PG DEW v MAHER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, COLE JJA and COHEN AJA 29 November 1996, 29 November 1996

[1996] NSWCA 154

GROSS misconduct in the course of employment — Hatzimanolis vy ANI Corporation Ltd (1992) 173 CLR 473 discussed.

Cole JA On this appeal, which encompasses both fact and law, the appellant employer has raised three matters. The first is whether Manser CCJ erred in finding that the respondent worker suffered injury in the course of his employment whilst engaged in an activity incidental to his employment. The second is whether his Honour erred in applying principles enunciated in Hatzimanolis v ANI Corporation Ltd! to the circumstances of this case and incorrectly applied Van Haeften v Caltex Oil (Australia) Pty Ltd2. The third issue is whether the trial judge erred in finding that the respondent was not guilty of gross misconduct.

It is necessary to enunciate the facts, many of which were undisputed. In so doing I will indicate my view of contested facts. The respondent worker was injured on 4 January 1993. He was then 28 years old. He suffered injuries when a bomb exploded in the cabin of a utility in which he was travelling. The bomb was undoubtedly made by the driver, Mr Fenwick. The extent of participation of the respondent in the making of the bomb is disputed. The circumstances leading to the explosion were as follows.

As a youth the respondent had some experience of rural life and working on a farm. After matriculating in 1981 he studied at the University of Newcastle gaining the degree of Bachelor of Science in 1988. He majored in biology and geology but after 1988 did not ever work as a geologist. He returned to his home district of Tamworth in late 1991 or 1992 where he registered as unemployed having commenced a horticulture course at the Tamworth TAFE college. He was obliged to do practical work as part of that course. He gained employment pursuant to a jobstart contract between the appellant employers and the Commonwealth. That agreement set forth the nature of his duties which were described as "caring for cattle and sheep, fencing, ground maintenance, irrigation, tractor work and planting of trees".