Aslanian v State Transit Authority [2001] NSWCC 190

Compensation Court of New South Wales

CITATION : Aslanian v State Transit Authority [2001] NSWCC 190 PARTIES : Edwards Aslanian State Transit Authority MATTER NUMBER(S) : 37695 of 2000 JUDGMENT OF: Wright C at 1 Entitlements & Liability :- damage to spectacles as a result of assault CATCHWORDS: scuffle between worker and passenger wether worker in course of employment LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: Henderson v Commissioner for Railways (W.A.) (1937) 58 CLR 281; Humphrey Earl Limited v Speechley(1954) 84 CLR 125 DATES OF HEARING: 28 February 2001 DATE OF JUDGMENT: 03/16/2001

FOR APPLICANT: Mr R Hanrahan instructed by Messrs Steve Masselos & Co. appeared on behalf of the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr G Hickey instructed by Messrs Astridge & Murray appeared on behalf of the respondent.

JUDGMENT: 1. The applicant worker is a bus operator with the Authority. He claims the cost of broken spectacles under s 74 of the Workers Compensation Act 1987 and the reimbursement of medical treatment costs under s 60 following events on Saturday 5 February 2000 when the worker was driving the 461 bus from Ryde to Queen Victoria Building in the city. The total amount involved in this litigation is about $670. 2. The damage to the glasses, necessitating replacement, resulted from a scuffle between the worker and a bus passenger. 3. The Authority has seen fit to deny liability for these claims on multiple grounds. It asserts that the damage to the spectacles did not take place in the course of employment and did not arise out of the employment of Mr Aslanian. The cost of medical treatment, being several visits to a general practitioner, related to an injury for which employment was not a significant contributing factor (s 9A) or, alternatively, the injury was occasioned by the "serious and wilful misconduct" of the worker (s 14). 4. Whilst the merits of this claim are clearly arguable, the fact that no matters of general importance in compensation law turn upon this specific set of circumstances might invite the relevant compensation authorities to question how and why such menial matters can consume more than a day of court resources, plus the combined costs of the parties. 5. Mr Aslanian has been a bus operator for over 17 years. From what he tells the Court he has been a model employee in terms of his patience, temperament and devotion to the duty of driving passengers in all conditions and weathers. He drives the route 461 bus from Ryde to the Queen Victoria Building in Sydney. 6. On Saturday evening 5 February 2000 the worker commenced the 8.20 pm service from Ryde to the city. At the first stop, a number of passengers boarded. One passenger, who remained unidentified, commenced verbally abusing him. Apparently the bus before had been cancelled and the passenger, who refused to pay his fare, had been waiting for almost an hour. The worker cajoled the passenger into paying the fare from Ryde to Five Dock. The passenger sat near the front of the bus within earshot of the driver and mumbled and behaved in an unsettled manner to the extent of raising apprehension in the worker, who used his two-way radio to arrange for an inspector to meet the bus at Strathfield. At or near Concord Hospital the worker spoke in loud tones to one of his later incoming passengers to publicly explain that the earlier bus had been cancelled. O bviously such cancellation was not within the worker's control. 7. The passenger's continued mumbling caused the driver to be apprehensive as he tried to keep an eye on the passenger as well as drive his bus. In effect he was saying that the passenger's body language suggested that he was continuing to be antagonistic to the worker. The events that followed are simple enough. The passenger, still upset and enraged by his being inconvenienced, called the worker a "motherfucker" in aggressive tones and alighted before Five Dock. The worker, who was holding a 10 cent coin, the change from the $2.50 fare, threw the coin in the direction of the passenger accompanied by words to the effect that the passenger was not worth the 10 cents. 8. Much has been made of the event whereby the coin was thrown "at" or "in the direction of" the passenger, but there is no evidence whether the coin hit the ground, the bus interior or the passenger himself or with what force it was thrown. The worker owed the passenger the 10 cents. There is no evidence that before that event, the worker did anything other than conduct himself in an exemplary manner in dealing with an irate, offensive and aggressively acting passenger. Accepting the evidence of the worker that the passenger had originally stated an intention to travel to Five Dock, his early departure from the bus can be inferred to have been occasioned by a change of mind. Because of his close proximity to the driver, it can be inferred that he would have overheard the worker's request for an inspector to meet the bus at Strathfield. 9. After the coin was thrown and the words were used, the driver closed the front doors of the bus. However, the passenger forced open the doors and spat in the worker's face. Neither counsel demurred from my suggested conclusion that this action probably constituted a common assault. The passenger commenced to decamp. The worker got up from his driver's seat, and left the bus in pursuit of the passenger. It was not clear initially whether the worker grabbed the passenger by the singlet first or the passenger kicked the worker in the groin first but this was cleared up in cross-examination when the worker said he did not have the opportunity to physically stop him because the passenger turned around and kicked him. The worker said his intention was to hold the passenger until the police arrived. After the kick to the groin, the worker did hold onto the passenger's singlet and the passenger did place his hands around the worker's throat occasioning bruising. 10. The passenger and the worker had hold of each other when a carload of 4 young men arrived. The worker's stated intention was to hold the passenger until the police arrived. The young men said they would detain him and the worker, no doubt somewhat relieved and sore, got back into the bus. However the men let the passenger go. The worker lost several days off work, had medical treatment both at hospital and from his general practitioner and had to replace his spectacles which were scratched and damaged in the scuffle. There was no dispute that the replacement cost of $600 was a reasonable amount. 11. The respondent at the outset of the hearing indicated that it wished to call a lay witness in this case. However, a later decision was made not to call any witness who might shed further light upon the events as evidenced by the worker. 12. Cross-examination was directed at discrete elements in what I consider was a chain of events that commenced with the passenger boarding the bus. The worker could not remember whether the 10 cent coin hit the passenger who was then outside the bus. After spitting in the worker's face the passenger began walking away. The worker left his bus and "chased", "pursued" or "followed" the passenger. I do not consider that anything turns on the different meaning of these words. The worker agreed that he was personally affronted by the passenger's actions. It was clear and unchallenged that the worker did exit his bus for the purpose of inducing the man to remain at the scene. 13. The respondent tendered and cross-examined the worker upon the contents of the Authority's "Code of Conduct" and the Employee's Handbook which are provided to each employee. Mr Hickey, obviously upon instructions, suggested to the worker that he was "harassing" the passenger. Under Code of Conduct 4. Appropriate Behaviour, employees are urged to never harass customers on any grounds. "Harrass", according to the accepted meaning, involves "to disturb persistently; torment, as with troubles, cares etc" (The Macquarie Dictionary). I do not consider that the worker's actions constituted harassment. In the Handbook, which has 162 clauses for the information of operators, Clauses 10 to 14 inclusive deal with Safety Strategies for Bus Operators. It opens with the prescient remark that "bus operators have a real risk of being physically or verbally assaulted" (Clause 10). It then details the safety strategies for operators to follow, such as not pursuing collection of a fare if personal safety is at threat (Clause 11). However it enjoins that if customers observe people boarding buses and not paying the fare or refusing to pay, this "will encourage" other customers to avoid paying the correct fare. Under Clause 12 (d), the operator might consider it prudent not to collect the fare of a customer who displays any verbal or physical aggression. Under Skills in dealing with Customers, operators are enjoined (Clause 13) to "keep an eye on suspicious looking customers. Stay alert when you are suspicious of a customer. Turn to face them as they exit the bus. Make eye contact. If you are particularly concerned pick up your radio handset and pretend to discuss your location with the radio room". Operators are told (Clause 14) that they are usually more at risk on Friday and Saturday nights and should be aware of customers who act aggressively or want to argue about fares and other conditions of carriage. 14. There was no document before me which would proscribe or prescribe the conduct of an operator in all circumstances of this case. The Handbook does not appear to deal with circumstances in which the operator might leave his bus, although such matters as rest breaks, toilet breaks and attendance on police and other drivers at collisions spring to mind as commonplace events that would be incidental to the operation of a bus service. The Handbook does not fully deal with instances where a passenger has assaulted persons or damaged property on the bus. Clause 27 suggests that operators should ask customers to desist from, amongst other things, causing nuisance or annoyance to other passengers, spitting, interfering with the safety and comfort of any other person or using obscene, offensive or abusive language. If operators have asked customers to comply with such requirements and do not do so, operators are empowered (at least by force of the Handbook) to refuse entry to the bus or to ask them to leave the bus. Operators are instructed to seek the assistance of the radio room, a supervisor or a member of the police service, if necessary. 15. Section 74 provides that if a worker meets with an accident arising out of or in the course of his employment he or she is entitled to claim the reasonable costs of replacing or repairing the articles damaged. The meaning of "meet with an accident" is well established and involves circumstances in which the person was either injured or there was the potential for the person to be injured. The employer denies that the worker was in the course of his employment or the injury or damage arose out of the employment, so it is necessary to consider the case law in respect of both concepts. The section is expressed in the alternative, so that the worker may succeed if he can show either condition is applicable. 16. Mr Hickey and Mr Hanrahan both quoted various authorities that they submitted supported their competing views, and I shall endeavour to deal with the relevant authorities in this decision. The relavant phrases have taxed the minds of many judges for about a century since the introduction of statutory workers' compensation schemes in the English speaking world. The course of employment connotes a temporal connection and "arising out of" connotes a causal connection. 17. In the cases of St Helens Colliery Co. v. Hewitson (1924) AC 59; Low or Jackson v. General Steam Fishing Co Ltd [1909] AC 523; and Lancashire and Yorkshire Railway Co v. Highley (1917) 10 BWCC 241, the English Courts addressed the scope of "course of employment". They precede the Australian decisions of Henderson v. Commissioner for Railways (W.A.). (1937) 58 CLR 281 and Weston v. Great Boulder Goldmines Ltd, (1964) 112 CLR 30 which follow an approach that the course of employment does not merely cover the worker's paid hours of engagement but anything that is reasonably incidental to that employment. That the worker was in the course of employment on the bus route to the city is obvious. That the events happened within the worker's ordinary working hours is undeniable. 18. There are other lines of authority which deal with, for instance (a) whether, by his conduct, the worker takes himself outside the scope of his employment even though he is or has been at his place of employment during ordinary working hours; and (b) whether the course of employment includes the intervals between ordinary working hours. 19. Some of the emerging principles can be distilled from the dicta of Lord Atkinson in St Helens Colliery Co. v. Hewitson "I myself have been rash enough to suggest a test namely that a workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do,' or what is, in other and I think better words, in effect the same thing, namely, when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service. The true ground upon which the test should be based is the duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word 'employment as here used covers and includes things belonging to or arising out of it." Lord Loreburn in Low or Jackson v. General Steam Fishing Co Ltd "Everything, of course, must depend upon the nature of what he has to do, but allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act. A man may be within the scope of his employment not merely when he is actually doing the work set before him but also while he is where he would not be but for his employment, and is doing what a man so employed might do without impropriety." Dixon J. in Henderson v. Commissioner for Railways (W.A.) "The general principle governing the ascertainment of the "course of employment" appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of his employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work....Where the incident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval where labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of employment will depend upon the nature and terms of the employment, on the circumstances in which the work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties. That the worker is liable to the control of the employer is of some importance."\ 20. The Courts have considered varying factual instances where the actions of a worker during ordinary working hours may or may not take himself or herself out of the course of employment. Classes of case can involve "intervals between work", "assault", "skylarking" and unauthorised activities. 21. The underlined phrase in Henderson was adopted as a ratio in Humphrey Earl Ltd v Speechley [1951] 84 CLR 125 at 133, where the High Court held that whatever is incidental to the work is covered by the course of employment - "When an accident occurs in intervals between work the question whether it occurs in the course of employment must depend upon the answer to the question whether the workman was doing something that he was reasonably required, expected or authorised to do in order to carry out his (actual) duties". 22. Of course, in these cases an absence from the workplace was being considered. Mr Hickey inferred that Mr Aslanian had taken himself away from his workplace, namely the bus, and such an issue should also be addressed. In Henderson, Dixon J. addressed the situation, inter alia, "where labour is suspended". In Speechley Dixon J. refers generally to "intervals between work". To Dixon J. a lunch break may have been covered in the circumstances of Speechley if he had merely sought his lunch locally, with no requirement of "at or near his work" being applied. There was a proximity requirement. The worker's actions did not fall within the course of his employment because "it was not a reasonable consequence of the circumstances in which he was placed through the performance of his duties". The course adopted by the worker was not reasonably incidental to the performance of his duties on that occasion. He distinguished between a worker taking advantage of the lunch break to make an excursion for his own purposes and acting in a way which was reasonably calculated to fulfil the purposes of his employment. 23. There have been a number of decisions where the work duties have been actually disrupted by a dispute. In Williams v Bill Williams Pty Ltd [1972] W.C.R. 1 there was a fight at or near work that was unrelated to the work. In Tarry v. Warringah Shire Council [1974] WCR 1 the worker suffered a heart attack in course of a dispute with a fellow worker. In Stojkovic v. Telford Management Pty Ltd (1998) 16 NSWCCR 165, the worker had caused a brawl at his workplace which was precipitated by personal insults having nothing to do with his employment. 24. The principles in these cases appear to be (a) that not everything done in work time (such as the carrying on of a private dispute) was in the course of employment (Williams); (2) that a fight with another worker over performance of duties could be within the employment notwithstanding that the injured worker had done acts not in accordance with his duties (Tarry) and (c) that the dispute between employees had nothing to do with furthering the employer's interest and was not incidental to the employment (Stojkovic). Whilst these cases are not directly relevant to the special circumstances of this case, they provide some guidance on the philosophical approach to this part of the legislation. 25. The case of Davis v Mobil Oil Aust Ltd (1988) 12 NSWLR 10; 4 NSWCCR 8 illustrates that an injury resulting from a dispute between a supervisor and an employee about the carrying out of the latter's duties may constitute an injury arising out of the employment. 26. Davis, Tarry and Stojkovic all involved disputes at the workplace between fellow workers. I am not aware of any other decision, other than the above, where an injury arose out of a dispute between an employee and a non-employee. 27. In this matter, I conclude that the worker Mr Aslanian was within the course of his employment when he suffered the damage and the injury occasioned by the passenger from the 461 bus. The circumstances were that the worker, going about his duties as a bus operator, was verbally abused and physically assaulted. Until the passenger left the bus, the worker was conducting himself in a manner that was encouraged by his employer. He had been proper in his dealings with the passenger. I do not consider that the worker propelling the coin in the passenger's direction to have been an unreasonable act in the circumstances that he had experienced. As was said by Lord Loreburn in Low or Jackson v. General Steam Fishing Co Ltd, allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in an occupation may be expected to act. The worker was placed under intense provocation when the passenger spat in his face, and it was not unreasonable for the worker to act in the way that he subsequently did because I conclude that his primary purpose was to attempt to have the passenger remain at the scene until the police came and dealt with him. That he was personally and grossly offended by the rabid behaviour is not challenged. That he was endeavouring to carry out his job cannot be denied. I determine that Mr Aslanian's actions were incidental to his employment, and that they did not constitute gross misconduct. I determine that the worker's actions were a consequence of the circumstances in which he was placed through the performance of his duties and were reasonable. 28. Furthermore I am satisfied that the employment was a substantial contributing factor to the personal "injury" which resulted in the need for medical attention and that his spectacles were damaged when he met with an accident. 29. There will be an award in favour of the applicant worker, for a general order under s 60 and a specific order under s 74 for payment of the replacement costs of the spectacle glasses in an amount of $600. The applicant is to have the reasonable costs of the proceedings. Mr R Hanrahan instructed by Messrs Steve Masselos & Co. appeared on behalf of the applicant. Mr G Hickey instructed by Messrs Astridge & Murray appeared on behalf of the respondent.