New South Wales Court of Appeal CITATION : Pollock v Stickfast Labels Pty Limited (In Liq) [2002] NSWCA 360 FILE NUMBER(S) : CA 40433/02 HEARING DATE(S) : 31/10/02 JUDGMENT DATE : 31 October 2002 PARTIES : Brendan Pollock (Appellant) Stickfast Labels Pty Limited (In Liquidation) (Respondent) JUDGMENT OF : Meagher JA at 20; Ipp JA at 1; Foster AJA at 22 LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC 56418/00 FILE NUMBER(S) : LOWER COURT Ashford CCJ JUDICIAL OFFICER : COUNSEL : B McManamey (Appellant) W Kearns SC (Respondent) SOLICITORS : Spooner & Hall (Appellant) A O Ellison & Co (Respondent) CATCHWORDS : WORKERS COMPENSATION - whether personal injury sustained by the appellant arose out of or in the course of employment - where appellant stopped authorised work for the sole purpose of administering a dose of heroin - where the injury was sustained after the heroin was administered - whether administering of heroin was in the course of employment - whether in the circumstances s 14(2) of the Workers Compensation Act 1987 is applicable - appeal dismissed. ND LEGISLATION CITED : Compensation Court Act 1984, s 32(1) Workers Compensation Act 1987, s 14(2) Hatzimanolis v A N I Corporation Limited (1992) 173 CLR 473 CASES CITED: Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 Higgins v Galibal Pty Limited (1998) 45 NSWLR 45 Humphrey Earl Limited v Speechley (1951) 84 CLR 126 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40433/02 CC 56418/00 MEAGHER JA IPP JA FOSTER AJA 31 October 2002 BRENDAN POLLOCK v STICKFAST LABELS PTY LIMITED (IN LIQUIDATION) Judgment 1 IPP JA: In 1993 the appellant was employed by the respondent, a company owned by the appellant's father. On 19 June 1993 the appellant was seriously injured while at the premises of the respondent. The appellant brought proceedings in the Compensation court for compensation under the Act. The trial judge, Ashford CCJ, held that while the appellant suffered appalling injuries he was not injured arising out of or in the course of his employment with the respondent. The appellant therefore failed in his claim. 2 The appellant appeals from the decision of Ashford CCJ. By s 32(1) of the Compensation Court Act 1984 the decision is limited to a point of law. 3 At the relevant time the respondent conducted a business printing labels. The appellant's work with the respondent involved the operation of a letterpress printing machine which printed self-adhesive labels. 4 The appellant commenced working for the respondent in 1988. He was then about twenty-eight years of age. By then he had become addicted to heroin. In about 1991 he had started injecting himself with heroin. By 1993 he had been on a methadone program and was aware of the dangers of using heroin and of altered drug tolerance from being on a methadone program. 5 The appellant's father, Mr John Pollack, was aware that the appellant had used heroin and had seen him affected thereby both at home and at work. Mr Pollack had warned the appellant about using heroin and had told him that it was something that was dangerous for his long term health and well-being. 6 The appellant occasionally worked overtime including on Saturdays. The amount of overtime he worked was at his own discretion. On 13 June 1993, a Saturday, the appellant in fact decided to work overtime. He arrived at the respondent's premises shortly after 3pm and let himself in with his own key. He was accompanied by his girlfriend whom he later married. 7 The appellant's ordinary method of work was to set up the letterpress manually and the press would then automatically process 1000 labels. The machine would then stop producing and the appellant would be required to reset it. On the Saturday in question the appellant started the machine and commenced to operate it. He intended to print several thousands of labels and he said "this was to be a long run". 8 By about 11pm, the appellant had completed a large part of the job. His girlfriend had fallen asleep at a work table on the factory floor. He had in his possession about one-fifteenth of a gram of heroin worth some $20 and at this stage decided to administer the heroin to himself. 9 He set the letterpress running knowing that it would cut out automatically after having printed 1000 labels. He then went into an office in the premises. There he mixed the heroin in a spoon, inserted it in a syringe that he had with him, tied a tourniquet round his arm and injected the drug into his arm. The appellant conceded in cross-examination that he knew that his father would not have approved of him doing that. 10 The appellant, in consequence of injecting himself with the heroin, collapsed in the office over a hot bar heater or radiator. He was severely burnt. He was admitted to hospital and spent some fifty-nine days in the Burns Unit undergoing plastic surgery along with other treatment. He subsequently developed a golden staph infection. The trial judge was satisfied that he had suffered serious permanent disablement. 11 A significant issue at the trial concerned the purposes for which the appellant left the factory floor and went to the office. He was not asked about this issue in his evidence-in-chief. In cross-examination the following exchange occurred: "Q. You went to the office specifically for the purpose of injecting that heroin? A. I was tossing up whether to throw it away or use it but yes it did get the best of me. Q. The reason you went to the office was to take the heroin in the office? A. Yes, while the machine was running I thought I could get away with just popping in there and popping back out but I didn't realise, you know, that my tolerance was no longer there. Q. You injected the heroin on that occasion? A. Yes." 12 In re-examination the appellant said that at the time he left the factory floor he had about 9000 labels left to produce. It would take about fifteen minutes to produce a batch of 1000 labels. He thus had something in the order of one and a half of hours work left to do. He explained that each time he finished a run of 1000 labels he had to go into the office to do "the paperwork" relating to that run. He was then asked whether at the time he went into the office he had anything with him other than the heroin itself. He said that he took with him the batch of 1000 labels he had completed last and the paperwork necessary for that batch. He said that he put the labels onto a desk in the office and filled out the form necessary to record the production of those labels. He then injected himself with the heroin. 13 Ashford CCJ however did not accept the evidence given by the appellant in re-examination. She said: "I do not accept the applicant was in the office for any purpose except to administer an injection of heroin. Noting his evidence-in-chief that 'while the machine was running I thought I could get away with just popping in there and popping back out', I am not satisfied the applicant had gone to the office at that time to perform any function associated with his employment." Her Honour concluded: "I am satisfied he took himself out of the course of his employment at that time by preparing and administering an injection of heroin. This was also gross misconduct and was not for the purposes of or in connection with the respondent's trade or business. It was not an activity expected to be done in order to carry out his duties, nor directed in order to carry out his duties. It is thus my view the applicant was not injured arising out of or in the course of his employment with the respondent." 14 In the first quoted passage above, her Honour stated that the appellant's evidence referred to therein had been given in his evidence-in-chief. In fact he had given that evidence in cross-examination. This was plainly an inadvertent error by the learned judge. She had earlier, in her reasons, correctly noted that the evidence in question had been given in the course of cross-examination. In his written submissions the appellant contended that her Honour's reference to the fact that the evidence had been given in the course of evidence-in-chief constituted an appealable error. The error was entirely insignificant however and in my view had no bearing on her Honour's reasoning and the result of the case. 15 The appellant also contended that her Honour erred in failing to give reasons for not accepting that he had been in the office for purposes additional to injecting himself with heroin. The decision before the learned judge concerned a straightforward issue of credibility. She referred to the appellant's evidence that he went to the office to take heroin thinking that he could "get away with just popping in there and popping back out". This testimony was inconsistent with the appellant's evidence given in re-examination. This constituted adequate grounds, expressed in the trial judge's reasons, for not accepting the re-examination evidence. Apart from this inconsistency it is rare indeed for a case to be won on evidence in regard to a critical issue that is given for the first time in re-examination, having been omitted entirely in evidence-in-chief. 16 On the facts as found, the appellant left the factory floor and went into the office on the premises for the sole purpose of administering an injection of heroin to himself. He did this knowing that his employer would not approve of what he was doing. No matter how flexible the application of the test as to whether work done was in the course or within the scope of employment, the appellant's conduct in leaving the factory floor and injecting himself with heroin could not fall within that test. The appellant was not doing anything which he was reasonably required, expected or authorised to do in order to carry out his actual duties: Henderson v Commissioner of Railways (1937) 58 CLR 281 at 294; Humphrey Earl Limited v Speechley (1951) 84 CLR 126 at 133; Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 at 479 and following. The appellant was actually doing something that had nothing to do with his duties, something that his employer had warned him against doing and of which his employer, to his knowledge, seriously disapproved. 17 The appellant sought to place reliance on s 14(2) of the Workers Compensation Act 1987 which provides: "If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement." 18 In my opinion, whatever s 14(2) means it does not convert conduct which was not in the course or within the scope of employment when the serious and wilful misconduct occurred into conduct that was in the course or within the scope of employment. I do not understand Higgins v Galibal Pty Limited (1998) 45 NSWLR 45 as having this effect. In the circumstances of this case, s 14(2) does not assist the appellant. 19 I would dismiss the appeal with costs. 20 MEAGHER JA: I agree. 21 FOSTER AJA: I also agree. 22 MEAGHER JA: The order of the Court therefore is that the appeal is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.