Anderson v Sydney Trains

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Anderson v Sydney Trains [2024] NSWPIC 417
APPLICANT:	Kellie Anderson
RESPONDENT:	Sydney Trains
MEMBER:	Fiona Seaton
DATE OF DECISION:	2 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; whether there was a real and substantial connection between employment and the accident or incident due to the applicant carrying a backpack with textbooks; Held – while there was an association between the employment and the accident or incident, it was not sufficiently real and substantial to satisfy section 10(3A) in this case; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There was not a real and substantial connection between the applicant’s employment and the accident or incident on 17 April 2023 out of which the applicant’s personal injury arose. 2. As the requirements of s 10(3A) of the Workers Compensation Act 1987 are not met the applicant is not entitled to payments of weekly benefits compensation. 3. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant Ms Kellie Anderson was employed by the respondent Sydney Trains as a Transport Officer commencing on 13 April 2023. On 17 April 2023 she was travelling from her home to attend a training course at Petersham. This required her to change trains at Strathfield station. When she was walking between platforms she fell and injured her neck and left shoulder.
The applicant claims weekly benefits from 17 April 2023 to 6 March 2024 on the basis that there is a real and substantial connection between her employment with the respondent and the accident or incident out of which her injury arose.
A dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 was issued by the respondent on 9 February 2024. The dispute was confirmed following internal review on 4 April 2024.
The respondent’s view is that there is no real and substantial connection between the employment and the injury on 17 April 2023 as required by s 10(3A) of the Workers Compensation Act 1987 (the 1987 Act).
An Application to Resolve a Dispute was lodged in the Personal Injury Commission (Commission) by the applicant on 23 May 2024 claiming weekly benefits compensation.
The dispute was listed for conciliation/arbitration for determination of whether there is a real and substantial connection between the applicant’s employment with the respondent and the accident or incident on 17 April 2023, and the extent and quantification of any incapacity for work as a result of the injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether there is a real and substantial connection between the applicant’s employment and the accident on 17 April 2923 pursuant to s 10(3A) of the 1987 Act, and
(b) the extent and quantification of any incapacity for work in the period 17 April 2023 to 6 March 2024.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing before the Commission on 12 July 2024. Mr Greg Horan appeared for the applicant instructed by
Mr Thomas of Turner Freeman Lawyers. Mr Lachlan Robison appeared for the respondent instructed by Ms Mawad of HWL Ebsworth. Mr Johnson was also present as the applicant’s support person.
During conciliation the applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $1,285 and the claim for weekly benefits compensation was confirmed as being for the closed period of 17 April 2023 to 6 March 2024.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents, and
(b) Respondent’s Reply and attached documents.

Oral evidence

No application was made to call oral evidence.

Applicant’s evidence

The applicant describes what occurred on 17 April 2023 in her statement of 20 May 2024.
When she commenced employment with the respondent on 13 April 2023 her employment contract required her to undergo training at the respondent’s office at Petersham. To reach Petersham station from her home the applicant had to change trains at Strathfield station.
On 17 April 2023 she boarded a train to Strathfield station where she alighted to change trains. This required her to walk to another platform.
To reach the other platform the applicant walked down a ramp that took her under the station and led to another ramp to the platform from which her second train departed.
The ramp she walked down was made of gravel which was uneven and loose. Initially the applicant did not think the gravel would cause a trip hazard but as she walked down the ramp looking forwards her left foot became caught on an uneven piece of gravel and she fell on her right side.
When she hit the ground her backpack flung forward and hit her in the back of the head.
She experienced pain in her neck, her hips and her shoulders.
The applicant advised her supervisors of her injury and that she was unable to return to work from 18 April 2023. She continued to experience pain in her left shoulder and neck in the days following the fall.
Treatment has included physiotherapy and cortisone injections in her left shoulder and neck. This did not alleviate her worsening symptoms. The applicant had an ultrasound to her left shoulder which revealed a tear, followed by an MRI of her left shoulder and neck on
18 January 2024. A second cortisone injection to her left shoulder and platelet-rich plasma injections did not alleviate her pain.
The applicant continued to experience pain in her neck and left shoulder. Her neck pain radiates to her left hand where she experiences tingling, and she has a loss of strength in the left arm. Her pain is most severe at night but is continuous all day. She wears a brace over her left hand at night to mitigate her pain. She continues with physiotherapy and pain medications which do not alleviate her pain.
Dr Looi, her general practitioner, suggested she may require surgery and she has been referred to Dr Yeoh, orthopaedic surgeon, for review.
The applicant has not returned to any form of employment since April 2023.
The respondent’s Offer of Employment dated 7 March 2023 shows the applicant’s commencement date of 13 April 2023 at Wilson Street, Redfern, and that her location may change subject to operational requirements. Regarding training, the applicant was specifically required to complete Transport Officer Training with an inherent requirement that she pass a number of assessments.
Dr Cheong’s certificate of capacity dated 7 February 2024 includes a diagnosis of left shoulder bursitis and intrasubstance tear of supraspinatus/infraspinatus. The description of the injury on 17 April 2023 is “[p]atient was walking down the ramp with backpack on left shoulder then fell over on the right side and right hip. Patient also jarred her neck and was complaining of neck. However it was progressively affecting her left shoulder.”[1] The doctor certified the applicant as having no capacity for work from 7 February 2024 to 6 March 2024.
[1] ARD page 31.
The medical records of Hills Sports Medicine between 19 November 2023 and
[2] ARD page 38.
25 March 2024 include the review and treatment of the applicant’s left shoulder and neck pain. The notes include “Note Fall April 2023 landed on outstretched arm”.[2]
Dr Acorda, general practitioner, notes on 18 April 2023 “yesterday had a fall while going to work. rolled left ankle and fell, jarred her neck, right hip sore. NECK SORE”. [3] The doctor records ongoing complaints and particularly of neck pain.
[3] ARD page 119.
On 3 November 2023 Dr Looi, general practitioner, notes the injury that occurred seven months ago and says “was holding a back up [sic] which flew over her head, c/o neck pain the next day”.[4]
[4] ARD page 131.
On 15 December 2023 Dr Looi’s records include “was at work sudden onset of lightheadedness palpitations went to ED”.[5] A Centrelink certificate was completed on
[5] ARD page 134.
22 January 2024 as a result of left shoulder pain.
On 29 January 2024 Dr Acorda records;
“px wants wc cert, px said it all started when April 18 – Patient was walking down the ramp with backpack on left shoulder then fell over on the right side and right hip. Patient also jarred her neck and was complaining of neck pain. However it was progressively affecting her left shoulder.”[6]
[6] ARD page 137.
The X-ray of the cervical spine of 12 May 2023 comments that there is no appreciable sequelae of trauma and if there is still a high index of suspicion particularly for a C1 injury, further assessment with a CT is highly recommended.
The CT neck and cervical spine report of 29 June 2023 is essentially normal and suggests the pain may be ligamentous or soft tissue in nature. The MRI cervical spine report of
20 October 2023 is also essentially normal.
The left shoulder ultrasound report of 10 November 2023 confirmed a small focal tear of supraspinatus. The left shoulder MRI report of 18 January 2024 concluded there is mild to moderate tendinosis of supraspinatus and mild tendinosis of infraspinatus tendon with mild to moderate subacromial/subdeltoid bursitis.
Dr Acorda and Dr Fan issued medical certificates certifying the applicant was unfit to continue in her usual occupation between 18 April 2023 and 24 April 2023.
A Centrelink Medical Certificate was issued by Dr Harinesan on 25 May 2023 for neck pain secondary to the fall and chronic headaches, with date of onset April 2023, and no capacity for work from 25 May 2023 to 17 August 2023.
Dr Fan issued a Centrelink Medical Certificate for the applicant’s first episode of rapid atrial fibrillation with no capacity for work between 14 December 2023 and 14 January 2024.
A Centrelink Medical Certificate was issued by Dr Rajendran on 22 January 2024 for left shoulder bursitis and rotator cuff tear with no capacity for work between 14 January 2024 and 25 February 2024.
Ms Helen Leitch, physiotherapist, says on 5 October 2023 “Kellie reports the MOI was walking down ramp with backpack on L shoulder, fell over on the right side and R hip 5-6/12 ago. There was an immediate onset of pain which became worse the next day”.[7]
[7] ARD page 288.

Respondent’s evidence

The s 78 dispute notice of 9 February 2024 includes the applicant’s report of the injury to
Mr Steve Brownhill on 20 April 2023;
“hi Stephen, this is what happened to me on Monday
On Monday morning 7.19am, 17^th April 2023. I was at
Strathfield station coming from Penrith Station on my way to
work. As I had got off the train to get on a different platform to
Get to Petersham Station.
I was walking down the ramp at Strathfield Station- Platform
2 or 4 I’m not certain which one. There was a raised bit of
cement that I twisted my ankle on and caused me to fall over to
then which I had landed on my hip, and hurt my neck and the
side of my body.
Later that night I started to feel pain in my neck and hip.”[8]
[8] Reply page 12.
The respondent’s view in this dispute notice is that the applicant was not engaged in performing any work for Sydney Trains when the injury occurred, there was no real and substantial connection between her employment with the respondent and the accident, and the injury did not arise out of or in the course of employment.
The respondent noted the Initial Report of Injury was received on 22 January 2024 and the Claim Form was received on 6 February 2024.
Liability for the applicant’s claim was confirmed as declined in the s 287A notice of
4 April 2024.
The Claim Form dated 5 February 2024 is included with the documents attached to the Reply, as is the Initial Notification of Injury form of 22 January 2024.
The email from Mr Brownhill, Trainer, Customer Experience, to Mr George Sarkis at Transport NSW of 2 February 2024 provides answers to a series of questions regarding the applicant’s injury. Those include that the applicant reported the incident the following day on 18 April 2023, it occurred on the way to work and she “withdrew from the training program stating that she did not want to recommence training again as she had missed initial days, as per her letter of resignation”.[9] The medical certificates of Dr Acorda and Dr Fan referred to above are attached to this email.
[9] Reply page 11.
The respondent also relies on the investigation reports referred to at paragraphs 32 to 34 above.

Applicant’s submissions

The applicant made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.

On the first issue of whether there is a real and substantial connection between the employment and the accident on 17 April 2023, the applicant made brief submissions on the law.
The principle in Field v Department of Education and Communities [2014] NSWWCCPD 16 (Field) is that the concept is a wider concept than causation and it is a question of fact to be determined by applying the words of the provision in a practical and commonsense manner.
In Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 (Mitchell) the principle is that the connection between the employment and the accident or incident must be actual and of substance; there must be more than a remote or tenuous link.
It is not necessary to prove that the accident arose out of or in the course of employment, which is a more stringent test. The applicant needs to prove that there is some actual link between the applicant’s employment and the incident that occurred on the ramp at Strathfield railway station.
The applicant’s witness statement, the claim form and the physiotherapy report of Helen Leitch in combination give a clearer picture of the facts.
The applicant boarded a train on 17 April 2023 due to attend a training course in Petersham, her usual place of employment according to the Offer of Employment. The applicant’s submission is that she was in the course of a periodic journey from home to the workplace on that day.
At Strathfield the applicant alighted the train as she had to change trains to travel to Petersham, which she would not have done if she had been attending the respondent’s address in Redfern.
The injury is described by the applicant in her statement and includes “[w]hen I hit the ground, my backpack flung forward and hit me in the back of the head.” [10]
[10] ARD page 2.
The applicant’s submission is that the evidence in her statement should be coupled with the report of Helen Leitch of 5 October 2023. The history Ms Leitch records includes that the applicant was walking down the ramp with a backpack over her left shoulder.
In the Claim Form, apparently completed by the applicant in her own handwriting, there are a series of questions that she has answered. The first is ‘what tasks were you doing when you were injured’ and the handwritten answer is “[j]ust hopped off a train and then walked down a ramp.” In answer to ‘what happened’ the applicant says “I was walking down a ramp and the ground had a raise in it which made me fall to my side and injured my neck and the side of my body.”[11]
[11] Reply page 2.
The third question, importantly in the applicant’s submission, is ‘what is your injury/condition and which parts of your body are affected’ and the applicant’s answer is “[m]y neck and shoulder have been affected from the fall as I was carrying my bag full of textbooks.”[12]
[12] Reply page 2.
The applicant was on a periodic journey from her home to a training centre in Petersham carrying a backpack full of textbooks and in the applicant’s submission there is a clear inference to be drawn that those textbooks in the backpack were for use in her training that day.
When going down the ramp from the platform to the ticketing area below the platforms at Strathfield station she slipped or stumbled and fell to the ground. During that fall and while she is on the ground the backpack on her left shoulder has flung forward.
The applicant submits that there is evidence she was carrying a backpack full of textbooks and it should be inferred with the backpack being flung forward during the motion of the fall it was quite heavy. Physics has then taken over and the backpack has flung forward and hit her in the back of the head according to the records.
The submission is that it should be inferred that a backpack full of textbooks flung forward in the manner the applicant describes would be causative of injury to her left shoulder as well as the head and neck area where the backpack has ultimately hit.
The accident or injury is really in two stages; firstly, the fall to the ground and secondly, the effects of that fall causing the backpack of textbooks to come into play in terms of the mechanics of the accident, and coming into play in a real and substantial manner injuring the applicant’s neck and left shoulder with the backpack on her left shoulder and hitting her head in the applicant’s submission.
The connection is both real, actual and causative in terms of the injuries that the applicant has sustained in the incident. The applicant says there is therefore a real and substantial connection between the employment and the accident.
The applicant was required as part of her employment to carry the textbooks and she chose to do so in a backpack on her left shoulder and that has had a real and substantial effect on the mechanics of the fall she suffered.
The applicant’s submission is that this matter fits fairly and squarely within the provisions of s 10(3A).
The applicant’s second argument is that there is a connection between the employment and the accident as rather than going to Redfern the applicant was required to go to the training centre at Petersham on that particular day and that was the only reason she was walking down the ramp at Strathfield station.
She would not have had to change trains at Strathfield station without having to go to Petersham that day. The train she would take to go to Redfern would not require her to alight at Strathfield to change trains. That is a secondary connection in the applicant’s submission.
Regarding capacity, the certificate of Dr Acorda is not a WorkCover certificate but a general certificate for unfitness from 18 April 2023 to 20 April 2023. The applicant did not bring a claim for workers compensation until about January of 2024 as her injuries had not settled, and she presumably obtained legal advice at that time.
The second certificate from Dr Fan is for unfitness from 21 April 2023 to 24 April 2023. Then there is the Centrelink certificate of Dr Harinesan dated 25 May 2023 with total unfitness from 25 May 2023 to 17 August 2023. The next certificate in respect of the left shoulder condition from Dr Rajendran is for total unfitness from 14 January 2024 to 25 February 2024.
The first WorkCover certificate indicates the applicant had no work capacity from 29 January 2024 to 12 February 2024 and the final certificate covers the period from 7 February 2024 to
6 March 2024. The applicant has closed off the period of her claim at 6 March 2024 as that is when the certificates run out.
The applicant’s statement evidence should also be noted. She says she has been unable to work since the fall and she describes her injuries and disabilities including to her neck and left shoulder as well as pain radiating to her left hand and loss of strength in her left arm or hand.
Despite the gaps in the certificates the applicant’s submission is that there are certificates from the start and the finish of the closed period and the evidence for the gap between September and December 2023 is that her condition has not improved. Helen Leitch’s report of 5 October 2023 notes left posterior neck pain and left upper arm pain radiating to the left forearm.

The submission is that for the first 13 weeks there should be an award of compensation at 95% of PIAWE being $1,220.15, and thereafter from about 17 July 2023 at 80% of PIAWE being $1,028.

Respondent’s submissions

The respondent made oral submissions which have been recorded and form part of the Commission’s record. These are set out below.
As a model litigant the respondent first referred to its obligations including to take steps to avoid unnecessary litigation and to minimise costs. The factual narrative of the case raises the question of whether a public liability claim is being considered by the applicant. If the applicant succeeds in this case she will be barred from bringing any common law claim other than by way of a modified common law claim.
Section 10(3A) of the 1987 Act was intended to rein in coverage for workers compensation benefits so that it is an exception to the otherwise beneficial nature of the Act. Section 10(3A) is not a beneficial provision despite being a section of a beneficial Act; ADCO Constructions Pty Limited v Goudappel [2014] HCA 18. The section must be interpreted according to ordinary principles, giving the words their fair and ordinary meaning.
Those words include that there must be a real and substantial connection between the employment and the accident or incident with two components to be established, real as well as substantial.
The case law is to the effect that there must be something emerging outwardly in a causative way from employment attaching to the journey, and not the other way around. Many of the cases relate to fatigue and those cases are distinguishable from this case because something has happened at work which gives the journey a particular flavour which it would not otherwise have had.
In her statement the applicant explains she commenced employment with Sydney Trains as a Transport Officer on 13 April 2023 and her role includes checking Opal cards.
She was on a journey to undergo training at Petersham when she was injured. There is nothing in particular about the training that flavours this journey as having a substantial connection to work. This is simply a journey from home to a place of work.
The applicant’s description of her injury shows that it has nothing to do with employment. The nexus is not between the journey and work, the real and substantial connection to the accident or incident is when she walked down the ramp where there was loose gravel. That is the proximal cause of the accident, the only cause of the accident and the only matter to which there is really a connection.
The absence of a warning sign may have contributed to the harm. When she walked down the ramp her foot became caught on an uneven piece of gravel.
The applicant has made reference to the backpack but on her own version the backpack does not have an involvement in the left foot becoming caught and the process of her fall either at the moment of impact with the ground or thereafter.
The backpack did not cause the injury and there is no medical evidence that it made the accident more likely to occur. It would be controversial to speculate about a matter of that nature without evidence; Ceric v Prosegur Australia Pty Limited [2016] FCA 1068.
The applicant describes how the injury occurred in the contemporaneous account she provided to Steve Brownhill on 20 April 2023, three days after the accident. She says she was walking down the ramp at Strathfield station and there was a raised bit of cement and she twisted her ankle.
While this is a slightly different version than in her statement, whether it is cement or gravel what is absent on that day is an aspect of contribution by work or a connection to work. It is a twisting mechanism due to a trip hazard either in the form of raised cement or loose gravel.
The report of Helen Leitch, physiotherapist, does not purport to opine as to matters of causation. In her report of 5 October 2023 the history recorded is that the applicant was walking down a ramp with a backpack but it does not say for example that she fell because of the backpack or that the backpack resulted in a heavier force of impact or that it was otherwise involved.
The respondent’s submission is that nothing can be inferred from Ms Leitch’s report as to a nexus to employment or a substantial or any connection whatsoever. All that may be inferred was that the applicant was possibly carrying a backpack, noting the accounts of the accident are not uniform with reference to the backpack. She may or may not have had a backpack depending on which report or account is more complete or more accurate.
In the claim form the applicant describes that she hopped off the train, walked down a ramp and she was injured as the ground had a raise in it which made her fall. She fell to the side and injured her neck and the side of her body. The nexus is what happens on the journey and work and there is nothing about that raise in the ground that has anything to do with her employment.
If a worker goes off the road because they have fallen asleep due to having been overworked for example, that accident has a substantial connection to work.
The Commission cannot speculate and find that the applicant’s neck and shoulder may have been affected from the fall as she was carrying a bag full of textbooks. It is not open to the Commission to use any knowledge that its members might have as to matters of medical causation or to speculate as to causation without proper evidence as opposed to speculation by a worker, and here there is not sufficient evidence. The Commission cannot form a view independent of medical evidence about causation, with the qualification that this is not causation in the usual sense and in this case there must be a nexus between the accident or incident and employment.
The applicant carries the onus. The real issue is the liability issue but ultimately she must prove an entitlement to the benefits claimed.
The respondent made submissions regarding capacity in the event of an award being made generally or otherwise in the applicant’s favour.
The period claimed is now a closed period. Each week of that period where there are gaps in the evidence, gaps which appear to be conceded by the applicant, is open for a finding that there must be an award for the respondent as the evidence is not made out.
There will be an award for the respondent at the end of the closed period because it must be inferred that by not producing an up to date or ongoing certificate that there is no longer an entitlement as there is no longer evidence of incapacity.
With regard to case law, Field is an example of the scenario that engages with s 10 where a teacher was rushing to get to school because he was given last minute notice that he had to do so. Here there is an act by the employer giving a certain complexion to the nature of the journey so that he was rushing.
The cases that relate to fatigue, which tend to also relate to motor vehicle accidents, are Michael Alexander and Sandra Alexander as legal personal representatives of the Estate of the Hugh Alexander v Secretary, Department of Education and Communities [2015] NSWWCCPD 41 and Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 where there was motorcycle accident in the dark where hours of work were varied.
In Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29 the worker lost control of a vehicle due to fatigue from excessive work and excessive long shifts and she was directed to perform those shifts and to drive home at night.
In Mitchell DP O’Grady said the connection must be more than remote or tenuous.
There is nothing about the loose gravel or raised cement that has anything to do with the nature of the applicant’s employment or any conduct of her employer that made the journey more onerous.
In this case there must be an award for the respondent.

Applicant’s submissions in reply

The applicant drew attention to the first clinical note of the general practitioner where the injury is recorded the day after the fall for completeness.
The respondent has focussed on the proximal cause of the accident being the gravel, that is a focus on the start or commencement of the incident which is the slip or trip that occurs, and it may well be right that this is the proximal cause of the fall, whether raised cement or loose gravel.
The applicant’s submission is that the section requires you to look at the accident or incident as a whole and not just the start of the accident or cause of the accident.
The applicant breaks it up into the incident of falling and then what happened with the backpack once the worker has fallen to the ground. The whole accident or incident must be focussed upon.
The applicant’s clear evidence in her statement refers to hitting the ground and the backpack being flung forward and hitting her on the back of the head and feeling pain in her hips, neck and shoulders.
The applicant urges acceptance of the evidence that the backpack was full of textbooks and that it was being carried on the left shoulder. That level of detail is not in the applicant’s statement but it is found in other parts of the evidence.
The applicant’s submission is that the evidence in her statement, the note from the physiotherapist and the claim form really brings forward a believable series of events where she is walking down the ramp with her backpack over her left shoulder full of textbooks and the accident happens. Those factual matters should be accepted.
Here you have a backpack that is flung forward and hits her in the back of the head and that is relevant to the injury to the left shoulder and the neck.
The real focus in this case is not on why the accident happened but whether there is a real and substantial connection between the employment and the accident. If you accept she was carrying textbooks, effectively transporting them from her home to the training centre, the factual scenario is covered regarding s 10.
There is a connection between that factual scenario of having the backpack full of books on the left shoulder and the accident because the backpack plays an important part not in the beginning of the incident or fall but certainly by the time she is on the ground and still in motion when the backpack flies forwards.
That is the real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
The applicant also disagrees with the respondent’s submission that there should be an award for the respondent for the period after 6 March 2024. The claim has been amended to be a closed period claim from 17 April 2023 to 6 March 2024 and there is no need to deal with the period after that date.

FINDINGS AND REASONS

Is there a real and substantial connection between the applicant’s employment and the accident on 17 April 2023

A determination of whether there is a real and substantial connection between the employment and the accident or incident on 17 April 2023 must be made on the balance of probabilities based on the evidence in accordance with the law.
The applicable law is in s 10 of the 1987 Act. Section 10(1) provides:
“A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”
Section 10(3) provides:
“The journeys to which this section applies are as follows--
(a) the daily or other periodic journeys between the worker's place of abode and place of employment,…”
Section 10(3A) of the 1987 Act provides:
“A journey referred to in subsection (3) to or from the worker's place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.”
It is accepted the applicant was on a periodic journey between her home and her place of employment on 17 April 2023 pursuant to s 10(3). The dispute is whether there is a real and substantial connection between the employment and the accident or incident out of which the applicant’s injury arose in accordance with s 10(3A).
The introduction of s 10(3A) was intended to limit claims in the New South Wales workers compensation scheme for injuries occurring during a journey between a worker’s home and their place of work. I agree with the respondent’s submission that s 10(3A) is not to be considered a beneficial section despite the beneficial nature of the 1987 Act generally.
Counsel referred to the case of Field v Department of Education and Communities [2014] NSWWCCPD 16 (Field) where a real and substantial connection was established. DP Roche confirmed in Field at [34] that the word “connection” in s 10(3A) involves a wider concept than causation.
In Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 (Mitchell) the link between the employment and the accident or incident out of which the injury arose is described as being actual and of substance, more than remote and tenuous, and involving a causal element.[13]
[13] Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 at [64] and [73].
In Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 Keating P said that s 10(3A);
“will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.”[14]
[14] Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 at [117].
In Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (Wickenden) DP Roche noted at [38] a “real and substantial connection” does not require a causal relationship between the two circumstances or situations concerned, but it requires an association or relationship.
In State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26 Keating P said at [69] that the test under s 10(3A);
“may, but does not necessarily, convey the notion of a causal connection. It requires an association or relationship between the employment and the accident or incident, which may be provided by establishing that the employment caused the accident or incident. However, employment does not have to be the only, or even the main cause.”
The applicant’s submission in this case is that there was a real and substantial connection between the employment and the accident or incident out of which the injury arose because;
(a)    the applicant was required by the respondent to attend at the Petersham centre for training;
(b)    she carried a backpack full of heavy textbooks required for her training on her left shoulder when she travelled to work;
(c)    while the backpack did not cause her fall, when she fell on the ramp at Strathfield station the backpack was flung forward and hit her on back of the head, and
(d)    the backpack hitting her on the head was causative of her neck and left shoulder injuries.
Turning to the evidence I accept the applicant’s statement evidence that on 17 April 2023 she was carrying a backpack that flung forward during her fall and hit her in the back of her head. This finds support in the history recorded by Dr Looi on 3 November 2023 that the applicant was holding a backpack that flew over her head.
I do not accept the respondent’s submission that due to the different accounts of the backpack the only inference that can be drawn from the evidence is that the applicant was possibly carrying a backpack. I accept the applicant’s evidence that she was carrying a backpack on that day.
The applicant submitted a claim form on 6 February 2024 that includes “[m]y neck and shoulder have been affected from the fall as I was carrying my bag full of textbooks.” [15]
[15] Reply page 2.
There is no evidence that the employer required the applicant to carry textbooks for her training course that day, however, and in the absence of contradictory evidence, this appears to be a reasonable conclusion as a matter of common sense based on the available evidence.
I accept the evidence in applicant’s claim form that the bag she was carrying contained textbooks for use in the respondent’s training course.
The applicant next submits that the inference should be drawn that textbooks are heavy. As DP Roche discussed in Wickenden, drawing an inference is “an exercise of the ordinary powers of human reason in the light of human experience”. [16] I accept the inference that textbooks are likely to be heavy as a matter of common sense.
[16] Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 at [31].
Helen Leitch records a history on 5 October 2023 that the applicant carried her backpack on her left shoulder. There is also support for the backpack being carried on the applicant’s left shoulder in Dr Cheong’s certificate of 7 February 2024. I accept the evidence that the applicant carried her backpack on her left shoulder.
The applicant says in the claim form she lodged on 6 February 2024 that her neck and shoulder were affected by the fall as she was carrying the backpack.
As the respondent submitted there is no medical evidence to support the conclusion that the backpack hitting the applicant’s head is causative of her neck and left shoulder injuries. I am unable to accept the inference proposed by the applicant that the backpack hitting the applicant in the back of her head during her fall was causative of her neck and left shoulder injuries in the absence of medical evidence to that effect.
What is to be determined however is whether there is a real and substantial connection between the employment and the accident or incident.
In Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 Keating P said at [120]:
“Whether and in what circumstances, s 10(3A) will be satisfied will be a question of fact, applying the words of the provision, in a commonsense and practical manner in each case (Doyle CJ in Brophy).”
It is uncontroversial that the cause of the applicant’s accident or incident on 17 April 2023 was the loose uneven piece of gravel or raised cement on the ramp at Strathfield station. The applicant submits that the accident or incident should be viewed as a whole including the backpack hitting the applicant’s head as she fell, and I agree in general with that submission.
In my view however the circumstances in this case do not establish a sufficiently real and substantial connection between the employment and the accident or injury out of which the applicant’s injury arose.
Carrying the backpack full of heavy textbooks required for training with the respondent is a feature of what the applicant was reasonably required, expected or authorised to do by reason of her employment and provides a connection between the employment and the accident or incident on 17 April 2023, and it may have contributed to the applicant’s injuries, but it was not causative of the accident or incident.
While establishing a causal relationship is not necessarily required to meet s 10(3A) what is required is a link between the employment and the incident that is real or actual[17] and substantive and in my view that is not present in this case.
[17] Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 at [71] and [72].
There is nothing about carrying the backpack full of textbooks that exposed the applicant to a more perilous journey for example.
The evidence is that the backpack played a role in the accident or injury once the applicant began to fall, however the link or connection between the employment and the backpack hitting the applicant’s head is not real and substantial so as to meet the requirements of
s 10(3A).
Any link or connection between the employment by way of the applicant carrying the backpack full of books and the accident or incident on 17 April 2023 is in this sense remote and tenuous.[18]
[18] Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 at [64].

The applicant’s second argument is that by requiring the applicant to attend training in Petersham and not at her usual place of work this creates a real and substantial connection between the journey and the accident or incident on 17 April 2023 from which her injuries arose.
The applicant refers to the respondent’s Offer of Employment that includes the commencement of employment being at Wilson Street, Redfern.
Italso states “[y]our location may change subject to operational requirements”[19] and that the applicant would be required to complete Transport Officer Training.
[19] ARD page 5.
The applicant’s journey on 17 April 2023 was a daily or periodic journey between her place of abode and place of employment being the training centre at Petersham.
There is no real and substantial connection between that employment and the accident or injury that occurred from which the applicant’s injuries arose due to the “mere fact”[20] that the applicant was travelling to work on that day.
[20] Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 at [112].
The applicant has not established that there is a real and substantial connection between her employment with the respondent and the accident or incident on 17 April 2023 out of which the personal injury arose and there will be an award for the respondent.

The extent and quantification of any incapacity for work in the period 17 April 2023 to
6 March 2024

As the applicant has not established a real and substantial connection between the employment and the accident or incident on 17 April 2023 from which her injury arose she has no entitlement to weekly benefits compensation.

[2024] NSWPIC 417

2 August 2024