Andronicos v Ready Workforce (A Division of Chandler Macleod) Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Andronicos v Ready Workforce (A Division of Chandler Macleod) Pty Limited [2023] NSWPIC 44
APPLICANT:	Costa William Andronicos
RESPONDENT:	Ready Workforce (A Division of Chandler Macleod) Pty Limited
Member:	Gaius Whiffin
DATE OF DECISION:	7 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for right hip and right shoulder injuries; claims for weekly compensation and treatment expenses pursuant to section 60; consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether when the applicant suffered his injury on 11 April 2022 had he commenced his journey between his place of abode and his place of employment in accordance with section 10(3)(a); if so, was there a real and substantial connection between his employment and the accident out of which his injury arose in accordance with section 10(3A); Green v Secretary, Department of Education and Communities, Smith v Woolworths, Musumeci v GEM Engines Pty Limited, Chawla v Transgrid, Hogno v Fairfax Regional Printers Pty Limited and Gray v Sydney Southwest Area Health Service (Rozelle Hospital) considered; consideration of whether if the applicant had not commenced his journey, did his injury arise out of or in the course of his employment with the respondent in accordance with section 4(a); if so, was the employment a substantial contracting factor to the injury in accordance with section 9A(1); John Stewart & Son (1912), Ltd v Longhurst, Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited, Whittingham v Commissioner of Railways (WA), Henderson v Commissioner of Railways (WA), Dover Navigation Co v Craig, Smith v Australian Woollen Mills Limited, Dayton v Coles Supermarkets Pty Ltd and Kelly v Secretary, Department of Family and Community Services considered; consideration of whether if the applicant sustained an injury on 11 April 2022 that arose out or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to weekly compensation benefits since 6 July 2022 on the basis of incapacity for work; if so, what is his entitlement in this regard; Wollongong Nursing Home Pty Limited v Dewar, ACW v ACX and Tubemakers of Australia Ltd v Fernandez considered; consideration of whether if the applicant sustained an injury on 11 April 2022 that arose out or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to a ‘general’ order that his expenses pursuant to section 60 be paid by the respondent; Held – the applicant sustained a personal injury to his right hip and right shoulder arising out of and in the course of his employment with the respondent on 11 April 2022, pursuant to section 4(a); his employment with the respondent was a substantial contributing factor to the personal injury pursuant to section 9A; since 11 April 2022, the applicant has been incapacitated for work and possessed no current work capacity, as a result of the injury received on that date; the applicant is entitled to have his reasonably necessary treatment expenses pursuant to section 60 paid by the respondent; awards for the applicant pursuant to sections 36, 37, and 60.
determinations made:	1. The applicant sustained a personal injury to his right hip and right shoulder arising out of and in the course of his employment with the respondent on 11 April 2022, pursuant to s 4(a) of the Workers Compensation Act 1987 (the Act). The applicant's employment with the respondent was a substantial contributing factor to the personal injury pursuant to s 9A of the Act. 2. Since 11 April 2022, the applicant has been incapacitated for work and has possessed no current work capacity, as a result of the injury received on that date. 3. The applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the Act paid by the respondent.
ORDERS MADE:	1. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 36(1) of the Act from 7 July 2022 to 22 July 2022, at the rate of $838.70 (as adjusted if necessary applying relevant indexing) per week. 2. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the Act from 23 July 2022 to date and on a continuing basis, at the rate of $706.27 (as adjusted if necessary applying relevant indexing) per week. 3. There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the Act.

STATEMENT OF REASONS

BACKGROUND

Costa William Andronicos (the applicant) is 65-years-old and alleges that he was injured in an accident that occurred on 11 April 2022. He sustained various significant injuries (particularly to his right hip and to his right shoulder, which have both required surgery) when he tripped over a bumper stopper in a car park located at 1472 Pittwater Road, Warriewood (within Lot 1 in DP1250192).
The accident occurred while he was walking to his vehicle (parked in the relevant car park) to drive home, following finishing his work duties on the relevant date. He had been employed by Ready Workforce (A Division of Chandler Macleod) Pty Limited (the respondent) since late 2017, and the respondent (being a labour hire company) had contracted his services to Keolis Downer Northern Beaches Pty Limited (Keolis). He worked as a bus driver.
Keolis leased various parts of Lot 1 in DP1250192 from Northern Beaches Council, but it did not lease the specific site of the applicant’s accident.
The applicant has not worked since 11 April 2022, and he has incurred substantial expenses in order to be treated for the injuries that he suffered on that date.
He claimed compensation from the respondent and was initially paid weekly compensation and expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
On 23 June 2022 and on 24 June 2022, the respondent however issued notices denying liability for the applicant’s compensation claim under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The applicant sought a review of that decision on two occasions, but both requests were unsuccessful, the respondent issuing further dispute notices on 5 July 2022 and on 5 August 2022.
The applicant has therefore not received weekly compensation since 6 July 2022 or payment of his expenses pursuant to s 60 of the 1987 Act since on or around that date.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation since 6 July 2022 and payment of his outstanding expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The issues that are in dispute and that require determination by me are:
(a) when the applicant suffered his injury on 11 April 2022, had he commenced his journey between his place of abode and his place of employment in accordance with s 10(3)(a) of the 1987 Act – if so, was there a real and substantial connection between his employment and the accident out of which his injury arose in accordance with s 10(3A) of the 1987 Act;
(b) if the applicant had not commenced his journey, did his injury arise out of or in the course of his employment with the respondent in accordance with s 4(a) of the 1987 Act – if so, was the employment a substantial contracting factor to the injury in accordance with s 9A(1) of the 1987 Act;
(c) if the applicant sustained an injury on 11 April 2022 that arose out of or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to weekly compensation benefits since 6 July 2022 on the basis of incapacity for work – if so, what is his entitlement in this regard, and
(d) if the applicant sustained an injury on 11 April 2022 that arose out of or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to a ‘general’ order that his expenses pursuant to s 60 of the 1987 Act be paid by the respondent.

PROCEDURE BEFORE THE COMMISSION

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.
A conciliation conference was held in the dispute on 4 November 2022. On that occasion, Mr Stuart Moffet of counsel appeared for the applicant, instructed by Messrs Covic and Walker. The applicant was present. Mr Simon McMahon of counsel appeared for the respondent, instructed by Messrs Maley and Kefalas. Ms Czeszek was present representing the insurance interests of the respondent.
The dispute did not resolve during an extensive conciliation conference, and it needed to be determined at an arbitration hearing. As the conciliation conference took all the time available to the Commission on 4 November 2022, a timetable for the provision of written submissions by the parties was then ordered. It should also be noted that brief written submissions had already been lodged by both parties prior to 4 November 2022, pursuant to a direction made by me at the preliminary conference held in the dispute on 8 September 2022.
It should further be noted that at the preliminary conference:
(a) the ARD was amended, so that only ‘general’ orders for payment of both past and future treatment expenses pursuant to s 60 of the 1987 Act were sought, and
(b) the parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) were $882.84.
I advised the parties on 4 November 2022 that I would determine the dispute ‘on the papers’ following the receipt of all written submissions in accordance with the timetable that I then set. I have now received all these submissions, which I thank the parties for.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)     the ARD and attached documents;
(b)     the respondent’s Reply (Reply) and attached documents;
(c)     the applicant’s Application to Admit Late Documents dated 5 September 2022 (applicant’s first AALD) and attached documents – admitted during the preliminary conference on 8 September 2022;
(d)     the respondent’s Application to Admit Late Documents dated 21 October 2022 (respondent’s AALD) and attached documents – admitted in the interests of justice and in accordance with the criteria listed in cl 28 of Procedural Direction PIC3, there being no objection to its admission raised in the applicant’s written submissions;
(e)     the applicant’s Application to Admit Late Documents dated 25 October 2022 (applicant’s second AALD) and attached documents – admitted in the interests of justice and in accordance with the criteria listed in cl 28 of Procedural Direction PIC3, there being no objection to its admission raised in the respondent’s written submissions, and
(f)     the applicant’s Application to Admit Late Documents dated 1 November 2022 (applicant’s third AALD) and attached documents – admitted in the interests of justice and in accordance with the criteria listed in cl 28 of Procedural Direction PIC3, there being no objection to its admission raised in the respondent’s written submissions.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

The applicant has provided four signed statements. There is a statement signed 22 July 2022 found at page 1 of the ARD. The statement initially goes through the applicant’s education history (to Year 12 at school) and his employment history (32 years as a warehouse manager, as well as some casual employment as a pool lifeguard).
The applicant says that he began working for the respondent in November 2017. He was sent by the respondent to work for Keolis at its Newport depot. He was employed on a casual basis as a bus driver. He would drive Mercedes Sprinter buses, picking up commuters from their homes in the upper northern beaches area of Sydney and driving them to a B1 bus stop. The B1 bus route (operated by Transport NSW) would then take the commuters to Wynyard.
Keolis moved to a new location at 1472 Pittwater Road, Warriewood, on 9-10 April 2022. He explains:
(a)     Keolis had an office within a car park at 1472 Pittwater Road, Warriewood;
(b)     the car park is a car park that can be used by commuters using the B1 bus route;
(c)     there are car parking spots allocated within the car park for Keolis’ vehicles, and
(d)     he had been advised in an email from Eamonn Murray (Murray – Keolis’ on demand manager) that he was able to park his personal vehicle in any spot in the car park not requiring access through a boom gate.
On 11 April 2022, he sustained injuries to his right hip, right shoulder, right knee, and left leg. Prior to this date, he considered himself to be “fit and well”, keeping active especially with swimming and playing water polo. He had not previously injured his right shoulder or his right hip, although he had injured his right knee (with consequential injuries to his lower back and left knee) in an accident while working for Keolis in early 2021. He had a lumbar laminectomy as well as a left total hip replacement following this accident.
On 11 April 2022, he drove his personal vehicle to the car park at 1472 Pittwater Road, Warriewood. He arrived at the car park at around 6am and was able to park his vehicle in a spot around 10m from Keolis’ office. He walked to the office and collected the keys to the bus that he was going to be driving on that day.
At the end of his shift (approximately 1.45pm) he attended the office again in order to effect a “changeover” to the driver who was going to be driving the bus that he had previously been driving. He then walked towards his personal vehicle.
He says while walking towards his personal vehicle, he tripped on a car park bumper stopper (“about 10 metres or so from the office”) that was blocked from his sight. He had a “very heavy fall” and required assistance (eventually given to him by Murray) in order to get up. Initially, he had telephoned his supervisor, Hayley Lewis (Lewis), and she found him, but was unable to assist him. After helping him to get up, Murray escorted him to his vehicle and asked him whether he should be driving home. He told Murray that he would be “alright”, not at the time realising the severity of his injuries.
After driving home, he realised his condition was more serious that he had initially thought. He was especially in pain in his right shoulder and right hip. He called an ambulance and was transported to Northern Beaches Hospital, where he was admitted for around 11 days. Dr Roberts performed a right total hip replacement, and he was also diagnosed with “a complete rupture and full thickness tears of the supraspinatus and subscapularis tendons” in his right shoulder.
Following his discharge from Northern Beaches Hospital, he was admitted to Delmar Private Hospital for rehabilitation for a few weeks.
He says that he then consulted with a shoulder surgeon (Dr Sherlock), who performed right shoulder surgery upon him on 31 May 2022.
As at the date when he signed the statement:
(a)     he had not worked since 11 April 2022;
(b)     he remained with “some minimal pain in the right hip”;
(c)     he remained with significant pain in the right shoulder – which was still in a sling, and
(d)     his bruising and lacerations had settled, although he had significant scars as a result of his two operations.
Annexed to the statement is an email from Murray sent on 8 April 2022. Relevantly, the email says:
“As of this morning we have now commenced operating out of our new offices at Warriewood adjacent to the southbound B-line stop (1472 Pittwater Road Warriewood if you ever need an address)
To confirm at this stage you can park in the B-line car park in any spot that does not require you to go through the boom gate so that is where from you enter, around to the left and outside and then back around to the right to exit. Please do not park in our marked spots as cars will be infringed if they are not authorised
On busy days if its full the u may need to find another spot like in the spots adjacent to Rat Park”
The applicant’s next statement signed 17 October 2022 is found at page 1 of the applicant’s second AALD.
The statement helpfully attaches some photographs of the car park where the applicant was injured, which identify the location of Keolis’ office, the location of the spot where he parked his personal vehicle, the location of the spots where Keolis’ vehicles were parked, as well as the location of the bumper stopper which he tripped over. The statement also attaches a diagram showing his movement on 11 April 2022 after he effected the ‘changeover’ to the driver who was going to be driving the bus that he had previously been driving. From the photographs and the diagram, the following can be ascertained:
(a)     the office’s front door faced Pittwater Road;
(b)     behind the office and on the same level as the office, there was a row of car parking spots, then a lane for vehicles to drive, then two more rows of car parking spots, then another lane for vehicles to drive, and then one more row of car parking spots (where Keolis’ vehicles were parked);
(c)     the relevant bumper stopper separated the middle two rows of car parking spots;
(d)     the applicant’s personal vehicle was situated in the row furthest away from the office in the middle two rows of car parking spots, and
(e)     on 11 April 2022, the applicant effected the ‘changeover’ by parking the bus that he was driving directly outside the office on Pittwater Road, and then giving the keys to the bus to the driver who was then going to be driving it – he walked up some steps to the front of the office and then walked around the office into the car park behind it – he walked across the first row of car parking spots, then the lane for vehicles to drive, and then another row of car parking spots before he tripped.
In the statement, he advises that he was unaware on 11 April 2022 as to the correct ‘changeover’ procedure as Keolis had only just moved to 1472 Pittwater Road, Warriewood. He has since learned that ‘changeovers’ must occur within the car park at that address.
In the statement, he also advises that as at the date when he signed it, he was still consulting with Drs Roberts and Sherlock, and he was still undergoing physiotherapy and rehabilitation.
The applicant’s most recent statement signed 1 November 2022 is found at page 1 of the applicant’s third AALD.
The statement attaches an aerial photograph of the car park at 1472 Pittwater Road, Warriewood, and it also attaches a map from Google showing the location of the car park. It also clarifies:
“In the carpark I was injured in, there are two sections. One that requires access through a boom gate and one that does not. People who use the B1 bus enter the carpark through the boom gate and to enter and exit the boom gate they have to use their Opal Card - they park their car and go catch the B1 bus. On the day I was injured, I was not parked in the section that had the boom gate. I parked my car in the section where I was told to by my manager.”
Finally, there is a statement from the applicant signed 11 May 2022, which was prepared by an investigator from Virtual Intelligence retained by the respondent (page 32 of the ARD). This statement is generally consistent with the applicant’s other signed statements, and does not substantially contain any additional evidence except:
(a)     it advises that the bumper stopper was 3 to 4 inches high;
(b)     it confirms that the only office space in the car park was Keolis’ office, and
(c)     it advises that, to the best of the applicant’s recollection, there were no persons who directly witnessed him tripping over the bumper stopper.

The investigator retained by the respondent also obtained statements from Lewis, Murray, and Matthew Williams (Williams – an injury management specialist of the respondent’s).
The statement from Lewis is signed 11 May 2022 and found at page 42 of the ARD. She confirms that between 1.00pm and 2.00pm on 11 April 2022, she received a telephone call from the applicant requesting help from her as he had fallen in the relevant car park. She eventually found him on the ground in the car park, and after three or four attempts, he was able to get up. She then returned to Keolis’ office and Murray assisted the applicant to his vehicle.
She confirms that the applicant told her that he had tripped on a bumper stopper in the car park, and she also confirms that she found him on the ground close to a bumper stopper. She advises:
“there is no demarcation of where pedestrians should go, if they were trying to get from the main road, the bus stop to their car, there is no clearly marked way, it is just, you make your way through the car park”.
and:
“This is the area where you walk when you leave the office, there really isn’t another way, and if you went another way, it would be extremely out of your way, and also not protected by the weather.”
and:
“That is the direct, natural path, that anyone would take, going from our office, or from the main road, to get into that commuter car park.”
She also confirms that she parked her car in the relevant car park while working for the respondent.
The statement from Murray is signed 10 May 2022 and found at page 49 of the ARD. On 11 April 2022 at approximately 2.00pm, he received a telephone call from Lewis stating that the applicant had fallen. He was close by, and he therefore arrived at the relevant car park area, where he found the applicant already on his feet. He supported the applicant and assisted him to his vehicle. He told the applicant that he did not think it was a good idea to drive home, but the applicant was insistent.
He confirms that the applicant told him that he had tripped over a bumper stopper in the car park.
In relation to the location of where the applicant fell, the following conversation between Murphy and the investigator is recorded:
“Bill states that the offices that Keolis Downer operate out of at Warriewood, is within the car park that you have just mentioned, is that correct?
It is adjoining to, I would consider it separate, it is the same address, 1472 Pittwater Rd, Warriewood.
As to the actual legal definition of what is, and what isn’t our premises, I couldn’t speak to that, I am not across the lease.
Can you please confirm the exact address of the offices of Keolis Downer, in particular the location of the car park of the B1, Warriewood Car Park, which is where Bill states he sustained injuries to his right hip and right shoulder?
It is the same address, 1472 Pittwater Rd, Warriewood.
Do Keolis Downer have any responsibility for the upkeep of the car park?
No, again it would be Northern Beaches Council, and/or, Transport for NSW, and again, a third party looks after this, I am not sure of the legality.
Do you know who I could speak to within Keolis Downer who could confirm this?
Melanie Carson, she is the Communications Manager, she arranged the Lease, but she may need to put you into contact with the Contracts person, but she is the one who negotiated the Lease with the council.
Is the B1, Warriewood Car Park where Bill states he fell, owned by Keolis Downer?
No, again we just lease the office part, and 12 car parking spaces, and that is an arrangement with the Northern Beaches Council, but again, the actual ownership of the car park, is I believe a combination of the Northern Beaches Council and Transport for NSW.”
The statement from Williams is signed 11 May 2022 and found at page 56 of the ARD. The applicant telephoned him (as he was an injury management specialist of the respondent’s) to report his fall on 11 April 2022, after he had arrived home on that date.
As at the date when the statement was signed, he was uncertain as to the extent of the applicant’s injuries, but he did confirm that the applicant had told him that his injuries had occurred as a result of tripping over a bumper stopper in the relevant car park. In relation to the location of where the applicant fell, the following conversation between Williams and the investigator is recorded:
“Bill said he was just in the car park, he was walking to his car, after he finished his driving with Keolis, he was in the car park, walking to his car, and he said he went to walk over this thing, and he has tripped on it.
Was Bill still on the premises of Keoride at the time of his fall on 11 April 2022?
Yes.
This has been confirmed by Keoride?
Yeah, confirmed, so the car park is where they park, so Bill drives in, in the morning in his car, he parks his car in this car park, for the company, and then he gets in one of the mini buses, and then he drives around and transports people, and then when he drives back in, he exits the company van, and gets back in his own car to transport himself home.”
Aside from this statement evidence, the applicant also relies on the following non-medical evidence:
(a)     an incident report created by Murray on 12 April 2022 (page 10 of the ARD) – it refers to the applicant sustaining injuries to his shoulders and arms as well as to his hips and legs at 2.00pm on 11 April 2022 – it provides these details: “Driver had finished shift – left office and walked to car park between two parked cars and tripped and fell on ground buffer”;
(b)     an investigative report prepared by Virtual Intelligence on behalf of the respondent’s insurer (page 12 of the ARD) – the report provides some photographs of the relevant car park (which are not as clear or useful as those provided in the applicant’s statement evidence), but it otherwise does little more than analyse and comment upon the statements provided to it by the applicant, Lewis, Murray, and Williams – as it is my function to analyse the statement evidence, I do not intend to afford much weight to the investigative report, unless I am directed to specific relevant parts of it during the parties’ submissions;
(c)     the applicant’s registration contract with the respondent, which was accepted by him on 17 November 2017 (page 63 of the ARD) – the contract provides his personal details as well as a health questionnaire, in which the applicant does not identify any health issues at all, and
(d)     some New South Wales Land Registry Title and Deposited Plan searches (pages 5-16 of the applicant’s third AALD) which reveal Pittwater Council (now part of Northern Beaches Council) as the registered proprietor of Lots 1 and 2 in DP1250192 and which note that there is a lease to Transport for NSW attached to the title of Lot 1 – there are no other leases attached to either titles – I am willing to accept (after comparing the Deposited Plan with the aerial photograph and the Google map also contained in the applicant’s third AALD) that Lot 1 is the area of land upon which both Keolis’ office and the car park where the applicant fell, are located.
In relation to the medical evidence relied upon by the applicant, there is a discharge summary from Northern Beaches Hospital dated 22 April 2022 (page 115 of the ARD). It reveals:
(a)     the applicant was admitted to that hospital between 11 April 2022 and 22 April 2012;
(b)     the applicant presented following a “fall in work carpark”;
(c)     the applicant was diagnosed with a right displaced subcapital neck of femur fracture – in relation to which he underwent a left total hip replacement under Dr Roberts on 13 April 2022;
(d)     the applicant was also diagnosed with a right shoulder complete rupture of the supraspinatus tendon and almost complete subscapularis tendon tear – in relation to which he was advised to seek treatment from Dr Sherlock once his hip had healed, and
(e)     the applicant was discharged into the care of his general practitioner with medication and mobilisation with crutches recommended – he was advised to consult with both Drs Roberts and Sherlock in six weeks time.
There are reports from Dr Roberts in the ARD from page 124. He confirms the surgery that he undertook on 13 April 2022, and in his last available report (dated 21 July 2022), he advises that the applicant’s pain had “settled nicely and he is walking good distances comfortably without aid”. Radiology had shown the surgical implants to be “well fixed in excellent alignment”, and he summarises:
“I am extremely pleased with Bill’s progress. His rehabilitation has been limited due to his recent shoulder surgery so I have referred him back to Delmar for further hydrotherapy. I will see Bill again on the anniversary of his surgery unless he has any problems in the interim.”
There are reports from Dr Sherlock in the ARD from page 129. His first report dated 26 May 2022 requests approval from the respondent’s insurer for the costs associated with surgery to correct the applicant’s rotator cuff pathology. He considers the surgery necessary following his clinical examination of the applicant (revealing weakness loading the supraspinatus and subscapularis tendons) and his review of the applicant’s radiology (revealing “a very large tear involving supraspinatus extending back into infraspinatus with retraction”, as well as a completely torn and retracted subscapularis tendon). He notes the applicant’s right shoulder injuries occurred six weeks ago when the applicant “fell over a car baluster”. He then advises further in a 30 May 2022 report:
“His recent fall has led to a massive tear of the rotator cuff. The tendons are torn and retracted all the way to the glenoid. There is absolutely no muscle wasting….This is a clear cut rotator cuff injury. If there was any pre-existing injury there would be some degree of muscle wasting which is not evident on his MRI scan….I have no doubt Mr Andronicos’s injury is related to his workplace fall over a car balustrade. There is absolutely no suggest that it could have been caused by anything else.”
Dr Sherlock then performs his recommended surgery upon the applicant on 31 May 2022. The procedure described is “Right Shoulder Arthroscopy, Acromioplasty, Biceps tenodesis, Subscapularis repair, Supraspinatus repair”. In his last available report (dated 8 June 2022), he advises that the applicant’s wounds had healed well and he was to continue with his exercises. He still had right shoulder pain and sleeping difficulties and was still taking Palexia. He was to consult with the doctor again in five weeks.
There are three certificates of capacity relied upon by the applicant. The first is from Dr Kim (page 136 of the ARD) and covers the period between 11 April 2020 to 30 May 2022. The second (page 1 of the applicant’s first AALD) and the third (page 10 of the applicant’s second AALD) are from the applicant’s normal general practitioner (Dr Williams), and they cover the period between 8 August 2022 and 28 November 2022. All three certificates certify the applicant as having no current capacity for any work.
The only other medical evidence relied upon by the applicant consists of:
(a)     treatment requests submitted by the applicant’s physiotherapist (Belinda Bortignon) on 5 May 2022 and on 27 May 2022 (from page 139 of the ARD) – requesting approval to continue physiotherapy treatment in relation to both the applicant’s right hip and right shoulder;
(b)     a x-ray report from Associate Professor Ridley dated 11 July 2022 (page 149 of the ARD) confirming an unremarkable configuration following the applicant’s total hip replacement;
(c)     the applicant’s clinical notes (only up to 28 April 2022) from Myora Medical General Practice, where he consults with Dr Williams (from page 150 of the ARD) – I have considered these clinical notes and will refer to them more specifically if directed to relevant aspects of them during the parties’ submissions, and
(d)     the applicant’s clinical notes from Delmar Private Hospital (from page 12 of the applicant’s first AALD) – these notes cover the applicant’s admission to the hospital following his discharge from Royal North Shore Hospital during the period between 22 April 2022 and 6 May 2022, as well as his subsequent rehabilitation attendances (physiotherapy, hydrotherapy, and exercise physiology) from 10 May 2022 to 26 May 2022 and on 26 July 2022 – I have considered these clinical notes and will refer to them more specifically if directed to relevant aspects of them during the parties’ submissions – importantly however the clinical notes contain a further report from Dr Sherlock dated 21 July 2022 in which the doctor advises ongoing gentle physiotherapy not involving the applicant actively lifting his right arm away from his body, and the applicant continuing to wear a sling when not at home – the doctor notes:
“I am happy for him to return to driving as long as he is careful with his arm. He is not to drive a work vehicle for a further 6 weeks and only if it is an automatic. He will be able to commence breaststroke swimming at the 4 month mark and then gentle freestyle at the 5 month mark depending on his progress.
I plan to see him in 6 weeks to assess his progress.”
The applicant’s evidence also includes some invoices and receipts regarding the costs of his treatment arising out of his 11 April 2022 injuries. Further invoices and receipts were also attached to the applicant’s written submissions dated 25 November 2022. It is clear that the costs have been substantial, but as the applicant only seeks a ‘general’ order pursuant to s 60 of the 1987 Act, I do not propose to review the invoices and receipts in great detail.

Respondent’s evidence

In its Reply, the respondent largely relies upon the same evidence as the applicant, and the only additional evidence put forward by it is an undated email from Keolis (at page 5 of the Reply), the lease between Keolis and Northern Beaches Council in relation to the relevant car park (from page 12 of the respondent’s AALD), the applicant’s updated clinical notes from Myora Medical General Practice (from page 51 of the respondent’s AALD), and a report from Dr Machart dated 30 September 2022 (at page 207 of the respondent’s AALD). The respondent’s AALD also attaches a copy of a transcript with respect to the second reading speech to Parliament dated 19 June 2012 in relation to the Workers Compensation Legislation Amendment Bill 2012 and the Safety, Return to Work and Support Board Bill 2012. This transcript is referenced in the respondent’s written submissions.
The undated email from Keolis seems to be in response to a letter sent to it by the respondent’s solicitors dated 30 August 2022 (at page 3 of the Reply). The letter requests a complete copy of Keolis’ lease in relation to the relevant car park. The email in response purports to provide “extracts” from the lease, but in reality, it only provides some plans and clause 29.1 of the lease.
A copy of the lease is then provided by the respondent’s AALD. I have considered the lease, and will refer to aspects of it more specifically if directed to relevant aspects of it during the parties’ submissions. However, from my interpretation of the lease:
(a)     the premises leased is defined as:
“Premises means the ‘Property leased’ specified on the cover page of this Lease and known as Warriewood B-Line Community Building, 1472-1518 Pittwater Road, Warriewood and as more fully set out in Exhibit 1 attached hereto including the Car Parking Spaces as described therein and the Lessor's grease trap (if any), fixtures, goods, items, plant and equipment in, on or affixed to the Premises”;
(b)     the cover page of the lease clarifies the property leased as:
“Part of Folios: 1/1250192 and 2/1250192 known as Warriewood B-Line Building, 1472-1518 Pittwater Road, Warriewood NSW 2102 as further described by the Sketch Plan as annexed hereto as Exhibit 1 including the Car Parking Spaces as marked”;
(c)     exhibit 1 to the lease seems to indicate that Keolis leased its office as well as 12 parking spots in the car park – these parking spots were not located next to its office, and indeed, when the plans are referenced with the photographs in the applicant’s statement evidence, it seems that the applicant’s accident on 11 April 2022 occurred approximately halfway between the office and 6 of the leased parking spots;
(d)     it is apparent that although Keolis did not lease the entirety of the land encompassed by Lots 1 and 2 in DP1250192, there were common areas on the land that Keolis obviously had access to – “common areas” is defined in the lease as:
“Common Areas means those parts of the Building which are, or maybe allocated by the Lessor from time to time for use by the Lessee, or its employees customers and the public including but not limited to roads, car parks, elevators, escalators, ramps, stair ways, walk ways, path ways, corridors, entrance ways, exits, courts, foyers, pedestrian malls, toilets, wash rooms, recreational areas, storage areas and loading docks”, and
(e)     Keolis also had some obligations in relation to the common areas, such as the obligation in clause 29.1 of the lease, which reads that it needs to:
“comply with any and all laws or requirements applicable to the car park(s) or Common Areas including their use, any positive covenant(s) affecting the title of same and any Lessor's rules and regulations under clause 19 that may be applicable or promulgated in the use of the Common Areas.”
The clinical notes from Myora Medical General Practice in the respondent’s AALD provide additional information to the clinical notes from that practice contained in the ARD. I have considered these clinical notes and will refer to them more specifically if directed to relevant aspects of them during the parties’ submissions.
The report from Dr Machart is not only the most recent medical report relied upon by either party, but it is in fact the only medico-legal report relied upon by either party.
The doctor examined the applicant on 21 September 2022 and obtained an uncontroversial history of his accident on 11 April 2022 and his subsequent treatment with Drs Roberts and Sherlock. The doctor noted that the applicant’s right hip remained painful and stiff, which was evident when he walked. The doctor also noted that the applicant’s right shoulder remained painful and stiff, he had difficulties with reaching and twisting, and he was unable to raise his right arm much above waist level. He continued to wear his right arm in a sling, and was unable to attend to much housework.
The doctor did not find any contributing factors to the applicant’s right hip and right shoulder injuries, other than the accident on 11 April 2022. The effects of both injuries, according to the doctor, were still causing the applicant incapacity for work.
In relation to the level of the applicant’s incapacity, the doctor opined that he was still not fit for his pre-injury duties as a bus driver. He did however opine:
“He could work at desk level, no lifting of the right arm above shoulder level, and work semi-sedentary....If a suitable position is available, then there is no reason why he could not work full-time.”

Applicant’s submissions

The applicant’s submissions have been reduced to writing, and I will not go through them in detail. They include brief written submissions dated 28 October 2022 that were provided prior to the conciliation/arbitration date pursuant to a direction made by me, and more detailed written submissions dated 25 November 2022 following the conciliation/arbitration date.
The applicant confirms that he is claiming ongoing weekly compensation from 6 July 2022, as well as a ‘general’ order that his expenses pursuant to s 60 of the 1987 Act be paid. He does not however address issues as to his capacity in either of these sets of written submissions.
He submits that his injury on 11 April 2022 occurred within the boundaries of Lot 1 in DP1250192. It occurred after he had just finished his work duties with Keolis and was walking to his vehicle which was parked in a car park within the boundaries of the lot. He submits that he had parked his vehicle where “the respondent had told him to park it” in accordance with an email which he had received from Murray on 8 April 2022.

He submits that the injury did not occur on a journey between his home and his place of employment. It occurred before he crossed the boundary of the land on which his place of employment was situated. He relies upon the authority of Green v Secretary, Department of Education and Communities [2014] NSWWCCPD 71 (Green) in this regard.
He submits that his injury occurred during the course of his employment with the respondent. The passage of the applicant to his vehicle was within the contemplation of both the applicant and the respondent as necessarily incidental to his employment. He relies upon the authority of John Stewart & Son (1912), Ltd v Longhurst [1917] UKHL 506 (Longhurst) in this regard.
He submits that his injury arose out of the employment as he was brought to the location of the injury by Murray’s instruction in his 8 April 2022 email.
He submits that his employment was a substantial contributing factor to his injury, and he relies upon the authority of Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi) to support his argument that walking to his vehicle after the end of his shift with Keolis was conduct authorised, encouraged or permitted by the respondent.
The applicant finally points to the decision of Arbitrator Harris in Smith v Woolworths [2017] NSWWCC 290 (Smith) as involving very similar facts to the facts in this dispute. The applicant submits that the decision was correct, and while not binding upon me, should be very persuasive to me.

Respondent’s submissions

The respondent’s submissions have been reduced to writing, and I will not go through them in detail. They include brief written submissions dated 21 October 2022 that were provided prior to the conciliation/arbitration date pursuant to a direction made by me, and more detailed written submissions dated 2 December 2022 following the conciliation/arbitration date.
The respondent submits that the applicant had commenced his journey from his place of employment to his home when his injury occurred on 11 April 2022. He had ceased his employment duties and he had left “the boundary of the land upon which the employer is based”, that boundary being confined to the areas (the office and 12 parking spots) indicated as being leased by Keolis from Northern Beaches Council in the relevant lease.
As a result, pursuant to s 10(3A) of the 1987 Act, the applicant needed to show a real and substantial connection between his employment and the incident (tripping and falling over a bumper stopper) leading to the injury. He had failed to lead evidence in this regard.
A great deal is made by the respondent as to the intention of Parliament in enacting s 10(3A) of the 1987 Act. Reference is made to the second reading speech to Parliament in this regard, where the respondent emphasises that intention as:
“employers will no longer be liable for a journey between a worker’s home and his or her place of work where the risk of injury is outside the control of the employer”.
The respondent submits that as a result, “where travel by the worker is in an area outside the control of the employer, and not place of employment, it is a journey claim”. The definition of ‘place of employment’ in s 10(3)(a) of the 1987 Act was clearly intended by Parliament “to be analysed on the basis of control by the employer”.
The respondent submits that the 8 April 2022 email from Murray was not a direction for the applicant to park in any particular location. There was no staff car park, and the email was at best an invitation for the applicant to use a public car park adjacent to Keolis’ office.
The decision in Smith was distinguishable as in that case, the worker was walking from a designated staff car park, which imports that the car park was in the control of the employer.
The Commission also did not need to “resort” to the decision in Green as there was no lack of definition of the applicant’s ‘place of employment’. The boundary of the land upon which the applicant’s workplace was situated was clearly delineated in the lease document between Keolis and Northern Beaches Council – it did not mean “the entire title of the land which may have been divided up into a number of premises”.
The respondent summarises:
“It is submitted that it is not the intention of the Parliament when enacting Section 10(3A) to make the employer liable where it has no control over that area; where the Applicant has left the employment, and when he was doing nothing which related to the nature of employment. To make a finding to the contrary, would be to reject a clear intention of the Parliament expressed from the second reading speech and displace it in favour of references in the cases relating to legislation which predates the subject legislation”.
The respondent then submits in the alternative that should it be found that the applicant’s journey from his place of employment to his home had not commenced when his injury occurred on 11 April 2022, he was not acting in the course of his employment when the injury occurred. It argues:
“With respect, the tripping on a fixed barrier in an area outside the control of the employer is not something which is incidental to the employment. The concept of walking from the place of employment to the worker’s car in a place outside the employer’s premises is also not incidental to employment; and is being clearly excluded from the entitlement to compensation by the introduction of Section 10(3A) of the legislation. The intention of the parliament is to exclude and to remove connection between employment and injuries of this type. This is as set out above in the second reading speech, to remove liability for places where the employer has no control.
There is no evidence in this case that the employer had any control over the area outside of its leased area; there is no suggestion it had any control over the fixed barrier over which the worker fell; and there is no evidence that the employer had any control of the worker’s process of walking from his place of work to his car”.
The applicant’s act of walking from Keolis’ office to his vehicle was not an activity incidental to his employment, and it could not be argued (as it was in Smith) that the test of whether an injury arises out of employment is satisfied if a worker is brought to where an injury occurs by reason of his or her employment.
The respondent then seeks to distinguish the decision in Longhurst on the basis that in that case, the worker was found to be acting in the course of his employment as the employer had required that he travel in a particular way. In the applicant’s case, he was not directed to park in the relevant car park, or indeed directed to drive to work at all. He could have “approached the work area in any way he saw fit”.
The respondent then submits that in any case, the applicant’s claim would fail as his employment was not a substantial contributing factor to his injury. In relation to the six examples to be considered in this regard pursuant to s 9A(2) of the 1987 Act, the respondent analyses those examples and submits that they all favour a “finding that the connection to employment is not satisfied” (except for the last example – the worker’s lifestyle and his or her activities outside the workplace – which does not “weigh in favour of the Respondent or Applicant”).
The respondent finally submits that if the applicant is found to have sustained a compensable injury on 11 April 2022, in view of the evidence from Dr Machart as well as the applicant’s failure to lead any evidence regarding his incapacity for work other than his statement evidence and certificates of capacity from his general practitioner, he has failed to discharge the onus upon him to prove his incapacity as well as how it should be assessed. There is “no reasoned and argued contradicting evidence” to that of Dr Machart.

Applicant’s submissions in reply

These submissions (dated 5 December 2022) have been reduced to writing, and I will not go through them in detail.
The applicant essentially makes four points:
(a)     the boundary of the employer’s land is not determinative in deciding whether a worker is on a journey – the test (in accordance with Green) is whether a worker had crossed the boundary of the land on which his or her employment was situated – at the time of the applicant’s injury, he was within Lot 1 in DP1250192 and he had not crossed the boundary of the land within that lot;
(b)     whether a worker might have ceased his employment duties for the day is not determinative of whether an injury sustained arises out of or in the course of employment;
(c)     even though where the applicant parked on 11 April 2022 was not in a designated staff car park, the effect of the 8 April 2022 email from Murray was to place the applicant’s conduct in walking to his vehicle after the end of his shift with Keolis as conduct authorised, encouraged or permitted by the respondent, in accordance with Badawi, and
(d)     the opinion of Dr Machart in relation to the applicant’s capacity “is non-specific and does not address any of the matters referred to in under ‘suitable employment’ in section 32A(a)” of the 1987 Act – the certificate of capacity issued by the applicant’s general practitioner (Dr Williams) dated 18 October 2022 should instead be accepted by the Commission as consistent with the applicant having no current work capacity.

FINDINGS AND REASONS

When the applicant suffered his injury on 11 April 2022, had he commenced his journey between his place of abode and his place of employment in accordance with s 10(3)(a) of the 1987 Act – if so, was there a real and substantial connection between his employment and the accident out of which his injury arose in accordance with s 10(3A) of the 1987 Act

Relevant sub-ss of s 10 of the 1987 Act read as follows:
“(1) 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.
(3) 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,
(3A) 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.”
There is no dispute that when the applicant’s injury on 11 April 2022 occurred, he had finished his employment duties with Keolis and was walking to his vehicle in order to drive home to his ‘place of abode’. He tripped and sustained his injury before he reached his vehicle.
There also does not seem to be any dispute that the precise location where the injury occurred was not on land leased by Keolis from Northern Beaches Council, which (see paragraph 55 above) was only part of Lot 1 in DP1250192 (being an office and 12 parking spots).
I find however that the location where the injury occurred was within Lot 1 in DP1250192 and I also find the street address of the location of the injury as 1472 Pittwater Road, Warriewood. This is consistent with the photographs, maps, and diagrams in the applicant’s statement evidence (see paragraphs 30 and 34 above), and the New South Wales Land Registry searches in the applicant’s third AALD (see paragraph 45 above).
Keolis also identifies its street address as 1472 Pittwater Road, Warriewood, as confirmed in the 8 April 2022 email from Murray (see paragraph 28 above).
The lease between Keolis and Northern Beaches Council refers to ‘common areas’ (and specifically car parks) within the land encompassed by Lot 1 in DP1250192 (see paragraph 55 above) to which Keolis and its employees had access, even though it may not have leased those areas. I am willing to accept that the car park where the applicant’s injury occurred was in these ‘common areas’. The fact that Keolis’ employees were given access to the car park where the applicant’s injury occurred is consistent with the 8 April 2022 email from Murray. I accept that Murray would not have sent that email had he not been given advice by Keolis’ lessor (Northern Beaches Council) that its employees were able to use the car park where the applicant was injured.
In Green, the worker worked on the ninth floor of a building (at 66 Rickard Road, Bankstown), and was injured in the courtyard/foyer of the building as she was on her way to work from her home. It was accepted that the worker had not established that the whole of the area within the boundary of the land where her place of employment was situated, was occupied by her employer, but that she had crossed the boundary of that land prior to her injury.
Roche DP noted that the 1987 Act did not contain a definition of ‘place of employment’ in s 10, and he therefore reviewed a number of authorities which had previously dealt with the definition, specifically Musumeci v GEM Engines Pty Limited [2002] NSWCC 8, Chawla v Transgrid, Burke ACCJ unreported, Compensation Court of NSW, 11 June 2002 (Chawla), Hogno v Fairfax Regional Printers Pty Limited [2009] NSWWCCPD 33, and Gray v Sydney Southwest Area Health Service (Rozelle Hospital) [2010] NSWWCCPD 125.
In upholding the worker’s appeal in Green, Roche DP specifically approved of the test laid down in Chawla as to when a journey starts or ends. He stated:
“32. At the arbitration in the current matter, Ms Green’s solicitor, Mr Brennan, submitted that, on the authorities, a s 10 journey ends at ‘the boundary of the land where the place of employment is situated’ (T12.34). He contended that there does not have to be just one workplace situated on the land. Mr Morgan submitted that the “better test [in the modern day] is when did the worker get to the point of [sic, at] which the employer controlled the environment” (T10.23).
36.    The Arbitrator based her approach on a misreading of Chawla. His Honour was referring, at [16] and [17], to the same ‘boundary’, namely, the boundary of the land and/or property upon which the workplace is situated. That is clear from his Honour’s reference (at [16]) to a journey to a ‘place of abode’ commencing and finishing at the ‘boundary of the land’ on which the place of abode is situated. In context, the reference to ‘property’ in [16] was clearly a reference to ‘land’. Thus, the boundary of the land will be the same as the boundary of the property and the worker will have reached his or her place of employment upon crossing the boundary of the land/property on which the workplace is situated.
37.    Chawla is not reasonably open to any other interpretation. Consistent with that interpretation, which the Commission has consistently applied, Mr Brennan submitted that as Ms Green had crossed the boundary of the land where the place of employment was situated, she had completed her journey. Mr Morgan’s “better test” has no support in principle or authority. It follows that, in the circumstances of the present case, the Arbitrator erred in not applying Chawla.
43.    It is difficult to follow the Arbitrator’s reference to not being able to draw the inferences submitted by Mr Brennan. The only inference Mr Brennan invited the Arbitrator to draw was an inference that 66 Rickard Road was ‘the place where [Ms Green] worked’ (T18.28). That was not a matter of inference. Ms Green gave direct (unchallenged) evidence that that was where she worked. There were no other inferences to be drawn. Mr Brennan did not invite the Arbitrator to infer that the respondent was the only employer at 66 Rickard Road. He effectively conceded that there were other employers at 66 Rickard Road, but submitted (correctly) that that did not matter.
44.    Applying the Chawla test, the question of ownership, control or management of the land where Ms Green fell is irrelevant. It is sufficient that she crossed the boundary of the land upon which the workplace is situated. This solution, as Burke ACCJ observed, provides a simpler and more definitive approach, at least in situations where, as in the present case, the worker has a specific and identifiable place of employment. It leads to greater certainty and is consistent with the language used in the section, read in context.
46.    It follows that, having determined that Ms Green received her injury after having crossed the boundary of the land upon which her workplace is situated, the Arbitrator was bound to apply Chawla. That leads to only one conclusion, namely, that Ms Green was no longer on a journey at the time she fell and received her injury.
48.    The Arbitrator correctly noted that Ms Green bore the onus of proof. However, to discharge that onus she had to prove that she received her injury after she had completed her journey. She did that by proving that she fell inside the boundary of the land upon which her workplace is situated. It does not matter that other employers also occupied 66 Rickard Road, or that another entity owned the land. Those matters did not make 66 Rickard Road any less Ms Green’s ‘place of employment’. If Ms Green were asked where she works, a reasonable answer would be ‘the Bankstown Civic Centre’ (that is, 66 Rickard Road). She therefore arrived at that place (her place of employment) when she crossed the boundary of the land for that property.”
I am bound by the decision in Green and intend to follow it. Its facts are very similar to the facts in the applicant’s claim. Just as there was no evidence in Green that the employer owned or leased the precise location of the worker’s injury, there was no evidence in the applicant’s claim that Keolis owned or leased the precise location of his injury. However, just as 66 Rickard Road, Bankstown was found to be the worker’s ‘place of employment’ in Green (despite other employers to hers occupying or owning that land), I find 1472 Pittwater Road, Warriewood (Lot 1 in DP1250192 according to the lease between Keolis and Northern Beaches Council – see paragraph 55 above) to be the worker’s ‘place of employment’ for the purpose of his claim. In Green, the worker crossed the boundary of the land upon which her workplace was situated when she crossed the boundary of 66 Rickard Road, Bankstown, and in the applicant’s claim, I find that his journey would have only commenced if he had crossed the boundary of the land at 1472 Pittwater Road, Warriewood, where his workplace was situated. His injury occurred prior to him crossing the boundary of that land.
I accept the applicant’s submission at paragraph 84(a) above. The respondent’s submissions do not correctly identify the authoritative test laid out in Green and Chawla for when a worker’s journey commences or finishes. It is not the crossing of “the boundary of the land upon which the employer is based” (see paragraph 70 above), but instead the crossing of the boundary of the land upon which the worker’s workplace is situated. The land upon which the applicant’s workplace was situated was 1472 Pittwater Road, Warriewood (Lot 1 in DP1250192).
The respondent’s reliance upon the second reading speech to Parliament when amendments were made to s 10 of the 1987 Act (particularly the insertion of s 10(3A)) is misguided as I have found that the applicant’s journey had not commenced when he sustained his injury. His compensation entitlements therefore do not need to be determined in accordance with s 10. The passage from the second reading speech quoted in the respondent’s submissions (see paragraph 72 above) was only directed at explaining the Parliament’s intention in relation to injuries received on journeys, and I have found that the applicant’s injury was not received on a journey.
Moreover, the respondent’s submission (see paragraph 73 above) that the definition of ‘place of employment’ should be analysed on the basis of control by the employer was raised at [32] and specifically rejected at [36] and [44] in Green.

It is also to be noted that Green was decided after the amendments which were made to s 10 of the 1987 Act following the second reading speech relied upon by the respondent. Green specifically applied the authority of Chawla, and I therefore reject any submission that the authority of Chawla has been in some way affected by the amendments which were made to s 10.
Having found that the applicant had not commenced his journey when he sustained his injury on 11 April 2022, I do not need to consider s 10(3A) of the 1987 Act.

If the applicant had not commenced his journey, did his injury arise out of or in the course of his employment with the respondent in accordance with s 4(a) of the 1987 Act – if so, was the employment a substantial contracting factor to the injury in accordance with s 9A(1) of the 1987 Act

100.Section 4(a) of the 1987 Act reads as follows:
“In this Act--
‘injury’ -
(a) means personal injury arising out of or in the course of employment,”

101.I have already found that the applicant had not commenced his journey when he sustained his injury on 11 April 2022. He was still in the course of his employment with the respondent - with Keolis.
102.The course of employment extends beyond a worker’s normal hours and place of work to actions that are incidental to his employment, that is while “he was doing something which was an adjunct to or an incident of his service”, per Rich J in Whittingham v Commissioner of Railways (WA) [1931] HCA 49 (Whittingham).
103.The worker in Whittingham was held not to be in the course of his employment when he was injured, Dixon J stating:
“In these circumstances the connection between the appellant's presence at the spot where he was hit and his duty consists of no more than the fact that he was on his employer's premises because in fifteen minutes or less his work would commence, and he was in that particular part of them because he had leisure to stroll in the open air. Whether the things which the employee does in the course of his employment although not obliged by the terms of his service to do them, are described by the words ‘belonging to,’ ‘ancillary to,’ ‘incidental to,’ ‘adjuncts of’ or ‘arising out of’ his employment, the connection is too remote. He was not engaged at the moment in doing something directed towards the performance of his duty as is the workman going to his place at the employer's works, or immediately consequential upon it as is the man who is leaving his place of work. His presence somewhere at or near the premises at that time may be said to be a consequence of or at least to arise out of his employment. But all that can be said of his presence in the yard at the place where he was struck is that, if he had not been an employee, he would have probably been elsewhere. So much could be said if he had been struck in passing a cricket field half a mile away on his way to work. In fact his presence there contributed nothing towards and was in no way involved in the performance of his duties.”

104.Relevantly, when the applicant was injured, he was (using the words of Dixon J) a “workman going to his place at the employer’s works, or immediately consequential upon it as is the man who is leaving his place of work”.
105.Dixon J then in Henderson v Commissioner of Railways (WA) [1937] HCA 67 (Henderson) stated the test for whether an injury arises in the course of employment as:
“Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance”.

106.In my opinion, the email sent by Murray on 8 April 2022 is an authorisation for the applicant to park in the car park where his injury occurred, and then walk through the car park to the place where his employment duties would begin. Following the sending of the email, the respondent certainly expected that he would do so, even though it may not have required him to do so. I accept the respondent’s submission (see paragraph 74 above) that the email was not a direction to the applicant, but rather an invitation. Nevertheless, the invitation in my opinion created an expectation that the applicant would park in the car park, and an authorisation for him to do so.
107.It is to be noted in this regard that at least one other fellow employee to the applicant (Lewis – see paragraph 39 above) also regularly parked her car in the relevant car park.
108.The above passage from Henderson also makes it clear that the concept of control (while important) is not the ultimate test as to whether a worker is in the course of employment. I reject the submission of the respondent to the contrary, in this regard.
109.In Longhurst, Lord Chancellor Finlay stated:
“The case would be different if the workman was at the time of the accident on the public highway on his way to or from his work. His employment cannot be considered as having begun if he is merely in transit in the public street or road to or from his employer’s premises. Of course, if his employment were of a kind which is pursued on the highway he might be in the course of his employment while there, but I am speaking of cases in which he is in the public way merely in exercise of the public right of passage there on his way to or from his employer’s.
The present case belongs to a class of cases where the thing on which the workman is employed is lying in a dock or other open space to which he only obtains access for the purposes of his work. Actual ownership or control by the employer of the spot where the accident occurred is not essential. The workman comes there on his way to and from his work, and he may be regarded as in the course of his employment while passing through the dock or other open space to and from the spot where his work actually lies. Such passage is within the contemplation of both parties to the contract as necessarily incidental to it”.

110.Although Longhurst was decided over 100 years ago, I have no reason to depart from its authority. Just as the worker in Longhurst was in the course of his employment while passing through the dock area, the applicant was in the course of his employment while passing through the relevant car park on his way to his vehicle. He had not reached any public highway when his accident occurred.
111.As I have found that the applicant’s injury occurred in the course of his employment, I do not need to determine whether it also arose out of his employment. Nevertheless, I am satisfied that the injury also arose out of his employment. He was brought to the location where the injury occurred because of the invitation in the email from Murray dated 8 April 2022. If it had not been for that email, he may have parked his vehicle in a different location. The fact of him being employed in his particular job caused or materially contributed to his injury, which is the relevant test as stated by Lord Wright in Dover Navigation Co v Craig [1940] AC 190, and as approved by the plurality in Badawi at [75].
112.The applicant also satisfies the test laid down by Starke J in Smith v Australian Woollen Mills Limited [1933] HCA 60 (also approved by the plurality in Badawi at [77]):
“An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment”.

113.The applicant still however needs to satisfy the requirement in s 9A of the 1987 Act, which reads as follows:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.

(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

114.Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]) to be decided after a consideration of all the evidence. As Emmett JA stated in Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 at [46]:
“While the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder. Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact”.

115.The applicant does not satisfy his onus under s 9A merely because his injury arose out of and in the course of his employment. There needs to be a causal connection between the employment and the injury that is real and of substance (plurality in Badawi at [82]).
116.I am satisfied that such a causal connection between the applicant’s employment and his injury is available on the evidence. He suffered injury whilst undertaking an activity incidental to his employment, that is, exiting his work premises.
117.Keolis’ address and the address of the relevant car park were the same (see paragraph 42 above). The applicant was injured when he was proceeding along a direct path from Keolis’ office to his vehicle, in circumstances where there was no other suitable path available to him (see paragraph 38 above). The injury occurred in a ‘common area’ which the lease between Keolis and Northern Beaches Council (see paragraph 90 above) envisages that those working at Keolis would have access to.
118.In Badawi, Basten JA stated at [121]:
“Where it is the very activity of the claimant, which was the conduct authorised, encouraged or permitted by the employer (and in this case, the conduct exhibited all of those characteristics), the conclusion that the employment was a substantial contributing factor to the injury is the only conclusion reasonably open”.

119.In relation to the applicant, the only reasonable inference from the email sent by Murray on 8 April 2022 is that the parking by the applicant of his vehicle in the relevant car park was conduct that was authorised, encouraged, and permitted by the respondent. It was conduct that exhibited all the characteristics referred to by Basten JA. Therefore, in my opinion, the only conclusion open to me is that when the applicant tripped over the bumper stopper on his way to his vehicle (parked as authorised, encouraged, and permitted by the respondent), his employment was a substantial contracting factor to his resulting injury.
120.The respondent asks me to specifically deal with the examples raised in s 9A(2) and I intend to do so. It is necessary to note however that they are only examples of the factors that need to be taken into account in determining if employment is a substantial contributing factor to an injury. Other factors can be taken into account, and in this regard, I specifically intend to take into account the factors that I considered at paragraph 117 above, all of which support a finding that the applicant’s employment was a substantial contracting factor to his injury.
121.I reject the respondent’s submission that the six examples raised in s 9A(2) support a finding that the applicant’s employment was not a substantial contracting factor to his injury – in fact, I find that an analysis of the examples either support the connection or are neutral or irrelevant:
(a)     in relation to the time and place of the injury, I have already found that the injury occurred at the same address as Keolis’ office – it also occurred moments after the applicant had finished his work duties on 11 April 2022 – it occurred in circumstances encountered by the applicant only because of his employment – it occurred in circumstances incidental to the performance of the applicant’s work, that is, in exiting the premises where he worked;
(b)     in relation to the nature of the work performed, I have already found that the injury occurred in circumstances incidental to the performance of the applicant’s work, that is, in exiting the premises where he worked – the plurality in Badawi at [98] also make it clear that the example at s 9A(2)(b) does not “deal with activities during the course of employment….which cannot be said to be within an interval or interlude….but which are not employment related”;
(c)     in relation to the duration of the employment, I do not find the example to be particularly relevant – if anything, the example is neutral – neither the length of the applicant’s employment (since November 2017) nor how long the applicant had worked on 11 April 2022 had any effect upon the nature of the injury suffered by the applicant, which occurred as a result of a specific event;
(d)     in relation to the probability that the injury would have happened anyway and at about the same time and stage of the applicant’s life, it is highly unlikely in my opinion that a similar accident (tripping over a bumper stopper in a car park) would have happened anyway and at a similar time – the accident was a specific event occurring on a specific date while the applicant was in the course of his employment with the respondent, and
(e)     there has been no medical or other evidence presented to suggest that either the worker’s state of health before the injury or his lifestyle and activities outside the workplace were in any way relevant to, or in any way responsible for, his tripping over the bumper stopper on 11 April 2022.

122.In all the circumstances, after evaluating all the evidence presented as well as considering the examples in s 9A(2), I am comfortably satisfied that the applicant’s employment with the respondent was a substantial contributing factor to his injury on 11 April 2022.

If the applicant sustained an injury on 11 April 2022 that arose out of or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to weekly compensation benefits since 6 July 2022 on the basis of incapacity for work – if so, what is his entitlement in this regard

123.The applicant sustained serious injuries on 11 April 2022. As a result, he has undergone both left total hip replacement surgery and a right shoulder arthroscopy. As at 17 October 2022 (see paragraph 32 above), he was still consulting with Drs Roberts and Sherlock, and he was still undergoing rehabilitation and physiotherapy. His injuries are unlikely to have currently stabilised.
124.Unfortunately however, the medical evidence presented by the parties is rather thin in dealing with the extent of the applicant’s current incapacity for work. The respondent submits that the evidence of Dr Machart (see paragraph 60 above) should be accepted, and the applicant should be found to be capable of currently earning at least the same amount as his agreed PIAWE ($882.84). The applicant relies on the certificates of capacity provided by his general practitioner (Dr Williams) which cover the period up to 28 November 2022 and which certify the applicant as having no current work capacity (see paragraph 50 above).
125.The applicant was paid weekly compensation up to 6 July 2022. Therefore, his weekly compensation entitlements after that date need to be assessed pursuant to s 36 of the 1987 Act up to 22 July 2022, and then pursuant to s 37 of the 1987 Act.
126.Section 36 reads as follows:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of 95% of the worker's pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”

127.Section 37 reads as follows:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.

(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates--
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”

128.Under both sections, it is necessary for me to firstly determine whether the applicant has any current work capacity, which is defined in cl 9 to schedule 3 of the 1987 Act as:
“(1) An injured worker has
‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.

(2) An injured worker has
‘no current work capacity’ if the worker has a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.”

129.Suitable employment is then defined in s 32A of the 1987 Act as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and

(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”

130.I find that the applicant is currently unfit for his pre-injury employment as a bus driver. That is accepted by Dr Machart and there is no acceptable evidence to the contrary.
131.Consideration therefore has to be given as to whether the applicant is fit for suitable employment within the definition prescribed in s 32A of the 1987 Act.
132.Pursuant to the authority of Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55 (Dewar), there needs to be evidence before the Commission of a “real job” that the applicant “would be currently fit and qualified for, and be expected to secure and retain”, in order for him to be fit for suitable employment.
133.In Dewar, Deputy President Roche discussed s 32A:
“58. However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
59. The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
60. Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”

and:
“63. Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”

134.I have come to the conclusion that there is currently no “real job” that the applicant is able to do. Dr Machart may believe that the applicant is fit for work “at desk level”, but he is no more specific than that. His opinion is also speculative as to whether suitable positions would be available (see paragraph 60 above) for the applicant. In my opinion, he offers little more than a theoretical proposition.
135.In considering the matters referred to in s 32A of the 1987 Act, I note that there is no evidence of any injury management plan being prepared, and there is also no evidence tendered from any occupational rehabilitation service provider or vocational assessor. In those circumstances, I can use common knowledge or experience to determine whether any of the applicant’s previous employments would now be suitable employment for him, with his medical restrictions. As Deputy President Snell observed in ACW v ACX [2020] NSWPICPD 19 applying Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720:
“109. A fact finder is entitled to make commonsense findings, provided these are ‘within the realm of common knowledge or experience’”.

136.The applicant is almost 66-years-old. In my opinion, his age and his employment history (see paragraph 17 above) would work against him finding any suitable employment in that:
(a)     he would not be fit to work in a warehouse as such employment would involve lifting of the right arm above shoulder level, which Dr Machart warns against;
(b)     he would not be fit to work as a pool attendant as Dr Sherlock (see paragraph 51(d) above) only recommended that he attempt “gentle freestyle” swimming from the beginning of November 2022, and
(c)     although Dr Sherlock thought the applicant might be fit to drive work vehicles from September 2022 (see paragraph 51(d) above), there is no evidence that he subsequently allowed it, and there is also no evidence that the relevant work vehicles were automatic (as he said was necessary) – further, Dr Machart accepts (see paragraph 60 above) that as at 21 September 2022, the applicant was still not fit to be a bus driver.

137.In these circumstances, I accept the opinion of the applicant’s general practitioner (Dr Williams) that he has no current work capacity. The clinical notes from Myora Medical General Practice confirm that Dr Williams has been the applicant’s treating general practitioner since at least May 2013, and in my opinion, this fact places him in a highly advantageous position to provide opinions regarding the applicant’s medical condition. He has also regularly treated the applicant since his injury on 11 April 2022, in contrast to Dr Machart who only consulted with the applicant on one occasion.
138.In summary, while the applicant may theoretically not be totally unfit for any work, taking into account the factors prescribed in s 32A of the 1987 Act, and also taking into account the medical and other evidence relied upon by the parties, I find that the applicant has discharged his onus of proving that he does not have current work capacity. He is entitled to awards of compensation pursuant to ss 36(1) and 37(1) of the 1987 Act.

If the applicant sustained an injury on 11 April 2022 that arose out of or in the course of his employment and to which his employment was a substantial contributing factor, is the applicant entitled to a ‘general’ order that his expenses pursuant to s 60 of the 1987 Act be paid by the respondent

139.The applicant has clearly undergone significant treatment, including two surgical procedures, in relation to the injury that I have found that he sustained on 11 April 2022. He only seeks a ‘general’ order regarding payment of his expenses in this regard. Considering my findings, he is entitled to that order.
SUMMARY
140.I find that when the applicant suffered his injury on 11 April 2022, he had not commenced his journey between his place of abode and his place of employment, in accordance with s 10(3)(a) of the 1987 Act.
141.I find that the applicant’s injury on 11 April 2022 arose out of, and was in the course of, his employment with the respondent, in accordance with s 4(a) of the 1987 Act.
142.I find that the applicant’s employment with the respondent was a substantial contributing factor to his injury on 11 April 2022, in accordance with s 9A(1) of the 1987 Act.
143.I find that since 11 April 2022, the applicant has been incapacitated for work and has possessed no current work capacity, as a result of the injury received on that date.
144.I find the applicant’s PIAWE to be $882.84.
145.I find that the applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent.
146.There will be an award that the respondent pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 7 July 2022 to 22 July 2022, at the rate of $838.70 (as adjusted if necessary applying relevant indexing) per week.
147.There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act from 23 July 2022 to date and on a continuing basis, at the rate of $706.27 (as adjusted if necessary applying relevant indexing) per week.

There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act.

[2023] NSWPIC 44

7 February 2023