BBH v State of New South Wales (Northern Sydney Local Area Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BBH v State of New South Wales (Northern Sydney Local Area Health District) & Ors [2022] NSWPIC 478
APPLICANT:	BBH
first RESPONDENT:	State of New South Wales (Northern Sydney Local Area Health District)
second respondent:	BCD
third respondent:	BBI
fourth respondent:	BCE
SENIOR Member:	Elizabeth Beilby
DATE OF DECISION:	30 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Lump sum death benefit; no other persons identified as dependant except the respondent; Held –the deceased suffered an injury within the meaning of sections 4 and 9A of the Workers Compensation Act 1987.
determinations made:	Commission determines: 1. BEB suffered a fatal injury arising out of and in the course of her employment on 13 November 2019. 2. The lump sum benefit payable in accordance with s 25(1)(a) of the Workers Compensation Act 1987 as of the date of death was $816,850. 3. The lump sum is to be paid directly to the ’dependants’ pursuant to s 85A of the Workers Compensation Act 1987. 4. The first respondent is to pay the lump sum benefit as follows: (a) 70% to the applicant, BBH, (b) 10% to BCD, (c) 10% to BBI, and (d) 10% to BCE. 5. The first respondent is to pay interest on the lump sum death benefit at 2.5% per annum from 13 October 2021. 6. There is no other person who was partially or fully dependent upon the deceased at the date of death.

STATEMENT OF REASONS

BACKGROUND

BEB (the deceased) was employed by Macquarie Hospital as an office manager for InforMH. InforMH was located at Macquarie Hospital and was part of the Northern Sydney Local Health District (the first respondent).
Market days were held at Macquarie Hospital approximately twice a year and were fund-raising events. The money raised would go to assisting patients at the hospital.
BEB contributed regularly to the market days by baking cakes, muffins and slices. It was her practice to bake in anticipation of the market day on the preceding evening. Her family have provided evidence that on the evening before the market day they were prohibited from entering the kitchen as BEB was busy baking.[1]
[1] Statement of BBH, paragraph 10, page 47.
On 13 November 2019 BEB left her employment and was travelling home to Beecroft. She was involved in a fatal accident in Eastwood.
It was observed by police officers who investigated the accident that provisions for baking which included flour and the like, were found in BEB’s vehicle.

LAY EVIDENCE

BBH

Mr BBH was the husband of the deceased. He has provided a statement dated 1 June 2021.[2] BBH describes his wife’s keen involvement in providing baking goods for the Macquarie Hospital market day. He also outlines that it was part of her habit to bake the goods the night before the market day. He describes his wife’s view that the market day was a community event and it gave inpatients an opportunity to go out and socialise with other people. It also provided inpatients’ families the opportunity to come into the hospital and accompany them to market days.
[2] Application page 47.
BBH also outlines his wife’s skill in baking and understood that her baked goods were very popular at market days and were often the first items to sell out. BBH also understands that his wife had good relationships with members of the charity that ran the market day, namely “the Macquarie Hospital Patients Fundraising”.

THE MACQUARIE HOSPITAL NEWS

Macquarie Hospital had a newsletter which was sent out to employees including the deceased. The newsletter appears to provide staff information including matters such as staff movement and initiatives.
In the Macquarie Hospital newsletter dated April 2019 there is a whole page allocated to the market day which was to be held on Thursday 2 May 2019. The flyer in that newsletter indicates that all were welcome and that staff are invited to “come long and enjoy a delicious barbecue lunch, grab a bargain and find that special gift for Mother’s Day”. The venue for the market day is indicated to be in conference rooms 1 and 2 at Macquarie Hospital.

MACQUARIE HOSPITAL’S PATIENTS FUNDRAISING

The entity that organised the fundraising is known as “Macquarie Hospital Patients Fundraising”.[3] Macquarie Hospital Patients Fundraising is a charity whose aim is to assist adults aged 25 to under 65. It describes itself as supplying help to inpatients at Macquarie Hospital who are suffering from mental illness, providing them with Christmas gifts, Easter gifts, new clothes, outings, any day to day items that are necessary which are not available through hospital funding.
[3] Application page 66.
The income and expenditure statement for that charity indicates that a significant amount of their income was derived from the market day.[4] Indeed, some $15,871 of an income of $17,311 in that statement came from the market day. So far as expenditure was concerned, the report indicates that there was provision for patient Christmas gifts, Easter eggs, a patient dance and entertainment for patients.
[4] Application page 97.

Janelle Twomey

Ms Janelle Twomey has provided a statement dated 8 April 2022. She was employed as a metadata project officer at New South Wales Health and was employed at InforMH as an office manager in 2013. She was a friend and colleague of the deceased both having worked in the administration department at Macquarie Hospital.
Ms Twomey describes the market days as occurring in working hours and normally began at 10.30am and finished after lunch.
Ms Twomey would make decorations for the market day when she could and she would also contribute to the white elephant stall. She would sometimes make cakes and biscuits for sale. She observed that the items that BEB prepared were very popular and sold out quickly.
Ms Twomey describes that staff would donate to the market day and they would normally drop things off at the conference room before work started. Alternatively, things would be left at the Wallace Building and then taken across to the conference room by the people organising the event. There was always some flexibility with staff leaving their offices and dropping things off for the market day.
It was Ms Twomey’s observation that management were supportive of the process and described that staff would often wrap their goods in cellophane and then take them up to the conference room.
Ms Twomey however does say that there was no pressure on staff to be involved in the market day and participation was voluntary.

Charmaine Turton

Ms Charmaine Turton has provided a statement dated 30 March 2020.[5]
[5] First respondent’s Reply page 34.
Ms Turton was the manager of operations and progress at InfoMH. She described the deceased as performing office management tasks, which included invoicing, correspondence, ordering of office supplies, stationary and administrative tasks.
Ms Turton described the deceased as making wonderful cakes which were voluntarily brought them in for market days over many years.
Ms Turton says that while all staff were aware of market days, no one was actively encouraged to participate in the day. Each staff member would decide for themself whether they wanted to do something for market day which was to be undertaken in their own time.
Ms Turton describes the purpose of the market day to provide minor fundraising for patients.
Ms Turton also gave oral evidence to the Personal Injury Commission (the Commission) when the matter was listed for conciliation and arbitration on 21 July 2022.
Ms Turton accepted that there were people outside the office that the deceased would have had a relationship with. She however did not agree that she would have had a relationship with hospital patient fundraising committee and did not agree that it would be part of her job that she would liaise with the Macquarie Hospital Patient Fundraising Committee.
Ms Turton agreed that one of the requirements of the deceased’s job was that she would demonstrate the CORE values of the organisation with stakeholders. The CORE values of the organisation were an acronym which related to the attributes of Collaboration, Openness, Respect and Empowerment.
Ms Turton agreed that patients and consumers were stakeholders and that she would need to have us the CORE characteristics when dealing with those stakeholders.
Ms Turton also agreed that it was an incidental part of the deceased’s role to help collaborate with patients in order to achieve outcomes for their wellbeing, though this may not have been direct objective. Whilst it was Ms Turton’s evidence that there was not a direct interaction with patients, she did agree that whatever the deceased had to do had to be consistent with the interests of the patient even if it was just an incidental benefit.
In relation to the market day, Ms Turton confirmed that no one was actively encouraged to participate in the market day. The participation of staff was not discouraged and was tolerated by the employer. Indeed, if an employee needed a short time to do things for the market day that was tolerated by the employer.
Ms Turton also agreed that it was consistent with money being raised for the benefit of the hospital and the patients that what the deceased did for the market day was for the benefit of the patients and it was also incidentally consistent with her employment.
Indeed, one of the penultimate questions put to Ms Turton was;
“So what I am putting to you now is that what Jo did for the market day which raised funds for the patients that was also consistent with the same core values? Would you agree with that or not?”
Answer: “Yes”.
Ms Turton also agreed that the market day itself was not just a financial benefit to patients but also an opportunity for patients, staff and the community to interact in some way and this would have an ancillary benefit to patients’ wellbeing and health.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) did the deceased’s death arise out of or in the course of her employment as an office manager for the first respondent pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (1987 Act).

ISSUES NOT IN DISPUTE

The parties were able to agree to the following facts:
(a)    the deceased was going home from work in her vehicle with the intention of baking goods at home;
(b)    the baked goods were to be used for sale the following day at the market day, and
(c)    within the deceased’s vehicle were perishables that were used in the baking of cakes.
In submissions the first respondent also agreed to the following:
(a) the fundraising committee had been created with a view to assisting patients at Macquarie Hospital.

FACTUAL FINDINGS

The factual matrix in this matter is not greatly disputed. I will now outline the findings that I have made before I consider any legal submissions.
A starting point is the newsletter from the first respondent to its employees which clearly provided information on the market day at Macquarie Hospital on Thursday 2 May 2019. To that extent it can be said that the market day was promoted and supported by its employer. This is also consistent with the evidence of Ms Turton and Ms Twomey.
The profits from the market day, as can be seen in the accounting records of Macquarie Hospital Patients Fundraising, were to be used for the benefit of the patients. That is, the profits provided assistance to patients including the provision of gifts and clothing. It is obvious that this means that there was a clear benefit for the patients.
Finally, the first respondent expected its employees to comply with its CORE values.
The market day provided an obvious assistance to the inpatients at Macquarie Hospital. I also accept the evidence of Ms Charmaine Turton who clearly said that the market day was of benefit to the patients as they were able to interact with the community and also professional staff.
So far as the first respondent’s involvement in the market day, as I have already found, they promoted it in their newsletter but further than that they tolerated staff interrupting their day to take their contributions for the market day to the conference rooms. The position was that whilst it was not actively encouraged, as Ms Turton said, it was not discouraged but was tolerated.
It is also without objection and by consent of the parties that it was the deceased’s intention to return to her residential address and to embark on baking for the following day. The photographs from the police brief indicate that there were obvious baking ingredients in her car which included buttermilk and butter, ingredients that were well known amongst finer bakers for their necessity in baking sweets.
Now that I have outlined the factual findings on which I must apply the law, I will now consider the parties submissions.

The submissions considered

The first respondent, through its Counsel Mr Morgan, disputed that there was any causal connection for work. That is, it was not a circumstance where the deceased was travelling to shops to buy materials to cook, she was in the course of her standard journey from work to home and unfortunately was involved in a fatal collision.
Mr McManamey of Counsel addressed on behalf of the deceased’s family in respect of the legal principles to be applied in the present circumstances.
The first point that Mr McManamey made was that it is well established that for a worker to be in the course of their employment it does not matter that they may have multiple purposes in the event so long as one of the purposes was a work purpose. That it, it does not matter that the deceased was driving home to attend her residence as she did every day after work and in addition was returning to her residence and transporting the goods for her cooking that night for the market day the next day.
Mr McManamey referred to a decision of Hook v Rolfe (1986) 7 NSWLR 40 at [44]-[45] which provides authority to the extent that there can be multiple purposes for an activity. That is, when looking at the purposes of an activity, it is not necessary to enquire as to the “primary purpose” of the activity. This is an authority which is relevant to the dispute in this matter and obviously highly persuasive (and binding).
The approach in Hook has been followed in Skea v Legg [2000] NSWCC 20, a decision of his Honour Judge Walker in the Compensation Court of New South Wales. In that decision, the applicant worker claimed lump sum compensation. The dispute that arose was whether the worker was motivated by a non-work purpose as well as a work purpose and this destroyed the connection between his conduct and his employment.
The factual circumstances were that the applicant was a builder working for clients who wanted the work done ‘as soon as possible’. The worker’s car was unregistered and the applicant was injured whilst taking a journey for the purposes of registering the Land Rover. The worker was also intending to purchase and pick up building products in that journey. His Honour found that the worker was in the course of his duties even though there was a dual purpose in his journey, that is to pick up some building supplies and also to register the Land Rover.
The applicant’s position is even though there is an ancillary purpose that is the transportation from work to home, as long as there is a work purpose then worker is in the course of their employment. The applicant points to the fact that the deceased was going home to bake cakes and was also transporting ingredients to permit the baking, facts which bring it within the umbrella of the legal authority.
I agree with the applicant’s submissions on this point, that is there can be a duality of purpose. I find that the applicant was in the course of her employment whilst driving home transporting baking ingredients to be used that night, for the Market Day the following day.
The next question really becomes what is the purpose of the baking, that is, did it have a relevant employment connection.
The first respondent pointed out that the deceased’s employment was as an office manager. To that extent her job was not involved with either directly dealing with patients or providing assistance for the Market day. Simply put, the deceased was able to contribute to the facility on a voluntary basis, like any other member of the community.
I am not persuaded by the first respondents submissions on this point. It seems to me that the factual matrix does encourage a finding that the baking had the relevant employment connection for reasons which I will now outline.
Firstly the market day is put on by the committee, secondly it was staged in the conference rooms of Macquarie Hospital. Thirdly, the market day was promoted by the hospital through its newsletters and finally the market day was used to raise money which was to be applied for the benefit of patients.
The benefit of patients was of course a core responsibility of the Area Health Service.
In relation to this, the applicant relied on the decision of Clancy v Department of Public Health [1962] NSWR 2. In that case there was a football game which was performed on the employer’s premises and under its authority.
The football game was being staged for the employer’s occupational advantage and the applicant was ultimately successful in that case.
The applicant pointed out that one must focus on whether the event which was the market day was an event that was encouraged by the employer as opposed to whether the deceased was encouraged to do the baking.
In Van Haeften v Caltex Oil [6] Justice Priestley discusses the law to be applied in relation to these type of circumstances. He says:
“An activity may be within the course of the worker’s employment, though its participation in it is voluntary and unremunerated. The question is whether the worker was doing something sufficiently associated with employment incidental to or consequential upon it … maybe its employer derives benefit even though it would be an intangible benefit from the activity … he encourages employees to join in an activity”.
[6]Van Haeften v Caltex Oil ( Australia) Pty ltd (1995) 12 NSW CCR 250
It seems to me that this case is not very controversial. The factual matrix is agreed generally and that is that the market day was advertised by the employer, they provided the venue, they allowed people to use part of their paid time to participate in contributing and preparing things for the market day.
Further, the first respondent derived a financial benefit, that is, money was earned which provided benefits for the patients. The patients’ wellbeing is an integral part of carrying out the first respondent’s core business and as such they have a benefit from that activity.
Quite clearly, the question is whether the deceased was in the course of her employment at the time of the fatal accident. At that time she was in the course of her employment because she was transporting the materials for baking which is enough in itself to put her in the course of employment and secondly, she was in the purpose of going home to perform the baking activity.
I therefore find that the deceased had a clear purpose and that is there is a clear connection between the journey home and work which continued until the time of the fatal accident.

APPORTIONMENT AND OTHER MATTERS

When this matter was listed for arbitration, I heard submissions regarding proposed apportionment and I made findings that the proposed apportionment was reasonable in the circumstances.
The proposed apportionment was as follows: 70% to the applicant, BBH, and the remaining 30% to be shared equally between the sons of the deceased, 10% to BCD, 10% to BBI, and 10% to BCE.
In relation to interest, submissions were made and a determination was made that interest should be paid on the lump sum death benefit at 2.5% from 13 October 2021. I also made a finding that there was no other person who could be described as dependent upon the deceased at the time of death or wishes to be so.

[2022] NSWPIC 478

30 August 2022