Bina v ISS Property Services Pty Ltd - [2013] NSWWCCPD 72

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72
APPELLANT:	Ana Filicia Bina
RESPONDENT:	ISS Property Services Pty Limited
INSURER:	Self-insured
FILE NUMBER:	A1-13437/12
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	17 September 2013
DATE OF APPEAL DECISION:	19 December 2013
SUBJECT MATTER OF DECISION:	Journey claims; meaning of “real and substantial connection” s 10(3A) of the Workers Compensation Act 1987; injuries arising out of employment; principles of statutory interpretation
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Steve Masselos & Co
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 17 September 2013 is confirmed. 2. No order as to costs of this appeal.

BACKGROUND TO THE APPLICATION

The appellant, Ana Filicia Bina is employed by the respondent, ISS Property Services Pty Limited (ISS), as a cleaner at Guildford West Public School (the school). At the time of her injury she worked a broken or split shift. Her normal hours of work were 5.30 am-8.00 am and 3.00 pm-6.30 pm on weekdays.
Ms Bina regularly drove a motor vehicle to and from her place of employment. At 8.20 am on 27 July 2012 she was driving a motor vehicle from the school to her home in Fairfield Heights, when her vehicle was involved in a collision with another vehicle at the intersection of Polding Street and The Horsley Drive, Fairfield. Ms Bina suffered multiple injuries as a result of the accident. As a consequence of those injuries she has been unable to return to her employment as a cleaner.
Ms Bina alleged that she was required to use her own transport to travel to and from work because of a lack of access to public transport to travel between her home and her place of employment. Ms Bina made a claim for weekly compensation benefits from 27 July 2012.
On 2 October 2012, ISS issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It declined liability for the following reasons:
(a)     the injury did not arise out of or in the course of employment (ss 4(a) and 4(b) of the Workers Compensation Act 1987 (the 1987 Act));
(b)     the employment was not a substantial contributing factor to the injury (s 9A of the 1987 Act);
(c) section 10(1) of the 1987 Act does not deem the injury to have arisen out of or in the course of employment;
(d)     the injuries sustained in the motor vehicle accident on 27 July 2012 had no real and substantial connection to Ms Bina’s employment (s 10(3A) of the 1987 Act);
(e)     that Ms Bina was not incapacitated as alleged (s 33 of the 1987 Act), and
(f)      liability for medical and related expenses was denied (s 60 of the 1987 Act).
On 19 October 2012, Ms Bina lodged an Application to Resolve a Dispute in the Commission. She sought an order for the payment of weekly compensation from 27 July 2012 to date and continuing and medical expenses as a result of injuries to the neck, back, left shoulder, left elbow and left arm, chest injuries, injuries to both knees and shock as a result of the motor vehicle accident on 27 July 2012.
On 13 November 2012, ISS lodged a Reply to the Application. It denied liability for the reasons identified in the s 74 notice.
The dispute was referred to a Commission Arbitrator, Mr P Sweeney. Mr Sweeney directed that the parties file written submissions. Having regard to the documents lodged by the parties and the written submissions received the Arbitrator dealt with the Application ‘on the papers’.
On 17 September 2013 the Arbitrator issued a Certificate of Determination and a Statement of Reasons. He found against Ms Bina and entered an award for the respondent. The Arbitrator was not satisfied that the injury arose out of Ms Bina’s employment, and was not satisfied that there was a real and substantial connection between the employment and Ms Bina’s accident or indeed any connection.
Ms Bina appeals the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can proceed ‘on the papers’.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute that the threshold requirements as to quantum and time as found in the provisions of subsections 352(3) and 352(4) of the 1998 Act have been met.

MS BINA’S EVIDENCE

There is no controversy about the facts giving rise to this appeal.
Ms Bina commenced work as a cleaner at the school on 2 March 2010. She had been working as a cleaner for ISS or its corporate predecessors since 2002 or 2003. When she was initially employed she was asked on her employment application whether she held a driver’s licence.
Ms Bina’s normal hours of work were from 5.30 am-8.00 am and then from 3.00 pm-6.30 pm Monday to Friday. Ms Bina stated it was necessary for her to drive to and from work because of the early starting time and the split shift. Additionally there was no train station near the school and there was no direct bus service between her home and the school.
Ms Bina’s practice was to drive to work every day to commence work at 5.30 am and then to drive home from work, leaving work at around 8.00 am. She would return from her home to commence the afternoon shift at about 3.00 pm. Every day she followed the same route between her home and the school.
On 27 July 2012 after completing the morning shift Ms Bina was proceeding on her normal route home when she was involved in the motor vehicle collision.
Notwithstanding its initial denial at the arbitration, ISS did not dispute that Ms Bina was incapacitated as a result of her injuries.

THE LEGISLATION

Section 10 of the 1987 Act provides:
“10   Journey claims
(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.
(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.
(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport Act 2013), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.
(1C) (Repealed)
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
(2)    Subsection (1) does not apply if:
(a)  the injury was received during or after any interruption of, or deviation from, any such journey, and
(b)  the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,
unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(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,
(b)  the daily or other periodic journeys between the worker’s place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to attend,
(c)  a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,
(d)  a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3),
(e)  a journey between any camp or place:
(i)  where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or
(ii)  where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment,
and the worker’s place of abode when not so residing,
(f)  a journey between the worker’s place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act,
(g)  a journey between the worker’s place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money:
(i)  due to the worker under the terms of his or her employment, and
(ii)  which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the 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.
(4)    For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.
(5)    For the purposes of this section, if the worker is journeying from the worker’s place of employment with one employer to the worker’s place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer.
(5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.
(6)    In this section:
educational institution means:
(a)  a trade, technical or other training school, or
(b)  a university or other college or school providing secondary or tertiary education.
night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker’s employment.
place of abode includes:
(a)  the place where the worker has spent the night preceding a journey and from which the worker is journeying, and
(b)  the place to which the worker is journeying with the intention of there spending the night following a journey.”
Section 10(3A) was introduced into the 1987 Act by the Workers Compensation Legislation Amendment Act 2012. It applies to injuries received on or after 19 June 2012 and therefore applies to Ms Bina’s injury.

THE ARBITRATOR’S REASONS

The Arbitrator’s analysis commenced with the acknowledgment that Ms Bina was undoubtedly on a daily or periodic journey between her place of employment and place of abode as those terms are used in s 10 of the 1987 Act at the time of her injury.
At the arbitration, Ms Bina submitted that at the time the injury was sustained she was in the course of a journey which arose out of her employment because its sole purpose was to convey her between her place of work and her home, thus it was unnecessary to invoke the provisions of s 10 in order to establish an entitlement to compensation. The Arbitrator rejected that approach. He found that it was beyond doubt that the phrase “arising out of employment” requires a causal connection with the employment. Causation is a question of fact and considerations of whether the particular job caused or to some material extent contributed to the injury should be applied: Nunan v Cockatoo Docks & Engineering Co Ltd (1941) SR (NSW) 119 at 214; Zinc Corporation v Scarce (1995) 12 NSWCCR 556 (Zinc Corporation) and March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 considered.
The Arbitrator considered some of the older English authorities concerned with ascertaining whether an injury arises out of the employment. He then traced the historical background to s 4 of the 1987 Act noting that prior to the amendment of the Workers Compensation Act 1926 (the 1926 Act) in 1942, compensation was only payable to a worker who had suffered an injury arising out of and in the course of his employment. The Arbitrator noted that the case law in both England and Australia held that an injury sustained during a journey between a worker’s home and place of employment did not arise in the course of a worker’s employment, which was sufficient to defeat a claim where both a temporal and causal connection with employment was required.
The Arbitrator noted that in 1942, the 1926 Act was amended so that compensation was payable for an injury arising out of or in the course of employment.
The Arbitrator acknowledged the absence of any appellate authority since 1942 which addresses the issue of whether an injury on a statutory journey may also be said to arise out of the employment. He made reference to Flanagan v Great Northern Wool Dumping and Stevedoring Co Pty Ltd [1949] WCR 42 (Flanagan), where the New South Wales Court of Appeal held that a worker who sustained an injury whilst riding a bicycle to obtain a meal in a one hour break between a double shift did not suffer an injury in the course of or arising out of the employment.
A decade later in Jones v Rex Aluminium Co. Pty Ltd [1957] SR (NSW) 631, Wall J found that an injury sustained by a worker on a journey from his home to his place of employment to collect wages arose out of his employment.
In a more recent decision of Judge Neilson in the Compensation Court of New South Wales in Smith v Brown (1998) 16 NSWCCR 492 his Honour found that the worker had been encouraged by his employer to travel with a work mate between work and home. Accordingly, the journey was a specifically designated incident of employment.
Having considered the authorities and the current legislative provisions, the Arbitrator concluded that it was not open to him to hold that an injury on a journey, between a worker’s place of abode and place of employment, arises out of employment unless there is some greater connection with the employment than having to get to and from that place of employment.
The Arbitrator made the point that if a journey injury arose out of the employment it would have been unnecessary for the legislature to enact provisions whereby an injury on such a journey was to be treated or deemed an injury arising out of the employment.
The Arbitrator noted that his conclusion was consistent with the recent Court of Appeal decision in Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324.
The Arbitrator concluded that there was no causal connection between the applicant’s employment and the injuries sustained on a journey to her home. He rejected Ms Bina’s submission that the fact of being injured during the course of such a journey established a causal connection between her injury and the activities of or incidental to her employment. The Arbitrator added that the obligations of her contract of employment did not expose her to injury at the intersection of Polding Street and The Horsley Drive where the accident occurred. Therefore, it could not be said that the employment brought her to the locus of the injury and, in that sense, caused her injury.
The Arbitrator also rejected Ms Bina’s submission that the absence of a convenient bus or rail service to convey her between her home and place of employment demonstrated a causal connection between the injury and her employment. Nor was the fact that she was required to work a split shift causative of her injury.
The Arbitrator then turned to a consideration of subsection 10(3A).
The Arbitrator observed that by the operation of subsection 10(3A) an injury on a journey between a worker’s place of abode and place of employment will only be deemed to arise out of or in the course of the employment if there is a real and substantial connection between the employment and the accident or incident giving rise to the personal injury. The Arbitrator adopted the analysis of that subsection in Mitchell v Newcastle Permanent Building Society Limited [2013] NSWWCC 371 (Mitchell No 1). That decision was the subject of an appeal in Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 (Mitchell No 2). In the appeal proceeding Deputy President O’Grady confirmed the Arbitrator’s determination in Mitchell No 1.
The Arbitrator agreed that the meaning of the phrase “real and substantial connection with employment” can be found by reference to judicial explanation of the same words in other sections of the legislation. He accepted that a substantial connection is one that is “of substance”, and that the “employment” is the activities of, or incidental to the employment as opposed to the fact of being employed: Badawi v Nexon AsiaPacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 (Badawi).
The Arbitrator concluded that the mere fact that a worker must travel to or from work is insufficient to establish a real and substantial connection between her employment and the accident/incident. There must be some relationship between the activities of the employment and the accident/incident.
Approached in a different way, the Arbitrator concluded that if the mere fact that a worker was travelling to or from his place of employment at the time of an accident was sufficient to establish a real and substantial connection between the employment and the accident subsection 10(3A) would be otiose. As a matter of statutory construction, effect must be given to all words of an Act: Wilsonv State Rail Authority of New South Wales [2010] NSWCA 198.
The Arbitrator rejected both parties’ submission that the Commission might be assisted in its interpretation of s 10(3A) by case law interpreting s 30 of the South Australian Workers Rehabilitation and Compensation Act 1986 which is in very similar terms to s 10(3A). The Arbitrator acknowledged the legitimacy of such a consideration in the event of ambiguity. However he concluded that if the approach he adopted from the decision in Mitchell No 1 is correct there is no ambiguity in the words of s 10(3A) hence it was unnecessary to resort to extrinsic materials: Harrison v Melhem [2008] NSWCA 67 (Melhem). The Arbitrator acknowledged that there will from time to time be factual difficulties in applying the terms of the legislation but he did not accept that there was any difficulty in terms of statutory interpretation.
The Arbitrator rejected Ms Bina’s submission that the test imposed by s 10(3A) is less stringent than the test of causation contained in s 9A.
The Arbitrator’s ultimate conclusion was that there was no connection between the applicant’s employment and the injuries she sustained in the motor vehicle accident in a private vehicle on her way home from work. The particular matters relied upon by Ms Bina to establish a connection with her employment were the same as those on which she relied to prove that her injury arose out of her employment. These included the unavailability of public transport and the fact that she was required to work a split shift. Neither factor however was a connection with the activities of her employment in her particular job. Accordingly the application failed.

ISSUES ON APPEAL

There are two principal issues on appeal:
(a) whether the subject accident arose out of Ms Bina’s employment with ISS, and
(b) whether there was a real and substantial connection between the subject accident and Ms Bina’s employment.

DID THE INJURY ARISE OUT OF THE EMPLOYMENT – SECTION 4?

Ms Bina’s submissions

Mr Wright, solicitor, on behalf of Ms Bina submitted that the Arbitrator erred by holding that a causal connection between the employment and the injury is required without explaining or determining the nature of the causal connection.
In Zinc Corporation Clark JA stated (at 571) that the test of causation posed by the words “arising out of” was “that the fact of his being employed in the particular job caused, or to some material extent contributed to the injury – should be applied”. This is the test Mr Wright submitted should be applied. If that is the correct test then a material contribution will suffice to satisfy the test of causation. He submitted that the Arbitrator’s error is that he did not address “this aspect of the test”.
Further it is submitted that a causal relationship with employment does not connote direct or physical causation: Smith v The Australian Woollen Mills Limited (1933) 50 CLR 504 (Smith). The test in the circumstances is whether the fact of being employed in a particular job contributed to some extent to the injury and that direct or physical causation is not required.
Mr Wright submitted that when the Arbitrator concluded that some greater connection with the employment was required, more than just having to get to or from the place of employment, the Arbitrator failed to consider other relevant factors, for example, the fact that Ms Bina was working on a split shift which required her to travel to and from work twice each day, that she was working at a public school which was not the premises of her employer, that she was required to return home and not stay at the school between shifts, and that she was obliged to use her own transport were not considered. Further, it was submitted that the Arbitrator erred by posing the question as to why the journey provisions would have been enacted at all if such injuries were already provided for as arising out of the employment.

ISS submissions

ISS submit that the Arbitrator correctly identified and applied the test for determining whether Ms Bina’s injury arose out of her employment for the purposes of s 4 of the 1987 Act. It submits that the Arbitrator provided an extensive explanation of the nature and extent of the causal connection required to satisfy the test of “injury” for the purposes of s 4 of the 1987 Act.
Relying on the decision in Flanagan, which also involved a worker injured during a “split shift”, the Arbitrator held that merely traveling to or from work from the worker’s home would not “without some additional or special factor, or added circumstance” satisfy the causal connection required by s 4.
The Arbitrator was correct to hold that the “additional or special factor” or “additional circumstance” required to properly characterise an injury sustained by the worker on a journey as one “arising out of the employment” (and thereby establishing the causal connection required by s 4) is to be found by considering whether the journey the worker was on at the time he or she was injured was incidental to their employment, including whether the purpose of the journey was to perform activities they were obliged to perform under their contract of service/employment.
Ms Bina submitted that the test of causation will be satisfied if the employment materially contributes to the injury (Zinc Corporation). The alleged error is that the Arbitrator failed to take into consideration factors that Mrs Bina submits materially contributed to her injury. These factors included the requirement to work the split shift, that she worked at a school where she was not permitted to stay between shifts and that she was required to use her own transport to travel to and from home. The Arbitrator dealt with her submission by stating that whether or not there was a material contribution between the applicant’s employment and her injuries depended on the activities being performed at the time of the injury and whether they were incidental to the employment including whether the applicant was performing activities required by her contract of employment.
The Arbitrator did consider the factors referred to by Ms Bina at [45] of his Reasons but rejected them as a basis for concluding that there was a causal relationship between the injury and the employment.

Discussion and findings

This appeal is brought pursuant to s 352 of the 1998 Act. An appeal pursuant to this section is limited to a determination of whether the decision appealed against was or was not affected by an error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or a new hearing (s 352(5)).
As the Arbitrator noted, the effect of s 10 of the 1987 Act is to deem a personal injury received by a worker on any journey to which the section applies, to have arisen out of or in the course of employment.
The argument before the Arbitrator proceeded, in part, on the basis that it was unnecessary for Ms Bina to invoke s 10 as her injuries fell within the definition “injury” in the 1987 Act as they arose out of her employment within the meaning of s 4 of the 1987 Act.
Mr Wright submitted that the Arbitrator’s error was to hold that a causal connection between the employment and the injury is required. He submitted that the correct test is that it is sufficient that the employment materially contributes to the injury. I reject that submission for the reasons stated below.
The Arbitrator was correct to observe that it is beyond dispute that the phrase “arising out of the employment” requires a causal connection with the employment.
In Zinc Corporation, Clarke JA held (at 570F):
“[i]t is now well established at common law that the test of causation is a common sense one. Any controversy on the question has been laid to rest by the decision of the High Court in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. What needs to be established is that the event which is sought to be linked with injury ‘was so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as the cause of it’ (see Halverson Boats Pty Ltd v Robinson (1993) 31 NSWLR at 7). The question is, of course, a question of fact which ‘must be determined by applying common sense to the facts of each particular case’ (see March at 15). In my opinion, there is no reason to adopt a different approach in relation to the test of causation posed by the words ‘arising out of’. The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of the employment.”
More recently, in Badawi Allsop P, Beazley JA (as her Honour then was) and McColl JA confirmed (at 79) that the necessity for there to be a causal element between the employment and the injury in determining whether a worker sustained injury arising out of the employment has been consistently confirmed by the High Court and the Court of Appeal: see Tarry v Warringah Shire Council [1974] 48 WCR 1; South Maitland Railways v James (1943) 67 CLR 496; Weston v GreatBoulderGoldMinesLtd [1964] HCA 59; 112 CLR 30 and KavanaghvCommonwealth [1960] HCA 25; 103 CLR 547.
Mr Wright further submitted that a causal relationship with the employment does not connote a direct or physical causation: Smith. That may be accepted, but that does not fully encapsulate the proposition as enunciated by Starke J in Smith. His Honour formulated the proposition at 517-518 in the following terms:
“The decisions upon the Workers’ Compensation Acts are numerous, but the following propositions have, I think, been established:-
1.The expression ‘arising out of’ imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do – out of his service (Stewart v Metropolitan Water, Sewage and Drainage Board and the cases there cited).
2.An injury does not cease to arise out of the employment because its remote cause is the idiopathic condition of the injured man. The idiopathic condition must be disassociated from other facts (Wicks v Dowell & Co.);
3.An injury which arises directly out of the circumstances encountered because to encounter them falls within the scope of employment is an injury rising 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 (Upton v Great Central Railway Co; Brooker v Thomas Borthwick & Sons (Aus.) Ltd” (citations omitted)
The decision in Smith gives Ms Bina no support. Her injury did not arise out of her employment, that is, it was not caused by some aspect of her employment. It was not part of her employment to “hazard, to suffer, or to do that which caused her injury”. She was merely driving home from work.
The test in relation to causation discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang) makes it clear that the issue of causation is a question of fact. What is required is a commonsense evaluation of the causal chain. The test is not the proximate cause test or the “but for” test. Therefore, as the Arbitrator held, it is not open to find that “but for” her employment Ms Bina would not have been driving at the location where the accident occurred and therefore the accident in that sense arose out of the employment. That finding was correct.
The Arbitrator’s Reasons establish that he identified and applied the correct causal connection test to his consideration of whether the injuries sustained by Ms Bina during the journey between her place of work and her home arose out of her employment. He concluded (at [44]) that the mere fact that a worker must travel to or from work, of itself, does not establish a causal connection between her injury and the activities of, or incidental to, her employment. In the present case, there is no causal relationship between Ms Bina’s employment and her injury. For the reasons given, I am satisfied that the Arbitrator identified and applied the correct test.
The Arbitrator’s Reasons at [44] and [45], demonstrate that, having determined the test to be applied, he concluded that the fact that the worker was returning home after a morning shift does not, in itself, establish any causal connection between her injury and the activities of or incidental to her employment. He further concluded that the obligation under her contract of employment did not expose her to injury at the intersection of Polding Street and The Horsley Drive where the accident occurred. Therefore, it could not be said that the employment brought her to the locus of the injury and, in that sense, caused her injury. For the reasons given above that conclusion is correct.
The Arbitrator considered but rejected the submission that the absence of convenient public transport between the applicant’s home and her place of employment demonstrated a causal connection. He expressly considered the requirements to work a split shift, but again concluded that this feature of Ms Bina’s employment was not causative of the injury. The Arbitrator expressly made reference to the fact that the worker was required to make two journeys to and from work each day, again concluding that it said nothing of the causal relationship between each journey and the employment. These findings were open and disclose no error. The lack of public transport and the split shift were merely background facts, which played no material role in causing Ms Bina’s injury.
It follows that Mr Wright’s complaints that the Arbitrator failed to take into account relevant facts and apply them to the legal principles must fail. The Arbitrator considered, consistent with Smith, whether it was any part of Ms Bina’s employment to hazard, to suffer, or to do that which caused her injury, and answered that question in the negative. The conclusion discloses no error.
It is true that the Arbitrator made no express reference to the fact that the worker had been contracted to work at the school which was not her employer’s premises. However, it can be inferred from the Arbitrator’s decision as a whole that he was aware of that fact. At paragraph [10] of his Reasons, the Arbitrator traced the applicant’s evidence in relation to her employment by various entities concluding with ISS but noting that at all relevant times she worked as a cleaner at the school since 2002 or 2003. In my view, the location of Ms Bina’s employer’s headquarters is irrelevant to the issues in this appeal. For all relevant purposes she worked at the school on a daily basis and had done so for some 10 years or so prior to sustaining the injuries complained of. The school was for all relevant purposes her place of employment.
I reject Mr Wright’s submission that the Arbitrator erred by posing the rhetorical question at [35] and [39] of Reasons, namely, why would the journey provisions have been enacted if injuries such as those sustained by Ms Bina were already provided for if they satisfied the provisions for injuries arising out of or in the course of employment? The Arbitrator was correct to observe that if injuries sustained during the course of a journey to or from work arose out of the employment, there would have been no need to enact the journey provisions and those provisions would be superfluous.
It is a well-recognised principle of statutory construction that courts are not at liberty to consider any word or sentence as superfluous or insignificant. All words must prima facie be given some meaning and effect: Commonwealth v Baume [1905] HCA 11; 2 CLR 405 at 414, cited with approval in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 510 (Project Blue Sky). By posing the rhetorical question the Arbitrator was doing no more than acknowledging that the express statutory provisions in s 10 must be given meaning and effect.
For these reasons, the Arbitrator’s conclusion that Ms Bina’s injury did not arise out of the course of her employment, does not disclose any error.

REAL AND SUBSTANTIAL CONNECTION BETWEEN THE EMPLOYMENT AND THE INJURY – SECTION 10(3A)

Ms Bina’s submissions

It is submitted that the Arbitrator erred by considering the component parts of the expression “real and substantial connection with employment” rather than by reference to the expression as a whole.
The meaning to be given to s 10(3A) cannot be ascertained by reference to the second reading speeches as the subsection was the subject of subsequent amendment said to be an amendment to “protect” workers with respect to journey claims. On that basis it is submitted that s 10(3A) should be given an “expansive interpretation”.
Mr Wright cautioned against reliance on cases involving a discussion of the meaning of “real and substantial connection” as it appears in s 30 of the South Australian Workers Rehabilitation and Compensation Act 1986 by reason of the fact that the South Australian legislation commences from the presumption that a journey accident does not of itself establish a sufficient connection whereas no such presumption is expressed in the New South Wales legislation.
In the event that recourse is had to the cases interpreting the South Australian legislation then consideration should be given to the decision of Doyle CJ in TransAdelaide v Karanicos (1996) SASC 5536 (Karanicos). In that case Doyle CJ stated at [22]:
“The test is to be applied in a liberal and practical manner. The enquiry is not restricted to those things which a worker is literally or specifically required to do. The concept of ‘duties of employment’ in my opinion extends beyond things which the employee is obliged to do. I also consider that one is entitled to and obliged to take into account any contemporary conditions and contemporary understandings of the concept of duties of employment.”
Further the sufficiency of the connection between the employment and the thing done by the employee remains a matter of degree in which time, place and circumstances, as well as practice, must be considered together with the conditions of employment: Whittingham v Commissioner of Railways (WA) [1931] HCA 49; 46 CLR 22 at 29.
Some assistance can be gained as to the meaning of the phrase “real and substantial connection” from cases such as Phillips v Commissioner for Superannuation [2005] FCAFC 2 at 44 (Phillips), where in the context of the application of the Superannuation Legislation Amendment Act 1990 (Cth), a real and substantial connection between a condition certified in a Benefit Classification Certificate and the ultimate condition, that caused or substantially contributed to the incapacity, did not involve a causative element.
Mr Wright submitted that the test of “a real and substantial connection” in the 1987 Act does not require any causal relationship between the employment and the accident.
The judicial approach to the interpretation of the subject phrase has been “piecemeal” and of no assistance in terms of consistency and whether an expansive or restrictive approach should be adopted.
Guidance can be found from the Canadian approach. The Supreme Court of Canada has recently provided a list of presumptive connecting factors for the test of “a real and substantial connection” in the context of personal injury tort cases in Club Resorts Ltd v Van Breda [2012] 1 SCR 572 (Van Breda).
There is a “logical difficulty” from the Arbitrator’s reasoning process. That is, a journey may have additional characteristics which result in it “arising out of” the employment, thereby giving the test “a reasonable [sic] and substantial connection” no work to do, with the effect that no journey is compensable. This outcome he submits is at odds with the “trajectory” through the Parliamentary process in that the test arises by reason of an amendment moved to ameliorate the intention to abolish all cover whilst on journeys to a more “protective” enactment. For this reason the approach to the construction of the provision should be expansive.
The following facts were not considered properly or at all by the Arbitrator when considering whether the accident amounted to more than the mere fact of the journey:
(a)     the split shift;
(b)     Ms Bina worked at a public school. While it was her place of work it was the place where her employer provided contract cleaning services to the school, which is not her employer;
(c)     Ms Bina was obliged to return home at the end of the morning shift and not to stay at the public school;
(d)     on such return home at the end of the shift Ms Bina was obliged to use her own transport with a view to returning to the school to recommence work on the same day, and
(e)     Ms Bina was at a location of the subject accident only by reason of her employment with the school. There was no other reason for her to be at that location at that time.
For the reasons given above, the Arbitrator was unable to properly identify the meaning of “a real and substantial connection” or in the alternative adopted an incorrect approach to identify the meaning of the phrase.
By characterising the accident as the mere fact of the journey Ms Bina is unable to identify whether the facts in her case were misapplied by the Arbitrator or whether the Arbitrator regarded any or all of the facts as being insufficient or irrelevant to the test. This she alleges was a denial of procedural fairness.

ISS submissions

The Arbitrator’s approach to determining the phrase “real and substantial connection between the employment and the accident”, as used in s 10(3A) by seeking to find meaning in the words “substantial’ and “employment” in other parts of the 1987 Act was correct. Ms Bina’s submission that the meaning of the phrase could be found by considering the use of the term in various contexts in other jurisdictions including the Supreme Court of Canada is neither necessary nor relevant.
The Arbitrator’s approach to interpreting s 10(3A) has recently been endorsed by Deputy President O’Grady in Mitchell No 2. In that case Deputy President O’Grady endorsed the approach adopted by Arbitrator Douglas in Mitchell No1, in that the meaning of the word “employment” as used in s 10(3A) should be the same meaning as applied in ss 4 and 9A of the 1987 Act, namely “…employment in s 10(3A) is not reference merely to the fact of a worker being employed but to the employment of a worker in the worker’s particular job” (at [63]).
In Mitchell No 2 the Deputy President (at [64]) also endorsed Arbitrator Douglas’s approach to the meaning of the word “substantial” as it appears in s 10(3A) by reference to s 9A, namely that the “real and substantial connection” requires that the relationship or association or link between the worker’s employment and the particular job and the accident or incident is actual and of substance. The link must be more than remote and tenuous.
It is submitted that the Arbitrator’s approach in this matter is consistent with the approach adopted by Arbitrator Douglas as endorsed by Deputy President O’Grady in Mitchell No 2.
The Arbitrator’s conclusion as to the construction of the legislation is correct, adopting the approach favoured in Mitchell, no ambiguity arises in the application of the words of s 10(3A) and therefore it is unnecessary to resort to extrinsic materials to discover its meaning: Melhem.
The Arbitrator’s construction of the terms of s 10(3A) was correct and it was open for him to find on the evidence as he did that there was no real and substantial connection between Ms Bina’s employment and the accident in which she was involved.
The submission that the Arbitrator failed to properly consider, or at all, facts including that the worker worked a split shift, that she worked at a public school, was required to return home between shifts and was required to use her own transport to travel to and from work is not correct. The Arbitrator gave due consideration to each of these factors at [45] of his determination.
The Arbitrator correctly identified and applied the test as to the meaning of “a real and substantial connection”. Ms Bina has made no submission or pointed to any other matter that supports her submission that she was denied procedural fairness. Accordingly the appeal should be dismissed.

Discussion and findings

Approach to statutory construction

As a general principle of statutory construction, legislation is to be read according to the plain ordinary and natural meaning of its words, having regard to the context and purpose of the particular provision.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan), his Honour the Chief Justice stated at [4]:
“The starting point ... is the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose. That proposition accords with the approach to construction characterised by Gaudron J in Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 340 as:
‘dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.’
In so saying, it must be accepted that context and legislative purpose will cast light upon the sense in which the words of the statute are to be read. Context is here used in a wide sense referable, inter alia, to the existing state of the law and the mischief which the statute was intended to remedy.”
In OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155, Allsop P (as his Honour then was) Basten JA and Handley agreeing, held at [3] and [32], that the correct approach to statutory construction is not to take individual words in isolation and ask whether each is used in its ordinary meaning, but to address the structure of the provision as a whole.
In Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 Beazley ACJ (as her Honour then was, Sackville AJA and Preston CJ of the LEC agreeing) said at [65]:
“The primary task of the Court in determining the proper construction of a statute is to determine the meaning of the provision ‘by reference to the language of the instrument viewed as a whole’: see Cooper Brooker (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 320; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]. In Project Blue Sky the plurality stated, at [78], ‘the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’. The context and purpose of the legislation are involved in this task.”
Mr Wright submits that the Arbitrator’s error was to consider the expression “real and substantial connection with employment” by its constituent parts rather than by reference to the expression as a whole. There is some merit in this submission. DC Pearce and RS Geddes, the authors of Statutory Interpretation in Australia 7^th edition, note at 3.30:
“Somerville LJ in Lee v The Showman’s Guild of Great Britain [1952] 2 QB329 at 339; [1952] 1 All ER 1175 at 1178 counselled that care must be taken when considering a compound expression not to look up the meaning of each word and from that construct the meaning of a phrase which may, in fact, have acquired a special meaning.”
Support for Mr Wright’s submission can also be found from the recent decision of the Full Court of the Federal Court in Sea Shepherd Australia Limited v Commissioner of Taxation [2013] FCAFC 68, where Gordon J (Besanko J agreeing) held at [34] that the principles of statutory construction may be summarised as follows:
“1. The task is to construe the language of the statute, not individual words: St George Bank Ltd v Federal Commissioner of Taxation[2009] FCAFC 62; (2009) 176 FCR 424 at [28]; see also XYZ v Commonwealth[2006] HCA 25; (2006) 227 CLR 532 at [102]; R v Brown[1996] 1 AC 543 at 561 quoted in Agfa-Gevaert at 397 and Metropolitan Gas Co v Federated Gas Employees’ Industrial Union[1925] HCA 5; (1924) 35 CLR 449 at 455.
2. The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision: Lorimer v Smail[1911] HCA 44; (1911) 12 CLR 504 at 508–10; R v Carter;Ex parte Kisch[1934] HCA 50; (1934) 52 CLR 221; Biga Nominees Pty Ltd v Commissioner of Taxation(1991) 104 FLR 74 at 85–6. Indeed, it is rare that resort to a dictionary will be of assistance in searching for the legal meaning of a provision in a statute: R v Campbell[2008] NSWCCA 214; (2008) 73 NSWLR 272 at [49].
3. As Gleeson CJ said in XYZ v Commonwealth at [19]:
‘There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts.’
See also General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax[1982] 2 NSWLR 52 referred to by Gleeson CJ where Lord Wilberforce remarked, in the course of argument, that an Australian who looked up the words ‘commission’ and ‘agent’ in a dictionary would probably be surprised to be told that, in England, a commission agent is a bookmaker.
4. The text of the provision is to be construed according to the context ‘by reference to the language of the instrument viewed as a whole’: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].”
In other words, every passage in a document must be read as part of the whole instrument. Therefore, the word by word dictionary analysis in Mitchell is not the preferred approach to statutory interpretation. However, for reasons I shall come to, I do not consider that the adoption of the Mitchell approach makes any difference to the result in the present case, or in Mitchell itself.

Section 10(3A)

I do not accept the submission that additional guidance may be gained from the discussion in Phillips in terms of whether satisfaction of the provisions of s 10(3A) involves a causative element. Phillips was concerned with the application of s 66(2) of the Superannuation Act 1976 (Cth) which provided that certain superannuation benefits may be reduced where:
“(a) …
(b) there was in force in respect of the person, immediately before the person's

retirement, a benefit classification certificate; and
(c) CSC [the Commissioner] is of the opinion that the incapacity which was the ground for his retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions...” (emphasis added)
Considering s 66(2), in Phillips the Federal Court said (at 44):
“The primary Judge specifically addressed the issue of the correct test to be applied (at [39]), citing Benham, [Commissioner for Superannuation v Benham (1989) 22 FCR 413] where it was stated that there must be a ‘real and substantial connection between the certified condition and the condition that caused or substantially contributed to the incapacity’. As the primary Judge observed, the test in Benham does not require any causal relationship between the two conditions and we agree that this is the correct approach (c.f. Commissioner of Superannuation v Miller[1985] FCA 445; (1985) 8 FCR 153).”
The word “connection” is wide and imprecise (Australian National Railways Commission v Collector of Customs (SA) [1985] FCA 312; 69 ALR 367). The phrase “in connection with” has been held, in an entirely different context to the one before me, to be capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote (Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 115 ALR 1).
Considering the whole of the relevant phrase in s 10(3A), and the provision as a whole, and interpreting it so that it works in harmony with the other provisions of the Act, (see [112]-[114] below) the Arbitrator’s analysis was correct, and is not inconsistent with Benham or Phillips. Section 10(3A) talks about a real and substantial connection with the employment. The mere fact that the worker was driving to and from work does not provide that connection. However, for the worker to succeed, he or she does not have to prove that the accident was caused by the employment. If the employment caused the accident then, depending on the circumstances, there is every likelihood that the accident arose out of the employment, and there will be no need to rely on the journey provisions.
The Arbitrator expressed no concluded view on whether satisfaction of s 10(3A) involves a causative element. He merely observed at [53] of his Reasons that the test in s 9A involves a test of causation of injury, whereas, the word “connection” in s 10(3A), may, but does not necessarily, convey the notion of a causal relationship. I agree.

The Parliamentary debates

I accept Mr Wright’s submission that recourse to the Parliamentary debates is of little assistance in illuminating the meaning of the expression “real and substantial connection”. It is, however, disingenuous to submit on one hand that the Parliamentary debates are of no assistance, yet on the other hand to seek to rely on them to support the submission that the debates add weight to a submission that s 10(3A) should be given an expansive interpretation.
In the second reading speech, introducing the amendments to s 10 of the 1987 Act, on 20 June 2012, the Minister for Finance and Services, Mr Pearce, said:
“proposed amendments to section 10 of the Workers Compensation Act mean that journey claims will no longer be covered by the New South Wales workers compensation scheme consistent with the position in many other Australian jurisdictions. While workers who travel for work will still be covered by the statute, employees [sic, 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 final terms of s 10(3A) resulted from an amendment moved by the Hon F Nile, in the Legislative Council, later on 21 June 2012, who said:
“[h]owever, whilst supporting the legislation I foreshadow that we will move amendment in committee to ensure that the legislation protects workers in their journeys to and from their workplace where there is a real and substantial connection between the worker’s employment and an accident or incident causing injury…They are based on the current South Australian legislation, which protects workers in their journeys to and from the workplace where there is a real and substantial connection between the worker’s employment and an accident or incident giving rise to the injury.”
During the course of the debate there was no further elucidation of what was meant by the phrase “a real and substantial connection”. It may be accepted that the amendment moved by the Hon F Nile was intended to ameliorate a provision which would otherwise have extinguished all rights to receive compensation in respect of injuries sustained in the course of a periodic journey. However, I see no warrant to conclude that the use of the word “protects” in the course of the parliamentary debate supports or justifies the provision under consideration being given an “expansive interpretation” as submitted by Mr Wright. I have found the Parliamentary debates of no assistance in interpreting the section. It is the words of the legislation that must be construed.

The position in South Australia

Mr Wright submitted that Ms Bina “restated her objection” to reliance on the interpretation of s 30 of the South Australian Workers Rehabilitation and Compensation Act 1986, which is couched in similar but not identical terms to s 10(3A) of the 1987 Act.
He argued, however, that if reliance is placed on the interpretation of the South Australian legislation then regard should be had to the observations of Doyle CJ in Karanicos. The difficulty with this submission is twofold. First, as Mr Wright conceded, the Arbitrator’s decision did not turn on a consideration of the jurisprudence concerning the South Australian legislation. Second, the passage from Doyle CJ’s decision relied on by Mr Wright, which is extracted at [73] of this decision, involved a discussion concerning whether the worker was “in the course of carrying out the duties of her employment” at the time the injury was sustained. In terms of his consideration of the connection between the worker’s injury and her employment Doyle CJ said at [31]:
“[i]n my opinion those bare facts cannot constitute a real and substantial connection as required by the section, whatever that may mean. The meaning of that expression will, no doubt, confront the Court in a later case.”
It follows that the decision in Karanicos provides Ms Bina with no assistance.
In The Stateof South Australia v Brophy (1997) 68 SASR 97 Doyle CJ (Bollen and Duggan JJ agreeing) found that a police officer failed to establish a real and substantial connection between his employment and the accident in circumstances where the police officer was in uniform riding a police motorcycle during the course of a journey between his place of employment and his place of abode. The Court held that even though the police officer had his radio on, which he was monitoring, and was available to respond if called upon to do so, he was not in fact doing so at the time of the accident. Doyle CJ, applying a “common sense and practical” (emphasis added) approach, concluded that the requirements of s 30(5)(b) of the Workers Rehabilitation and Compensation Act 1986 had not been met. The Court did not offer any further elucidation as to the precise meaning to be given to the phrase “real and substantial connection”.
For the above reasons, I agree with Mr Wright’s submission that the South Australian decisions are of little assistance in terms of providing any general principles.

The position in Canada

I also find that the discussion in relation to the meaning of “a real and substantial connection” in the context of a tort for personal injuries suffered by Canadian tourists at a resort in Canada as discussed in the Canadian case of Van Breda, of little assistance in determining the issues before me. That case turned on the elaboration of what was described as the “real and substantial connection” test for determining jurisdiction of the Canadian Courts. The presumptive factors to which Mr Wright referred concerned the questions, for example, of where the defendant was domiciled, where he carried on business, where he entered into the contract to determine whether the tort was committed within the jurisdiction. These presumptive factors are of course of no relevance to the issues before me.

Conclusions and application

The Arbitrator’s essential conclusions, with which I agree, may be summarised as follows:
(a)that a substantial connection is one “of substance” (Badawi at [82]-[83], [107]);
(b)that “employment” in s 10(3A) is the same as in s 9A, that is, it is the activities of, or incidental to the employment, as opposed to the (mere) fact of being employed (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [11]);

(c)the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident - there must be some real relationship (connection) between the activities of the employment and the accident out of which the personal injury arose, and

(d)if merely travelling to and from work was sufficient to establish the relevant connection, s 10(3A) would be otiose.

Applying the rules of statutory construction, to which I have referred, it is important to construe s 10(3A) in a way that best achieves a harmonious result with the whole of the 1987 Act: Commissioner of Police v Eaton [2013] HCA 2 per Crennan, Kiefel and Bell JJ at [78], see also Project Blue Sky at [70].
To achieve a harmonious result and a consistent interpretation of the legislation as a whole in the instant case, I agree it is appropriate to consider, as the Arbitrator did, the meaning of “substantial connection” and “employment” by reference to the interpretation of those words in s 9A and s 4 of the 1987 Act, respectively. This interpretation follows not from a word by word analysis of the provision, but from “the ordinary and grammatical sense of the statutory words having regard to their context and legislative purpose”: Zanardo & Rodrigues Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 per Leeming JA, (Beazley P and Tobias AJA agreeing) at [37]. As already noted at [102] above this may involve a causal relationship between the employment and the accident, but that is not necessarily so.
Notwithstanding that “connection” is a wide and imprecise word and the phrase “in connection with” has in other contexts been held to cover the direct and immediate to the tenuous and remote (see [100] above), in the context of the 1987 Act as a whole, I do not accept Mr Wright’s interpretation. There was, in the circumstances of this case, no connection between Ms Bina’s accident and her employment, other than the fact that, at the time of the accident, she was driving home from her place of employment. That did not provide a real and substantial connection between her employment and the accident

I reject Mr Wright’s submission that there is a “logical difficulty” that a journey may have additional characteristics which result in it “arising out of” the employment, thereby giving the test “a real and substantial connection” no work to do, with the effect that no journey is compensable. That is not correct. It is not a question of whether the journey has arisen out of the employment, but whether there is a real and substantial connection between the employment and the accident out of which the injury arises. If the injury arose out of the employment (in the sense that as a matter of common sense it was caused by the employment) the worker may well have satisfied the “arising out of” test in s 4 without the need to rely on s 10. However, if the injury did not satisfy the arising out of test, it is possible, depending on the facts, that it may satisfy the s 10(3A) test.
It is therefore clear that s 10(3A) has work to do. Its purpose is found in the words used in the subsection, read in the context of the 1987 Act as a whole. In my view, the purpose of the provision is to ensure that injuries received in the circumstances provided for are injuries that are deemed to arise out of or in the course of employment and compensation is payable accordingly. The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.
I do not accept the submission that the Arbitrator failed to take into account relevant considerations when determining whether there was a real and substantial connection between the worker’s accident and her employment. The Arbitrator’s conclusions at [44] and [45] of his Reasons make it perfectly clear that he did not accept that the fact that Ms Bina was travelling home from work when the accident happened was sufficient (on its own) to satisfy the provisions of s 10(3A). There was no evidence before the Arbitrator that Ms Bina was required to travel home between shifts. It may reasonably be inferred that, as is usually the case when a worker finishes his or her work for the day, Ms Bina was free to spend the time between shifts as she pleased. The evidence merely established that it was her practice to travel home between shifts.
The Arbitrator considered but rejected the fact of a lack of convenient public transport, or that Ms Bina was working a split shift and making two journeys to and from work each day, were sufficient to bring her within the terms of provision. That finding was open and discloses no error.Therefore the submission that the Arbitrator’s Reasons fail to make clear which facts he took into consideration when applying the test in s 10(3A) cannot be sustained. It follows that the submission Ms Bina was denied procedural fairness must also be rejected.
Whether, and in what circumstances, s 10(3A) will be satisfied will be a question of fact, applying the words of the provision, in a commonsense and practical manner in each case (Doyle CJ in Brophy).
For these reasons, and for the reasons given by the Arbitrator, on the facts of this case it was open for him to conclude that at the time of the accident there was no real and substantial connection between Ms Bina’s employment and the accident out of which the personal injury arose. No error has been established and therefore the appeal must fail.

DECISION

The Arbitrator’s determination of 17 September 2013 is confirmed.

COSTS

No order as to costs of this appeal.

Judge Keating
President

19 December 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE