Bryan v Patrick Stevedores Holdings Pty Limited
[2021] NSWPIC 496
•2 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Bryan v Patrick Stevedores Holdings Pty Limited [2021] NSWPIC 496 |
| APPLICANT: | Stacey Rhys Bryan |
| RESPONDENT: | Patrick Stevedores Holdings Pty Limited |
| MEMBER: | Brett Batchelor |
| DATE OF DECISION: | 2 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant worker fell on a large concrete apron while in the course of his employment as a stevedore at the respondent’s container terminal at Port Botany; he suffered a serious injury to his right shoulder; the respondent denied liability on the basis that the applicant’s injury was not a substantial contributing factor to the injury sustained; in respect of the examples of matters to be taken into account for the purpose of determining whether the applicant’s employment with the respondent was a substantial contributing factor to injury, the applicant relied in particular on the examples in section 9A(2)(b) and (d) of the Workers Compensation Act 1987 (1987 Act), and on the decision of Arbitrator Peacock in Martine v State of New South Wales (Healthshare NSW) and Marrickville RSL Club Ltd v Mukesh; the respondent relied on what the High court said in Smith v Australian Woollen Mills Ltd; Held - finding that the applicant’s employment was a substantial contributing factor to injury; awards in favour of the applicant for weekly benefits and section 60 of the 1987 Act expenses. |
| DETERMINATIONS MADE: | 1. The applicant suffered injury to his right upper extremity on 14 January 2021 arising out of or in the course of his employment with the respondent. 2. The applicant’s employment with the respondent was a substantial contributing factor to such injury. 3. The respondent is to pay the applicant weekly benefits as follows: (a) $2,242.40 per week for the period from 15 January 2021 to 31 March 2021 pursuant to s 36 of the Workers Compensation Act 1987; (b) $2,254.60 per week for the period from 1 April 2021 to 17 April 2021 pursuant to s 36 of the Workers Compensation Act 1987, and (c) $2,059.80 per week from 18 April 2021 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987. 4. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987 in respect of injury to the right upper extremity on 14 January 2021. |
STATEMENT OF REASONS
BACKGROUND
Stacey Rhys Bryan (the applicant/Mr Bryan) claims weekly benefits and compensation for medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury on 14 January 2021 arising out of or in the course of his employment as a stevedore with Patrick Stevedores Holdings Pty Ltd (the respondent). On that day, Mr Bryan was operating a straddle crane, loading shipping containers onto the back of semi-trailer trucks at the respondent’s Port Botany premises.
At about 6.00 pm or 6.30 pm the applicant suffered a seizure and collapsed onto the concrete surface of the area where the trucks were being loaded, known as “ the Grid”, suffering a comminuted fracture and dislocation of the head of the right humerus. He was transported by ambulance to Prince of Wales Hospital where he received some treatment before transfer to St Vincent’s Private Hospital. Mr Bryan came under the care of Dr Timothy Yeoh, orthopaedic surgeon, who operated on his right shoulder on 15 January 2021. Mr Bryan has not returned to work and claims weekly benefits from 15 January 2021 to date and continuing.
0n 26 February 2021 the respondent’s insurer, icare, issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) to the applicant containing a denial of liability for his claim, asserting that the applicant’s employment was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease injury as required by s 4(b) of the 1987 Act, and also that such employment was not a substantial contributing factor to the right shoulder injury in accordance with s 9A of that Act.
The applicant was independently medically examined by Dr David Millons, orthopaedic surgeon, on 26 August 2021 who produced a report dated 27 August 2021. Dr Millons states in that report that the heavy fall onto the applicant’s right shoulder and impact on the concreted area where he was working was clearly the cause of the fracture-dislocation, and that if Mr Bryan had been working in another situation where there was some soft floor covering or if he had a fall onto a soft surface, he would not have sustained the damage that was demonstrated radiologically after the fall onto the concrete. Therefore the fall after the seizure must be considered to be a substantial contributing factor to Mr Bryan’s shoulder injury.
The proceedings were the subject of a telephone conference on 11 October 2021 at which the solicitor for the applicant stated that the applicant did not rely on the disease provisions of the 1987 Act in pursuing his claim.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) Was the applicant’s employment with the respondent a substantial contributing factor to the injury he sustained to his right arm and shoulder on 14 January 2021?
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.
The parties attended a conciliation/arbitration hearing on 29 October 2021 conducted via telephone conference at which Mr P Stockley of counsel appeared for the applicant briefed by Mr D Trainor. The applicant was in attendance. Mr G Young of counsel appeared for the respondent briefed by Ms E Curry. Representatives of the insurer also attended.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents (AALD) dated 3 November 2021 with State Insurance Regulatory Authority (SIRA) certificates of capacity covering the period from 11 March 2021 to 30 November 2021 attached.
Oral evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
The applicant’s case
There is no issue that Mr Bryan suffered the injury to his right shoulder on 14 January 2021 in the course of his employment with the respondent. The applicant asserts that his employment was a substantial contributing factor to such injury. The respondent denies this.
The applicant does not say the seizure he suffered that caused him to fall onto the Grid at the respondent’s premises was an injury or condition arising out of or in the course of his employment. This is made clear by the injury details in the ARD as follows:
“Applicant collapsed and fell onto concrete pavement following seizure. Applicant sustained injury to right shoulder and arm, including comminuted fracture and dislocation of the head of the right humerus.”
The applicant relies upon the fall, simpliciter, as the basis on which he is entitled to the weekly benefits and s 60 expenses particularised in the ARD.
SUBMISSIONS
The submissions of the parties were recorded, a transcript of which can be obtained on request. In summary, they are as follows.
Applicant
The applicant relies on two 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, as set out in s 9A(2) of the 1987 Act. These are in (b) and (d) of subs (2). In making this submission, the applicant acknowledges that the matters referred to in that subsection are examples only and not an exhaustive list of factors to be considered.
With reference to “the nature of the work performed and the particular tasks of that work,” (s 9A(2)(b)), the applicant points to the description of the work in which he was engaged on the day he was injured as set out in detail in his statement dated 21 September 2021[1]. There is no controversy about this, and it is corroborated by the statement of the applicant’s fellow worker, Shandi Cooper, dated 21 March 2021[2].
[1] ARD p 2.
[2] ARD p 6.
With reference to:
“the probability that the injury of 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 has not worked in that employment,”
(s 9A(2)(d)), the applicant concedes the possibility of him suffering an orthopaedic injury if he had suffered a seizure outside the workplace, but submits that it is far from probable that such an injury would have occurred.
The applicant submits that the assumed facts on which Dr Millons was asked to provide the answer summarised in [4] above are made out in his statement and the statement of Mr Cooper. There is no other evidence to the contrary of that stated by Dr Millons.
The applicant submits that the example in s 9A(2)(a) is relevant to his case and not in dispute, that examples in (c), (e) and (f) are not relevant, and concedes that the mere fact that he was injured in the course of his employment is insufficient to satisfy the substantial contributing factor test in the section (see subs (3)). Nevertheless, the applicant submits that his employment with the respondent on 14 January 2021 was a substantial contributing factor to his shoulder injury.
The applicant relies on the decision of Arbitrator Jane Peacock (as she then was) in Martine v State of New South Wales (Healthshare NSW)[3], a decision in favour of an applicant worker, based on facts which are very similar to those in his case. In making that submission, the applicant acknowledges that each case must depend on its own facts, and the Commission is not bound to follow Arbitrator Peacock’s decision. Nevertheless, her reasoning is apposite to his case.
[3] [2019] NSWWCC 237 (Martine).
Respondent
In opening its submissions the respondent notes that the applicant, in the presentation of his case, has chosen not to rely on the seizure that he suffered on 14 January 2021 as being causative of injury, and that therefore any award in his favour pursuant to s 60 of the 1987 Act can only be in respect of injury to the right shoulder.
The respondent submits that, relying in particular on the example provided in s 9A(2)(d) of the 1987 Act, there must be “a real and substantial connection” between the applicant’s employment and the injury he suffered before he can recover compensation. Leaving aside the seizure that Mr Bryan suffered, the simple fact that he fell and was injured in the course of his employment is not determinative of causation and insufficient for him to recover compensation.
The respondent submits that the probability that the applicant would have suffered the injury to his right shoulder or a similar injury anyway, at about the same time or at the same stage of his life, if he had not been at work or had not worked in the respondent’s employment, is high.
The respondent contrasts what Dr Millons says on p 7 of his report dated 27 August 2021[4] as to the causation of the applicant’s injury with what is recorded at [35] in Martine as to what Professor Kleineman said about the mechanism of injury to the worker, Mr Martine, in that case. In Martine there were features of the kerb onto which the worker fell which were held to be a substantial contributing factor to the injury suffered, which the respondent submits are absent from the situation in which Mr Bryan found himself when he fell onto the concrete surface of the Grid on 14 January 2021.
[4] ARD p 52.
The respondent then refers to the situation of the worker in the case of Marrickville RSL Club Ltd v Mukesh[5]. In that case Mr Mukesh was employed as a bartender by the appellant club. He suffered a serious injury to his left shoulder at work when he fell against a refrigerator. This fact was critical to providing the necessary causal link which enabled the Arbitrator at first instance, and Acting Deputy President Candy on appeal, to find that the employment of Mr Mukesh was a substantial contributing factor to the injury he sustained.
[5] [2006] NSWWCCPD 152 (Mukesh).
The respondent submits that the applicant in this case could have fallen on a hard surface at any other time and place, for example on a hard surface in the bathroom of his home, or on a driveway or footpath, and suffered an injury of the same or similar type to that which he suffered on 14 January 2021 at work.
This a critical weakness in the applicant’s case according to the respondent because he has abandoned reliance on the seizure he suffered as being causative of his injury. If the applicant had chosen to rely on the seizure in the proceedings, he could have called evidence from Professor Bruce Brew and Dr John O’Neill, both neurologists at St Vincent’s Hospital, in support of his case.
The respondent relies on what the High Court said in Smith v Australian Woollen Mills Ltd[6], a case involving a worker who fell against an object forming part of the plant at which he was working and was thereby physically injured. The Court had to decide if he received personal injury arising out of and in the course of his employment, thus entitling him to compensation under the New South Wales Workers' Compensation Act 1926.
[6] [1933] HCA 60; (1933) 50 CLR 540 (Smith).
The respondent submits that the facts in this case are distinguishable from the facts in both Mukesh and Martine. It submits that the probability of a fall onto a hard surface outside the workplace is far greater than one in the workplace. It submits that just because a surface is hard within a workplace, that does not amount to a link between employment and injury that is real and of substance.
Applicant in reply
The applicant submits that the focus should be on the particular work duties in which he was engaged on the day he was injured as well as the nature of his workplace where he was injured. This submission is consistent with the examples provided in s 9A(2)(b) and (d) of the 1987 Act, and sufficient to enable a finding that the employment of the applicant on 14 January 2021 was a substantial contributing factor to the injury he sustained on that day.
The applicant in submissions also provides precise details of the award of weekly benefits that he seeks from 15 January 2021 to date and continuing. For the period claimed until 17 April 2021 when compensation is payable in accordance with s 36 of the 1987 Act, these are capped in accordance with the statutory maximums provided for in s 34 of that Act. Thereafter, when any award in his favour would be pursuant to s 37, no such cap applies.
The respondent does not take issue with the mathematical calculations submitted by the applicant for any award for weekly benefits that is made in his favour.
FINDINGS AND REASONS
Section 9A of the 1987 Act
32. Section 9A of the 1987 Act is as follows:
“9A No compensation payable unless employment substantial contributing factor to injury
(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.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(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.”
In Mukesh, Acting Deputy President Candy said at [60], after dealing with evidence as to whether or not the worker suffered an epileptic seizure which caused him to fall and suffer injury:
“The Arbitrator found (at paragraph 42) that the worker fell behind the bar area hitting his shoulder on the bar fridge. This does not exclude the cause for the fall being a seizure of some sort. While such a seizure would not of itself be compensable because of section 9A, it may be otherwise where that seizure leads to a physical injury by contact with part of the premises where the worker is required to work. That is, it is possible, I think, to differentiate between the seizure and the injuries suffered as a result of a fall following that seizure. The employer may well argue that the seizure was the cause of the worker suffering injury. Consistent with authority, however, this does not exclude the fact that employment may still be a substantial contributing factor to the injury.”
In Martine, Arbitrator Peacock quoted that excerpt, then referred to the decision of the majority of the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd[7] where at [82] it dealt with the meaning of the word “substantial”. The Court reviewed the authorities of Bulga Coal Management Pty Ltdv Sager[8], Dayton v Coles Supermarkets Pty Ltd[9] and Mercer v ANZ Banking Group[10]. It stated that the concept and purpose of the of the introduction of s 9A was to remove the possibility of compensation for injury with only a “remote or tenuous connection with work” and concluded that:
“The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.”
(emphasis in original)[7] [2009] NSWCA 324 (Badawi).
[8] [2004] NSWCA 443 (Bulga).
[9] [2001] NSWCA 153; 22 NSWCCR 46 (Dayton).
[10] [2000] NSWCA 138; 48 NSWLR 740 (Mercer).
In Smith, the worker was employed by wool carders and in the course of his duties walked along the passageway between some wool carding machines. The passageway was protected by guard railing on either side, the purpose of which was to protect employees from becoming entangled in the driving belts conveying power to the machines. The worker, who suffered from diabetes, had an insulin reaction, as a result of which he fell, striking his body on the guard railing. He was injured and suffered incapacity for work. As noted at [27] above, the Court had to decide if the worker received personal injury arising out of and in the course of his employment (noting that the current requirement in the 1987 Act is that a worker receives an injury arising out of or (emphasis added) in the course of his employment).
The majority (Gavan Duffy C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ) in Smith posed the issue that they had to address, with reference to the injury suffered by Mr Smith, in the following terms:
“The nature and extent of the hurt he suffered was thus determined by the fact that he was at work and that his work brought him into proximity with a particular structure capable of inflicting the injury, a structure which is not part of the ordinary surroundings of daily life but is part of the equipment of the employer's manufacturing premises, and is distinctively industrial. The conditions which combined to bring about his injury, therefore, include the existence, configuration and situation of the particular piece of equipment, and the workman's presence near it. These were conditions which the employment established. The true question appears to us to be whether these conditions of the employment so materially contributed to the injury that it can be said to have arisen out of the employment.”
Their Honours then considered a number of English authorities, and a case decided by the Privy Council on appeal from New Zealand arising out of the earthquake at Napier, and said:
“We think that if an additional element or consideration is needed before it can be said that a workman's injury arises out of his employment when the injury is occasioned by his falling, through causes personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in risks of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman's fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstance that but for doing the particular piece of work which he was in fact performing he would not have experienced that particular sort of injury.”
Starke J in Smith noted:
“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.”
Starke J states that it is sufficient for a finding that a worker suffers injury arising out of employment if he is injured by contact physically with some part of the place where he works. The majority on the other hand state that the thing with which a workman’s fall brings him into contact must not be common to both industrial and private life, but peculiar to the workman’s work or occupation, like plant or machinery.
The High Court held that the incapacity for work suffered by the appellant worker, Mr Smith, was as a result of injury arising out of and in the course of his employment.
The respondent in placing reliance upon Smith, presumably adopts the opinion of the majority in that case. It could be argued that the large expanse of concrete on which Mr Bryan was required to work at the respondent’s Port Botany premises is an area not common to both industrial and private life, although a smaller area of concrete or other hard surface, such as a bathroom floor cited by the respondent in submissions, is such an area.
There was of course no requirement at that time and in that case that the worker’s employment be a substantial contributing factor to injury, and while the decision of the High Court in Smith is of some assistance, the focus in this case should be on the statutory language of s 9A of the 1987 Act, noting again that the examples listed in s 9A(2) is not an exhaustive list.
Whilst the Court of Appeal in Badawi noted “the conflict in the existing authority” between Mercer, Bulga and Dayton as to the meaning of “a substantial contributing factor”, and declined to follow Mercer, holding that the causal test imposed by s 9A is more stringent that that imposed by s 4 of the 1987 Act (“injury arising out of or in the course of employment”), Mason P at [37] in Mercer did state in respect of the construction he placed upon s 9A that:
“It may be thought that this construction of s9A leaves a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative”
It is accepted that the causal test imposed by s 9A is more stringent than that imposed by s 4, but in my view, this comment is in accord with the fact that the list of examples given in s 9A(2) of the 1987 Act is not an exhaustive list. Consideration will now be given to the facts of Mr Bryan’s case.
The applicant’s evidence as to his work on that day he was injured is detailed in [3] and [4] of his statement dated 1 September 2021 as follows:
“3. In this role, I control the operation of a straddle crane when it is transferring a container to a semitrailer. We work at a place in the yard called the Grid. On any given day there might be 4 or 5 tele-ops people working in the area. Particular lanes are allocated to each particular person. The Grid is the place where trucks will line up and be loaded with shipping containers. The Grid itself is a very large area of unpainted concrete. The area is divided up into about 20 lanes. There are sections of wire fencing which delineate the lanes. The fencing has automatic opening and closing gates at either end. When the truck driver reverses into a lane, the front gates will open to allow him entry. The gates at the back of the truck will close. The truck driver gets out of the cabin and then swipes his card on a reader nearby. The automated straddle cranes will then bring a shipping container up behind the truck and line up the container in the air above the trailer. The tele-ops will then see that a truck is ready to be loaded. He will then control the movements of the straddle crane using a pendant harness around the neck. My practice is to do these movements initially from the side, and when I have the straddle in the correct position, I will generally move around to the front of the truck and look down one side of the truck as I am operating the pendant controls to lower the container into position to hook up with the pins on the floor of the trailer.
4. Because of the extent of the area and the lack of any other available shade, the concrete pavement, particularly in summer, can get very hot. The concrete radiates heat back onto you as it just bounces of the white unpainted concrete.”
The applicant goes on in his statement to say:
(a) that he does a lot of walking in his job over the course of an eight hour shift, and that when busy, there is little or no opportunity to sit down and rest;
(b) when starting at 1.00 pm (as he did on the day of his injury) there is a one hour break for a meal at 4.30-5.30 pm;
(c) on the day of his injury it was pretty busy, and flat out most of the afternoon, with not much time to rest. He was on his feet the whole time and exposed to direct sun, constantly walking up and down over the concrete pavement;
(d) he was wearing shorts, safety boots, t-shirt, hi-vis vest, hat and the pendant harness to control the machine;
(e) he had a one hour break between 4.30-5.30 pm and would have had something to eat and probably a low sugar soft drink. He tended not to drink much water, and didn’t have a water bottle with him at the time of his accident, and does not recall having any other fluids to drink, and
(f) his recollection of events was that at about 6.30 pm he was in the process of loading a semi. He had got the straddle crane into position over the top of the truck, and then walked around to the front of the truck. He can then recall staring at the sky and not being able to move. “It was a really out of body experience.” He had not suffered anything like that previously, and believes he fell, landing heavily on his right side. He had a laceration on the back of his head, and also cut his tongue. He understands he came to after about two minutes.
This evidence as to the working conditions on the day of the applicant’s injury is corroborated by Shandi Cooper in his statement dated 2 March 2021. At [6] of that statement Mr Cooper says:
“At about 6.00pm or 6.30pm it was still hot. I saw one of the truck drivers pointing over
in Stacey's direction and so turned around and saw that he had collapsed onto the
pavement. He was shaking. I ran over to him and he was lying on his back shaking quite violently. I put him onto his side into the recovery position. His upper body was very rigid. He was not responsive to my questions, although his eyes were open. I saw that he was bleeding from his mouth. I believe that he cut his tongue.”
The applicant emphasises the nature of the work performed and the particular tasks of that work that he was doing on the day he was injured, referred to in s 9A(2)(b) of the 1987 Act, as well as the unlikelihood of the probability of the occurrence of the injury in the circumstances described in s 9A(2)(d).
In respect of the other examples in s 9A(2), I note:
(a) the time and place of injury is relevant, and not in issue;
(b) …
(c) the duration of employment is not relevant;
(d) ….
(e) the applicant’s state of health before the injury was apparently good and there is no evidence of any hereditary risks, and
(f) the applicant’s lifestyle and his activities outside the workplace are not relevant.
The comment of Dr Millons as to the causation of injury in his report dated 27 August 2021 is summarised in [4] above.
The applicant’s employment with the respondent on the day he was injured required him to spend many hours walking around a large expanse of concrete apron at the Port Botany premises, with little opportunity for rest. His job was an exacting one, controlling the loading of shipping containers onto semitrailer trucks using a straddle crane which he operated using a pendant harness around his neck. The applicant was injured at about 6.00 - 6.30 pm during the course of his eight hour shift, which commenced at 1.00 pm, and after the one hour meal break taken between 4.30-5.30 pm. The applicant does not know why he fell onto the concrete apron, and there is no other evidence as to the cause of the fall. The fact is that he fell and suffered a serious injury to his right shoulder.
The applicant focuses on the nature of the work he performed on the day he was injured along with what he says is the improbability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of his life, if he had not been at work or not in the employment of the respondent. The respondent submits that the opposite is the case, that is highly probable that Mr Bryan would have suffered the same or a similar injury in the circumstances just described.
I accept that applicant’s submission that, having regard to the circumstances of the applicant’s employment with the respondent, the nature and extent of the work that he was doing on 14 January 2021 and the area in which such work had to be performed, the probability that such an injury would have happened anyway in the circumstances described in s 9A(2)(d) of the 1987 Act is very low. Dr Millons outlines the consequence of a fall if Mr Bryan had been working in another situation whereby there was some soft floor covering, or if he had fallen onto a soft surface. Mr Bryan was not working in a sedentary occupation; he was required to spend the great majority of his work walking around on a large concrete surface performing exacting work with little respite apart from the one lunch break. In my view a proper link has been established between the work that the applicant was required to carry out and his injury on 14 January 2021. The link between the applicant’s employment and his injury was real and of substance.
Accordingly, there will be an award in favour of the applicant for the weekly benefits and medical and related expenses claimed by him as a result of injury to the right upper extremity.
Weekly benefits
In the event of an award in favour of the applicant, the respondent agrees with the mathematical calculations of the following award that the applicant seeks:
(a) 15 January 2021 – 31 March 2021: $2,242.40 per week pursuant to s 36 of the 1987 Act capped at this figure pursuant to s 34 of that Act;
(b) 1 April 2021 – 17 April 2021: 2,254.60 per week pursuant to s 36 of the 1987 Act, capped at this figure pursuant to s 34 of that Act, and
(c) 18 April 2021 to date and continuing $2,059.77 per week pursuant to s 37 of the 1987 Act.
Section 60 expenses
The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act in respect of injury to the right upper extremity on 14 January 2021.
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