Carroll v S L Hill and Associates Pty Limited - [2018] NSWWCCPD 17

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Carroll v S L Hill and Associates Pty Limited [2018] NSWWCCPD 17
APPELLANT:	Liam Charles Christie Carroll
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	S L Hill and Associates Pty Limited Jeffrey Charles Burrowes & Julie Ann Burrowes as tutors for Charles Steven Leslie Hill Steven Leslie Hill
FIRST RESPONDENT INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-3503/17
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	16 January 2018
DATE OF APPEAL DECISION:	7 May 2018
SUBJECT MATTER OF DECISION:	Injury arising out of or in the course of employment, s 4 of the Workers Compensation Act 1987; failure to consider all relevant evidence; Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 applied
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gianacas Argiris McDonald Solicitors
First Respondent: Second Respondent: Third Respondent:	Hall & Wilcox Lawyers Duffy Elliott Lawyers Self-represented
ORDERS MADE ON APPEAL:	1. Orders [1] and [2] of the Senior Arbitrator’s Certificate of Determination dated 16 January 2018 are confirmed. 2. Order [3] of the Senior Arbitrator’s Certificate of Determination dated 16 January 2018 is revoked and the matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

This appeal concerns a claim for the lump sum death benefit under s 25 of the Workers Compensation Act 1987 (the 1987 Act). In particular, the appeal concerns the Senior Arbitrator’s finding that the deceased’s death did not arise out of or in the course of employment with the first respondent.

BACKGROUND

On 16 June 2010, the deceased worker, Michel Carroll died as a result of injuries inflicted in an assault by Steven Hill, the third respondent. It is accepted that Mr Hill was responsible for the deceased’s death but found not guilty of the death by reason of mental illness. Mr Hill was subsequently detained and remains in a psychiatric ward.
There are several agreed facts. The deceased and Mr Hill were in a de facto relationship at the time of the deceased’s death. The deceased was employed by the first respondent, S L Hill and Associates Pty Limited (SLH Pty Ltd) at the time of her death. She undertook work for the SLH Pty Ltd at her home in Wamberal, which was occupied by her sons Liam Carroll (now aged 24) and Charles Carroll (now aged 8) and Mr Hill.
On 15 January 2016, Mr Hill made a claim for compensation in respect of death benefits arising from the deceased’s death on 16 June 2010. On 29 February 2016, SLH Pty Ltd’s insurer, Allianz Australia Workers Compensation (NSW) Limited (Allianz), issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying the claim. The claim was denied on the basis that Allianz did not accept that the deceased’s injuries were sustained in the course of her employment with SLH Pty Ltd (s 4 of the 1987 Act) and the employment was not a substantial contributing factor to the death (s 9A of the 1987 Act). On 2 March 2016, Allianz issued a further s 74 notice, confirming the decision to deny the claim.
On 12 July 2017, Mr Hill filed an Application to Resolve a Dispute (the Application) seeking payment of $449,850 in respect of a death benefit under s 25 of the 1987 Act. The cause of the injury and death is described as “[b]lunt force head trauma and complex pattern of stab wounds”. The injury is alleged to have arisen out of or in the course of the deceased’s employment. In the alternative, the injury is described to have occurred during an authorised recess when the deceased “… was assaulted by a fellow employee with a hammer resulting in her death”.
On 4 August 2017, SLH Pty Ltd filed a reply to the Application relying on the s 74 notices.
On 20 November 2017, the parties attended a conciliation conference and arbitration hearing before Senior Arbitrator Catherine McDonald. Mr Joe Hallion of counsel appeared for Mr Hill, Mr Stephen Flett of counsel appeared for SLH Pty Ltd, Mr Simon Hunt of counsel appeared for Liam and Mr Paul Regatieri of counsel appeared for Charles’ guardians. Mr Hill was not present. Despite his detention, on 10 February 2014 the NSW Civil and Administrative Tribunal made an order that Mr Hill is capable of managing his own affairs.
The deceased’s brother Jeffrey Burrowes and sister-in-law Julie Burrowes were appointed Charles’ guardians by the Children’s Court of New South Wales on 22 November 2010. I am satisfied that Mr and Mrs Burrowes have been properly joined as Charles’ tutors in these proceedings.
There is no dispute that Liam and Charles were relevantly dependent on the deceased at the time of her death. During the arbitration proceedings, Mr Hill’s legal representative advised the Commission that Mr Hill did not seek any part of the death benefit to be apportioned to him. It was then agreed between the parties that any compensation arising from the claim under s 25 of the 1987 Act should be apportioned between the deceased’s surviving children, 30% to Liam and 70% to Charles. As a result, by consent, the Commission made an order that Liam be joined as the second applicant instead of the second respondent to the initiating proceedings due to concerns over Mr Hill’s standing to be an applicant if he did not seek compensation.
On 16 January 2018, the Commission issued a Certificate of Determination in favour of SLH Pty Ltd. The Certificate of Determination is in the following terms:
“The Commission determines:

1. Liam Charles Christie Carroll is joined as the second applicant instead of the second respondent;

2. Pursuant to s162 of the Workers Compensation Act 1987, a declaration that the first respondent entered into a contract of insurance with Allianz Australia Workers Compensation (NSW) Limited and, being deregistered, has ceased to exist, and

3. Award for the first respondent.

A brief statement is attached setting out the Commission’s reasons for the determination.”

The Senior Arbitrator found that the evidence did not permit her to make any findings as to when the deceased died other than that it was after 7.30 am on 16 June 2010. Therefore, the Senior Arbitrator was not satisfied that the deceased died in the course of her employment.
The appellant appeals the Senior Arbitrator’s determination. Notwithstanding the NSW Civil and Administrative Tribunal’s order that Mr Hill is capable of managing his own affairs, Mr Hill did not file any submissions in respect of the appeal.

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.”
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 proceed to 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 between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

EVIDENCE

Steven Hill

There is evidence that Mr Hill was suffering from paranoid schizophrenia at the time of the deceased’s death. There is also evidence that Mr Hill suffered from delusions regarding domestic and professional matters, at the time of the deceased’s death. That evidence is not presently relevant.
On 17 June 2010, Mr Hill took part in an Electronically Recorded Interview of Suspected Person conducted by the NSW Police Force. The transcript of that interview is in evidence. However, the parties have not sought to rely on the transcript as Mr Hill did not have legal capacity during the interview process.
Mr Hill also provided a statement dated 11 January 2016. In that statement, Mr Hill records that he incorporated SLH Pty Ltd in 2000. He ran that business at his Wamberal residence, on the ground floor which had been converted into office space. In 2005, the deceased was employed full time as the office manager for SLH Pty Ltd. In 2007, she took over the para-planner role in the preparation of statement of advice and the telemarketing supervision, for which she received a weekly wage. Mr Hill adds that “[the deceased’s] role required her to be at the Premises during office hours and longer by arrangement.” The deceased and Mr Hill “…worked together full-time from Monday to Friday commencing around 9am and working through until 5pm, with a break between 12 and 1pm.”
Mr Hill records that a typical day would “…commence at 9.00am when [the deceased] (or myself) would attend to collecting and opening the mail, processing the bills and check my emails to assess the importance or prioritize the emails for my personal attention.” The deceased usually took a lunch break between 12 pm and 1 pm. However, after Charles was born the deceased “would break more frequently as when she was required, however continued to be involved.” The deceased and Mr Hill would break for dinner between 5 pm and 5.30 pm but continued to work with the telemarketers afterwards.
In 2006, the deceased set up a business selling safety equipment (SS Safety Equipment). It operated through SHILL Corporation Pty Ltd (SHILL) as trustee for the “Hills investment”. The deceased was the secretary, sole director and shareholder of SHILL.

Liam Carroll

In evidence are several statements by Liam, dated 17 June 2010, 3 July 2010, 13 July 2016, 11 November 2016 and 20 November 2017.
In his first statement dated 17 June 2010, Liam states that in early December 2004, he and the deceased moved into Mr Hill’s house at Wamberal. The house was three levels, with an office on the ground floor.
In 2007, SS Safety Equipment was established as a business providing safety equipment to companies. The deceased owned 50% of the business and two other people owned 25% each. Liam states that Mr Hill and the deceased ran SS Safety Equipment and the financial advising company from the house.
On 5 May 2010, the deceased gave birth to Charles.
At about 7.30 am on 16 June 2010, Liam left the house to walk to his friend’s house before heading to school. School finished at 3.15 pm and he caught the school bus home. When he arrived home, he could see water pouring over the first floor verandah onto the grass at the front of the house. He walked through the laundry down the hallway to the kitchen and he could smell smoke, “…like something had been burning” and then he saw the microwave door was open and it was black inside. He saw fresh blood on the kitchen floor. The glass plate from the microwave was smashed on the kitchen floor.
Liam then went to the deceased’s room, situated in the main bedroom of the house. He saw Mr Hill lying on the floor of the ensuite to the main bedroom. The ensuite bathroom and bedroom were flooded from the bath which was still running and overflowing. The deceased was lying on her back on the floor in the ensuite. Liam describes feeling the deceased’s stomach and “she felt cold with just a tiny bit of warmth”. He could not feel a heartbeat or feel her breathing.
In his second statement, dated 3 July 2010, Liam confirms that he last saw the deceased alive at 7.30 am on 16 June 2010 when he stood in the doorway of her bedroom and said goodbye as he left for school. The deceased was breastfeeding Charles at that time. It was normal for Liam to get up and get ready for school on his own and for the deceased and Mr Hill to be in bed when he left.
In his third statement, dated 13 July 2016, Liam states that the Wamberal house had three stories. There were three bedrooms on the top level and one bathroom. On the middle level was the main bedroom, lounge room, kitchen, laundry, foyer, billiard room and a theatre room. The deceased and Mr Hill shared the main bedroom. On the ground floor were office areas.
Liam states that when Mr Hill’s brother Michael Hill moved out of the Wamberal home, the deceased took over as manager for Mr Hill’s finance business. He states:
“My mother, throughout the years that she worked as manager and up to the time of her death, would perform work in all areas of this office level. My mother would often perform work in most other areas of the house as well, including the living room, the kitchen and in the bedroom, including on the bed. I do not recall her working on the third floor, as she was rarely in that area. The work she performed included working on a laptop, dealing with documents and making and receiving phone calls.”
Liam also states that up until about 2008 the deceased ran the SS Safety Equipment business, which provided safety equipment like helmets, harnesses and clothing.
When the deceased returned from Hospital, after the birth of Charles, she continued to work in the finance business (SLH Pty Ltd). He added:
“My mother could generally manage her work in her own time. My mother’s work tasks on weekdays would continue throughout the day, starting from as early as 7:30 AM and at time she would be performing work as late as 9 PM. On occasions, she would work on weekends. After [Charles’] birth, my mother would take more breaks from work to attend [Charles’] needs but continued to perform work. At this time, when I came home from school, it was more common for me to see her working in her bedroom, as this was where [Charles’] crib was.”
In his fourth statement (described as a statutory declaration), dated 11 November 2016, Liam refers to areas of the house and the deceased’s activities in those areas. Liam states that he heard the deceased “every now and then taking work phone calls from clients and others” in the laundry and also the kitchen. He also recalls “regularly seeing files and paperwork on the bench” of the kitchen. He states that the dining room table had files and paperwork, as well as the deceased’s phone for answering work calls. The deceased also took work calls in the living room and sat in the living room working on her laptop while watching Charles. He refers to the main bedroom and states that the deceased:
“…in the later months of her pregnancy with [Charles] and after he was born, would do most of her work here. I remember all the paperwork and files that she had to work on for that day or week were often in the room and regularly open on the bed. I recall her often being on the bed, using her laptop. Work calls were also taken in here quite frequently.”
In his fifth statement, dated 20 November 2017, Liam states that in the 12-month period prior to the deceased’s death, when he returned home from school the deceased was usually involved in finance business work (SLH Pty Ltd), including paperwork, work on a laptop, phone calls or filing and other administrative tasks. He adds that after Charles’ birth, the deceased “would often remain in the clothes she slept in or otherwise loose and casual clothing, throughout the day and that she would regularly interrupts [sic] her work to attend to [Charles]”.

NSW Police Force

In evidence are several photographs of the scene at Wamberal house on 16 June 2010. Those photographs depict business documents in the kitchen, home office and main bedroom. In particular, a deposit account and account book for SLH Pty Ltd were found on the kitchen bench.
In evidence is the handbook notes of Constable Jon Stevenson dated 16 June 2010. Entries in the notebook record his observations of the scene. It records water running over the balcony at the front of premises, blood smears outside laundry door, blood in the kitchen and on the floor. In evidence is also a police statement by Constable Stevenson, dated 16 June 2010. In that statement, he records that he attended the Wamberal residence at about 4.38 pm on 16 June 2010. He records that saw blood smears on the tiled kitchen floor and a cloth with red blood on it. There were multiple food related items on the floor. He also records that Mr Hill had a cut on his foot. He confirms the information recorded in the notebook.
In evidence is the police statement of Constable Aaron Coddington, dated 16 June 2010. Constable Coddington records his observation of the scene. On entry through the right side of the house, through the carport and onto the rear yard patio area, he “…observed what appeared to be dried red liquid splatter near the rear laundry door on the tiles outside.” On entry to the kitchen area he “…observed a large amount of red liquid splatter on the ground which [he] believed to be blood. This was easy to see as it was splattered on a light coloured floor tile. There was also a white or light coloured towel on the kitchen floor with blood on it.”
In evidence is the NSW Police Force report of death to the coroner, dated 16 June 2010. The report records, amongst other things, that Liam arrived home at about 3.45 pm on 16 June 2010. When he entered the back of the house “…he could smell smoke, he opened the back door and saw blood on the floor he then noticed that kitchen was in disarray and the plate from the Microwave was on the floor.” He found the deceased lying on the floor in the main bedroom “…he reached over and touched her and she felt warm and looked yellow in colour.” The report also records that when police attended the scene rigor mortis had set in.
In evidence is the police statement of Sergeant Steve Laksa, dated 17 June 2010. He states that at 4.30 pm on 16 June 2010, he responded to a message broadcast via police radio in respect of a homicide in Matcham (Wamberal). He observed blood stains and a fluid substance covering the tiled floor surface in the foyer of the home. He also observed a large stain of blood approximately 40 cm x 20 cm on the carpet floor between the main bed and a cot. On seeing Mr Hill, he noticed that his left foot was bleeding. He later describes this to be a “small laceration on the pad of his left foot beneath his big toe.” The ambulance officer treated Mr Hill, cleaned and bandaged his foot.
In evidence is the police statement of Detective Senior Constable Christopher Fuchs, dated 21 June 2010. He records that he attended the scene on 16 June 2010. He describes that on arrival he saw “…water pouring over the balcony on the first floor from underneath the front door. The water was pouring constantly as if a tap had been left on.” He records that approaching the kitchen he observed blood splatter on the floor leading to a passageway to the front door.
In evidence is the police statement of Sergeant Greg Thomas, dated 2 July 2010. In his statement, Sergeant Thomas records that at about 4.30 pm on 16 June 2010, he responded to a message broadcast via police radio in relation to a suspected murder. He states that he entered the Wamberal house at dusk and used a torch to illuminate the rooms. He “scanned the kitchen area and saw what appeared to be blood on various floor tiles and some broken glassware on the kitchen floor.” He also noticed “droplets of blood on the floor tiles from the kitchen through a doorway leading towards the front foyer area of the house.” As he approached the main bedroom using a “torch light [he] could see blood spot stains on the tiled foyer floor.” As he entered the main bedroom he “noticed that the carpeted floor was heavily saturated with water and saw that the room was in a state of disarray. The bed was unmade and there was clothing and other items strewn around the bedroom floor.” He saw the deceased on the ensuite floor, between the shower and corner bath. The ensuite was “completely saturated with water, and [he] could see what appeared to be a pool of diluted blood and water around the deceased.” The deceased was “cold to touch” and “[n]o pulse was present and she was clearly deceased, and looked to have been so for some time given signs of lividity on her torso and arms.”

Sergeant Thomas describes that he noticed a “large amount of thick congealed blood on a rug at the foot of the bed.” He also noticed “…blood splatter on the wall above the bed head, bedside table and adjacent cot which was in the corner of the room… and … large blood stains on the carpet between the bed and cot and on several pillows which were also on the floor.”
In evidence is the police statement of Superintendent Geoffrey McKechnie, dated 2 August 2010. He records that about 4.40 pm on 16 June 2010, he responded to a message broadcast via police radio in relation to a suspected murder at Matcham (later corrected to Wamberal). At 5.07 pm, he and several other officers entered the house through the laundry door. The Superintendent “saw what looked like blood on the floor and there appeared to be damage to the microwave oven” in the kitchen.
Superintendent McKechnie records that there was water on the floor of the ensuite that was pinkish in colour. The deceased’s body was cold to touch and the Superintendent had formed the view that the deceased had been dead for “some time.” He saw blood on the bedside table, bed, cot and several pillows on the floor of the bedroom. There was also “blood splatter on the wall above the bed head.”

Autopsy report

In evidence is an autopsy report, prepared by Professor Tim Lyons on 17 June 2010. Professor Lyons attended the scene of the death at 12.10 am and departed at 1.30 am on 17 June 2010. He records that the main scene was in the bedroom area with ensuite bathroom. He records:
“There was blood spatter on the wall adjacent to the bed. On the floor of the bedroom I observed extensive blood and fragments of skull and brain. I observed the body of the deceased to be lying face up on the bathroom floor. There were numerous items of makeup paraphernalia which appeared to have come from a number of drawers which had been pulled out of an adjacent vanity unit. Due to the location of the body a brief examination only was made of the scene…”
The report confirmed the presence of a complex skull fracture. The report recorded that the deceased sustained a very complex pattern of injuries and given the number of injuries and their distribution, it was impossible to accurately determine a sequence in which the injuries were inflicted. He added that the appearances at the scene would suggest that the majority of the injuries were inflicted in the bedroom and bathroom area. However, Professor Lyons recorded that “the scene is complex and extends through a number of areas of the house and it may well be that some injuries were sustained outside the main scene area.”
Professor Lyons also records that it “would appear that [the deceased] was in the right hand side of the bed and has received a massive blunt force trauma to the head region. This would have required multiple applications of severe blunt force trauma. The body appears to have then been dragged from the bed area to the bathroom area.” He adds that once on the bathroom floor, it would appear that the majority of the other injuries were then inflicted.
Professor Lyons records that “[i]t is not possible to provide an accurate time of death. However, at the time the body was examined rigor was well established suggesting death had occurred several hours prior to the time of examination.”

Jeffrey Burrowes

In evidence is a statutory declaration of Mr Burrowes, dated 11 July 2016, the deceased’s brother and the guardian of Charles. He states that he visited the deceased at her home in Wamberal during the June 2010 long weekend. He states that while he was there the deceased:
“… received a number of telephone calls each day from Steven Hill … The telephone conversations were sometimes about personal matters and other times they seems to be about work. on several occasions after receiving a telephone call from Steven Hill, [the deceased] went downstairs to the office areas and on each occasion she was gone for between 15 minutes and 1 hour.”

THE SENIOR ARBITRATOR’S REASONS

Injury in the course of employment

The Senior Arbitrator held that where an injury occurs in the course of employment it is necessary to consider the temporal connection between the employment and the injury. She noted that the deceased was on the bed at the time of her death, but that did not, of itself, mean that she was not working, nor did the fact that she was wearing pyjamas at the time.
The Senior Arbitrator was satisfied that the deceased usually worked in her office, however, in the period after her son Charles was born, she worked in various locations around the house. This was supported by the fact that the police found work papers and equipment including a laptop in the bedroom. The Senior Arbitrator found that it was not uncommon for the deceased to wear casual clothing, as might be expected of someone who worked from home with a small baby.
Authorities including Van Wessem v Entertainment Outlet Pty Ltd[1] and Archer v East West Airways Ltd[2] were considered.
[1] [2010] NSWWCCPD 97 (Van Wessem).
[2] (1976) WCR 176 (Archer).
The deceased’s usual working day started around 9.00 am and finished at about 6.00 pm. When her son Liam left for school at 7.30 am on 16 June 2010 the deceased was in bed and feeding Charles and therefore, so the Senior Arbitrator concluded, “her workday had not begun.”[3]
[3] Hill v S L Hill and Associates Pty Limited (3503/17, 16 January 2018) (Reasons), [154].
The Senior Arbitrator found that, the evidence concerning the time of death was therefore crucial to the consideration of whether the deceased was in the course of her employment when she died.
Mr Hill’s evidence concerning what likely took place on 16 June 2010 was held to be unreliable given his psychological state on the day of the assault. The Senior Arbitrator found that Mr Hill only had a “blurred memory” of what was likely to have happened on the day of the assault. She also found that Mr Hill’s evidence could not be relied on to fix a time of death.
The Senior Arbitrator noted that there was no medical evidence to interpret Liam’s observations when he touched his mother on his return from school. She also noted Professor Lyons’ evidence that, in his opinion, the deceased had died several hours before his examination, which took place at about midnight.
The Senior Arbitrator concluded:
“The evidence does not permit me to make any finding as to when the deceased died other than that it was after 7.30 am. I therefore cannot be satisfied that she was in the course of her employment when she died.”[4]
[4] Reasons, [161].

Injury arising out of employment

The Senior Arbitrator observed that the question of whether the injury arose out of employment involves an examination of the causal relationship.
The Senior Arbitrator’s reasons included an analysis of relevant authorities including Tarry v Warringah Shire Council,[5] Stojkovic v Telford Management Pty Ltd[6] and Ryan v Regional Imaging Pty Ltd[7] (citing Nunan v Cockatoo Docks and Engineering Co. Ltd[8]).
[5] [1974] 48 WCR 1.
[6] [1998] NSWCC 8; 16 NSWCCR 165.
[7] [2017] NSWWCCPD 48.
[8] (1941) 41 SR (NSW) 119.
At the time of her death, the deceased was employed by SLH Pty Ltd. She was also employed by SHILL. She was in a domestic relationship with Mr Hill. The evidence demonstrated that Mr Hill “had paranoid delusions about all of those relationships”.[9]
[9] Reasons, [173].
The Senior Arbitrator found that Mr Hill suffered a significant mental illness.[10] Dr Richard Furst, psychiatrist, described the prodromal period in which a person with schizophrenia experiences lethargy and depression. Family relationships are disrupted and social functioning is poor. The evidence about Mr Hill’s conduct in recent years leading to the deceased’s injury is consistent with that description. The Senior Arbitrator then considered the requirements for the acceptance of expert evidence in the Commission, making reference to r 15.2 of the Workers Compensation Commission Rules 2010, which requires that evidence should be logical and probative. She also considered the decisions in South Western Sydney Area Health Services v Edmonds[11] and Hancock v East Coast Timber Products Pty Ltd.[12]
[10] Reasons, [174].
[11] [2007] NSWCA 16; 4 DDCR 421.
[12] [2011] NSWCA 11; 80 NSWLR 43.
Ultimately, the Senior Arbitrator concluded that Dr Furst’s attempts to link Mr Hill’s condition with his employment did not fulfill the requirements of the acceptance of expert evidence. She held that Dr Furst did not provide the basis for the contention that Mr Hill’s work with S L H Pty Ltd aggravated his condition. The Senior Arbitrator held that Dr Furst’s “earlier reports” did not support the statements that “there were predominate themes relating to AMP and ASIC in his ideation delusion” and “the issues relating to SS Safety [Equipment] were probably not of any material significance at the time of his actions on 16 June 2016 as they were not mentioned as a cause of the assault.”[13]
[13] Reasons, [177].
The Senior Arbitrator concluded that the questions asked of Dr Furst such as whether certain matters “can be categorized as providing an unbroken causal connection” invited a conclusion rather than a reasoned response.[14]
[14] Reasons, [177].
The evidence demonstrated that Mr Hill believed that the deceased was conspiring with ASIC and AMP, but also that Liam was involved. Some of the delusions Mr Hill suffered concerned his work as a financial adviser but most were related to his domestic situation, particularly those concerning the deceased being allegedly unfaithful and questions concerning Charles’ parentage.
Mr Hill’s request that the deceased undergo a lie detector test was in relation to his delusions regarding infidelity and her knowledge of the combination of his safe. The Senior Arbitrator concluded that the latter is as much related to their home life as it is to the business. Mr Hill said that he acted as a result of his perception of hopelessness of their situation.
The Senior Arbitrator concluded that:
“There is no evidence that the pressure of work had any impact on Mr Hill’s condition. His own statement mentions the problems in the business but in the context of the development of paranoid delusions.”[15]
[15] Reasons, [179].
The Senior Arbitrator noted Dr Robert’s opinion. She concluded that Dr Robert’s reference to Mr Hill’s paranoid delusions were delusions relating to the circumstances of Mr Hill’s life. The Senior Arbitrator concluded “[i]n Mr Hill’s case the delusions included work but also other aspects of his life.”[16]
[16] Reasons, [181].
The Senior Arbitrator held that those delusions were the cause of the injury which led to the deceased’s death. The Senior Arbitrator stated:
“It was not the fact of her employment with SL Hill which caused the injury to [the deceased] but the fact of her being in a relationship with Mr Hill.”[17]
[17] Reasons, [183].
Ultimately, the Senior Arbitrator concluded:
“I am not be persuaded in the manner described in Nguyen, that the injuries suffered by [the deceased] arose out of her employment.”

Was the employment a substantial contributing factor to the injury

Having found that the injury sustained by the deceased leading to her tragic death was not sustained in either the course of her employment or arising out of her employment, the Senior Arbitrator found that it was unnecessary to consider whether the employment was a substantial contributing factor to her injuries (s 9A of the 1987 Act). The Senior Arbitrator held:
“It is not necessary to consider the provisions of s 9A of the 1987 Act but, consistent with the findings I have made in relation to injury arising out of employment, many of the matters in s 9A(2) would prevent a finding that employment was a substantial contributing factor to the injury.”[18]
[18] Reasons, [185].
By reason of the findings outlined above, the Senior Arbitrator made an award in favour of the first respondent.

GROUNDS OF APPEAL

Ground 1

The appellant submits that the Senior Arbitrator made findings which were against the weight of the evidence and were not open to her on the evidence, in finding that:
(a)the injury did not arise out of or was not sustained in the course of the deceased’s employment with the first respondent (s 4 of the 1987 Act), and
(b)the employment was not a substantial contributing factor to the deceased’s injury and subsequent death (s 9A of the 1987 Act).

Ground 2

The appellant also submits that the Senior Arbitrator failed to consider evidence and provide any, or any adequate, reasons for determining that:
(a)the deceased’s injury did not arise out of, or in the course of her employment with the first respondent (s 4 of the 1987 Act), and
(b)the deceased’s employment was not a substantial contributing factor to her injury and subsequent death (s 9A of the 1987 Act).

SUBMISSIONS

Did the injury arise out of or in the course of employment?

The appellant submits that Liam’s uncontradicted evidence established that:
(a)the deceased performed her employment duties in various areas throughout the house, including the bedroom;
(b)during the latter stages of the deceased’s pregnancy and following the birth of Charles, she worked more frequently from the bedroom;
(c)during the 12 month period prior to the deceased’s death, when Liam returned home from school in the afternoons, the deceased was usually involved in work associated with the first respondent, while at other times she would be undertaking housework (including office areas) and that she would often remain in the clothes in which she slept, or similarly comfortable clothes, throughout the day;
(d)in the latter stages of her pregnancy and following the birth of Charles, the deceased generally managed her work in her own time, starting as early as 7.30 am and worked around Charles’ needs. Further, it was common for the deceased to be seen working in her bedroom when Liam returned home from school as that was where Charles’ crib was located, and[19]
(e)on 16 June 2010, when Liam Carroll left for school at approximately 7.30 am, Mr Hill and the deceased were in bed and the deceased was breastfeeding Charles.
[19] Application to Resolve a Dispute (ARD), p 461.
The photographs taken by the police show work related items located in various rooms of the house, including the main bedroom.[20]
[20] ARD, pp 455 and 458.
The Senior Arbitrator accepted that the deceased worked in various rooms of the house, particularly after Charles was born, including the bedroom.[21] She also accepted that employment does not start and end at the worker’s paid hours, but may also include the time when they are performing employment duties or things incidental to those employment duties.[22]
[21] Reasons, [147].
[22] Reasons, [147].
After considering the “on-call” authorities, including Van Wessem, Davidsonv Mould[23] and Archer, the Senior Arbitrator concluded that it did not follow that someone that works at home, is always in the course of their employment whenever they are at home.[24]
[23] [1944] HCA 10; 69 CLR 96; 44 SR (NSW) 113; (1944) ALR 165; 61 WN 117.
[24] Reasons, [147].
In Davidson, the High Court held that the course of employment does not start and end with a worker’s paid hours of employment and that the temporal relationship included the time that the worker was engaged in the performance of duties of employment, and those things which are incidental to it. What is reasonably incidental to the performance of the worker’s duties must be judged, not from any fixed and immutable standard, but from all of the circumstances of the particular case, including those practices current at the time.[25]
[25] Van Wessem, 100-101.
The Senior Arbitrator’s findings that the deceased was not in the course of her employment at the time of her assault appears to be based on the fact that she was seen alive at 7.30 am, that her usual hours of work commenced at 9.00 am and that she could not be satisfied of the time of death.[26]
[26] Reasons, [156] and [161].
The Senior Arbitrator’s reasons do not include a consideration of the uncontradicted evidence from Liam, that in the latter months of her pregnancy and after Charles’ birth, the deceased work from as early as 7.30 am and that included being available to perform all aspects of her employment related duties. The deceased either did, or at least was “on-call” to make and receive phone calls from clients, and to perform other related employment duties.
Even if, as the Senior Arbitrator found, there was insufficient evidence to establish that the deceased was actually engaged in employment related duties at the time of the assault, the Senior Arbitrator failed to consider whether the deceased was “on-call” at the time of the assault, such as to lead to a finding that her injuries arose out of or occurred in the course of her employment with the first respondent.
The Senior Arbitrator’s finding that she could not be satisfied that the deceased was engaged in employment related duties at the time of the assault was against the weight of the evidence and not reasonably open to her.
The only conclusion which could be reasonably be drawn from the uncontradicted evidence of Liam, and the photographs obtained by the police, was that the deceased was either actually performing employment related duties at the time of her death or was on-call so as to satisfy s 4 of the 1987 Act.

Was the deceased’s employment a substantial contributing factor to the assault?

The appellant submitted that, by reason of Mr Hill’s paranoia, which was due in part to employment related matters, there was a sufficient causal nexus between the deceased’s death and the employment to satisfy the provisions of s 9A of the 1987 Act.

Adequacy of reasons

The appellant submits that the Senior Arbitrator failed to give any consideration to the uncontradicted evidence from Liam. In particular, his evidence that in the months leading up to and following Charles’ birth the deceased often worked from as early as 7.30 am, performed both clerical work and made and received telephone calls from the bedroom, worked more frequently from the bedroom, and often remained in her pyjamas all day.
The appellant submits:
“The importance of this oversight is that the Senior Arbitrator ultimately determined the s.4 issue on a finding that Liam had left for school at 7:30 am; that [the deceased’s] usual hours of work commenced at 9:00 am; and that she could not be satisfied of the time of death.”
Although the Senior Arbitrator referred to the so called “on-call” authorities, including Van Wessam, she did not undertake any proper analysis of the issue by failing to deal with Liam’s evidence as set out above.
The Senior Arbitrator failed to consider, or provide any reasons as to why she did not accept Liam’s evidence. Acceptance of Liam’s uncontradicted and unchallenged evidence could only lead, so it is submitted, to the conclusion that at the time of the assault the deceased was engaged in her employment duties or was on call in relation to her employment with the first respondent. Given the significance of Liam’s evidence in this regard, it is submitted that:
“… inadequacy (absence) discloses that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application…”[27]
[27] Zhang v Ausco Martin Pty Ltd [2011] NSWWCCPD 47, [99]-[100].

The first respondent’s submissions

The first respondent did not at first instance, and does not on appeal, press the evidence of Mr Hill contained in the ERISP interview on 17 June 2010, as the expert medical evidence was to the effect that he was unfit to be interviewed at that time. Any reference to the evidence given by Mr Hill is to statements made by him on a subsequent occasion.
The evidence before the Senior Arbitrator as to whether or not the deceased was in the course of her employment at the time of her death was:
(a)by agreement of the parties, the deceased died in the bedroom while on the bed;[28]
[28] Reasons, [11].
(b)by agreement of the parties, the deceased was wearing pyjamas;[29]
[29] Reasons, [11].
(c)the deceased was last observed by Liam at 7.30 in the morning of 16 June 2010 in bed breastfeeding her new baby, Charles;[30]
[30] Transcript of Proceedings, Hill v S L Hill and Associates Pty Limited (WCC, 3503/17 of 16 January 2018, Senior Arbitrator McDonald, 20 November 2017) (T), 46.14-23.
(d)Mr Hill had given evidence in his statement of 11 January 2016 that “typically a day would commence at 9.00 am when the deceased or myself or would attend to collecting and opening the mail” (to do that she would need to get out of bed);[31]
[31] T 47.5-8.
(e)the deceased had her own area with her own desk downstairs to conduct business;[32]
[32] T 62.17-18.
(f)all the paperwork shown in the final photograph of the deceased’s office was for SS Safety Equipment, not the named first respondent;[33]
(g)there was evidence from Liam that before the last few months of her pregnancy the deceased worked “most of the time” in her office downstairs;[34]
(h)there is some support, given by remote hearsay evidence of Mrs Helen Cook, (solicitor) that the deceased was working in the office as late in her pregnancy as March 2010;[35]
(i)Mr Hill is reported as having said that although “I don’t remember” 16 June 2010, he recalled having had a conversation with the deceased early in the morning when she was talking to him and she said something like “[i]s this the question you want answered”,[36] and
(j)there is evidence that at the time Mr Hill assaulted the deceased, she was lying on her side with her back towards him, clearly not working.
[33] T 66.34-67.2.
[34] T 27.10-13.
[35] T 26.35.
[36] T 41.15-30.

The evidence is sufficient, so it is submitted, to support a reasonable inference that the deceased had not yet got out of bed to commence her work day, and consequently had not suffered injury in the course of employment.
It is submitted that the Senior Arbitrator made findings that were more favourable to the appellant:
(a)the fact that the deceased was “on” the bed at the time of her death did not itself mean that she was not working, nor did the fact that she was wearing clothes which might be described as pyjamas mean that she was working;[37]
[37] Reasons, [147].
(b)the deceased often wore casual clothes as might be expected of someone who worked at home;[38]
[38] Reasons, [147].
(c)in the period after Charles was born the deceased worked in many rooms of the house;[39]
[39] Reasons, [147].
(d)there were work papers and equipment in the bedroom;[40]
(e)the report of death to the Coroner of 16 June 2010 nominated the approximate time of death as 12 noon;[41]
(f)when Liam returned home from school at 3.15 pm [sic], the deceased’s body “was cold with just a tiny bit of warmth”;[42]
(g)in a report of a medical examination carried out around midnight on 16 June 2010 rigor mortis of the deceased’s body was already established “suggesting death had occurred several hours prior to the time of examination”, and[43]
(h)the one aspect of Mr Hill’s evidence based on actual memory was the act of fetching a hammer and striking the deceased. That memory was consistent with the blurred memory Mr Hill described to Drs Furst and Greenberg that he remembered a conversation with the deceased early in the morning.[44]
[40] Reasons, [147].
[41] Reasons, [65].
[42] Reasons, [65].
[43] Reasons, [66].
[44] Reasons, [85].
On the objective evidence, the Senior Arbitrator was not satisfied that the appellant had made out a case that the deceased had suffered an injury in the course of her employment because:
(a)when Liam left for school at 7.30 am the deceased was in bed feeding Charles and her work had not begun;
(b)there is no medical evidence to interpret Liam’s findings that the deceased body “felt warm but looked yellow in colour” when he arrived home from school at 3.30 pm, and
(c)there is no medical evidence interpreting the post mortem report that rigor mortis of the deceased’s body was almost established suggesting “death had occurred several hours prior to the time of examination” (at approximately midnight).
The Senior Arbitrator concluded on the evidence that she could not be satisfied when the deceased had died other than it must have occurred at some point after 7.30 am.
It is submitted that the appellant’s grounds of appeal must fail. If anything, the weight of evidence was to the effect that the deceased had not commenced her work day at the time of her death. The Senior Arbitrator expressly found that there was no medical evidence to interpret either Liam’s observations or the post-mortem report of Professor Lyons. No submissions were made, and no evidence was tendered, in support of the nominated time of death contained in the Report of Death of the Coroner of 16 June 2010.
The appellant’s submission before the Senior Arbitrator on the application of s 4 are that:
(a)work papers were scattered throughout the house;[45]
[45] T 20.26-21.27, T 87.3-13.
(b)the fact that the deceased was lying on the bed was not inconsistent with her being in the course of her work,[46] because there was evidence that she would be in bed on her laptop and taking work calls;[47]
[46] T 22.4-6.
[47] T 77.7-14.
(c)there was no strict demarcation between the deceased’s work and domestic duties;[48]
[48] T 23.6-8.
(d)the deceased was usually involved in AMP work;[49]
[49] T 22.29-30.
(e)Liam’s evidence was that the deceased was involved in AMP work throughout the day;[50]
[50] T 28.21-23.
(f)there was nothing to say that at the time of her death, the deceased “wasn’t still involved in AMP work under the direction of the respondent”;[51]
(g)there was no reason for the deceased not to be casually dressed while she was working because she wasn’t seeing clients[52] and the fact that the deceased was in her pyjamas “at-after midday is not necessarily consistent with her not working”;[53]
(h)the deceased might be considered an “on call” worker because she worked throughout the house[54] and was expected to answer AMP phone calls whether Mr Hill was available or not;[55]
(i)the deceased could start work as early as 7.30 am and work to as late as 9.00 pm,[56] and
(j)throughout the day the deceased would attend to Charles’ needs and sensibly did this in the bedroom.[57]
[51] T 29.12-18.
[52] T 29.30.
[53] T 30.30-32; T 86.30.
[54] T 75.35-76.19.
[55] T 77.31-33.
[56] T 76.27-29.
[57] T 77.26-29.
The Senior Arbitrator considered and made findings favourable to the appellant on issues [95](a), (b), (c), (g) and (j) above. She considered and rejected the appellant’s position on (h) and (i) above.
The Senior Arbitrator considered all of the submissions made by to her, accepting some and rejecting others. The Senior Arbitrator has given reasons for doing so to the standard required of her.[58]
[58] Campbelltown City Council v Vegan [2006] NSWCA 284; NSWLR 372.
The first respondent made detailed submissions in relation to the application of s 9A of the 1987 Act, however for the reasons stated below, I have not dealt with them.

The second respondent’s submissions

The second respondent did not file any submissions other than to state it agrees with and supports the appellant’s appeal.

DISCUSSION

Was the deceased in the course of her employment?

It has long been accepted that an injury occurring in the course of employment involves a temporal relationship between the injuries sustained and the employment. A worker is in the course of their employment if they are “doing something which is part of or is incidental to [their] service.”[59] The course of employment extends beyond a worker’s normal hours and place of work to “natural incidents connected with that class of work.”[60]

[59] Whittingham v Commissioner of Railways (WA) [1931] HCA 49; 46 CLR 22, [29].
[60] Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547, [5].

In Archer v East West Airways Ltd,[61] Langsworth J in the Workers Compensation Commission held that the course of employment extends to the reasonable and normal use of the worker’s home while remaining there to be available at call under the terms of employment, as and when required by the employer.
[61] Archer.
In Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd[62] the majority of the Court of Appeal noted that difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained. However, the Court noted that difficulty arises not because of the principle to be applied is uncertain but because of the fluidity of employment circumstances.[63]
[62] [2009] NSWCA 324; 7 DDCR 75 (Badawi).
[63] Badawi, [72].
Applying Archer, among other authorities, I accepted a similar argument in Van Wessem. Mr Van Wessem was a mortgage broker who died while riding his bike on a Sunday. He was required to be on-call during a set period of hours, namely 9.00 am to 8.00 pm Monday to Friday and 9.00 am to 5.00 pm on weekends. He alone determined how and when he worked, to satisfy his contractual obligations. Mr Van Wessem was effectively “on-call” during the nominated span of hours. Mrs Van Wessem confirmed that Mr Van Wessem was required, as a matter of policy, to respond to referrals sent to him within two hours of receiving them. He was required to contact potential customers within a two-hour period after referral. At the time of his death, Mr Van Wessam was undertaking his regular Sunday morning bike ride through the national park, he kept his mobile phone with him and was available to respond to work related calls. As the accident occurred during the span of hours he usually worked, I concluded that he was in the course of his employment when he died.
The decision was appealed to the New South Wales Court of Appeal.[64] However, the issue on appeal was confined to the question of whether the employment was the substantial contributing factor to the injury (s 9A of the 1987 Act). The finding that Mr Van Wessam was in the course of his employment when he was fatally injured was not challenged.
[64] Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214; 9 DDCR 375.
The Senior Arbitrator’s consideration of whether the deceased was in the course of her employment when she was fatally injured, focused almost exclusively on the time of death. The Senior Arbitrator noted that Mr Hill and Liam described the deceased’s usual working day to start at 9 am. She said:
“Both Liam and Mr Hill described [the deceased’s] usual working day, which started about 9am. Liam said his mother usually worked until 6.00pm and he kept himself occupied until she had finished work.”[65]
[65] Reasons, [153].
The Senior Arbitrator then found that when Liam left for school at 7.30 am on 16 June 2010 the deceased was in bed and feeding Charles “and her work day had not begun.”[66] On the basis of that finding, the Senior Arbitrator found that the time of death was crucial to the consideration of whether the deceased was in the course of her employment when she died.[67] She held that the evidence did not permit her to make any finding as to when the deceased died other than it was after 7.30 am.[68] Having made those findings, the Senior Arbitrator found that she could not be satisfied that the deceased was in the course of her employment when she died. For the reasons discussed below that finding was an error.
[66] Reasons, [154].
[67] Reasons, [155].
[68] Reasons, [161].
I accept the appellant’s submission that the Senior Arbitrator failed to consider evidence and did not provide adequate reasons for finding that she was not satisfied that the deceased’s death did not occur in the course of her employment with the first respondent.
The time of death was clearly an important issue, but it was not determinative of the issue before the Senior Arbitrator, namely whether there was a sufficient temporal connection between the deceased’s employment and her death to establish she was in the course of her employment when she was attacked by Mr Hill.
While I accept that the fact someone works from home does not necessarily mean they are always in the course of their employment whenever they are at home, the Senior Arbitrator failed to consider critical evidence as to the deceased’s span of working hours which went to the question of the temporal connection between the employment and death. In particular, as submitted by the appellant, the Senior Arbitrator failed to include a consideration of the uncontradicted evidence from Liam that the deceased commenced work as early at 7.30 am.
The Senior Arbitrator stated that Liam described the deceased’s usual working day to start at 9 am (see [105] above). That was not Liam’s evidence. Liam’s unchallenged evidence was that his mother generally managed her work in her own time noting her span of hours on weekdays and weekends. He stated that, particularly after Charles was born, the deceased started work as early as 7.30 am. The Senior Arbitrator did not refer to or consider that evidence.
The failure to consider all of the material relevant to a particular issue is an error in the process of fact finding and amounts to an error of law. In Waterways Authority v Fitzgibbon[69] the High Court said:
“In the present case, however, reference to the ‘sufficiency’ of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”[70]
[69] [2005] HCA 57; 221 ALR 402 (Fitzgibbon).
[70] Fitzgibbon, [130] (per Hayne J (McHugh and Gummow JJ agreeing)).
The absence of any reference to Liam’s evidence that the deceased commenced her working day from 7.30 am demonstrates that the Senior Arbitrator erroneously overlooked or disregarded relevant evidence. The failure to consider all relevant evidence constituted an error in the process of fact finding.
It was a critical error because having regard to the authorities to which I earlier referred, and the unchallenged evidence that the deceased was essentially “on call”, if it is accepted that the assault occurred after 7.30 am and before 4 pm the deceased may well have been in the course of her employment when she was fatally injured.
I would add, although I do not base my decision on it, there was also expert evidence from Professor Lyons as to the time of death which the Senior Arbitrator touched on but did not analyse. Without going into his evidence in detail, suffice to say, at least at a prima facie level, Professor Lyons’ evidence is inconsistent with a finding that death occurred during the early hours of the day as the first respondent contends.
For these reasons, the Senior Arbitrator’s determination cannot stand and must be revoked.
The Commission has found in a number of cases that where error has been found it is desirable for the Presidential member hearing the appeal to re-determine the matter.[71] However, for the following reasons the preferable course is for the matter to be re-determined by another Arbitrator.
[71] Chubb Security Aust Pty Ltd v Trevarrow[2004] NSWCA 344; 5 DDCR 1.
There is a vast amount of evidence relevant to the s 4 and s 9A issues that has not been addressed either at first instance or on appeal.
That evidence includes, Professor Lyons’ observations of the crime scene. He stated that the crime scene was a complex one with evidence suggestive of the assault occurring through a number of areas. He concluded that it may well have been the case that some of the injuries were sustained outside the main scene area, that is, outside the main bedroom.
Liam’s evidence records disarray in the kitchen. He could smell smoke and then he saw that the microwave door was open and it was black inside. The microwave plate was smashed on the kitchen floor. There was fresh blood on the kitchen floor.
Numerous police officers including Sergeants Laksa and Thomas observed blood in the tiled area near the archway in the lounge room. Other police officers, including Constable Coddington and Superintendent McKechnie, observed blood, broken glassware and disarray in the kitchen and a towel with blood on it on the kitchen floor. Constables Coddington and Stevenson observed blood near the laundry door. Detective Senior Constable Fuchs and Sergeant Thomas observed blood on the floor of the passageway to the front door.
The evidence to which I have referred suggests that the assault on the deceased may have commenced in the kitchen or areas other than the main bedroom, where the deceased ultimately died. That is significant given the police photographs and Liam’s evidence, which suggest that the deceased had been working in the kitchen area at some point.
It follows that if it is accepted that the deceased commenced her working day from 7.30 am or was “on call” at the time of her death, and if the evidence supports an inference that the injuries from which the deceased died were in part inflicted in the kitchen or other areas, then the first respondent’s contention that the deceased died in bed before she commenced her working day may not be sustainable.
It follows that there is relevant evidence as to the time and location of the assault on the deceased which has not been properly considered.
I do not make any findings about these matters, however, the parties should be in a position to address this evidence when the matter is re-listed for hearing.
For these reasons, it is unnecessary to consider the remaining grounds of appeal.

ORDERS

Orders [1] and [2] of the Senior Arbitrator’s Certificate of Determination dated 16 January 2018 are confirmed.
Order [3] of the Senior Arbitrator’s Certificate of Determination dated 16 January 2018 is revoked and the matter is remitted for re-determination by another Arbitrator.

Judge Keating

President

7 May 2018