Chubb Security Australia Pty Ltd v Trevarrow

[2004] NSWCA 344

CITATION:	Chubb Security Australia P/L v Trevarrow [2004] NSWCA 344
HEARING DATE(S):	23 August 2004
JUDGMENT DATE:	22 September 2004
JUDGMENT OF:	Beazley JA at 1; Santow JA at 2; Ipp JA at 41
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - Workers Compensation - s353 limited appeal from decision of Presidential member of Workers Compensation Commission of New South Wales on point of law - whether an error in the application of s9A WCA Act in concluding that employment a substantial contributing factor - whether there was a failure to exercise the Commission's jurisdiction by remitting the matter back to the Arbitrator for determination.
LEGISLATION CITED:	Workers Compensation Act 1987 s9A Workers Compensation Legislation Amendment Act 2004 (No 56) s3 and Sch 2[5]; Sch 1[6.2] Workplace Injuries Management and Workers Compensation Act 1998 s352; s353
CASES CITED:	Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 Davidson v Mould (1944) 69 CLR 96 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 Hatzimanolis v ANI Corp (1992) 173 CLR 473, 8 NSWCCR 242 McMahon v Lagana [2004] NSWCA 164 Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740; 20 NSWCCR 70 Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (CA) Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Muscat v Woolworths Ltd (2000) 20 NSWCCR 283 Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 5 Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514
PARTIES :	CHUBB SECURITY AUSTRALIA PTY LTD (Appellant) Annette TREVARROW (Respondent)
FILE NUMBER(S):	CA 40239/04
COUNSEL:	B FERRARI (Appellant) A KATZMANN, SC/ B BATCHELOR (Respondent)
SOLICITORS:	Turks Legal (Appellant) Bale Boshev Lawyers (Respondent)

LOWER COURTJURISDICTION:	Workers Compensation Commission
LOWER COURT FILE NUMBER(S):	WCC 2411-2002
LOWER COURT JUDICIAL OFFICER :	Byron DP

CA 40239/04
Wcc 2411/02

BEAZLEY JA
SANTOW JA
IPP JA

22 SEPTEMBER 2004

CHUBB SECURITY AUSTRALIA PTY LTD v Annette TREVARROW

Judgment

1 BEAZLEY JA: I agree with Santow JA.

2 SANTOW JA:

INTRODUCTION AND OVERVIEW
This appeal is brought from a decision of a Presidential member of the Workers Compensation Commission of New South Wales (‘the Commission’) with respect to a claim by the respondent Ms Annette Trevarrow for injuries sustained on 11 November 2001 in the course of her employment with the appellant Chubb Security Australia Pty Limited (‘Chubb’). The Presidential member, Byron DP, was himself hearing the matter by way of an appeal from a previous determination of the Commission as constituted by an Arbitrator. Ms Trevarrow was successful both before the Arbitrator and before the Deputy President. Chubb now appeals to the Court of Appeal pursuant to s353 of the Workplace Injuries Management and Workers Compensation Act 1998 (the ‘WIM’ Act). The appeal under s353 is limited to appeals from the decision of a Presidential member in point of law. I should note that as to the later period of partial and total incapacity, from 11 February 2002 till no later than 15 October 2002, the parties have indicated willingness to attempt to settle this between themselves, in the event that this appeal on liability generally is determined against Chubb.

3 Neither the fact nor the nature of the injuries suffered by Ms Trevarrow were ever seriously in issue in the Commission. Instead Chubb disputed its liability arguing that Ms Trevarrow’s employment was not a substantial contributing factor to the injury within the meaning of s9A Workers Compensation Act 1987 (the ‘WCA’ Act). Chubb’s present appeal essentially rests on two broad bases:

(a) That the Deputy President erred in law in the application of s9A and by concluding that the employment was a substantial contributing factor within the meaning of s9A; (this was the same argument it had consistently put throughout the proceedings)

(b) That the Deputy President erred in failing to exercise the Commission’s jurisdiction by making a determination of the amount of weekly compensation to be paid by Chubb and instead remitting the matter back to the Arbitrator for determination.

4 Whatever force this second submission possessed has now been dissipated by recent legislative amendment expressly conferring upon the Deputy President the power to remit matters back to the Arbitrator. Section 352 WIM sets out the parameters for appeals from the Commission as constituted by an Arbitrator:

“(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission .
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.” [emphasis added]

5 That part of subs (7) which is emphasised above in bold type was inserted by the Workers Compensation Legislation Amendment Act 2004 (No 56), s3 and Sch 2[5]. The amendment commenced operation on 9 July 2004, but has retrospective effect by reason of Sch 1[6.2] which provides that it extends to an appeal made under s352 before the commencement of the amendment. These proceedings fall into that category. Thus, if any error existed in the Deputy President’s decision to remit the matter to the Arbitrator, it has been validated ex post facto. The success of Chubb’s present appeal must therefore depend upon its appeal against the liability findings.

6 The history of proceedings before the Commission and the fact that what was a comparatively small and basically uncontroversial claim originating 3 ½ years ago has ultimately found itself in this Court is a sorry reflection on the success of the system in fulfilling its objectives of providing a fair, cost-effective and timely method of resolving claims for workplace injuries: s367 WIM. Resolution of claims in a “just quick and cheap” manner is thus the basic reason for the existence of the Commission, reinforced by that overriding objective in the Supreme Court Rules. This is no political slogan but a fundamental requirement.

SALIENT FACTS
The Injury

7 The facts that gave rise to Ms Trevarrow’s claim were not in serious dispute between the parties.

8 Ms Trevarrow had been employed by Chubb since March 2001 on a part-time basis as a security officer. At the time of her injury in November 2001, her work activities consisted of providing security services at premises in Baulkham Hills. On 11 October 2001, on her rostered day off, Ms Trevarrow attended Chubb’s corporate premises at Ashfield for two purposes: (1) to speak to her supervisor, Mr Paul Stewart, about certain perceived inappropriate behaviour of a co-worker and request some form of transfer to a different work-site; and (2) to submit certain medical certificates in support of a pending claim for sick leave. Unfortunately, before she had a chance to fulfil either of her stated intentions, Ms Trevarrow slipped and fell in the carpark of the Ashfield premises of Chubb, thereby sustaining a number of injuries, being the dislocation of her right elbow and the fracture of the proximal radius in her back, for which she was treated at Concord Hospital.

9 It is convenient to mention several other facts in connexion with Ms Trevarrow’s attendance at the Ashfield premises. Chubb did not cavil with any of these facts and at no stage led any evidence to suggest anything to the contrary. First, Ms Trevarrow had attempted to speak to Mr Stewart at least five times by telephone without success. Neither Mr Stewart nor any other officer of Chubb responded to those calls. On her last attempt she spoke to a person identified as Tregarne who informed her that Mr Stewart was unavailable. She informed Tregarne that she intended to attend the Chubb premises at Ashfield in order to speak to Mr Stewart, and was not discouraged from taking this course. Since the business hours of the Ashfield premises were substantially the same as the hours Ms Trevarrow was required to work, her first opportunity to attend the office was on her rostered day off. Second, it is patently clear that the car park was Chubb’s car park, forming part of its corporate premises at Ashfield. This also was never denied by Chubb (Red, 28R-S, 34E, 39D-E, 69V).

10 Ms Trevarrow notified Chubb of the injury by way of claim form dated 31 January 2002, and lodged a claim with Chubb’s workers’ compensation insurer (NRMA) which was received by it on 11 January 2002. On 22 February 2002, NRMA advised her that it denied liability for the claim for weekly benefits. Ms Trevarrow then commenced proceedings in the Workers Compensation Commission.

The Arbitrator’s determination

11 The matter first came before an Arbitrator who determined that Chubb was liable under the WCA, and issued to that effect on 22 January 2003 a Certificate of Determination with an accompanying Statement of Reasons. In the statement of reasons, the Arbitrator set out the basis for her conclusion that the injury arose out of or in the course of Ms Trevarrow’s employment with Chubb, holding that there was a direct relationship with an employment-specific characteristic sufficient to demonstrate that her employment was a substantial and contributing factor to the injury. This characteristic was that on the date of the accident, Ms Trevarrow was intending to deal with staff on work matters by attending her employer’s premises (Red, 38T-W, 39P).

12 For reasons which will become apparent it is unnecessary to deal in any further detail with the Arbitrator’s determination, except to note the terms of the Certificate of Determination, namely:

“(a) The determination of the Commission in this matter is as follows:

(b) That the respondent pay to the applicant compensation pursuant to section 36 of the workers compensation act 1987 [sic] at the rate of $495.80 from 11 October 2001 to 23 March 2002 and thereafter at the appropriate statutory rate as prescribed under the act and on presentation of appropriate medical certificates.
…”

13 The reason for the somewhat curious terms of the Certificate of Determination can be gleaned from the Arbitrator’s Statement of Reasons. The Arbitrator appears to have accepted Ms Trevarrow’s formulation of her claim (para [31], Red, 39Q-U), which had been framed as follows:

(i) Total incapacity from 11 November 2001 to 23 March 2002;
(ii) Partial incapacity from 23 March 2002 to 3 September 2002;
(iii) Total incapacity from 3 September to 15 October 2002 after a subsequent operation;

First, the Arbitrator found that Ms Trevarrow was totally incapacitated for work as a result of her injuries from 11 October 2001 to 23 March 2002. It was not in dispute that Ms Trevarrow earned the award rate of $13.074 per hour, and the rate of compensation for periods of total incapacity was accepted by both parties to compute to $495.80 per week (Combined, 11M-R). Second, the Arbitrator found that there were further periods of partial and total incapacity, but noted on several occasions however, that no clear time frames could be ascertained as medical certificates were not available (paras [18], [31], Red, 33Y-34B, 39Q-U). This is elucidated in the transcript of proceedings before the Arbitrator. Chubb submitted that the rate for the period of partial incapacity should be $368 per week, and Ms Trevarrow’s representative indicated she was content subject to a check (Combined, 11R-12G).

14 Thus, in the absence of documentary evidence, the Arbitrator appears to have framed her Certificate of Determination in such a way as to provide what she seems to have thought was a mechanism to enable the claim to be disposed of in an expedient fashion. Unfortunately, any cause for such apparent optimism was misplaced.

The Decision of the Deputy President

15 As I have previously mentioned, Chubb sought and obtained leave to appeal under s352 WIM. Appeals under this section are expressed by s352(5) to be by way of review, and are consequently distinguishable from both appeals in the strict sense and appeals by way of rehearing de novo. The appeal came before Deputy President Byron and proceeded by way of written submissions and a brief oral hearing on 16 April 2003, with the decision entered on 20 April 2003. In summary, Byron DP confirmed the decision of the Arbitrator on liability but revoked the decision by the Arbitrator with respect to the rates of compensation and total and partial incapacity for work, entering a substitute decision in its place, and sending the matter back for further determination by the Arbitrator.

16 With respect to the question of liability, Byron DP reviewed the facts and the relevant authorities and concluded that the Arbitrator was entitled to conclude that this was an injury arising out of or in the course of employment within s4 WCA. In particular, the Deputy President cited Davidson v Mould (1944) 69 CLR 96 and Hatzimanolis v ANI Corp (1992) 173 CLR 473, 8 NSWCCR 242 for the proposition that an injury arising in the course of employment is one that arises during the whole of the time that a person is engaged in the performance of duties of employment and other things that are reasonably incidental to it (Red, 88J-89T). He noted that Ms Trevarrow had informed Chubb that she intended to come in and was not discouraged from doing so or instructed to do otherwise, and in fact had been encouraged to submit her medical certificates for sick leave purposes without delay (Red, 87B-C, 80C-D). Since, notwithstanding that it was her rostered day off, Ms Trevarrow attended the Ashfield premises for reasons which were wholly work-related and for no other purpose, Byron DP found that the injury was one arising out of or in the course of her employment being at least incidental to her employment (Red, 89W-90I).

17 The Deputy President then considered s9A WCA and concluded that the Arbitrator was justified in finding that Ms Trevarrow’s employment was a substantial contributing factor her injury (Red, 91R). Byron DP had regard to a number of authorities, principally Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740; 20 NSWCCR 70, Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 5 and Muscat v Woolworths Ltd (2000) 20 NSWCCR 283. Based on these authorities Byron DP reasoned that since employment for s9A purposes includes matters incidental or ancillary to employment or the conditions in which it is performed, there was in Ms Trevarrow’s case a sufficient causal relationship between her employment and the injury (Red, 91B-R). Her injury had arisen in the course of employment and there was a causal relationship between the injury and the reasonably incidental work-related activities which she was undertaking in her employment. Importantly, the Deputy President rejected Chubb’s submissions that the Arbitrator had failed to comply with the provisions of subs 9A(2), and furthermore concluded that the causal linkage was of sufficient degree to go beyond the “merely because” test prescribed by s9A(3) (Red, 91S-92D).

18 Having upheld the Arbitrator’s determination on liability, Byron DP then proceeded to consider what conveniently may be referred to as the terms of the Arbitrator’s Certificate Determination. Basically Chubb’s complaint was that the Arbitrator had left undone what she ought to have done in order to fulfil her statutory function. Two broad areas of default were identified:

(i) Failure to make precise determinations of the periods of total and partial incapacity;

(ii) Failure to determine the reduction in earning capacity during any period of partial incapacity and to quantify rates of weekly compensation rates in accordance with the statutory requirements of ss36 and 37 WCA with respect to the periods of total incapacity, and s40 as supplemented by ss42 and 43 WCA with respect to the period of partial incapacity: Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (CA).

Indeed both parties seem to agree on this latter point (ii) (Red, 97M-O).

19 In general terms, the Deputy President accepted these submissions, revoking the Arbitrator’s decision and making the following orders (Red, 59):

(a) The decision of the Arbitrator as to total and partial incapacity for work is revoked and the following decision is substituted.

(b) The Appellant is to pay to the Respondent Worker, weekly compensation at the rates to be determined according to law, for a period of total incapacity from 11 October, 2001 to 11 February 2002, and thereafter, for periods of total or partial incapacity on presentation of appropriate medical certificates, up to 15 October 2002.

(c) The purported decision of the Arbitrator concerning the calculation and determination of the amounts of compensation payable to the Respondent Worker is not a valid decision and the matter is referred to the Registrar for return to the Arbitrator, for a decision to be made by her, according to law.

(d) No order is made as to costs.”

20 The combination of substituted orders and ‘remittal’ to the Arbitrator stems from the different treatment by Byron DP of the two broad complaints identified above.

21 There is little difficulty about issue (i), regarding which the determination was revoked and new orders substituted. The Deputy President found that the Arbitrator was justified in finding that there were several periods of total and partial incapacity, but had erred in the minutiae of the dates concerned. In the circumstances Byron DP revoked the Arbitrator’s decision and substituted the one set out in (b) above for the following reasons. The first error made by the Arbitrator was that the specified first period of total incapacity could on the evidence be no more than from 11 October 2001 to 11 February 2002, rather than from 11 October 2001 to 23 February 2002 (Red, 99K-L). The Arbitrator gave no reasons for determining that Ms Trevarrow was unfit for work until 23 March 2002, and it is not possible to ascertain the basis upon which that date was established on inspection of the evidence before the Arbitrator, the transcript and the file (Red, 94I-J). Since the last precise date which could be specified for total incapacity was 11 February 2002, that date was the significant date and should have been reflected in the Certificate of Determination. (Red, 94Q). The second error was that the Arbitrator (though correct in determining that payment of compensation beyond 11 February 2002 should be made on presentation of medical certificates) failed to “close” the period of payment by specifying 15 October 2002 as the last day for which payment was payable (as in Ms Trevarrow’s claim form) (Red, 99P-T).

22 Issue (ii), which resulted in the ‘remittal’ (more properly, the referral to the Registrar for re-listing before an Arbitrator), was more complicated, and depended on the view expressed by Byron DP that no valid decision had been made by the Arbitrator calculating the rates of weekly compensation for which Chubb was liable. The Deputy President considered that the failure of the Arbitrator to make the appropriate statutory calculations constituted a jurisdictional error, rendering the purported determination nugatory under the principle laid down in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Red, 97W-98O). The jurisdictional error identified was the failure to find a jurisdictional fact, namely making the necessary statutory calculations referred to above. That finding of fact was considered to be a necessary pre-condition of the making of an order to pay weekly compensation.

23 The Deputy President considered and rejected the submission that he should make the determination of appropriate weekly payments with the necessary calculations and reasons to support which the Arbitrator should have made. His reasoning that jurisdictional error had occurred appears to have been for him determinative of the matter, foreclosing the question of whether he should make a determination of the weekly compensation rates in the Arbitrator’s stead. Since the Arbitrator had not made a decision with respect to the amount of weekly compensation payments for which Chubb was liable, there was no decision for the Deputy President to either confirm or revoke and substitute under s352(7).

24 Since no valid decision had been made by the Arbitrator (and thus it could not be replaced or varied by the Deputy President), and as it was still necessary for a decision to be made to dispose of the matter, the Deputy President seems to have felt the only option was to refer the matter back to a Registrar for re-listing before the Arbitrator. In the circumstances, Byron DP obviously felt it was appropriate for the original Arbitrator to make that decision. However, as mentioned previously, the appellate tribunal of the Commission had no power under s352(7) WIM (as it then stood) to remit the matter to the Arbitrator, having power only to confirm the determination or revoke it and make a new decision in its place. For this reason, Byron DP referred the matter to the Registrar to be put before an Arbitrator and noted his view that “it is appropriate in this case for the matter to be allocated to the Arbitrator who purported to make the original decision” (Red, 98O-S). That, at least, is how I interpret the reasoning of Byron DP at Red, 97M-98R.

The Appeal to the Court of Appeal

25 As I have set out earlier, Chubb brought an appeal against the decision of the Deputy President, claiming relief on two broad bases. The Notice of Appeal set out 6 grounds in support of Chubb’s prayer that the award of the Commission be revoked and an award entered in its favour:

“(1) The Deputy President erred in concluding that the Respondent’s employment was a substantial contributing factor to her injury within the meaning of s9A(1) of the Workers Compensation Act 1987.

(2) The Deputy President misapplied s9A(1) of the Workers Compensation Act 1987.

(3) The Deputy President failed to apply s9A(3) of the Workers Compensation Act 1987 correctly or at all.

(4) The Deputy President had no jurisdiction to remit for the determination by an Arbitrator the proceedings validly before him under s352 of the Workplace Injury Management & Workers Compensation Act 1998.

(5) The Deputy President erred in directing the Appellant to pay weekly compensation “at rates determined according to law” instead of determining the amount of weekly compensation which the Appellant was required to pay.

(6) The Deputy President erred in concluding the Arbitrator had made “no decision at all” and that in consequence she had failed to exercise the Commission’s jurisdiction.”


DISPOSITION OF APPEAL
Grounds 4 to 6 – failure to properly exercise jurisdiction

26 It is clear from the foregoing and not in dispute that the latter three grounds of appeal have been foreclosed by the legislative amendments to s352 by the Workers Compensation Legislation Amendment Act 2004 (No 56), which expressly conferred the power on the Deputy President to remit matters back to the Arbitrator for further determination. These legislative amendments have essentially circumvented that aspect of the current appeal, retrospectively validating the orders made by Byron DP to the extent they were beyond power. Accordingly grounds 4 and 5 must fail. Furthermore, it also becomes strictly unnecessary to determine ground 6, namely, whether the Deputy President was correct in holding that the Arbitrator had committed jurisdictional error, such that she had not exercised the Commission’s jurisdiction.

27 Both parties essentially agreed that the Arbitrator had erred in failing to approach the calculation of weekly awards of compensation by following the steps laid out in Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530. That approach was reaffirmed by the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at 529-530. There is nothing novel in it. The parties however differed in their opinion on what the Deputy President ought to have done in the circumstances. Apparently Ms Trevarrow was content for the matter to go back to the Arbitrator, whereas Chubb, at least on appeal, submitted that the Deputy President had a positive duty to correct the erroneous approach taken by the Arbitrator, which perhaps may have involved giving leave to adduce fresh evidence under s352(6). This power to receive fresh evidence is somewhat problematic, as it is essential to ensure that the limited review by a Presidential member under s352 does not expand into a full-blown de novo hearing, quite beyond the legislative intention.

28 As I have said the matter is now largely academic. The legislature has provided the President member hearing such an appeal with an alternative option of remittal to the Arbitrator. Whether the Presidential member revokes and substitutes a decision or remits the matter to an Arbitrator is a matter within the reasonable discretion of the Presidential member, having regard to the overriding objectives of the legislation in providing a fair, cost-effective and timely means of resolving workers compensation claims. The legislative amendment can be construed as a legislative recognition that in certain cases, it will be more efficient and cost-effective for an Arbitrator to redetermine issues and make appropriate calculations in cases such as this.

29 In this case, no one denies that the Commission should have exercised its jurisdiction to properly determine the rates and period of the award of weekly compensation. It is certainly regrettable that the Arbitrator failed to follow the well-accepted tests set out in Pantaleo and Mitchell in order to do so. It is perhaps also regrettable that the Deputy President did not redress the Arbitrator’s default and fully determine the practical details of the awards in this case. I would not say more than that sending the matter back to the Arbitrator, although retrospectively validated, may perhaps have been an unnecessary stringing-out of a claim such as this where the issues outstanding once liability was resolved were in such narrow compass. Furthermore, it is certainly more than merely regrettable that these factual issues still remain unresolved, when one would have thought that the relevant documentary evidence of wage records and medical certificates were easily accessible by reasonable co-operation between the parties.

Grounds 1 to 3 – liability

30 Accepting that grounds 4 to 6 must fail, this appeal falls to be determined on the issue of whether there was any error of law in the Deputy President’s conclusion on liability. Mr Ferrari of counsel for Chubb faintly pressed these grounds, though accepting that his case was by no means strong. The keystone of Chubb’s submissions in the present case is their belief that Ms Trevarrow’s employment only provided the opportunity for her injury, but that it was not established that the actual work she performed was a substantial contributing factor. According to Chubb, although Ms Trevarrow had satisfied the s4 requirement that the injury was one arising out of or in the course of employment, she could not satisfy the additional criterion of the employment having been a substantial contributing factor to the injury. I presage my reasons below by stating my conclusion that no error has been shown in the approach of Byron DP and accordingly the appeal must fail.

31 In Mercer v ANZ Banking Group Ltd (supra), the Court of Appeal emphasised that s9A focuses upon “the work activity in which the worker was engaged at the time of the injury” as the relevant avenue for inquiry (at 746). Mason P (with whom Meagher and Beazley JJA agreed) stated:

“The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of ‘a substantial contributing factor to an injury’ is exegeted in subss (2) and (3) of s9A.”

32 I pause to note that the case for Chubb involved certain submissions which appear to allege that the Deputy President erred in law by failing to give adequate reasons for his decision. This is not so. The suggestion in written submissions for Chubb that the Deputy President failed to set out the work-related activities during which the injury occurred is not correct. It is immediately obvious from the Deputy President’s reasoning that the activity was Ms Trevarrow’s attendance at the premises to complain about a colleague and discuss a relevant condition of her employment – namely the site at which she was posted.

33 The actual work activity in which Ms Trevarrow was engaged was attending the headquarters of her employer in order to discuss the terms and conditions of her employment, and in particular make a complaint about the behaviour of her co-worker. To my mind that falls squarely within the test as set out in Mercer. The activity of making a complaint about a co-worker was, if not directly part of her usual employment activities, certainly part of it in an incidental or ancillary sense. Ms Trevarrow’s employment was an instigating factor (being a characteristic of the conditions in which her work was performed) in her attendance at the Ashfield premises, where she sustained the injury.

34 It is misconceived to attempt to interpret employment as confined essentially to Ms Trevarrow walking her beat around the IBM premises at Baulkham Hills to which she was assigned to guard. The respondent’s written submissions correctly criticise this as an attempt to resurrect a narrow interpretation which was rejected by the High Court in respect of s4 in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (at 632-3, 642). The respondent correctly states that there is nothing in Mercer or any other authority to suggest that the same approach is inapplicable to s9A.

35 No error of law has been shown in the legal tests as set out by the Deputy President in relation to s9A, and consequently there is no appellable error of law. The Deputy President’s conclusion that the employment was a substantial contributing factor was a finding of fact – a matter of impression and degree, albeit informed by legal considerations – and against such findings, no redress is provided by s353 WIM: see McMahon v Lagana [2004] NSWCA 164. In any event, in my view, the particular finding that Ms Trevarrow’s employment was a substantial contributing factor was entirely appropriate, being well open on the state of the evidence.

36 Lastly, I do not consider there to be any force in ground 3, which alleges that the Deputy President failed to correctly apply s9A(3) WCA. Byron DP had regard to the relevant authorities the net effect of which confirms that the fact that an injury arose out of or in the course of employment, while not determinative of whether the employment was a substantial contributing factor, it is not irrelevant either: Supair Pty Ltd v Sweeney (2000) 20 NSWCCR 514 at 516, Mercer (supra) at 747-8. The Deputy President did not merely say that the facts which showed the injury arose out of or in the course of employment deemed the employment to be a substantial contributing factor. Instead, he considered the necessary and significant causal linkage to be present such that the “merely because” prohibition was not contravened. There was no error of law.

CONCLUSION AND ORDERS

37 I conclude that the appellant Chubb has failed to demonstrate any error of law in the Deputy President’s determination of liability which would justify this Court in interfering under s353 WIM. The appeal must therefore be dismissed as regards grounds 1-3. It was unfortunate that the Deputy President did not put this litigation to rest by determining the rates of weekly compensation in accordance with the statutory formula as explained in Pantaleo and Mitchell, instead sending the matter back to the Arbitrator for a proper decision to be made. That decision, if beyond power at the time, has since been retrospectively validated for better or worse by legislative amendment to s352 WIM. Accordingly, that part of the appeal contained in grounds 4-6 must also fail.

38 The net result of this, after three rounds of hotly contested litigation is that Chubb is liable to pay weekly compensation to Ms Trevarrow under the Workers Compensation Act 1987 for a period of total incapacity from, at least, 11 November 2001 to 11 February 2002. Chubb is also liable to pay weekly compensation in respect of further partial and total incapacity up until 15 October 2002, but the precise period of partial and total incapacity remains to be determined. Furthermore, no valid calculation has yet been made in accordance with the WCA of the rate of the weekly compensation to be paid, in respect of either the periods of total or partial incapacity.

39 These issues for decision unfortunately remain outstanding, although the parties have indicated that they have hopes of being able to come to agreement in order to prevent yet another round of costly and time-consuming litigation in the form of a remittal from this Court back to the Commission. Such a result would be in everybody’s best interest, given the length of time which this straightforward claim has been languishing in litigation. That included an unnecessary application for leave to appeal.

40 Accordingly, and for the reasons previously given, I propose the following orders:

1. The appeal is dismissed;

2. The appellant is to pay the respondent’s costs of the appeal and the respondent’s costs thrown away by the unnecessary leave application previously brought and abandoned;

The parties are to have leave to file within 21 days further short minutes of order by consent as to the award to be made in favour of the respondent, specifying the rates of weekly compensation and the periods of total and partial incapacity.

41 IPP JA: I agree with Santow JA.

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Last Modified: 09/24/2004