Department of Corrective Services v Clifton

[2006] NSWWCCPD 310

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Department of Corrective Services v Clifton [2006] NSWWCCPD 310

APPELLANT:  Department of Corrective Services

RESPONDENT:  John Clifton

INSURER:Employers Mutual Limited

FILE NUMBER:  WCC5335-06

DATE OF ARBITRATOR’S DECISION:          26 July 2006

DATE OF APPEAL DECISION:  16 November 2006

SUBJECT MATTER OF DECISION: Substantial contributing factor; section 9A Workers Compensation Act 1987; adequacy of reasons

PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Rankin Nathan

Respondent:   Taylor & Scott

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 26 July 2006 is confirmed.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 17 August 2006 the Department of Corrective Services (‘the Appellant Employer/the Department’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 July 2006.

1. The Respondent to the Appeal is John Clifton (‘the Respondent Worker/Mr Clifton’).

1. Mr Clifton was born on 18 June 1934 and started work for the Appellant Employer in probation and parole in 1962.  He worked until his retirement in 1994 but then returned to work part time for the Department.  On 1 September 2004 he was at work for the Department at the Mulawa Women’s Prison when, as he was walking from the office meal table to his office, he had a coughing fit and, as a result, blacked out and fell to the ground.  He was only unconscious for a few seconds.  When he resumed consciousness he was aware of pain in his right hip.  He was taken to Auburn Hospital where x rays revealed a fracture of the neck of the right femur.  The fracture was internally fixed with a plate and screws.

1. On 3 April 2006 he filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking lump sum compensation in respect of a 21% whole person impairment as a result of his hip injury. 

1. His claim was disputed by the Department on the grounds that his employment was not a substantial contributing factor to his injury pursuant to section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. The claim was listed for conciliation and arbitration before a Commission Arbitrator on 25 July 2006 and determined in Mr Clifton’s favour in an ex tempore decision delivered on that day.

1. The Department seeks leave to appeal that decision.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has yet been made, but if the appeal is successful, an award for the Appellant Employer would result in the Respondent Worker receiving no compensation. Therefore, the threshold in section 352(2)(b) is also satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

Other Matters

1. The Respondent Worker submits that the wording of section 352(1) and the structure of section 352 in general “points to the existence of a discretionary power that must be exercised by the Commission constituted by a Presidential member before leave may be granted” (Respondent Worker’s submissions, paragraph 15).

1. The Respondent Worker cites Chapmans Ltd v Yandell [1999] NSWCA 361. That case concerned an application for leave to appeal a costs assessment under section 208M of the Legal Profession Act 1987. It has limited, if any, relevance to section 352 of the 1998 Act. I reject the submission that “it is incumbent upon the appellant to demonstrate that [the] appeal has reasonable prospects of success” (Respondent Worker’s submissions, paragraph 16). The Commission’s practice is that if the monetary thresholds set out in section 352(2) are satisfied, then leave to appeal is usually granted. That is the approach I intend to adopt in the present case.

1. If I am wrong in this approach and something more is required before leave to appeal can be granted under section 352 then I believe that the present case is an appropriate one in which to grant leave because:

(a)it raises important points of principle about the application of section 9A of the 1987 Act;

(b)the quantum of compensation at issue is substantial, and

(c)the Appellant Employer has an arguable case.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. 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.”

1. Having regard to Practice Directions Numbers 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. 

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 26 July 2006, records the Arbitrator’s orders as follows:

“1.Employment is a substantial contributing factor to the injury received by Mr Clifton on 1st September 2004.

2.This matter to be referred to an AMS for assessment of Permanent Impairment arising as a result of the injury received on 1st September 2004.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in finding that Mr Clifton’s employment was a substantial contributing factor to his injury pursuant to section 9A of the 1987 Act and whether the reasons given by the Arbitrator were adequate.

SUBMISSIONS AND FINDINGS

The Facts

1. The facts in the present case are not controversial.  Mr Clifton was not cross examined on his statement of 16 June 2006.  In it he said:

“At about 10.00am on the last said date I was simply walking from our office meal table to my office when I had a coughing fit and as a result blacked out and fell over.  The next thing I recall was that I was on the floor with tremendous pain in my right hip and left knee.”

1. After his fall Mr Clifton was taken by ambulance to St Joseph’s Hospital, Auburn, and later to Westmead Hospital where he underwent surgery in which a rod and screws were inserted into his right hip.  In April 2005 he underwent a total hip replacement operation.

1. Mr Clifton conceded that prior to his fall he had some intermittent pain in the region of his right hip though that pain did not restrict his ability to perform his normal duties.  He had also undergone a total hip replacement on the left side in 1991 because of arthritis.

1. The above history of the fall is consistent with the hand written but undated report from St Joseph’s Hospital which states that he “fell at work after having a coughing fit”.  A similar history is recorded by Dr Collins, specialist qualified by the Respondent Worker’s solicitors, in his report of 11 October 2005 where he said that Mr Clifton “had a coughing fit at work and he blacked out and fell.  He was unconscious only for a couple of seconds.  He fell on his right hip”.  As a result he cracked the neck of his right femur.

1. In a report from Dr Fox, the treating orthopaedic surgeon, dated 14 October 2004, the following history is recorded:

“…while at work on 1 September 2004 he broke into a coughing fit which is probably related to a bronchetic [sic] episode he was suffering and blacked out.  He proceed [sic] earthward at 32 feet per second per second crunching into the concrete floor and I am pleased to report that the concrete floor sustained no damage at all.  However, he broke his right hip sustaining a basi-intertrochanteric fracture…”

1. Dr Fox added that Mr Clifton had “pre-existing osteoarthritis of the hip” and that:

“Dr Gan suggested that he might have some osteoporosis as an underlying basis of this fracture however, certainly a fall onto concrete from that height will cause the injury…” (emphasis added)

1. An x ray of Mr Clifton’s right hip on 25 November 2004 confirmed advanced osteoarthritis in the hip joint.

1. Dr Bodel reported on Mr Clifton on behalf of the Appellant Employer on 1 March 2005.  He concluded that the fall caused the fracture and that Mr Clifton needed a total hip replacement.  He felt that the timing of the total hip replacement had been brought forward by the effects of the fall and the associated fracture of the neck of the femur.  He thought it was difficult to determine when Mr Clifton would have required the hip replacement had he not had the fall.

Substantial Contributing Factor

1. The Appellant Employer submits that the Arbitrator failed to correctly apply section 9A of the 1987 Act. Reference is made to the Parliamentary Debates, Legislative Council, 26 November 1996 page 6509-10 where, in the second reading speech, the Attorney General said:

“Turning to the details of the package, the bill will limit compensation coverage to situations where employment is a substantial contributing factor to the worker’s injury or disease.

This is in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work.

The amendments specify that the weaker test of considering whether an injury arose out of or in the course of employment will no longer be enough by itself.

Questions relevant to whether employment was a substantial factor in a worker’s injury can include the time and place of the injury, the nature and duration of the work, whether it was merely a coincidence that the injury occurred at work and the extent of any non-employment contributing factors.”

1. The Appellant Employer argues that section 9A is intended to deal with situations such as occurred in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 where the worker suffered a spontaneous rupture of a cerebral aneurysm at work. The finding by the majority that the rupture was an ‘injury’ made the recovery of compensation possible in circumstances where employment had not caused or contributed to it. It is submitted that the circumstances of Mr Clifton’s injury were those intended to be “overcome” by section 9A (Appellant Employer’s submissions, paragraph three).

1. Reference is made to Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 (‘Mercer’) at [27] where it was held that “substantial” means “more than minimal, large or great”. It is submitted that, on a proper construction of section 9A and on the description of the Respondent Worker’s fall, his employment could not be considered to be a substantial contributing factor to the injury.

1. It is argued that Mr Clifton fell and sustained injury because he suffered a coughing fit and blacked out.  The coughing fit was not in any way causally related to his employment and could have occurred anyway, at about the same time or at the same stage of the Respondent Worker’s life, if he had not been at work (Appellant Employer’s submissions, paragraph 11).  The fact that the injury occurred in the course of his employment is not by itself enough to make the employment a substantial contributing factor (section 9A(3)(a)).

1. It is also argued that the contention that Mr Clifton fell onto a concrete floor and that this contributed to the hip condition is not supported by either the Respondent Worker’s evidence or the medical evidence (Appellant Employer’s submissions, paragraph 12).

1. The Respondent Worker argues at paragraph 25 of his submissions that his injury was held by the Arbitrator to be:

“…multifactorial, i.e. the black out (a non work related neurological factor) but most significantly the fall/hard surface i.e. the process of gravity first described by Newton occasioned when the respondent [worker] was walking in the course of his employment.  In other words, the factor (the fall – on [a] hard surface) was relative to his employment both temporally and causally.”

1. It is then argued that an appellate court should be cautious in subjecting a trial judge’s reasons to meticulous scrutiny in search of error as conclusions on causation are “often reached intuitively” (Chappel v Hart (1998) 195 CLR 232 per Kirby J at [148]). It is said there is no substantive basis on which to attack or overturn the Arbitrator’s finding of fact in the present case.

1. Section 9A of the 1987 Act provides:

“9A No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

1. The term ‘employment’ is not defined in either the 1987 Act or the 1998 Act but has been the subject of considerable judicial comment over the years.  In Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 (‘Mercer’) Mason P considered the High Court authority of Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (‘Semlitch’) and said at [19] to [21] inclusive:

“19    The appellant cites Federal Broom Co Pty Ltd v Semlitch. There Kitto J (with whom Taylor and Owen JJ agreed) was critical of an aspect of the reasoning of Else-Mitchell J in the court below where his Honour had treated the word ‘employment’ in the definition of ‘injury’ (at 632):

as something distinct both from the fact of the employment of the worker and from any consequence of the employment and confine[d] it ... to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work.

20    In the same case, Windeyer J said (at 641):

I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of ‘the employment’ as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.

21    The appellant submits that Bishop CCJ erred when he cited and applied the passage in the judgment of Windeyer J as distinct from that of the judgment of Kitto J. I confess that I see no difference of substance between the two judgments on this point. Each of their Honours was accepting that what Kitto J described as ‘the inherent features or essential incidents of the employment’ was relevant, employment in this context being a reference to the worker’s actual contract of employment. But the thrust of the two passages was to emphasize that ‘employment’ in the context extended to what the worker was in fact doing in his or her employment.”

1. His Honour noted at [13] of the same case the meaning of ‘employment’ in section 9A. His Honour said:

“It is common ground between the parties and well-established by earlier authority that, when s 9A(1) speaks of ‘the employment concerned’ being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment (see FederalBroom Co Pty Ltd v Semlitch (1964) 110 CLR 623 at 632-3, 641). In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to ‘the injury’ as defined in s 4. See also Stanton Cook.”

1. Section 9A was considered in Stanton-Cookv TAFE Commission (NSW) (1999) 17 NSWCCR 632 where Judge Neilson held at paragraph [44]:

“However, since the enactment of s9A, it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorised to do in pursuit of his employment contract.” (emphasis added)

1. In Mercer at [22] Mason P said:

“The worker correctly submits that the words ‘employment concerned’ in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. 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 ss (2) and (3) of s 9A.” (emphasis added)

1. In Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 (‘Dayton’) Giles JA noted at [22]:

“…‘substantial’ qualifies ‘contributing factor’, indicating that it is the strength of the causal linkage that is in question; and it is ‘the employment concerned’ which must be a substantial contributing factor, meaning not the fact of being employed but what the worker was doing in his employment.” (emphasis added)

1. In McMahon Justice Hodgson, with Santow JA and Stein AJA agreeing, stated at [35] that:

“…the question whether the worker is performing positive employment duties or is merely in an interval between such duties, when the injury occurs, may be relevant to whether the employment was a substantial contributing factor to the injury;”

1. Applying Semlitch and Mercer, the relevant ‘employment concerned’ is a reference to “what the worker in fact does in the employment”.  In the present case, Mr Clifton was employed as parole officer.  Other than his statement that he was walking to his office, it is not known exactly what duties he was performing at the time he fell.  The history recorded by Dr Bodel suggests that Mr Clifton “got up from his chair in order to speak to another staff member” when he fell.  On the available evidence I believe it was appropriate for counsel for the Department to concede at page nine line 49 of the transcript that the injury was sustained ‘in the course of employment’.  Clearly, Mr Clifton was, at the least, doing something that was incidental to his employment when he fell.  Whether counsel’s next point (that Mr Clifton was not performing any specific work activity) is correct, is unclear. 

1. The fact that a worker is ‘in the course of’ his or her employment at the time of injury does not satisfy the test in section 9A. In ICM Agriculture Pty Ltd v Perry  [2002] NSWCA 257 (‘Perry’) at [17] the President said:

   “Nothing in those cases suggested that s9A is satisfied merely because the injury arose out of or in the course of employment. Nor does Mercer. Section 9A(3)(a) explicitly states that a finding that the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.”

2. The Court of Appeal has confirmed in McMahon v Lagana [2004] NSWCA 164 at [33] (‘McMahon’) that ‘substantial contributing factor’ in section 9A is a separate and distinct question from the issue of ‘in the course of’ employment.

1. The ultimate question of whether the section 9A test is satisfied is a question of fact and is a matter of impression and degree (Dayton at [29]).

1. Applying the above authorities to the specific subsections of 9A(2) I make the following findings:

(a)“the time and place of injury”: the injury occurred during Mr Clifton’s normal working hours which were 8.30am to 4.30pm (see Workers Compensation Claim Form 15 October 2004) and at his employer’s premises, if not actually in Mr Clifton’s office;

(b)“the nature of the work performed and the particular tasks of that work”: Mr Clifton was employment as a parole officer at one of the Department’s correctional centres.  Dr Bodel’s report states that his work involved preparing pre-sentence reports for prisoners at the correctional facility.  Whilst Mr Clifton was not engaged in that activity at the time he fell it was properly conceded that he was ‘in the course of’ his employment when he was injured and I find that he was doing something that was, at the very least, incidental to his employment;

(c)“the duration of the employment”: this factor is not relevant in this case;

(d)“the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment”: it is certainly possible that Mr Clifton could have suffered a coughing fit and fallen onto a hard surface if he had not been at work, but the evidence suggests that his injury (the fracture of the neck of the femur) occurred as a result of him falling from a standing position onto concrete at his place of employment (see evidence of Dr Fox quoted above at [24]).  There is no evidence that Mr Clifton would have fractured his hip, because of the presence of degenerative changes in the hip, if he had fallen onto a more forgiving surface or if he had fallen from a lower height.  Without that evidence the only reasonable conclusion is that both the concrete surface onto which he fell and the height from which he fell were significant factors in causing the injury;

(e)“the worker’s state of health before the injury and the existence of any hereditary factors”: Mr Clifton’s state of health might well have been a factor in him sustaining his injury, but there is no evidence that the fracture occurred because of his health in general or because of his arthritic hip in particular, and

(f)“the worker’s lifestyle and his or her activities outside the workplace”: Mr Clifton’s lifestyle was not a factor in his injury.

1. In Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504 the worker, in the course of his duties, walked along a passageway between some wool carding machines. The passageway was protected on either side by guard rails. As a result of suffering from diabetes the worker fainted and fell against the guard rails sustaining injury. The High Court held that his injury arose out of his employment. The majority held at 515:

   “We think that if an additional element or consideration is needed before it can be said that a workman’s injury arises out of his employment where the injury is occasioned by his falling, through circumstances personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in the risk of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman’s fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstances that but for doing the particular piece of work which he was in fact performing, he would not have experienced that particular sort of injury.”

1. In the same case Starke J said at 517:

“1. The expression ‘arising out of’ imports some kind of causal relation between the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do out of his service (Stewart v Metropolitan Water Sewage & Drainage Board (1932) 48 CLR216 at 226), and the case is there cited).
2. The injury does not cease to arise out of the employment because its remote cause is the idiopathic [sic] condition of the injured man. The ideopathic [sic] condition must be dissociated from the other facts (Wicks v Dowell & Co [1905] 2 KB 225).
3. An injury which arises directly out of circumstances encountered, because to encounter them falls within the scope of employment, is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment (Upton v Great Central Railway Co [1924] AC at 307; Brooker v Thomas Borthwick & Sons (Aus.) Ltd [1933] AC 669).” (emphasis added)

1. In my opinion there were three main factors that contributed to Mr Clifton’s injury:

·     the coughing fit which caused him to blackout;

·     the fall from a standing position, and

·     coming into contact with the concrete floor.

1. The first factor (the fit and the blackout) was clearly unrelated to his employment.  The second and third factors were, on the evidence of Dr Fox, directly relevant in causing the injury.  Whilst the concrete floor could not be said to be something that was ‘peculiar’ to Mr Clifton’s work place, it was a feature of his work place with which he came into contact while doing something that was incidental to his work duties, that being: walking to his desk.  In other words, but for Mr Clifton’s job, he would not have fallen heavily from a height onto concrete.  In these circumstances it is my view that his employment was a substantial contributing factor to his injury.

1. I reject the Appellant Employer’s submission that there is no evidence that the particular circumstances of the fall contributed in any way to the outcome.  The relevant evidence is found in Dr Fox’s report I have quoted above.  The fact that that evidence in contained in a medical report does not diminish its relevance, especially in circumstances where the Appellant Employer called no evidence on the issue.  That histories contained in medical reports are evidence of the fact is clearly established in R v Welsh (1996) A Crim R 364 and Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25.

REASONS

1. The Appellant Employer argues that the Arbitrator’s reasons were inadequate because she did not explain how she arrived at the conclusion that Mr Clifton’s employment was a substantial contributing factor to his injury.

1. In Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1it was noted that:

   “58. Arbitrators of the Commission have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act, Rule 73 of the 2003 Rules, Absolon v NSW TAFE [1999] NSWCA 311). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
   
   59. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6).
   
   60. The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is also applicable to the preparation of statements of reasons. However, the reasons must adequately convey to the parties the basis upon which the Arbitrator came to his or her decision. These matters are set out in Rule 73 of the 2003 Rules, and require the Arbitrator to give a brief statement setting out the reasons for the determination, including:

   ‘(1). . .
   (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
   (b) the Commission’s understanding of the applicable law, and
   (c) the reasoning process that lead the Commission to the conclusions it made.

   (2) Without limiting subrule(1), the reasons set out in a statement referred to in subrule(1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.’”

1. The above reference to Rule 73 should now be read as Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’).

1. In the present case the Arbitrator set out the facts, the parties’ submissions and referred to the relevant authorities.  She found that Mr Clifton was doing something that fell within the definition of ‘employment’ when he was walking immediately before he fell (transcript page 22 line 54).  She correctly held that it is not the law that there has to be “some superadded factor” (transcript page 23 line nine) or some “additional risk” (transcript page 23 line 10) before employment can be a substantial contributing factor to an injury (see Mercer at [31]).

1. The Arbitrator referred to the factors set out in section 9A(2) set out above. She specifically considered whether the injury could have happened if Mr Clifton had not been at work and correctly noted that there was no evidence to say that it was likely to have happened in any event because of Mr Clifton’s age and the degenerative condition of his hip.

1. She then concluded that after taking into account all factors under section 9A(2) she was satisfied that Mr Clifton’s employment was a substantial contributing factor to his injury (transcript page 24 line 28). She added at page 24 line 39 that she was of the view the fall occurred “because he was undertaking his work activities” when he fell and “the fall in that particular context onto the concrete floor was not a minor factor but a substantial contributing factor in the injury”. Whilst it would have been more accurate to say that the fall occurred ‘when Mr Clifton was in the course of his employment’ rather ‘because’ of his employment activities, I believe that the Arbitrator’s reasons adequately state her reasoning process and the basis for her conclusion such that she has complied with her duty to give reasons.

1. In addition, in  YG & GG v Minister for Community Services [2002] NSWCA 247 Hodgson JA held at [37] and [38]:

“Furthermore, inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v. NSW TAFE [1999] NSWCA 311 at [67].”

1. If I am wrong in my conclusion that the Arbitrator has given adequate reasons, I do not, in the circumstances of this case, believe that the inadequacy justifies the inference that she has not exercised her jurisdiction according to law.

DECISION

1. The Arbitrator decision dated 26 July 2006 is confirmed.

COSTS

1. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

Bill Roche

Acting Deputy President  

16 November 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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