Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden - [2014] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13
APPELLANT:	Dewan Singh and Kim Singh t/as Krambach Service Station
RESPONDENT:	Elle Rose Wickenden
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-11400/12
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION:	5 December 2013
DATE OF APPEAL HEARING:	12 March 2014
DATE OF APPEAL DECISION:	18 March 2014
SUBJECT MATTER OF DECISION:	Journey claim; s 10(3A) of the Workers Compensation Act 1987; worker travelling home in darkness due to employment requirement to work late; collision with vehicle swerving to avoid cattle on road; whether worker established a real and substantial connection between the employment and the accident; drawing of inferences; whether open to infer that darkness played a role in the accident
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Malouf, instructed by Sparke Helmore Lawyers
Respondent:	Mr B McManamey, instructed by Stacks The Law Firm
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 5 December 2013 is confirmed. 2. The appellant employers are to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

INTRODUCTION

A personal injury received by a worker on any journey to which s 10 of the Workers Compensation Act 1987 (the 1987 Act) applies is, for the purposes of the 1987 Act, “an injury arising out of or in the course of employment, and compensation is payable accordingly” (s 10(1)). The journeys to which the section applies include, among others, daily or other periodic journeys between the worker’s place of abode and place of employment (s 10(3)(a)).
This appeal concerns the interpretation of s 10(3A) of the 1987 Act, which provides that, for injuries received on or after 19 June 2012, a journey to or from a worker’s place of abode and place of employment is a journey to which s 10(3) applies “only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose”.

BACKGROUND

The respondent worker, Elle Wickenden, worked intermittently as a casual employee at the Krambach Service Station, at Krambach, from July 2009. (Krambach is a small village about 39 kilometres southwest of Taree in northern NSW.) The appellant employers, Dewan Singh and Kim Singh, took over the service station in October 2011, but did not require Ms Wickenden’s services until February 2012.
Ms Wickenden usually worked a minimum of five hours per day, starting at 9.30 am and finishing at 2.30 pm, for three days per week, with additional days as required. She normally rode her motorbike from her home at Nabiac to and from work, a journey of about 15 kilometres each way. If she started and finished her work at her usual time, her journeys to and from work were in daylight.
From about the middle of June 2012, the appellants asked Ms Wickenden to work longer hours, while she was trained to do the additional duties required to open and close the service station. During the training period, which was to last about three weeks, Ms Wickenden worked from 7.30 am until 5.30 pm.
On 5 July 2012, while still in the training period, Ms Wickenden closed the service station at the normal winter closing time of 5.30 pm and started her trip home in darkness. While riding her motorbike home, she was involved in an accident when a car driven by a Ms Thomas swerved onto her side of the road and struck her motorbike. As a result of the collision, she suffered severe a compound fracture of the tibia and fibula.
In her motor accident claim form (the claim form), completed on 27 July 2012, Ms Wickenden said that the accident occurred at the corner of Avalon Road and School Lane, Dyers Crossing. She described what happened as follows:
“I had just finished work & was riding my motorbike home to Nabiac. It was about 5.45 pm & dark. I saw cattle on the road in the oncoming car headlights so I began to slow down. A car travelling in the opposite direction swerved onto my side of the road (to miss hitting [the] cows) hitting my bike & causing me to be thrown off my bike.”
In her statement of 14 September 2012, Ms Wickenden said that she normally rode home in daylight, but had to ride home in the dark while doing the extra training. She described how the accident occurred at [8]:
“About half way home I saw some cattle on the road ahead in the light from oncoming car headlights. It was difficult to see the cattle clearly. I slowed down. An oncoming car swerved to avoid hitting [the] cows and collided with my motorbike, throwing me off the bike.”
Ms Wickenden added that the road on which the accident occurred was “a fairly poor quality country road, sealed but rough in many places and quite narrow”. In her claim form, she described the road as being in “reasonable condition”.
The Police Report said the accident was reported at 17:45. The road surface was described as “sealed” and “wet”. The natural light was described as “darkness”. The speed limit was 80 kilometres per hour and the “pre-crash speed” for both vehicles was recorded as 60 kilometres per hour. The road alignment was described as “curved” and the weather as “raining”.
The insurer denied liability for the claim on the ground that, in the absence of a real and substantial connection between Ms Wickenden’s employment and the incident out of which her injury arose, no compensation was payable for her injury (s 10(3A)). It was not disputed that, but for s 10(3A), Ms Wickenden was on a journey to which s 10 applies.
After receiving written submissions from the parties, the Arbitrator delivered a decision on 5 December 2013 in which he found that Ms Wickenden’s journey was a journey to which s 10 applied by reason of a real and substantial connection between her employment and the accident out of which her injury arose. The Commission issued a Certificate of Determination on 5 December 2013 in the following terms:
“1.The applicant sustained injury on 5 July 2012 on a journey to which section 10 of the 1987 Act applies, namely a daily or other periodic journey between the worker’s place of employment and place of abode, such journey being one to which the section applies by reason of a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
2.Order the respondent pay the applicant weekly compensation at the rate of $400 per week from 5 July 2012 to 31 December 2012 pursuant to section 36 of the Workers Compensation Act 1987 (as in force prior to the weekly payments amendments made by the Workers Compensation Legislation Amendment Act 2012).
3.Order the respondent pay the applicant weekly compensation at the rate of $320 per week from 1 January 2013 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987 (as in force since the weekly payments amendments made by the Workers Compensation Legislation Amendment Act 2012) (being 80 per cent of the AWE of $400 per week).
4.I further order the respondent to pay the applicant’s section 60 expenses (general order).
5. The respondent is to pay the applicant’s costs as agreed or assessed.
6.I grant an uplift of 25 per cent (both parties) having regard to the complex factual and legal issues which were argued when at all relevant times there was no decided case.
7. Grant liberty to apply.”
The employers have appealed. For the reasons set out below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     not affording the appellants procedural fairness (procedural fairness);
(b)     finding that the cause of the accident was the condition of darkness (cause of the accident);
(c) finding that s 10(3) applied because there was a real and substantial connection between Ms Wickenden’s employment and the accident or incident out of which the injury arose (real and substantial connection);
(d)     finding that Ms Wickenden was in a position of greater peril at night than would have applied by reason of Ms Wickenden finishing at 2.30 pm (real and substantial connection);
(e)     finding that the accident arose by reason of the special requirement placed upon Ms Wickenden by the appellants whereby she was placed in a position of increased peril (real and substantial connection), and
(f)      finding that Ms Wickenden’s case fell within a “special category” (special category).

PROCEDURAL FAIRNESS

Background and submissions

The parties agreed to the matter being determined by the Arbitrator without a conference or formal hearing (Arbitrator’s Reasons at [12]). Pursuant to a direction issued by the Arbitrator, the parties provided written submissions, the last being filed on 14 May 2013.
Between 14 May 2013 and the date of the Arbitrator’s decision on 5 December 2013, another Arbitrator delivered a decision on s 10(3A) on 19 July 2013 (Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCC 371 (Mitchell No 1)). On appeal, Deputy President O’Grady confirmed the Arbitrator’s decision on 22 October 2013 (Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 (Mitchell No 2)). The Arbitrator delivered his decision, in the present matter, on 5 December 2013 without seeking further submissions from the parties about either Mitchell No 1 or Mitchell No 2.
Counsel who prepared the appellants’ written submissions on appeal, Mr Best, submitted that the Arbitrator in the present matter, Arbitrator Caddies, made substantive references to the Arbitrator’s decision in Mitchell No 1 but only passing references to the Deputy President’s decision in Mitchell No 2. He said that Arbitrator Caddies failed to identify why he preferred the reasoning of the Arbitrator in Mitchell No 1 rather than the reasoning of the Deputy President in Mitchell No 2.
Mr Best complained that at no stage prior to the publication of Arbitrator Caddies’ decision on 5 December 2013 were the appellants given the opportunity of making submissions in respect of either Mitchell No 1 or Mitchell No 2. He submitted that Arbitrator Caddies failed to give the appellants procedural fairness because they were deprived of an opportunity to make submissions in respect of the applicability (or otherwise) of the reasoning in the Mitchell decisions (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; Seltsam Pty v Ghaleb [2005] NSWCA 208; 3 DDCR 1).
Mr Best said that procedural fairness required Arbitrator Caddies to issue a further direction (after the initial direction setting the timetable for written submissions) giving the parties the opportunity to make further submissions in respect of the application and interpretation of s 10(3A) in light of the Mitchell decisions. He argued that Arbitrator Caddies’ failure to seek further submissions was an error of law because he made “significant use” of the Arbitrator’s decision in Mitchell No 1 and did not explain why the Deputy President’s reasoning in Mitchell No 2 was not relevant or binding upon him, particularly in respect of the issues of “increased peril”, “added peril” or “special exposure”.
At the oral hearing of the appeal, counsel for the appellants, Mr Malouf, did not abandon the procedural fairness point but submitted that any unfairness could be cured by the submissions presented on appeal.

Discussion and findings

I do not accept that the failure to seek additional submissions on the Mitchell decisions amounted to a denial of procedural fairness. The appellants’ legal advisers were, or should have been, aware of the Mitchell decisions and were entitled to apply to make such further representations, or tender such further evidence, as they felt appropriate. They did not do so and they have offered no explanation as why they did not do so. Nor have they explained what further submissions they wished to make to the Arbitrator in light of the Mitchell decisions. Thus, they have not explained how the Arbitrator’s failure to seek further submissions has affected the outcome.
If the appellants contend that the Arbitrator failed to apply, or that he incorrectly applied, some principle in Mitchell that supports their position, and that he therefore erred, that contention has been fully ventilated in this appeal. It follows that, even if the failure to seek further submissions amounted to a denial of procedural fairness, it has not prejudiced the appellants’ rights or affected the outcome.

CAUSE OF THE ACCIDENT

The Arbitrator’s reasons

The Arbitrator found that “the circumstances of the accident more probably than not accord[ed] with the analysis of the facts made by [Ms Wickenden’s] counsel” ([33]). In summary, the analysis by Ms Wickenden’s counsel, Mr McManamey, was:
(a)     Ms Wickenden usually finished work at “3.00 pm [sic, 2.30]”;
(b)     this meant her journey home was usually taken in daylight;
(c)     Ms Wickenden was specifically required to work later at the time of her accident;
(d)     these extra duties placed her on the road in the dark;
(e)     the condition of darkness made it more difficult to see the cattle;
(f)      there could be little doubt that the time of the day contributed to the accident in a manner that was real and of substance;
(g)     the lack of daylight on a country road reduced visibility for both Ms Wickenden and the oncoming driver and reduced the time during which both drivers had to react and reduced the opportunity to simply stop without an accident occurring;
(h)     the circumstance of confronting the cattle on a country road in the dark was a circumstance to which Ms Wickenden was exposed because of her employment and would not otherwise have been exposed, and
(i)      the time of the journey, as dictated by Ms Wickenden’s work, contributed to the accident in a manner that was real and of substance.
At the appeal hearing, both counsel agreed that the above summary was an accurate statement of the analysis presented at the arbitration and which the Arbitrator accepted.

Submissions

Mr Best contended that the evidence did not allow the Arbitrator to make the above findings. He said that, on the evidence before the Arbitrator, “the condition of darkness was not causally connected with the accident”. He argued that Ms Wickenden’s statement demonstrated that, despite the state of “darkness”, she was able to see the cattle on the road and slowed her motorbike. For her contention that “darkness” was:
“the cause of the accident to be correct, the factual material should reveal that [Ms Wickenden] failed to observe the cattle by reason of the state of ‘darkness’ and as a result, she collided with the cattle or otherwise sustained injury in a futile attempt to avoid striking the cattle.”
Mr Best argued that the cause of the accident was the behaviour of Ms Thomas in swerving and colliding with Ms Wickenden. He said there is no evidence to support the contention that it was darkness that caused Ms Thomas to fail to see the cattle on the road until she swerved and the Arbitrator therefore erred in making the factual finding at [32] of the decision (as the Arbitrator made no factual findings at [32], but merely recounted part of Mr McManamey’s submissions, this submission was a reference to the Arbitrator’s finding at [33]).
Mr Malouf argued that there was no connection between the employment and the accident. That was because there was no evidence that Ms Thomas swerved because she could not see the cattle.

Discussion and findings

I do not accept the submissions put on behalf of the appellants.
The Arbitrator’s findings were open to him on the evidence. Mr Best’s submissions have wrongly assumed that, for Ms Wickenden to succeed, she had to prove that darkness was the cause of the accident. She only had to prove that there was a real and substantial connection between her employment and the accident. For the reasons discussed below, that is quite a different test that may, but does not necessarily, involve a causal connection between the employment and the accident. It certainly does not require that the employment be the sole cause of the accident.
The evidence established that, because of her employment, Ms Wickenden rode home in darkness rather than in daylight. Her normal route home was on a narrow country road of “fairly poor quality”. The evidence also established that the cattle were difficult to see clearly. The logical and compelling conclusion is that it was difficult to see the cattle because of the darkness. The darkness was a condition that affected both Ms Wickenden and Ms Thomas.
To conclude, as the Arbitrator did, that the darkness reduced the time Ms Wickenden and Ms Thomas had to react, and that it therefore contributed to the accident, required the drawing of an inference. The drawing of an inference is “an exercise of the ordinary powers of human reason in the light of human experience” (G v H [1994] HCA 48; 181 CLR 387 at 390). In a civil case, “you need only circumstances raising a more probable inference in favour of what is alleged” (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5).
Though it is correct that there is no direct evidence that Ms Thomas failed to see the cattle because of darkness, as a matter of commonsense and general human experience, the compelling conclusion is that the darkness reduced the time that both Ms Wickenden and Ms Thomas had to react and avoid a collision. It follows that it was open to the Arbitrator to conclude that the time of the journey was a factor that contributed to the accident.
It was not necessary for Ms Wickenden to establish that fact as a matter of scientific certainty: “the legal concept of causation differs from philosophical and scientific notions of causation” (March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 per Mason CJ at 509 (March v Stramare)). It was an inference reasonably open on the evidence. Error is unlikely to be established where all that is shown is that the trial judge (or arbitrator) made a choice between competing inferences, being a choice that the appellate court might not have made but not a choice the trial judge (or arbitrator) should not have made (Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359 at 369).
It is possible, as was argued by Mr Malouf on appeal, that Ms Thomas might not have seen the cattle because she had fallen asleep, or for some other, unexplained, reason. However, given the time of the accident (early in the evening), and given Ms Wickenden’s evidence that it was difficult to see the cattle clearly, “the circumstances raise the more probable inference in favour of what is alleged” (Flounders v Millar [2007] NSWCA 238 per Ipp JA at [35]), namely, that darkness was an important factor in causing Ms Thomas to swerve and, therefore, in causing the accident.
Mr Malouf’s submission that the only inference open was that there was enough time for both Ms Wickenden and Ms Thomas to react safely was inconsistent with Ms Wickenden’s evidence that it was difficult to see the cattle clearly and inconsistent with what actually happened.
The situation that Ms Wickenden faced, namely, riding home in darkness, was a situation that was connected with her employment because her employment required her to work later than normal and to ride home in darkness rather than in daylight. In that sense, given the factors noted at [23] above, and for reasons discussed further below, there was a real and substantial connection between the employment and the accident.

There is no doubt that the actions of Ms Thomas played an important role in the accident. However, the submission that the accident was caused by the action of Ms Thomas, and that, therefore, Ms Wickenden cannot succeed, attributes to s 10(3A) a causative element that is not present. As noted above, the word “connection” in s 10(3A) may, but does not necessarily, convey the notion of a causal connection (Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 at [102] and [114] (Bina)).
As the authorities discussed in Bina confirm, the expression “real and substantial connection” does not require any causal relationship between the two circumstances or situations concerned (Phillips v Commissioner for Superannuation [2005] FCAFC 2 at [44]; Commissioner of Superannuation v Benham [1989] FCA 93; 22 FCR 413 at [421]). It requires an association or relationship. This approach to the meaning of “connection” is consistent with the observations of the majority in Comcare v PVYW [2013] HCA 41; 88 ALJR 1 (PVYW), though those observations were made in a different context.
PVYW concerned whether a worker injured during an interval between periods of actual work was in the course of her employment. The majority (French CJ, Hayne, Crennan and Kiefel JJ) held that, in determining whether an injury occurs in the course of employment in such circumstances, regard must be had to the “general nature, terms and circumstances of the employment” ([33]). The employer’s liability depends upon what the employer induced or encouraged the employee to do ([34]). Where the employee is injured while engaging in an activity, the question will be whether the employer induced or encouraged the employee to engage in that activity. When injury occurs at and by reference to a place, the question will be whether the employer induced or encouraged the employee to be at that place.
Significantly, however, the majority added that this did not “inject notions of causation into the application of the principle” ([44]). Their Honours added, at [44]:
“To identify the relevant connection does not raise any question about causation. It simply identifies the circumstance in which the injury is suffered. It is that circumstance which must be the subject of the employer’s inducement or encouragement.” (emphasis added)
And, at [50]:
“the Hatzimanolis principle, when it is appropriate to be applied, effects a connection between the circumstances in which the employee sustains injury and the employment. The principle may create a temporal element, in the notion of an interval, but it also creates a factual association or connection with the employee’s employment. It does so by the fact of the employer’s inducement or encouragement.” (emphasis added)
In s 10(3A), which talks about a real and substantial connection between the employment and the accident or incident, the connection may be provided by establishing that the employment caused the accident, but that is not a necessary requirement. Even if, contrary to my view, s 10(3A) requires a causal connection between the employment and the accident, the employment does not have to be the only, or even the main, cause. It is trite law that an accident can have many causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]).
The use of the indefinite article “a”, in s 10(3A), makes it clear that employment does not have to be “the” connection between the accident or incident. It only has to be “a” connection, albeit one that is real and of substance (Bina at [112], citing Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 (Badawi) at [82]–[83] and [107]). That requirement is satisfied on the facts of the present case because Ms Wickenden’s employment required her to work later than normal. That meant she finished work in darkness and had to journey home on a narrow country road in darkness.
For the reasons already canvased above, the darkness unarguably played a role in the accident. That role did not have to be the cause of the accident. It only had to provide “a” connection, of substance, between the employment and the accident. In other words, the employment had to create, and did create, a factual association or connection with the employment that was real and of substance.
It follows that the Arbitrator did not err in finding that the factual circumstances of the accident accorded with the analysis of the facts made by Mr McManamey and that s 10(3A) was satisfied.

REAL AND SUBSTANTIAL CONNECTION

The Arbitrator’s reasons

Arbitrator Caddies said (at [34]) that Ms Wickenden was placed, by reason of her employment, “in a position of greater peril at night time than would have applied by reason of her normal finishing time of 3.00 pm [sic, 2.30]”.
He noted (at [35]) that the “notion that an employment exposed someone to increased peril in a journey originally came from the terms used by Windeyer J in Scobie v K D Welding Co Pty Ltd (1959) 103 CLR 314 at 330 (Scobie), where his Honour said that a deviation or delay (in a journey), prima facie, increases the “perils of the journey, because it adds a new place or further time in which danger might arise and loss occur”.
The Arbitrator said that earlier journey provision could be used for “broader context”, but did not displace the starting point of the ordinary or grammatical or natural meaning of the words used.
He added, at [37] and [38]:
“37.The accident or incident in this case arose by reason of the fact that [Ms Wickenden’s] normal employment would not have required her to have been on the road in darkness save for the special requirements of the employer in requiring [Ms Wickenden] to stay back by well over two hours in a situation where [Ms Wickenden] was placed in a situation of increased peril.
38.I do not think that being placed in a position of peril by reason of one’s employment is necessarily the true ambit of section 10(3A). In my view however such circumstances would normally fall within it.”

Submissions

Mr Best submitted that no assistance could be derived from the Arbitrator’s reference to Scobie because his reference to that case was “misconstrued”. That case concerned the issue of increased peril because of a deviation in a journey. Ms Wickenden did not deviate from her ordinary journey home. More crucially, as is made clear in Mitchell No 2, the “greater” or “increased” peril must be associated with the “employment”, not the journey home.
Mr Best contended that Ms Wickenden had submitted to the Arbitrator that the condition of darkness was “the cause of the accident”, and that that submission was predicated upon the premise that “but for” the fact that Ms Wickenden was required to undertake her journey home from work in darkness, she would not have been exposed to the risk of injury by reason of the darkness.
Mr Best argued that the Arbitrator’s reasons at [37] paid no regard to the reasoning in Mitchell No 2 where it was said (at [53]) that the risk of tripping by reason of darkness could not be taken as being “as a consequence of special exposure”.
Mr Best submitted that Ms Wickenden’s “but for” contention, and the Arbitrator’s acceptance of it, was based on the incorrect test of causation. This meant the Arbitrator failed to grapple with the “common sense evaluation of the facts”, as required.
Mr Malouf submitted that, if there was a connection between the employment and the accident, which he denied, that connection was not real and of substance because:
(a)     Ms Wickenden’s daily duties had finished;
(b)     Ms Wickenden had left her employer’s premises;
(c)     Ms Wickenden was driving home at the time of the accident and that was an activity unrelated to her employment;
(d)     the accident was on a public road;
(e)     it was dark at the time of the accident;
(f)      darkness is not a condition related to Ms Wickenden’s employment (other than the fact that she did not finish work until it was dark);
(g)     the danger encountered by Ms Wickenden arose from the unexplained actions of Ms Thomas and her actions were not connected or linked to Ms Wickenden’s employment;
(h)     employment did not bring Ms Wickenden to the point where she was injured, and
(i)      the danger was one to which all members of the public were exposed.
Mr McManamey submitted that Mitchell No 1 was “clearly wrong” in saying that travelling to and from work arose from the fact of being employed and not the employment of a worker in a particular job. He said that the workers in Mitchell and in the present matter were required and expected to travel from their place of abode to their place of employment in order to carry out their actual duties. Therefore, it is a necessary consequence of that requirement that upon ceasing work for the day it is then necessary to journey back to the place of abode where the worker would rest in order to be able to resume work duties the following day. Therefore, the journey to and from work was a necessary incident of their employment (Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115).
Mr McManamey argued that the scope of employment is what a worker is reasonably required, expected or authorised to do in order to carry out his actual duties (Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281 (Henderson) and Humphrey Earl Ltd v Speechley [1951] HCA 75; 84 CLR 126 (Speechley)). When an employer requires a worker to attend at premises between specified hours in order to perform his or her actual duties, it would be reasonably required and expected that he or she would travel from their place of abode to the work place and then, at the completion of the day, back to their place of abode.
Mr McManamey contended that it was Ms Wickenden’s employment, in particular, the fact that she had been required to work back, which placed her on the road when, given the visibility, there was an increased risk of an accident. The journey was being carried out solely in connection with Ms Wickenden’s employment and, for that reason, she was placed in a circumstance where she was confronted, on a dark narrow country road, with an increased risk of injury.

Discussion and findings

I agree that no assistance can be gained from Scobie. The reference in that case to an increase in “the perils of a journey” was a reference to an injury received during or after a substantial deviation from, or substantial interruption to, a journey. In that situation, compensation was not payable unless the “risk of injury was not materially increased by reason only of such substantial interruption, substantial deviation or other break” (s 7(1)(b) of the Workers Compensation Act 1926 (the 1926 Act) – see now s 10(2) of the 1987 Act, which is in slightly different terms).
As Ms Wickenden’s journey did not involve an interruption or deviation, Scobie has no application. The Arbitrator was wrong to say that the “notion that an employment exposed someone to increased peril in a journey originally came from the terms used by Windeyer J in Scobie”. In Scobie, Windeyer J was concerned with whether a substantial interruption or deviation had caused a material increase in the risk of injury. That is not the issue that arises in s 10(3A) and is not an issue in Ms Wickenden’s case.
The Arbitrator acknowledged that the earlier journey provisions did not displace the ordinary and grammatical meaning of the words used, but added, at [36]:
“It is not improper to have an initial engagement with the enactment history and context of a particular provision when that is particularly prominent in a particular case (and needs to be brought out in a properly structured decision) as long as it is not part of (or becomes) an enquiry into the subjective intent: Axiak v Ingram [2012] NSWCA 311 at [57] and [58].”
He then stated (at [37]) that the accident “arose by reason of the fact that [Ms Wickenden’s] normal employment would not have required her to have been on the road in darkness save for the special requirements of the employer requiring [Ms Wickenden] to stay back by well over two hours in a situation where [Ms Wickenden] was placed in a situation of increased peril”. He acknowledged that he did not think being placed “in a position of peril by reason of one’s employment” was necessarily the true ambit of s 10(3A), but such a circumstance would normally fall within it.
The appropriateness of the Arbitrator’s statement that, by reason of her employment, Ms Wickenden was placed “in a position of greater peril at night time than would have applied by reason of her normal finishing time of 3.00 pm [sic, 2.30]”, and his reference to “increased peril”, is open to doubt. Scobie provides no support for that approach and it was not the approach argued by Mr McManamey at the arbitration.
The principle of “special risk” or “special exposure”, which seems to be the way the Arbitrator considered the “greater peril” point, developed early last century when considering if a worker’s injury arose out of his or her employment (see, for example, Lawrence v Matthew [1929] 1 KB 1 and Stewart v Metropolitan Water Sewerage & Drainage Board (1932) 48 CLR 216). (In fact, the “added peril” principle was that if the worker, by his or her own independent act, added a new risk to the employment, any injury resulting from that risk did not arise out of the employment: see Workers Compensation (New South Wales), 2^nd ed, C P Mills, 1979 (Mills) at 79.)
However, as was explained in Badawi at [73]–[76], the test of “arising out of” employment is now settled. An injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to the injury. The phrase involves a causative element and is to be inferred from the facts as a matter of commonsense (Nunan v Cockatoo Island Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 (Nunan); March v Stramare).
It is not correct that the employment must have exposed the worker to a “special risk” before the worker can establish that the injury arose out of the employment. In Favelle Mort Ltd v Murray [1976] HCA 13; 133 CLR 580 (Favelle Mort) the worker contracted a virus while in the course of his employment. Barwick CJ observed, at 584:
“Not only was [the worker] at that time in the course of his employment, but he was at the place where he was endangered by the virus because his employment required him to be there. It is clearly quite immaterial that any member of the public, if at the same place at the same time or for that matter anywhere in the vicinity, might have been similarly attacked by the virus with comparable results. It is sufficient, in my opinion, that the virus attacked [the worker] at that place and time. For him, it was for that reason a place of danger or, if you will, of special danger; a place at which he must be in fulfilment of his employment.”
His Honour added, at 585, “the idea that the employment must have been of a nature to carry a special risk of suffering injury of some particular kind has been exploded and is no longer valid”.
The majority decision in Badawi expressly noted, with apparent approval, that the judgment of Jordan CJ and Roper J in Nunan “rejected the need for the employment to expose the worker to some special danger” (Badawi at [76]).
Similarly, in Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740, when considering s 9A, Mason P held, at [31]:
“The continuing presence of the words ‘arising out of or in the course of employment’ in the definition of ‘injury’ means that it is not essential that the worker prove that employment created any ‘special danger’ (contrast Thom v Sinclair [1917] AC 127 at 142, Craske v Wigan [1909] 2 KB 635 at 637), ‘employment risk’ or ‘added peril’ (Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 at 68). Accordingly, I respectfully disagree with the reasoning of Burke CCJ in Dayton (at [111]-[116]) which drew upon these English cases.” (emphasis in original)
In determining if an injury arose out of the employment, the question is whether the employment – its nature, conditions, incidents and obligations – exposed the worker to the risk of the injury that occurred, regardless of whether a member of the public may also have been exposed to that risk (Dennis v A J White & Co [1917] AC 479 per Lord Finlay at 481; Favelle Mort at 584–5).
None of these matters apply in the present case because it was not argued that Ms Wickenden’s injury arose out of her employment. It follows that the Arbitrator’s reference to “greater peril” was not necessary.
However, the reference to “greater peril” has not affected the outcome. Applying the correct test to the Arbitrator’s factual findings (which have been confirmed on appeal) leads to the same result. It is clear that the Arbitrator was satisfied Ms Wickenden met the test in s 10(3A) because her employment required her to work later than normal and required her to ride home in darkness, which exposed her to a risk of injury due to the darkness. That conclusion is reached without regard to any “greater peril” principle, which the Arbitrator acknowledged was not the true ambit of s 10(3A).
It is not part of the test in s 10(3A) that, before a claim can come within the provision, the worker’s employment must have placed the worker in a position of “greater peril”. While there may well be cases where s 10(3A) is satisfied because some aspect of what the worker was required or expected to do exposed the worker to a “greater peril”, or added danger, on a journey to or from work than would normally have been the case, that is not a necessary condition of the provision.
Section 10(3A) requires “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose”. The analysis of the facts and circumstances of this case, as summarised at [23] above, which the Arbitrator accepted, established that connection. That analysis concluded with the statement that confronting cattle on a country road in the dark was a circumstance to which Ms Wickenden was exposed because of her employment. Thus, s 10(3A) was satisfied because the connection between the employment and the accident was real and of substance.
Mr Best’s contention that Ms Wickenden submitted to the Arbitrator that darkness was “the cause of the accident” was incorrect. Mr McManamey made no such submission. Moreover, as noted above (at [29]) the word “connection” in s 10(3A) may, but does not necessarily, involve a causal connection. Even if it does, it does not require that the employment connection be the sole cause.
It is correct that the Arbitrator did not have regard to the reasoning in Mitchell No 2. However, that omission does not involve an error that has affected the result. In that case, the claimant suffered injury when she tripped on a tree root while walking to her car in darkness on her way home, having been required to work until 5.50 pm instead of her normal finishing time of 5.00 pm. The claimant’s main argument was that her injury had arisen out of her employment. In the alternative, she argued that she satisfied s 10(3A).
In rejecting the argument that Ms Mitchell’s injury had arisen out of her employment, the Deputy President said, at [53]:
“The risk, and the fact of, tripping by reason of darkness cannot, in my opinion, be taken as being a consequence of ‘special exposure’. The fall and consequent injury may not be taken as having arisen out of Ms Mitchell’s employment, merely because the fall happened after leaving work 50 minutes later than the usual hour. Such a proposition involves the ‘but for’ test. What is asserted in submissions is that but for working late and leaving in the dark, the fall would not have happened. The ‘but for’ test is not the correct test as to causation: see discussion by Roche DP in Qantas Airways v Watson (No 2) [2010] NSWWCCPD 38 at [85] and [86].”
This statement has no application to Ms Wickenden’s case. Mr McManamey did not argue that Ms Wickenden’s injury arose out of her employment and the Arbitrator did not decide the case on that basis. Therefore, the Arbitrator did not err in not referring to that part of the reasoning in Mitchell No 2. In any event, as noted earlier in this decision (see [64] above), the principle of “special exposure” or “special risk” is no longer part of the test of “arising out of”.

It follows that Mr Best’s next submission – dealing with Ms Wickenden’s alleged “but for” contention and the Arbitrator’s alleged acceptance of it – has no foundation. Contrary to Mr Best’s argument, Ms Wickenden did not make that submission and the Arbitrator did not deal with it, let alone accept it. The causation issue referred to by Mr Best arose in Mitchell because Ms Mitchell argued that her injury arose out of her employment, that is, that it had been caused by her employment.
I do not accept Mr Malouf’s analysis as to why Ms Wickenden’s employment was not a real and substantial connection with the accident. First, that Ms Wickenden had finished her daily duties and left her employer’s premises is not relevant to determining if s 10(3A) is satisfied. Section 10 will only apply when a worker has finished his or her work and left the employer’s premises. If it were intended that those factors would prevent a worker from recovering compensation, the legislature would simply have abolished journey claims altogether.
Second, that Ms Wickenden was driving home from work does not, of itself, prevent s 10(3A) being satisfied. The section is intended to cover exactly that situation. Driving home is not an employment activity, but it is an activity that is connected with the employment in that it is something that the overwhelming majority of workers must do each day if they wish to work. If the worker is engaged in an employment activity at the time of the accident, there will (most likely) be no need to rely on s 10(3A) (Maurino v Amberlor Pty Ltd [1996] NSWCC 38; 14 NSWCCR 16; Smith v Brown [1998] NSWCC 24; 16 NSWCCR 492; Fekonja v Lucsan Pty Ltd (1994) 10 NSWCCR 339).
If it were a requirement that, before a worker could succeed under s 10(3A), the worker must be engaged in an employment activity, s 10(3A) would have no work to do and would be otiose. That cannot be so because it is a basic rule of statutory interpretation that “no clause, sentence, or word shall prove superfluous, void or insignificant” (The Commonwealth v Baume (1905) 2 CLR 405 per Griffith CJ at 414; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 382).
Third, that the accident occurred on a public road is irrelevant. The vast majority of journeys to which s 10 applies will involve use of a public road or public place. That fact, on its own, is of limited, if any, relevance to whether s 10(3A) is satisfied.
Fourth, the submission that darkness was not a condition related to Ms Wickenden’s employment misses the point. Her employment required her to work later than her normal finishing time and to travel home in darkness.
Fifth, for the reasons explained above, the danger encountered by Ms Wickenden did not arise from the unexplained actions of Ms Thomas. It arose from the danger of riding home in darkness on a narrow country road.
Sixth, as Ms Wickenden did not allege that her injury arose out of her employment, her employment did not have to bring her to the point where she was injured.
Last, that the danger was one to which all members of the public were exposed is immaterial (Favelle Mort at 584-5). Ms Wickenden’s employment, in requiring her to work until it was dark, exposed her to a danger that contributed to the accident. The danger did not have to be a danger that, because of her employment, was unique to her circumstances.
This analysis is sufficient to dispose of the appeal in favour of Ms Wickenden. For completeness, however, I add that I do not accept Mr McManamey’s additional submission that, in travelling to and from work, a worker is doing something that is reasonably required and expected by his or her employer. It is true that, to perform work at the employer’s premises, the worker will normally have to travel between his or her place of abode to his place of employment. That does not make the journey something that is reasonably required, expected or authorised to carry out the worker’s duties and, therefore, something that is incidental to the employment.
The intention of the journey provisions, as first introduced in the 1926 Act, was to “extend” the course of employment to cover specified journeys (Slazenger (Aust) Pty Ltd v Burnett [1951] AC 13 at 21 quoting, with approval, Dixon J in Hume Steel Ltd v Peart [1947] HCA 34; 75 CLR 242 at 257). The result was that the journey provisions in the 1926 Act were to be read as if an injury received on a journey was deemed to be an injury received by the worker in the course of his or her employment. It follows that the journey provisions represent an “expansion of the liability of employers to pay compensation for injuries occurring outside their control and immediate or direct economic interests” (per Kirby J in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 458 ([49])).
As s 10(1) of the 1987 Act expressly states that a personal injury received by a worker on any journey to which the section applies is “an injury arising out of or in the course of employment”, there is now no need for any implied deeming. However, for journeys on or after 19 June 2012, s 10(1) only applies to journeys to or from the worker’s place of abode and his or her place of employment if the proviso in s 10(3A) is satisfied.
The Henderson/Speechley test helps to determine if, at the time the worker is injured, the worker is in the course of his or her employment. That question will not usually arise where a worker is only travelling to and from work and not engaged in any work activity. If merely travelling to and from work satisfied the Henderson/Speechley test, there would have been no need to enact the journey provisions. It follows that, without more, merely travelling to and from work is not something that is incidental to the performance of the work and it is not something that is required or expected in order to carry out the work. It is not something that the employer normally has any control over. It follows that the Henderson/Speechley test gives no assistance in determining s 10(3A) cases.
Notwithstanding these matters, as observed at 197 in Mills, any entitlement to compensation which would otherwise arise in respect of injuries received on journeys and intervals between work periods is unaffected by the journey and recess provisions. In other words, if a worker otherwise satisfies the tests in ss 4 and 9A, there is no need to rely on the journey provisions. Whether a worker has satisfied the tests in ss 4 and 9A will depend on the circumstances of the case (for authorities where ss 4 and 9A were relied on in circumstances where the worker was injured while travelling to or from his place of abode and his place of employment, see [79] above).
Whether s 10(3A) is satisfied will only arise if a worker’s journey otherwise satisfies the requirements of s 10. If those requirements are satisfied, there will be a “connection” between the employment and the journey. However, that does not satisfy s 10(3A), which requires a real and substantial connection between the employment and the accident concerned. On its own, the mere fact of travelling to and from work will not provide that connection (Bina at [63]).

SPECIAL CATEGORY

The Arbitrator’s reasons

At [39] and [40], the Arbitrator said:
“39.It is unhelpful to attempt to define the precise meaning of section 10(3A). Each journey case should be considered on its own facts by reference to the subsection to decide whether there is a real and substantial connection between the worker’s employment and the accident.
40.In my view Ms Wickenden’s case fits within that special category to which Mr Douglas referred. If Ms Wickenden’s case did not so fit, I find it very hard to contemplate a circumstance where section 10(3A) could apply. I must assume that that was not the intent of the Legislature and that ‘such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’ per Griffith CJ in The Commonwealth v Baume (1905) 2 CLR 405 at 414.” (The reference to Mr Douglas was a reference to Arbitrator Douglas, the Arbitrator in Mitchell No 1.)

Submissions

Mr Best submitted that the Arbitrator did not set out the basis for his finding that Ms Wickenden fell within a “special category” and, in any event, Arbitrator Douglas did not use that term in Mitchell No 1.
Mr Best added that, though not explicit in Arbitrator Caddies’ reasoning, it appears he has ascribed to Ms Wickenden’s employment a particular task on the particular day that ensured her journey was more perilous than ordinarily and, as such, she “fell within a ‘special category’ of workers injured whilst on a journey home”. Mr Best said that Ms Wickenden’s duties were no different on the day of the accident and no particular task exposed her to more peril on 5 July 2012 beyond that her work required her to stay later then ordinarily, “such that the state of darkness on the journey home was the cause of the greater peril”.
Mr Best contended that Arbitrator Caddies’ findings at [39] and [40], as to the presence of a “special category” and the exposure of Ms Wickenden to greater peril by reason of darkness, were contrary to the Deputy President’s finding in Mitchell No 2 and were therefore wrong.
The Deputy President said, at [74]:
“Returning to the arguments advanced, it seems that Ms Mitchell asserts that the Arbitrator has construed the term ‘employment’ incorrectly. It is put that the term encompasses ‘attendance at a workplace’. That proposition is plainly correct. The argument is developed to suggest that the ‘link’ between employment and the incident (tripping) arises firstly because of the requirement to work at the premises, and secondly because of the 50 minute extension of the shift during which time darkness descended. Given the reasons which I have stated concerning the application of s 4(a) of the 1987 Act (at [54] and [55] above), and given that the term ‘employment’ has the same meaning in both s 4(a) and s 10(3A), this argument must be rejected. In my view any ‘link’ that may arguably exist between employment and the incident is far too tenuous to meet the causal requirement that the subsection, properly construed, requires.”
The Deputy President had earlier said (at [73]) that it was clear that, as with s 9A, the requirement of there being a “real and substantial connection” (in s 10(3A)) involves a test that goes to causation at least as stringent as that found in s 4(a) (arising out of employment).
Mr McManamey submitted that this statement could not be correct because, if the requirement in s 10(3A) is that a worker has to show that an injury arose out of employment, s 10 would have no work to do because s 4 would have been satisfied. He argued that, for s 10(3A) to have any work to do, it must be a less stringent test than that required to satisfy arising out of employment.

Discussion and findings

It is correct that Arbitrator Douglas did not use the term “special category” in Mitchell No 1. He said (at [40]) that, if it were open to hold that s 10(3A) was satisfied if the journey became more perilous due to a change in the time the worker finished work, it had not been established that there was something about Ms Mitchell’s working back on the particular day to complete a particular task that exposed her to a journey that was more perilous than it would otherwise have been had she ceased work at her normal time. In other words, the evidence did not establish the relevant connection between the employment and the accident.
I assume that this was the passage Arbitrator Caddies was referring to when he said (at [40]) that Ms Wickenden’s case fitted within “that special category to which Mr Douglas referred”. Whether that is so or not makes no difference to the result because Arbitrator Caddies had already determined (at [33] and [37]) that, on the facts before him, s 10(3A) was satisfied because Ms Wickenden’s employment required her to ride home in darkness and darkness played a role in the accident.
Arbitrator Caddies’ reference at [40] to the comments by Arbitrator Douglas, when read in the context of his decision as a whole, may be seen as obiter observations of no consequence. His essential reason for finding that Ms Wickenden had satisfied s 10(3A) was his acceptance of the factual analysis by Mr McManamey, which was open to him and disclosed no error.
Mr Best’s next submission under this heading has raised the “more perilous” or “increased peril” issue. There are two flaws in his argument. First, as explained earlier in this decision (see [62]–[67] above), it is doubtful that the increased peril argument is determinative in s 10(3A) cases. However, as explained earlier in this decision (see [70] above), the Arbitrator’s decision was based on an acceptance of the factual analysis by Mr McManamey. That analysis did not refer to, or rely on, any increased peril argument.
Second, as Mr Best acknowledged, the Arbitrator did not make a finding that a particular task ensured that Ms Wickenden’s journey home was more perilous. He did not have to make such a finding for Ms Wickenden to succeed. That is because “employment” includes not just the particular tasks performed, but also “the nature, conditions, obligations or incidents of the employment” (Thom v Sinclair [1917] AC 127, per Lord Shaw, at 142; applied in Smith v Australian Woollen Mills Ltd [1933] HCA 60 and Favelle Mort).
It was an obligation of Ms Wickenden’s employment that she work back on the day of the accident. Because she worked back, she rode home in darkness on a narrow country road. On the evidence, the darkness played a role in the accident, though it may not have been the sole cause of the accident. In these circumstances, the connection between the employment and the accident was real and of substance. These facts would not be enough to establish that, as a matter of commonsense, the employment caused the injury, to satisfy the arising out of test, but they are enough to satisfy the different, less demanding, s 10(3A) test.
Mr Best’s last point relates to the Deputy President’s finding in Mitchell No 2. The Deputy President’s comments at [73] and [74] (reproduced at [96] and [97] above) assumed that s 10(3A) has a “causal requirement” which is at least as “stringent” as that found in the arising out of test. That approach is inconsistent with Bina where the President said (at [101]) that:
“for the worker to succeed, he or she does not have to prove that the accident was caused by the employment. If the employment caused the accident then, depending on the circumstances, there is every likelihood that the accident arose out of the employment, and there will be no need to rely on the journey provisions.”
Applying the approach in Bina, which Mr Malouf did not submit was wrong, the Arbitrator did not err in not applying the statements the appellants relied on from Mitchell No 2.

SUMMARY AND CONCLUSION

Though the Arbitrator erred in his reference to Scobie, that error has not affected the outcome, which he based on his factual findings as to the circumstances of the accident. Those findings were open on the evidence and disclosed no error. It follows that there was a real and substantial connection between Ms Wickenden’s employment and the accident out of which her personal injury arose.

DECISION

The Arbitrator’s determination of 5 December 2013 is confirmed.

COSTS

The appellant employers are to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST.

Bill Roche
Deputy President

18 March 2014

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

ASSOCIATE