Diakanastasis v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Diakanastasis v Secretary, Department of Education [2024] NSWPIC 173
APPLICANT:	Stefanos Diakanastasis
RESPONDENT:	Secretary, Department of Education
PRINCIPAL MEMBER:	Glenn Capel
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; worker worked at Penrith for four days per week and for one day per week at Revesby; he was involved in a motor vehicle accident when travelling to work at Revesby; dispute as to whether the worker was in the course of employment when he sustained an injury whilst traveling from his abode to Revesby; alternatively, whether there was a real and substantial connection between the worker’s employment and the motor vehicle accident; sections 4 and 10 (3A); Henderson v Commissioner of Railways WA, Green v Secretary, Department of Education, NSW Police Force v Cox, Bina v ISS Property Services Pty Ltd, Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden, State Super Financial Services Australia Limited v McCoy, and Field v Department of Education and Communities discussed and applied; Held – the worker was on a daily or period journey when he sustained injury; there was no real and substantial connection between the deceased’s employment and the motor vehicle accident in which he was injured; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained an injury to his cervical spine, lumbar spine, left elbow, left hip and suffered a psychological injury on a daily or periodic journey from his place of abode to his place of work on 22 November 2022. 2. There was no real and substantial connection between the applicant’s employment and the accident out of which the applicant’s personal injury arose. The Commission orders: 3. There will be an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Stefanos Diakanastasis (the applicant) is 31 years old and is employed by the Secretary, Department of Education (the respondent) as a specialist teacher in environment education at the Penrith Lakes Education Centre. He is currently working for 24 hours per week.
There is no dispute that the applicant injured his cervical spine, lumbar spine, left elbow, left hip and suffered a psychological injury when he was involved in a motor vehicle accident when he was driving to Sir Joseph Banks High School in Revesby on 22 November 2022.
On 13 June 2023, Allianz Australia Insurance Ltd (the insurer) issued a notice pursuant to
s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant had received an injury in the course of his employment. It claimed that the applicant was on a journey to and from work and disputed that there was a real and substantial connection between his employment and the accident. It cited ss 4, 9A, 10, 33, 59 and 60 of the Workers Compensation Act 1987 (1987 Act).
On 31 August 2023, the insurer issued a dispute notice pursuant to s 287A of the 1998 Act and confirmed that it maintained its position.
By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission) (Commission) on 16 January 2024 and amended at the hearing, the applicant claims weekly compensation from 28 April 2023, medical expenses and the cost of a proposed L5/S1 nucleoplasty due to an injury sustained to his cervical spine, lumbar spine, left elbow, left hip as well as a psychological injury in the course of his employment on
22 November 2022.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

During the conciliation conference on 4 April 2024, I discussed the issues with the parties.
The respondent’s counsel, Mr Ryan Brown, confirmed that in the event that the applicant succeeded in showing that his sustained injury in the course of his employment, or alternatively, there was a real and substantial connection between the accident and his employment, the disputes regarding ss 4, 9A, 33, 59 and 60 would not be pressed and orders could be made in accordance with the pleadings.
The parties agree that the following issues remain in dispute:
i)     whether the applicant sustained an injury in the course of his employment - s 4 of the 1987 Act;
ii)     if not, whether there was a real and substantial connection between the applicant’s employment and the motor vehicle accident - s 10(3A) of the 1987 Act;
iii)    the extent and quantification of the applicant’s entitlement to payment of weekly compensation, and
iv)    the respondent’s liability in respect of medical expenses, including the proposed L5/S1 nucleoplasty - s 60 of the 1987 Act.

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the Application with attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents received on 13 February 2024;
(d)    Application to Admit Late Documents received on 2 April 2024, and
(e)    Application to Admit Late Documents received on 4 April 2024.

Oral evidence

Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Given the discrete nature of the dispute and the submissions of counsel, I propose to focus my summary of the evidence relevant to the primary dispute. Most of the evidence comprises medical reports and clinical notes that are not of relevant to the primary issues in dispute.

Applicant’s statement

The applicant provided a statement on 17 August 2023. He confirmed that he was a specialist teacher in Environmental Studies and primarily delivered lessons to high school students on excursions as part of the Kitchen Garden Program. He was required to deliver the program off site at different high schools in greater metropolitan area. He would also train the teachers at the high schools to deliver Environmental Science lessons.
The applicant stated that he was based at Penrith Lakes where he had an office. He was on site for most of the school week, preparing class lessons and excursions, delivering lessons and completing other administrative tasks.
The applicant indicated that his duties included preparing teaching and learning resources for school students visiting Penrith Lakes on an excursion, organising and facilitating kayaking excursions at Penrith Lakes for school students, driving a 14-seater bus to pick up and drop off students to and from local schools, shuttling students and equipment around to sites of interest for respective programs, caring for animals at Penrith Lakes and using them when teaching, preparing equipment and restocking testing kits as required. He participated in staff meetings at Penrith Lakes, usually every fortnight, and in professional development at Penrith lakes as required.
The applicant stated that he facilitated science, geography, history, biology, and earth science excursions and programs around the International Regatta Centre for students in Years 1 to 12.
The applicant stated that he sustained injury in a motor vehicle accident whilst travelling to Sir Joseph Banks High School to deliver a lesson. This was part of his role at Penrith Lakes. The relevant school determined when he attended on site and it was agreed that he would attend Sir Joseph Banks High School every Friday on a school week for the duration of the 2022 school year.
The applicant advised that he would take all materials to his home in Earlwood on the night before so he could go straight to the school rather than travel to Penrith and then drive back to Revesby. If he was unable to attend on the Friday or the school wanted a different day, he would arrange a different day during the week. If he was unavailable, he would arrange for a colleague to attend the school. On another day each week in 2022, he would deliver the program at Penrith Valley School in Penrith.
The applicant stated that he would often travel on Canterbury Road to the Sir Joseph Banks High School to avoid the M5 tolls unless he was running late. He was travelling on the M5 on the day of the accident. He travelled on the M4 when going to Penrith Lakes.
The applicant confirmed that he was driving westbound on the M5 near the King Georges Road on-ramp. When the traffic slowed down, he noticed that the truck behind his vehicle suddenly being propelled forward and it collided with his vehicle. He was in shock and was not aware of how injured he was. He felt pain and after the police and an ambulance arrived, he was taken to St George Hospital. His car was damaged beyond repair and was written off.
The applicant provided a further statement on 7 March 2024. This only refers to his injuries, symptoms and treatment rather than evidence relevant to the primary issue in dispute.

Documents

The applicant completed a claim form on 20 January 2023. He advised that he was driving to work at the Sir Joseph Banks High School in Revesby when a large semi-trailer collided with a truck which in turn struck his vehicle.
The applicant submitted an undated injury report form after 3 May 2023. He reported that at 8.50am on 22 November 2022, a removalist truck rear ended his vehicle. His vehicle was a write off and he was conveyed to St George Hospital.
The pre-injury average weekly earnings report (the PIAWE report) attached to the late documents received on 2 April 2024 refers to the applicant’s work locations from
27 January 2021 to 27 January 2023.
According to this document, the applicant was a teacher working from Monday to Friday at Penrith Lakes from 28 January 2022 to 27 January 2023.

Applicant’s submissions

The applicant’s counsel, Mr Morgan, submits that the applicant sustained injury when he was travelling to Revesby for work to deliver a lesson. The insurer issued two dispute notices and its denial was based on the assumption that the injury was sustained in the course of a journey.
Mr Morgan submits that the applicant’s claim is advanced in terms of the injury being sustained in the course of the applicant’s employment. Alternatively, if the applicant was on a journey, he would fit within the exclusion in s 10(3A) of the 1987 Act.
Mr Morgan submits that the two elements were the applicant’s abode in Earlwood and the place of employment at Penrith Lakes. The issue in dispute is whether the motor vehicle journey was more properly characterised as journey between a place of abode and a place of employment. The respondent must show that on the day of the accident, the place of employment had changed from Penrith Lakes to Sir Joseph Banks High School. He submits that there is no evidence to support this contention.
Mr Morgan submits that according to the applicant’s evidence, he was employed at Penrith Lakes as a specialist teacher and primarily delivered environmental science lessons to high school students. One could infer that he had to go to Penrith Lakes for the purpose of instruction and teaching high school students as part of the Kitchen Garden program. He was also required to travel to different schools and he would train teachers at those schools.
Mr Morgan submits that the applicant confirmed that he was based at Penrith Lakes, had an office there, materials were stored there and spent most of the week there preparing class lessons, preparing for excursions and completing administrative tasks. The applicant explained his duties in paragraph 7 of his statement. This was his place of employment.
Mr Morgan submits that the applicant advised that he sustained injury when he was travelling to one of the schools to deliver a lesson. He was not travelling to work at his workplace, but travelling for work as part of the role that he was employed to perform at Penrith Lakes. He was travelling to the school to present a lesson which was part of the job that he had at Penrith Lakes.
Mr Morgan submits that the day on which the applicant went to any particular high school was arranged according to the high school’s preference. He was required to attend Sir Joseph Banks High School on every Friday during the school week for the school year, but every Friday of 2022.
Mr Morgan submits that the applicant took the material used to present the lesson with him from Penrith Lakes to his home, and then drive to the lesson at Revesby, rather than drive to Penrith Lakes and then to Revesby. This was reasonable. If he was unable to attend on the Friday or if did not suit the school, he would arrange a different day during the week or someone else would give the lesson. He did a similar program and another school at Penrith.
Mr Morgan submits that the report of injury form completed by the applicant makes it clear where his workplace was, namely the Penrith Lakes Environmental Education Centre. The injury claim form identifies the school that the applicant was travelling to, consistent with applicant’s evidence.
Mr Morgan submits that the PIAWE report of the respondent recorded that the applicant was assigned to work as a teacher at Penrith Lakes from Monday to Friday. This points to the applicant operating out of Penrith Lakes, and periodically as part of that employment, he was sent to deliver lessons at schools run by his employer.
Mr Morgan submits that the Presidential decision in Green v Secretary, Department of Education[1] contains helpful discussion relative to the definition of a place of employment.
[1] [2014] NSWCCPD 71, (Green).
Mr Morgan submits that if the applicant lived close to Penrith Lakes and had to drive through Penrith such that he would have to go to work, pick up the material and then go to the school, he would be leaving from Penrith Lakes to go to the school. In this matter, rather than leaving from Penrith Lakes, the travel occurred between his abode in Earlwood and the school at Revesby. As soon as he leaves his home, he is in the course of his employment. It would be different if he was required to teach at individual schools on separate days of the week.
Mr Morgan submits in the alternative, if the applicant was travelling normally to Penrith Lakes, he would not have suffered the injury. He was on a stretch of road, such that he became exposed to the risk of injury which materialised as a consequence of being directed to go there by the respondent to perform a particular task. If he has not been travelling to Revesby, the injury would not have occurred. This is consistent with s 10(3A)) of the 1987 Act as there was a real and substantial, connection between his employment and his injury.
Mr Morgan submits that there is no issue as to injury and incapacity, and the applicant seeks orders relative to the weekly claim as well as a general order for medical expenses and the proposed treatment.

Respondent’s submissions

Mr Brown submits that the applicant was travelling to work and one needs to determine the place of employment. The respondent contends that there can be multiple places of employment and in this matter, the applicant worked at Penrith Lakes from Monday to Thursday, and on Fridays, his place of employment was at the school in Revesby.
Mr Brown submits that the applicant makes it clear in his statement that he was at the high school in Revesby on Fridays throughout 2022 unless some change was notified. Once this is accepted, it is clear that the applicant had left his home to travel to work at Revesby. The Presidential decision in NSW Police Force v Cox[2] supports the respondent’s position. There can be multiple places of employment.
[2] [2009] NSWWCCPD 20 (Cox).
Mr Brown submits that the only way that the applicant can be in the course of employment is if he is required at short notice to attend the school or for some other reason such as having to obtain something for the employer along the way.
Mr Brown submits that in the claim form, the applicant indicated that he was driving to work, not for work, and this was a regular occurrence. The content of the PIAWE report must be rejected as it is inconsistent with applicant’s statement and it was not prepared for the purposes of setting out the applicant’s work duties.
Mr Brown submits that there is no evidence to support the submission that the applicant was transporting material to the lesson and this somehow brings the trip within the course of employment. His statements says that he would have taken materials home with him so he could go straight to the school, but there is no evidence that he transported any materials or even what those materials might be. Transporting a lap top, pens or a note pad would not equate to transporting materials such that it would bring this trip within the scope of employment. The applicant’s hypothetical question can be rejected. Accordingly the applicant was not in the course of his employment when he sustained injury.
Mr Brown submits that the applicant was on aperiodic journey from his place of abode to his place of employment. There was no real and substantial connection between his employment and the accident. The mere fact that a worker is driving to and from work does not provided that connection. This is consistent with the Presidential decision in Bina v ISS Property Services Pty Ltd.[3] There should be an award for the respondent.
[3] [2013] NSWWCCPD 72, (Bina).

Applicant’s submissions in reply

In reply, Mr Morgan submits that if the applicant was asked on a Friday where he worked, he would say at Penrith Lakes. The Revesby school is not his place of employment and he was sent there by his employer to conduct lessons. The specialised teacher role where he is providing environmental science programs and services is based at Penrith Lakes. He has an office there, his materials are there and he attends staff meetings there.
Mr Morgan submits that if he travelled to Penrith Lakes and then travelled to Revesby, he would be in the course of his employment and not on a journey. He started out from Earlwood and had the same purpose, to deliver a lesson at the high school at the direction of his employer. This facts in this matter can be distinguished from those in Cox. If the applicant was at a different school every day, then he would have no fixed place of employment, but that is not the case here.
Mr Morgan submits that the PIAWE report makes it clear that the applicant worked from Monday to Friday at Penrith Lakes, and this is consistent with the applicant’s statement. If he is not at the school, he is at Penrith Lakes.
Mr Morgan submits that the materials used by the applicant are stored at Penrith Lakes and he takes them with him. He is not using materials that are stored at the high school. He takes everything with him as part of his role as a specialised science teacher.

Legislation

Section 4 of the 1987 Act defines injury as follows:
“In this Act-
Injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Section 10 of the 1987 Act concerns journeys. It relevantly provides:
“10 Journey claims
(1)     A personal injury received by a worker on any journey to which this section
       applies is, for the purposes of this Act, an injury arising out of or in the course of
        employment, and compensation is payable accordingly.
…
(3)     The journeys to which this section applies are as follows—
(a)     the daily or other periodic journeys between the worker’s place of
         abode and place of employment…
(3A)    A journey referred to in subsection (3) to or from the worker’s place of abode is
          a journey to which this section 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.”

REASONS

Did the applicant sustain injury in the course of his employment? – s 4 of the 1987 Act

In order to be satisfied that an injury has occurred, there must be evidence of a sudden
[4] [2000] NSWCC 12; 19 NSWCCR 496.
[5] (2003) 25 NSWCCR 422, [429].
or identifiable pathological change: Castro v State Transit Authority (NSW),[4] or as stated by Neilson CCJ in Lyons v Master Builders Association of NSW Pty Ltd,[5] “the word ‘injury’ refers to both the event and the pathology arising from it”.
The issue of causation must be determined based on the facts in each case and the application of the common-sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates.[6]
[6] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang), [463].
The applicant bears the onus of establishing that he sustained an injury, and in order to discharge that onus, I must feel an actual persuasion of the existence of that fact: Department of Education & Training v Ireland.[7]
[7] [2008] NSWWCCPD 134 (Ireland), [89].
There is no dispute that the applicant injured his cervical spine, lumbar spine, left elbow, left hip and suffered a psychological injury when he was involved in a motor vehicle accident whilst he was driving from his abode to Sir Joseph Banks High School in Revesby on
22 November 2022.
The first issue that I need to determine is whether the applicant was in the course of his employment when he sustained his injuries. The only evidence to address this issue are some documents and the applicant’s statements.
According to the applicant’s statement, he delivered lessons to high school students off site at different high schools in greater metropolitan area. He also trained teachers. He indicated that he was based at Penrith Lakes where he had an office. He was there for most of the school week giving lessons, preparing lessons and excursions, and performing other administrative tasks. He attended staff meetings and professional development sessions.
It seems that students would attend Penrith Lakes on science excursions. The applicant would give lessons and he would drive them to and from local schools and to sites of interest. He also cared for animals that he used when teaching and he facilitated various science excursions and programs around the International Regatta Centre.
The applicant gave lessons to students at Sir Joseph Banks High School every Friday on a school week for the duration of the 2022 school year. If he was unable to attend on the Friday, or the school wanted a different day, he would arrange a different day. If he was unavailable, he would arrange for a replacement teacher. Therefore, there was flexibility in the arrangement.
The applicant would take materials home and then travel to Revesby. The trip to Penrith Lakes from Earlwood would take about one hour each way, whereas the trip from Earlwood to Revesby only takes 12 minutes each way according to the NRMA trip planner. This was obviously more convenient and saved time going to Penrith Lakes and then travelling to Revesby. It is entirely understandable that he followed this practice and this was presumably authorised by the respondent.
Mr Brown submits that there is no evidence that the applicant transported any materials or even what those materials might be. Whilst it is true that the applicant did not describe what these materials were, there is no evidence adduced by the respondent to challenge this applicant’s evidence.
The fact that the applicant indicated that he “would have taken all materials home with him” is in my view uncontroversial. His statement was completed nine months after the accident, and he seems to be explaining his usual practice without knowing precisely what materials he had taken home and to the school on that one occasion. One could infer that his lessons would have involved some environmental or biological samples or even the animals that he cared for. There is no evidence to suggest that materials were stored at Sir Joseph Banks High School and I expect that the applicant would have required more than just a lap top, pen and note pad to conduct his lessons.
The claim form and report of injury form do not provide much assistance regarding this issue. They merely confirm the circumstances of the accident and the fact that the applicant was driving to Sir Joseph Banks High School. This is not controversial.
The PIAWE report indicates that the applicant was assigned to Penrith Lakes from Monday to Friday. It does not identify his Friday lessons at Sir Joseph Banks High School or the days that he conducted lessons at the Penrith Valley School. I consider that there is minimal probative value to this evidence. Therefore, I need to review the authorities for guidance.
The term “course of employment” suggests that there is a temporal connection between the activity that was being performed when an injury occurred.[8] The core element will be attendance at a workplace or carrying out work functions and it extends beyond the worker’s normal hours and place of work to incidental aspects.[9]
[8] Smith v Australian Woollen Mils Limited (1933) HCA 64.
[9] Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324, [37], Basten JA (Allsop P and Hoeben JA agreeing) (Hills No 1)
In Henderson v Commissioner of Railways WA,[10] Dixon J described the relevant test for the course of employment as follows:
“Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.”[11]
[10] [1937] HCA 67; (1937) 58 CLR 281 (Henderson).
[11] Henderson, (294).
Mr Brown submits that Cox supports the respondent’s position that a worker can have multiple places of employment. In that matter, Deputy President Roche determined that the worker was not on a periodic journey when he sustained injury, so he was not in the course of his employment. The Deputy President commented:
“There is no definition of ‘place of employment’ and there is no commencing or finishing boundary for a worker’s ‘place of employment’. That there is no definition of ‘place of employment’ or boundary line for a place of employment’ is important in the context of the present argument. It acknowledges that a worker’s place of employment is not a fixed geographical location. Depending on the terms of the contract of employment, a worker’s place of employment can be anywhere the employer requires the worker to be to perform his or her duties or to engage in activities that are incidental to those duties (see Bull v Schweppes (Australia) Pty Ltd [1960] WCR 67 and Cunningham v Tobin & others t/as Stingray Café (2001) 21 NSWCCR 524 at [83]). It having been conceded that Mr Cox was in the course of his employment on the morning of 13 June 2004, his ‘place of employment’ was the police car. Having arrived at his ‘place of employment’, he could no longer be on a journey within the terms of section 10.”
The authorities referred to in Green largely relate to the boundaries associated with the commencement and conclusion of journeys. It really does not assist with the current dispute.
According to Henderson, whether an injury was sustained in the course of the employment depends on the nature and terms of the employment, the circumstances in which work is done and on what a worker is reasonably required, expected or authorised to do in order to carry out his or her duties.
Mr Morgan submits that the applicant’s place of employment was at Penrith Lakes. He had an office, gave lessons to students, kept materials there, and attended staff meetings. He submits that as soon as the applicant leaves his home on a Friday, he is in the course of his employment. He also submits that it would be different if the applicant was required to teach at individual schools on separate days of the week. However, that seems to be the precise situation in this matter.
I accept that the applicant’s place of work from Monday to Thursday was at Penrith Lakes, apart from the days that he taught at Penrith Valley High School.
However, when one examines the applicant’s weekly schedule, as part of his teaching role in environmental science, he was expected to travel to Sir Joseph Banks High School at Revesby every Friday during the usual school terms in 2022, unless he was unavailable or it did not suit the school. In that case, he would attend on another day or arrange for a replacement teacher.
Although the evidence is silent on this point, one could infer that if he did not attend Sir Joseph Banks High School on a Friday, he would go to Penrith Lakes. There is no doubt that there was some flexibility in the arrangement.
In my view, the applicant had at least two places of employment, namely Penrith Lakes from Monday to Thursday and Sir Joseph Banks High School on Friday. The evidence is silent as to when the applicant taught at Penrith Valley High School, and it might be a third place of employment.
The applicant was travelling from his home in Earlwood to his place of employment on a Friday at Revesby, rather than from Penrith Lakes. He was not in the course of his employment.
In the circumstances, I am satisfied that the applicant was on a daily or periodic journey from his place of abode to his place of employment at Revesby on the date of the motor vehicle accident. This is consistent with Green. He was merely on a journey to work and he was not in the course of his employment when he sustained injury.

Was there a real and substantial connection between the applicant’s employment and the motor vehicle accident? - s 10(3A) of the 1987 Act

Having determined that the applicant was on a periodic journey to work on
22 November 2022, the next issue to determine is whether there was a real and substantial connection between the applicant’s employment and the accident.
In Bina, President Keating discussed the meaning or “real and substantial connection” in
s 10(3A) of the 1987 Act. In that matter, the worker was involved in a motor vehicle accident on the way to work because she had to drive due to the lack of public transport. He stated:
“The mere fact that the worker was driving to and from work does not provide that connection. However, 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.”[12]
[12] Bina, [101].
The President continued:
“The Arbitrator’s essential conclusions, with which I agree, may be summarised as follows:
(a)    that a substantial connection is one ‘of substance’ (Badawi at [82]-[83], [107]);
(b)    that ‘employment’ in s 10(3A) is the same as in s 9A, that is, it is the activities of, or incidental to the employment, as opposed to the (mere) fact of being employed (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [11]);
(c)    the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident - there must be some real relationship (connection) between the activities of the employment and the accident out of which the personal injury arose, and
(d)    if merely travelling to and from work was sufficient to establish the relevant connection, s 10(3A) would be otiose.”[13]
[13] Bina, [112].
Further, the President stated:
“It is therefore clear that s 10(3A) has work to do. Its purpose is found in the words used in the subsection, read in the context of the 1987 Act as a whole. In my view, the purpose of the provision is to ensure that injuries received in the circumstances provided for are injuries that are deemed to arise out of or in the course of employment and compensation is payable accordingly. The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.”[14]
[14] Bina, [117].
In DEWAN SINGH AND KIM SINGH T/AS KRAMBACH SERVICE STATION V WICKENDEN,[15] DEPUTY PRESIDENT ROCHE DISCUSSED WHETHER THERE NEEDED TO BE A CAUSAL CONNECTION. HE STATED:
“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.”[16]
[15] [2014] NSWWCCPD 13 (Wickenden).
[16] Wickenden, [41] – [43].
Deputy President confirmed this in Field v Department of Education and Communities[17]. He stated:
“The Arbitrator based his decision on the premise that Mr Field had to prove that his employment caused the accident or incident (the trip and fall). That follows from his reference to, and reliance on, Mitchell and Kooragang. That was an error. For the reasons explained in Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina) at [102] and [114] and Wickenden at [37], s 10(3A) may, but does not necessarily, require a causal connection between the employment and the accident. It follows that I accept Mr Hickey’s submission that the word ‘connection’ in s 10(3A)
[17] [2014] NSWWCCPD 16 (Field).
[18] Field, [34].
involves a wider concept than causation.”[18]

83. Finally, in STATE SUPER FINANCIAL SERVICES AUSTRALIA LIMITED V MCCOY[19], President Keating stated:

“The test to be applied under s 10(3A) is a different and less demanding test to that applied to establish that an injury arose out of or in the course of employment pursuant to s 4 of the 1987 Act. The test under s 4 requires a causative element which is to be inferred from the facts as a matter of common sense. The test under s 10(3A) of a ‘real and substantial connection’ may, but does not necessarily, convey the notion of a causal connection. It requires an association or relationship between the employment and the accident or incident, which may be provided by establishing that the employment caused the accident or incident. However, employment does not have to be the only, or even the main cause.”[20] (citations omitted)
[19] [2018] NSWWCCPD 26.
[20] McCoy, [69].

In this matter, the applicant was merely travelling to his place of work at Revesby. There was no real relationship or connection between what the applicant was reasonably required, expected or authorised to do by reason of his employment, and the accident out of which his personal injury arose.
At its highest, the applicant might claim that because he was late, he drove to work on the M5 instead of using Canterbury Road as was his usual practice, but the fact remains he was on a road driving to work. There is no evidence that driving on the M5 was more dangerous or there was a higher risk of being involved in an accident than if he was driving on Canterbury Road.
There is no evidence that he was speeding to work in order to avoid being late, consistent with the principles discussed in WICKENDEN and in Field.
Accordingly, I am satisfied that there was no real and substantial connection between the applicant’s employment and the motor vehicle accident. In the circumstances, there will be an award for the respondent.

FINDINGS

The applicant sustained an injury to his cervical spine, lumbar spine, left elbow, left hip and suffered a psychological injury on a daily or periodic journey from his place of abode to his place of work on 22 November 2022.
There was no real and substantial connection between the applicant’s employment and the accident out of which the applicant’s personal injury arose.

ORDERS

There will be an award for the respondent.

[2024] NSWPIC 173

9 April 2024