Ekes v EDS Australia Pty Ltd
[2006] NSWWCCPD 120
•15 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ekes v EDS Australia Pty Ltd [2006] NSWWCCPD 120
APPELLANT: Paul Ekes
RESPONDENT: EDS Australia Pty Ltd
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER: WCC4754-05
DATE OF ARBITRATOR’S DECISION: 9 August 2005
DATE OF APPEAL DECISION: 15 June 2006
SUBJECT MATTER OF DECISION: Sections 9A and 11 Workers Compensation Act 1987; place of employment; abnormal risk of injury; adequacy of reasons
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Buttar Caldwell & Co
Respondent: Vandervords
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 9 August 2005 is confirmed.
No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 5 September 2005 Paul Ekes (‘the Appellant Worker/Mr Ekes’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 August 2005.
The Respondent to the Appeal is EDS Australia Pty Ltd (‘the Respondent Employer/EDS’).
Mr Ekes started work for the Commonwealth Bank in 1993 as a computer operator and was transferred to EDS in October 1997 where he continued work in that capacity. On 12 November 2001 he was taking his usual afternoon coffee break when he engaged in a foot race with a work colleague on the balcony of the Respondent Employer’s premises. In the course of that race he fell heavily and sustained injury to his head, neck, left knee and left shoulder, and abrasions to his left elbow, and hands.
On 29 March 2005 he filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming weekly compensation from 1 March 2003 to date and continuing plus lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The claim was heard and determined against Mr Ekes in Arbitration on 8 August 2005.
Essentially the Arbitrator found that the provisions of section 11 of the 1987 Act did not apply because the injury was sustained at the Appellant Worker’s ‘place of employment’. In the alternative, Mr Ekes had subjected himself to an ‘abnormal risk of injury’ by participating in a running race on a balcony which was “narrow, obstructed and two storeys above the ground” (see transcript page 24 line 9).
In the alternative, whilst the Appellant Worker had sustained his injury in the course of his employment, his employment was not a substantial contributing factor to the injury under section 9A of the 1987 Act.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 August 2005 records the Arbitrator’s orders as follows:
“1.That, by consent, the Application to Resolve a Dispute be amended in Part 3 as follows:
(a) The ‘Date of Injury’ be changed to “on or about 12.11.2001”; and
(b) The following be inserted in ‘Injury Description’, “Head, neck, left shoulder and arm, and left knee”.
2.The Application to admit late documents, namely a further statement by the Applicant, was granted in the absence of objection.
3.That there be an award in favour of the Respondent in respect of the Applicant’s claims for weekly benefits compensation, medical and related expenses under section 60 of the Workers Compensation Act 1987 and compensation for permanent impairment and pain and suffering under sections 66 and 67 respectively of the Workers Compensation Act 1987.
4.That there is no order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to find that the Appellant Worker received a personal injury whilst temporarily absent from his ‘place of employment’, (‘place of employment’);
(b)finding that the Appellant Worker subjected himself to an abnormal risk of injury; (‘abnormal risk of injury’), or, alternatively;
(c)failing to find that the Appellant Worker’s employment was a substantial contributing factor to his injury, (‘substantial contributing factor’), and
(d)failing to give adequate reasons (‘reasons’).
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Appellant Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSW WCC PD 5).
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
SUBMISSIONS AND FINDINGS
(a) Place of Employment
The Appellant Worker relies on the recess provisions in section 11 of the 1987 Act. To succeed under that section it is necessary to show that the relevant injury was sustained while Mr Ekes was ‘temporarily absent’ from his ‘place of employment’. Section 11 of the 1987 Act provides:
“11 Recess claims
(cf former s 7 (1) (e))
If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract:
(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c) receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”
The Respondent Employer was at all relevant times the occupier of the building situated at 48-60 George Street Burwood (‘the premises’). In the course of performing his normal duties as a computer operator Mr Ekes worked at a computer terminal on the first floor of the premises. He was permitted three recesses or breaks from work each 12 hour shift (morning tea, a meal break, and an afternoon coffee break). On the day of his accident he worked from 7am until 7pm. He had his afternoon coffee break at about 5.30pm on a large balcony on the second floor of the premises. During the coffee break he was “mucking around” (see Appellant Worker’s statement 8 April 2003 paragraph eight) with fellow employees “making out like who’s the biggest man” when he and Mike Powell (a work colleague) decided to have running race across the balcony. During the race the Appellant Worker tripped on a raised tile and fell sustaining injury (see Arbitrator’s findings at page 23 line 24 of the transcript). Whilst this finding was supported by the evidence of Mr Fenech in his statement of 15 June 2005 I note that in the Appellant Worker’s statement dated 17 March 2005 he said “I was running across the balcony on the second floor and I slipped on the tiles on the balcony”. In his statement to investigators dated 8 April 2003 he said “as I was running I fell before I reached the end of the balcony, I don’t really know how I just fell”.
The Appellant Worker submits that the ‘place of employment’ should be distinguished from the employer’s premises and that the Arbitrator was wrong to find that the balcony where the accident occurred was part of the Appellant Worker's ‘place of employment’.
The Arbitrator relied on the decision of Stanton - Cook v TAFE Commission(NSW) (1999) 17 NSWCCR 632 (‘Stanton – Cook’) to support his conclusion that the balcony where the race took place was part of the Appellant Worker’s ‘place of employment’. In that case the worker was injured when she tripped over a metal bar in her employer’s car park when she had attended work on her day off for personal reasons. The question before the trial judge was whether the employment had been a substantial contributing factor to the injury. Judge Neilson held that it was not. There was no issue that the injury was sustained on the employer’s premises. It was held that that fact on its own was not enough to satisfy the requirements of section 9A of the 1987 Act.
The submission made is that the Arbitrator applied a “temporal test” (see Appellant Worker’s submissions paragraph 18) in determining that the accident happened at the Appellant Worker’s ‘place of employment’. I do not agree. A temporal test relates to time not to location. The Arbitrator’s reference to Stanton – Cook shows that the Arbitrator directed himself to determining the potential extent of the ‘place of employment’. In that sense it was not unreasonable for the Arbitrator to consider Stanton – Cook though it was not a section 11 case. No contrary authorities were cited by the Appellant Worker’s counsel at the Arbitration.
On appeal reliance is placed on Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 (‘Hevi Lift’) and on Landers v Dawson (1964) 110 CLR 644 at 650 (‘Landers’). In Landers the High Court was concerned to determine the meaning of the word ‘recess’ not the phrase ‘place of employment’. In the present case there is no issue that the injury was sustained whilst the Appellant Worker’s was on an ‘ordinary recess’. In Hevi Lift it was noted that there is nothing necessarily inconsistent with a finding that an injury was received during an ordinary recess and a finding that it was also received in the course of employment. So much was acknowledged by the Arbitrator at page 24 line 34 when he accepted that the “injury was suffered in the course of employment”.
The Appellant Worker relies on the decision of Justice McColl at [58] – [59] in Hevi Lift to support his argument that “there must be a causal connection between the place where the injury occurred and the state of performing work duties, or acts incidental thereto” (see Appellant Worker's submissions paragraph 26). What her Honour said at [58] was:
“The respondent submitted that his place of employment was the office building or the airport and that during the intervals when he was in the staff quarters he was ‘temporarily absent’ from his place of employment. However the primary judge found, as I have earlier noted, that the respondent ‘was also provided with work facilities at the residence including a computer and conducted work there’ – a finding which, in my opinion, amounted to an implicit finding that the respondent’s place of employment included his residence. That was a finding of fact which Mr Dodd ultimately conceded was an insuperable obstacle to his Notice of Contention.”
The above passage does not support the Appellant Worker. What the Court of Appeal was saying was that because the worker in that case also worked at home on occasions, his residence was also a ‘place of employment’. Quite clearly if Mr Etherington had been injured on the balcony of his employer’s ‘office building’ at the airport, the Court of Appeal would have held that the injury was at his ‘place of employment’.
The submission is that when Mr Ekes was on the balcony he was not at a ‘place of employment’ because, as I understand the argument, the balcony was not a place of work but was a place of relaxation. I do not agree. If that argument is accepted then a worker injured in the office kitchen fetching a cup of tea during an ordinary recess is not at his ‘place of employment’ unless he is employed to make the tea. The forerunner to section 11 of the 1987 Act was section 7(1)(e) of the Workers Compensation Act 1926 (‘the 1926 Act’). That subsection was introduced to overcome the situation whether a worker was injured on an ordinary recess away from the employer’s premises (see C P Mills Workers Compensation (NSW) second edition paragraph 151). Workers injured at their ‘place of employment’ were never denied compensation provided their injury was caused by or arose out or their employment and, now, employment was a substantial contributing factor.
I do not believe the Arbitrator was in error in finding that the balcony where the Appellant Worker was injured was part of his ‘place of employment’ within the meaning of section 11 of the 1987 Act.
(b) Abnormal Risk of Injury
This ground of appeal is only relevant in the event that I am wrong on the issue of ‘place of employment’. The Appellant Worker carries the onus of establishing that he did not expose himself to an ‘abnormal risk of injury’ (see Parasiliti v Dimiakos (1993) 9 NSWCCR 518 (‘Parasilitis’)) during an ‘ordinary recess’ under section 11 of the 1987 Act. The Respondent Employer submits that Mr Ekes advanced no evidence to discharge that onus though some evidence about the possible risks involved in engaging in a foot race on the balcony in question was before the Arbitrator.
The Appellant Worker submits that the “inherent features of a foot race, in the circumstances revealed” did not involve an abnormal risk of injury (see Appellant Worker's submissions paragraph 29). Reliance is placed on Talyor v Stapley (1954) 90 CLR 1(‘Taylor’) where the High Court held that ‘abnormal’ means no more than ‘unusual’ and the risk of injury “may be said to be abnormal where the doing of an act is, in particular circumstances, attended with an unusual degree of risk” (per Dixon CJ and Taylor J at 8). The court added that “all of the circumstances of the particular case must be considered”. In Parasilitis the Compensation Court held that the worker had subjected herself to an abnormal risk of injury when attempting to cross a busy six lane highway by foot during her lunch break.
The Arbitrator's finding was that the balcony was “totally unsuited for running side by side, it being narrow, obstructed and two storeys above the ground” (transcript page 24 line 9). It should also be added that the balcony was tiled and, as such, provided an unsuitable surface on which to run. Applying Taylor, it follows that the doing of ‘an act’ (engaging in a foot race) in the ‘particular circumstances’ (on a narrow balcony with uneven tiles) was clearly ‘attended with an unusual degree of risk’ (namely, that someone might fall).
In my opinion the Arbitrator was justified in concluding that by engaging in a foot race on the balcony the Appellant Worker exposed himself to an ‘abnormal risk of injury’. I see no error in his approach and I agree with his conclusion.
(c) Substantial Contributing Factor
The Appellant Worker submits, in the alternative to the above grounds of appeal, that if Mr Ekes was injured at his place of employment then the Arbitrator applied the wrong test in his application of section 9A of the 1987 Act. It is submitted that the Arbitrator stated the test is whether employment is ‘the’ substantial contributing factor to the injury and not ‘a’ substantial contributing factor (see Appellant Worker's submissions paragraph 34). At the transcript page 24 line 39 the Arbitrator states as a subheading:
“Employment being a substantial contributing factor.”
The Arbitrator then states that the onus under section 9A is on the worker to establish that employment “was a substantial contributing factor to the injury” (see transcript page 24 line 42). He then notes that ‘employment’ has been held to refer to the work matters incidental to the contract of employment and cites Stanton – Cook. He then identifies the issue as being “whether being engaged in a foot race during a recess is something incidental to the applicant’s employment” (transcript page 24 line 54). The Arbitrator accepted that having recess on the balcony was ‘incidental’ to the Appellant Worker’s work duties but he rejected the argument that the injury was caused by the unsafe premises (the uneven tiles) (transcript page 25 line 25). The Arbitrator said:
“It was the applicant’s submission that the course [sic] of injury was the unsafe premises, namely, the tiles sticking up and that was, in fact, the cause of injury. If that were the case, I am not satisfied on the balance of probabilities that the tiles did substantially contribute to the injury. The substantial contributing factor, I believe and consider, was the unwise participation in a foot race with another employee, which foot race had no causal link to employment. I am therefore not satisfied on the balance of probabilities that the applicant has discharge his onus of proof under section 9A.”
The Arbitrator did not find that in order to succeed the Appellant Worker had to establish that employment was ‘the’ substantial contributing factor. He found that ‘the’ substantial contributing factor to the injury was the engaging in the unauthorised race. Therefore, employment was not a substantial contributing factor to the injury.
It is argued for the Appellant Worker (see Appellant Worker’s submissions at paragraph 35) that:
(a)the injury was received during the course of the employment;
(b)the injury was received at the place of employment;
(c)the employer was the occupier and legally responsible for the premises including the balcony;
(d)the tiles created a tripping hazard and the employer was responsible for them, and
(e)the employer permitted its employees to use the balcony during authorised recesses.
The Appellant Worker relies on Mercer v ANZ Banking Group Limited (2000) 20 NSWCCR 70 (‘Mercer’) as establishing that ‘substantial contributing factor’ is a less severe test than ‘arising out of’ employment in terms of causal contribution. Mercer must now be read with ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 (‘Perry’) at [17] where the President said:
“Nothing in those cases suggested that s9A is satisfied merely because the injury arose out of or in the course of employment. Nor does Mercer. Section 9A(3)(a) explicitly states that a finding that the injury arose out of or in the course of employment is not, in itself, a basis for a finding of substantial contributing factor.”
In addition it is submitted that Mercer states that the absence of ‘employment characteristics’ in the precise activity that led to the injury should not be treated as ‘determinative’ (see Mercer at [35]). In that case the worker was attending to a customer when she went to a desk to get some sticky tape. She reached out to her left and suddenly felt extreme pain in her left knee and fell to the ground. She had twisted, rotating her knee and she suffered a lateral dislocation of the left patella. The trial judge held that her employment was not a substantial contributing factor to the injury because the activity of reaching out and twisting could have happened elsewhere. It was an activity that had no ‘employment characteristics’ (see Mercer at [8]). On appeal the Court of Appeal held that the trial judge was wrong to treat the absence of ‘employment characteristics’ as determinative.
The facts in Mercer were significantly different from those in the present case. There the worker was engaged in the performance of her work duties (serving a customer) when she was injured. The Appellant Worker was engaged in an activity that was neither part of nor incidental to his duties.
The Appellant Worker also relies on Edwards v Dumbain Pty Ltd [2002] NSWCC 18 where a worker was injured when she tripped on a step in the process of taking a private mobile call whilst attending staff drinks at her employers premises after finishing her shift. Judge Armitage held that participating in staff drinks was:
“A reasonable and permitted use of the respondent’s premises, upon which the applicant was still present, as a result of the inducement , encouragement, authorisation and permission of the respondent for her to be there for purposes which, as I have concluded, benefited it as well as the applicant herself.”
I do not see how this case helps the Appellant Worker. It highlights the dramatically different facts in the present case where the employer neither encouraged nor authorised the foot race. There was no benefit to the employer in the holding of the race. Ms Edwards was not engaged in a running race when she tripped. In addition the foot race in which the Appellant Worker was engaged was not in my view a reasonable and permitted use of the Respondent Employer’s premises.
Next it is submitted that the direct cause of injury was the act of tripping and the foot race itself was an indirect cause (see Appellant Worker’s submissions paragraph 38). Therefore, applying the section 9A test the substantial contributing factor was the raised tile/s. The argument goes as follows:
(a) because the balcony was part of the Appellant Worker’s place of employment;
(b) the employer permitted it to be used for recess;
(c) the employer as occupier of the premises owed a duty of care to employee who used the balcony;
(d) the recess was incidental to the Appellant Worker’s employment, and
(e) the foot race per se did not give rise to an abnormal risk of injury.
Therefore, the “only reasonable conclusion is that the appellant’s employment was ‘a’ substantial contributing factor to the injury” (see Appellant Worker’s submissions paragraph 39). There are several flaws in the above argument (and in the argument outline at paragraph 33 above): first, the employer permitted the balcony to be used for recess, not for foot races; second, the employer did not authorise, condone or encourage the race; third, the fact that the employer may have owed a common law duty of care (it certainly owed no duty of care to ensure that the balcony was safe for foot races) to those using the balcony has no relevance to determining liability under section 9A of the 1987 Act; fourth, the foot race did give rise to a risk of injury because of the tiled surface of the balcony which was intended to be used as a place to have coffee or other light refreshments, not as a running track.
The Respondent Employer argues that the Arbitrator was in error in finding that at the time of the injury the Appellant Worker was acting in the course of his employment. In considering whether the Appellant Worker was ‘in the course of’ his employment at the time of injury the Arbitrator held that the Appellant Worker’s behaviour in engaging in the foot race did not amount to ‘gross misconduct’ (see transcript page 24 line 29). Reference was made to Hatzimanolis v ANI CorporationLimited (1992) 173 CLR 473 (‘Hatzimanolis’) which held that absent ‘gross misconduct’ a worker will be in the course of his employment if injured during an interval or interlude in an overall period or episode of work. This no doubt influenced the Arbitrator to conclude that the Appellant Worker was injured ‘in the course of his employment’.
The Respondent Employer relies on Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165. That case concerned a physical brawl between the worker and a co-worker in which the worker was injured. Judge Neilson held that the worker had abandoned his employment at the time he was injured and not only was he not doing anything to further his employer’s interests he was acting contrary to those interests. His Honour referred to Hatzimanolis and noted that the injury to Mr Stojkovic was not sustained during an interval or interlude within an overall period of work.
I do not believe Stojkovic assists the Respondent Employer. The worker in that case was not on an ordinary recess when he was injured. He was involved in a physical fight over reasons which had nothing to do with his employment.
It has long been accepted the worker’s are ‘in the course of’ their employment during meal or refreshment breaks (see Brice v Edward Lloyd Ltd [1909] 2 KB 804. In Commonwealth v Oliver (1962) 107 CLR 353 (‘Oliver’) the worker was injured during a game of cricket being played at lunch time on the employer’s premises with its implied consent. The majority of the High Court held that the injury was sustained in the course of the worker’s employment because the match was incidental to the employment. In Hatzimanolis the High Court said that something done during a tea or lunch break would more readily be seen as being done during the course of employment than something that is done after a daily period of work has been completed. The majority added at 537:
“Moreover, Oliver and the cases which follow it show that an interval or
interlude in an overall period or episode of work will ordinarily be seen as
being part of the course of employment if the employer, expressly or
impliedly, has induced or encouraged the employee to spend the interval or
interlude at a particular place or in a particular way. Indeed, the modern
cases show that, absent gross misconduct on the part of the employee, an
injury occurring during such an interval or interlude will invariably result
in a finding that the injury occurred in the course of employment.
Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’ (20) Danvers (1969) 122 CLR, at p 537.” (emphasis added)
The difficulty in the present case is that whilst the Respondent Employer impliedly encouraged worker’s to use the balcony (‘a particular place’) for coffee breaks, it did not induce or encourage employees to spend their time on the balcony by engaging in foot races (‘in a particular way’). Nevertheless it seems to me that an application of the principles set out in Hatzimanolis leads to the conclusion that provided the Appellant Worker was not guilty of ‘gross misconduct’ at the time of his injury he was still ‘in the course of’ his employment at the time of the fall. That finding was open on the evidence.
The Appellant Worker still has to satisfy the test of ‘substantial contributing factor’ in section 9A of the 1987 Act before he can succeed. A finding that an injury is sustained ‘in the course of’ employment is not the end of the matter and does not prevent a finding that section 9A has not been satisfied as they raise separate and distinct questions (see McMahon v Lagana [2004] NSWCA 164 at [33]). That section was considered in Stanton – Cook where Judge Neilson held at paragraph [44] (after referring to Hatzimanolis):
“However, since the enactment of s9A, it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorised to do in pursuit of his employment contract.” (emphasis added)
In the present case the Appellant Worker’s counsel conceded at the Arbitration (appropriately in my view) that the injury did not ‘arise out of employment’ (see transcript page 19 line 27). Applying Stanton - Cook to the present case it is my opinion that Mr Ekes’ employment was not a substantial contributing factor to his injury because there was no connection between the activity which caused the injury (the foot race) and the employment.
The Arbitrator found that the substantial contributing factor to the injury was the participation in the foot race with another employee, which had no causal link to employment. Therefore he was not satisfied that the Appellant Worker had discharged the onus which he always carried. This approach is consistent with the following passage in Mercer at [22] where Mason P said:
“The worker correctly submits that the words ‘employment concerned’ in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of “a substantial contributing factor to an injury” is exegeted in subsections (2) and (3) of s9A.” (emphasis added)
In Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46) (‘Dayton’) Giles JA noted at 22:
“…‘substantial’ qualifies ‘contributing factor’, indicating that it is the strength of the causal linkage that is in question; and it is ‘the employment concerned’ which must be a substantial contributing factor, meaning not the fact of being employed but what the worker was doing in his employment.” (emphasis added)
Therefore whilst the Appellant Worker’s actions may not have amounted to ‘gross misconduct’ so as to take him outside the course of his employment, he was not engaged in a ‘work activity’ at the time of his injury. It was therefore open to the Arbitrator to find that as the foot race was the substantial cause of the injury the employment was not a substantial contributing factor though it may well have been a factor in the accident as it was the employment that brought the Appellant Worker onto the premises where the accident happened. However the Arbitrator found that it was the unauthorised activity the Appellant Worker engaged in whilst on those premises that caused the injury. That finding was open to the Arbitrator and discloses no error of fact, law or discretion.
Whether employment is a substantial contributing factor to an injury is a question of fact to be determined in each case (see Dayton). In the present case the Arbitrator found that the substantial contributing factor to the injury was the participation in the foot race which was not part of the Appellant Worker’s duties. That finding was open on the evidence and I agree with it. It involves no error.
(d) Reasons
It is submitted that the Arbitrator’s reasons were inadequate and did not satisfy the test in Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 at 278. Reliance is also placed on Hevi Lift at [107] where it was said that it was incumbent upon the judge in that case to expose “the reasoning process” by which he concluded that the employment was a substantial contributing factor to the worker’s injury. In Hevi Lift the trial judge found that employment was a substantial contributing factor to an injury that occurred at home. At [102] McColl JA stated:
“The failure to discriminate between the nature and conditions and the frank injury claim was significant. Insofar as the frank injury claim was concerned, his Honour made no reference to the fact that the respondent had not performed any of the work tasks found to be causative of his injury for some 29 days prior to 15 February 2000 and was at rest immediately prior to the onset of acute pain. There was clearly a serious s 9A issue in respect of the frank injury claim which was not touched upon at all.” (emphasis added)
In the Commission the need to give reasons was considered in Ayse Cakir v Western Sydney Area Health Service t/as Parramatta Linen Service [2004] NSWWCCPD 1 where it was noted:
“60. The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is also applicable to the preparation of statements of reasons. However, the reasons must adequately convey to the parties the basis upon which the Arbitrator came to his or her decision. These matters are set out in Rule 73 of the 2003 Rules, and require the Arbitrator to give a brief statement setting out the reasons for the determination, including:
“(1). . .
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning process that lead the Commission to the conclusions it made.
(2) Without limiting subrule(1), the reasons set out in a statement referred to in subrule(1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.
61. It is not always incumbent upon a Commission Arbitrator to set out lengthy written reasons in order to comply with the common law, the statutory requirements, or the 2003 Rules. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes (Collector of Customs v Pozzolanic [1993] 43 FCR 280; Minister for Immigration and Multicultural Affairs v Wu Shan Liang [1996] 185 CLR 259; Minister for Immigration and Multicultural Affairs v Yusuf [2001] 206 CLR 323, M & S Shipman Pty Ltd v Matters [2003] NSW WCC PD 19). However, any stated or published reasons should clearly set out the evidence, findings, and the application of the applicable law. The statement of reasons for decision must explain why and how the Arbitrator made the decision.
62. As was discussed by Deputy President Fleming in McMahon, to succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
The criticisms made of the trial judge in Hevi Lift do not apply to the present case. The Arbitrator dealt with the section 9A issue with appropriate detail having regard to the evidence and submissions made to him. In Hevi Lift the 9A issue in respect of the frank injury “was not touched upon at all”.
The Arbitrator identified and made findings on the material factual issues and stated his understanding of the applicable law. He also set out the reasoning process that lead him to the conclusion that the Appellant Worker’s employment was not a substantial contributing factor to the injury. In my opinion his reasons were adequate and sufficient and they demonstrated that he properly exercised his statutory duty fairly and lawfully in his determination of the application.
DECISION
The Arbitrator’s decision and orders of 9 August 2005 are confirmed.
COSTS
No order is made as to costs of the appeal.
Bill Roche
Acting Deputy President
15 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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