Goodwin v Target Australia Pty Ltd
[2023] NSWPIC 522
•4 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Goodwin v Target Australia Pty Ltd [2023] NSWPIC 522 |
| APPLICANT: | Julie Goodwin |
| RESPONDENT: | Target Australia Pty Limited |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 4 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; main dispute is application of section 9A; no dispute that the worker fell on 6 January 2022 at her workplace and sustained injury to her left knee after arriving at work but before commencing her shift; factual decision with no novel points of principle; Badawi v Nexon Asia Pacific Pty Ltd Trading as Commander Australia Pty Ltd, Department of Corrective Services v Clifton, Larson v Commissioner of Police, and Gray v Sydney South West Area Health Service considered; Held – applicant sustained injury arising out of or in the course of her employment with the respondent and her employment with the respondent was a substantial contributing factor to the injury; respondent is to pay the applicant’s treatment expenses in respect of her left knee injury pursuant to section 60. |
DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained injury including to her left knee on 6 January 2022 arising out of or in the course of her employment with the respondent. 2. Pursuant to s 9A of the Workers Compensation Act 1987 her employment with the respondent was a substantial contributing factor to the injury. 3. Respondent is to pay the applicant’s treatment expenses in respect of her left knee injury pursuant to s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and /or a Medicare Notice of Charge. 4. Respondent is to pay weekly compensation to the applicant as follows: (a) from 16 January 2022 to 22 January 2022 at the rate of $657.85 per week; (b) from 23 January 2022 to 29 January 2022 at the rate of $323.43 per week; (c) from 30 January 2022 to 12 February 2022 at the rate of $826.98 per week; (d) from 13 February 2022 to 19 February 2022 at the rate of $826.98 per week; (e) from 20 February 2022 to 5 March 2022 at the rate of $826.98 per week; (f) from 6 March 2022 to 9 April 2022 at the rate of $826.98 per week; (g) From 10 April 2022 to 16 April 2022 at the rate of $655.74 per week; (h) from 17 April 2022 to 30 April 2022 at the rate of $525.16 per week; (i) from 1 May 2022 to 28 May 2022 at the rate of $696.40 per week; (j) from 29 May 2022 to 4 June 2022 at the rate of $484.06 per week, and (k) from 5 June 2022 to 30 June 2022 at the rate of $417.40 per week. |
STATEMENT OF REASONS
BACKGROUND
Julie Goodwin, the applicant, was employed with the respondent, Target Australia Pty Limited as a retail worker since 2008. It is not in dispute that she fell on 6 January 2022 at her workplace and sustained various injuries, including to her left knee.
The claim for compensation in these proceedings is for incurred treatment expenses pursuant to s 60 of the of the Workers Compensation Act 1987 (the 1987 Act) and for weekly compensation pursuant to ss 36 and 37 of the 1987 Act in the period 16 January 2022 to
30 June 2022, with periods of total and partial incapacity. The pre-injury average weekly earnings figure is agreed at $870.50.The respondent confirmed the only issue in dispute relates to whether the applicant has satisfied the requirements in s 9A of the 1987 Act. The respondent confirmed that s 4 of the 1987 Act is no longer in issue. The respondent’s solicitor also confirmed that if the applicant establishes the requirements in s 9A, then an award can be entered in her favour pursuant to column 4 of the wages schedule attached to the Application to Resolve a Dispute (ARD) and in relation to the s 60 expenses claim, a “general order” can be made.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter was listed for conciliation conference/arbitration hearing before me on
2 August 2023. Mr Phillip Perry, counsel, instructed by Ms Kimberley Becker, solicitor, appeared for Ms Goodwin, who was present. Mr Jayden Krieg, solicitor, instructed by
Mr Grant Fraser appeared for the respondent.5.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence. The legal representatives made oral submissions, which were sound recorded, and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Factual evidence
The factual evidence in this matter is straightforward and not contentious.
In her statement dated 12 March 2023 Ms Goodwin says that on 6 January 2022 she arrived at work and clocked on. She put her bag away, taking her lunch out to put in the lunch room. She says as she was walking she “somehow tripped and fell forward and landed flat on the ground.” She bruised her thumbs, chest and injured her left knee. She says she screamed in pain and co-workers come to assist her. She could not put any weight on her left leg. A colleague, Nicole, took her to Concord Hospital where after X-rays she was informed she had two fractures to her patella and three fractured ribs.
At [15] of her statement she states that her lunch break was a required part of her work shift as she was scheduled to work for at least five hours.
The incident witness statement completed by Brad Chapman provides a consistent account of the accident to that outlined above. Mr Chapman says he spoke to Ms Goodwin at the time of the incident and she told him she was walking in the hallway to the lunchroom to put her lunch in the fridge, when she tripped over her own feet and that caused her to fall to the ground. Mr Chapman also refers to a further conversation with Ms Goodwin later that day when she was at the hospital. He said she was apologetic for the accident, describing it as a freak accident.
The Formal Investigation report dated 15 January 2022[1] has the following time frame set out:
“06:48 TM-Julie arrived into store prior to opening.
06:50 Team member chatting with 2 other fellow team members in locker room.
06:53 Team member puts bag in locker.
06:55Team member was walking through the hallway in the BOH area, on her way to the team room (lunchroom) to put her lunch in the fridge prior to her shift starting. Whilst walking, Julie had tripped/fell over and fell over resulting in Julie to fall to the ground, initially landing on her left knee & then onto the side of her ribs/body. Julie screamed out…”
[1] Reply p 15.
Later in the report it is stated that Ms Goodwin was “rostered to start her work duties & Tasks at 7am”.[2]
[2] Reply p 20.
A photograph of the area where Ms Goodwin fell is in the report and the floor surface is comprised of tiles.[3]
[3] Reply p 18 and noted to be tiles on p 20.
The parties agreed in submissions “BOH” is the likely abbreviation for “back of house” meaning that the accident happened in the staff only area of the store, as opposed to the front of house where the customers have access.
Relevant medical evidence
Dr Pillay, general practitioner, provided a report dated 8 November 2022 and he includes in his history that she was walking to the tea room at work, had a fall onto her left knee and her chest wall also hit the tiled floor.
Dr Stephenson has provided a medico-legal report dated 19 December 2022 for
Ms Goodwin. He has a consistent history about the factual circumstances of the accident on 6 January 2022. The doctor sets out his examination findings and notes that Ms Goodwin was off work due to being totally unfit from 6 January 2022 to 1 June 2022 and then she was partially unfit from June 2022 to August 2022 with a continuation of some physical duties.
Dr Stephenson’s diagnosis is “that of direct impact on the knee causing fracturing of the knee which healed conservatively by splint and brace and physiotherapy”.It is also recorded in the Concord Hospital notes that Ms Goodwin tripped and fell at work, “left knee took brunt”.[4]
[4] ARD p 139.
The respondent made submissions relating to Ms Goodwin’s pre-accident medical records suggesting that she may have had a condition that caused her to fall. On 26 July 2021 it is noted that Ms Goodwin had an admission to hospital with a funny turn. She apparently had a cardiac review but it is noted it was thought she had had a syncopal episode. On
4 August 2021 she complained to her general practitioner of constant pain in her legs and it was noted that an ultrasound was negative for the presence of a DVT. On 29 October 2021 pain in her legs was again reported and a CT scan of the lumbar was ordered to investigate. It was noted Ms Goodwin was taking Sifrol for restless legs. The CT scan subsequently referred to pathology at L3/4 and L5/S1.[5][5] ARD p 158.
The next entry in the general practitioner’s notes is on 11 January 2022 being a telehealth consultation after the fall and thereafter an entry on 19 January 2022 regarding making a workers compensation claim.
The difficulty with the respondent’s submission is there is no evidence from a medical expert to support the proposition that Ms Goodwin’s pre-existing health caused her to fall. This argument is further dealt with below.
Legal principles
Section 9A of the 1987 Act relevantly provides:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)-
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of the work,
(c)the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following-
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”
There have been many cases dealing with the interpretation and application of s 9A. Some of the principles from these cases are summarised below:
(a) Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree: Dayton v Coles Supermarkets Pty Ltd;[6]
(b) Employment must be “a” substantial contributing factor to the injury, not “the” substantial contributing factor, so there may be more than one substantial contributing factor to an injury of which employment only need be one: Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited,[7] and Department of Education and Training v Sinclair.[8]
(c) For employment to be “a substantial contributing factor” to the injury the causal connection must be “real and of substance”: Badawi.
(d) The requirements of s 9A must be satisfied independently to the requirements of s4: Badawi; Larson v Commissioner of Police.[9] Section 9A(3) provides that employment is not to be regarded as a substantial contributing factor merely because the injury arose out of or in the course of employment. However, those factors are not irrelevant: Supair Pty Limited v Sweeney.[10]
(e) The meaning of “employment” in s 9A extends to matters “naturally incidental” to the contract of employment: Dayton. As an example, in Muscat v Woolworths Ltd[11] Judge Neilson found that when the worker was injured when making a cup of tea in the employer’s staff room immediately before commencing work, that was an act incidental to employment in the sense of being ancillary to the work.
(f) The matters in s 9A(2) must be taken into account to the extent they are relevant: Badawi.
[6] [2000] NSWCC14; (2000) 19 NSWCCR 526, Dayton.
[7] [2009] NSWCA 324, Badawi.
[8] [2005] NSWCA 465, Sinclair.
[9] [2004] NSWCA 126, Larson.
[10] [2000] NSWCA 319 at [9], Supair.
[11] [2000] NSWCC 16; (2000) 20 NSWCCR 283, Muscat.
Submissions and determination
Mr Perry submitted that the report of Dr Stephenson sets out the details of the injury sustained by Ms Goodwin. He relied in particular on Dr Stephenson’s diagnosis that there had been a “direct impact on the knee causing fracturing of the knee…”. He submitted that the only inference that could be drawn was that Ms Goodwin fell with sufficient force on her kneecap on the floor of her work premises. He relied on authority in Department of Corrective Services v Clifton.[12] He said the inference to be drawn is that the floor was of sufficient hardness to cause the fracture.
[12] [2006] NSWWCCPD 310, Clifton.
He submitted that Ms Goodwin’s injury undoubtedly arose out of her employment. He referred to the investigation report, which I have summarised above, and submitted that she was required by her employer to commence her shift at 7am. However, he submitted that in order to do that she would have to arrive at work beforehand. He added that it is clear that the respondent employer provided a lunchroom for staff to use and that the employer provided a refrigerator in the lunchroom. He said the Commission should draw an inference that the respondent required and encouraged its employees to lunch on the premises as it provided the facilities for that to occur. He argues that when Ms Goodwin was injured she was undertaking tasks incidental to her employment.
Mr Perry submitted that the facts in the case of Gray v Sydney South West Area Health Service[13] are instructive as the worker in that case sustained her injury before commencing her shift and at [19] Grady DP referred to Hogno v Fairfax Regional Printers Pty Limited[14] and at [57] quoted from Hatzimanolis v ANI Corporation Ltd[15] which includes something incidental to service where a worker is at her place of employment, so he argued that Ms Goodwin was in course of her employment. He also drew attention to Gray where the fact that there was a dual purpose at the time of injury does not preclude there being conduct in the course of employment. Mr Perry submitted that Ms Goodwin had completed her journey to her place of employment, her trip to the fridge (even if regarded as a diversion) does not mean she was not in the course of her employment when injured.
[13] [2010] NSWWCCPD 125, Gray.
[14] [2009] NSWWCCPD 33, Hogno.
[15] [1992] HCA 21, Hatzimanolis.
Mr Perry also submitted that in Gray from [75] to [80] s 9A was discussed, applying Badawi. He argued that the matters in s 9A, when applied to Ms Goodwin’s case, result in a finding in her favour. Mr Perry made submissions about s 9A(2). He stated that the time and place of injury was a factor in her favour as the injury took place five minutes before the start of her shift and she was on the employer’s premises at the time of her injury. In relation to the “nature of her work” he submitted it was to work from 7am to 4pm which necessitated her to be there during the lunch period and it should be inference it was envisaged she would take advantage of the workplace facilities to bring her lunch to eat it in the lunchroom and store her lunch in the fridge.
Mr Perry submitted that there is no evidence to show there was a probability her injury would have occurred anyway. He cited Da Ros v Qantas Airways,[16] where the Court of Appeal found the bicycle accident was an incident to which the worker was exposed in the course of his employment and to which he would not otherwise have been exposed. The Court specifically found on these facts it was open to conclude his employment was a substantial contributing factor to his injury and it was an error to weigh the employment factors against the negligence of the other cyclist. Mr Perry submitted Ms Goodwin’s case is even more clear than Da Ros as her injury occurred at work and she fell on the work floor with sufficient force to fracture her patella.
[16] [2010] NSWCA 89, Da Ros.
In relation to the respondent’s submission about other potential health causes for the fall, he relied upon the fact that there is no evidence at all of her prior health causing her to fall. Mr Perry also submitted the respondent’s argument was erroneous that Ms Goodwin has the onus to submit her prior health records to an expert to obtain an opinion that her prior health was not the cause of her fall. Mr Perry submits in a situation where the contemporaneous evidence is that Ms Goodwin simply fell over her feet there is no basis for her to have to seek an expert to review her medical history, noting there is no suggestion in those records that she was prone to falling in the period prior to the accident.
In any event, Mr Perry submitted that in Ms Goodwin’s case the injury occurred because the floor had sufficient hardness when she fell to fracture her patella. He relies on the similar factual scenario in Clifton. In that case Mr Clifton had a coughing fit, blacked out and fell to the ground fracturing his femur. Roche DP found even though the coughing fit was not causally related to his work the facts that he fell from a standing position and coming into contact with a concrete floor were circumstances leading to the conclusion that employment was a substantial contributing factor to his injury. Roche DP also found that the injury occurred while he was doing something incidental to his employment, namely walking to his desk. Mr Perry submitted that even though Clifton was decided before Badawi it represents a correct application of the appellate authority and such principles applied to Ms Goodwin’s case lead to the conclusion that her employment was a substantial contributing factor to her injury.
Finally, Mr Perry submitted that if the respondent sought to rely upon Van Wessem v Entertainment Outlet Pty Ltd,[17] the facts in that case are in stark contrast to the facts in
Ms Goodwin’s case. Mr Van Wessem was not on his employment premises and he was not doing tasks ancillary to employment. By contrast, it was argued, that Ms Goodwin was at her place of employment doing something incidental to that employment by placing her lunch in fridge when she fell on the work tiled floor, which was hard enough to fracture her patella and that, therefore, her employment was a substantial contributing factor to her injury.[17] [2011] NSWCA 214, Van Wessem.
The respondent confirmed that it has conceded s 4 of the 1987 Act is satisfied but that s 9A needs to be satisfied separately. This principle is correct, however, Ms Goodwin’s counsel did not argue to the contrary. Mr Krieg quoted from Da Ros at [21] and drew attention to the factual distinction between that case and that of Ms Goodwin. He submitted in Da Ros it was relevant that the worker was injured because he was in Los Angeles as part of his duties as a long haul flight attendant when he was injured in a bicycle accident. The respondent argued that while Ms Goodwin was at the premises of the respondent, there is no evidence that this was causative of her injury, that it was circumstantial.
I do not accept this submission. I find the fact that Ms Goodwin was actually at her place of work, having logged on for her shift, and falling on a tiled floor causing her to fracture her knee are not “circumstantial” factors. They are real factors and of substance. I do accept that just because s 4 of the 1987 Act has been conceded, and Ms Goodwin was in the course of her employment or the injury arose out of her employment, that does not mean s 9A is automatically satisfied. As has been submitted by Mr Perry, the authorities and s 9A(3), clearly states that merely because an injury occurred in or arose out of the course of employment is not sufficient to satisfy s 9A. The respondent’s submissions in my view gloss over the important fact that the fall onto the tiled floor was forceful and resulted in a fracture to her patella. I accept an inference can be drawn that the floor was a hard surface, because it was tiled.
Mr Krieg addressed the factors in s 9A(2) and places emphasis on the time of the injury, that she had not actually started work at the time of the injury. However, I do not accept this submission. The evidence is she had actually clocked onto the Kronos system and had placed her bag in a locker. Mr Perry’s submission is accepted because it has logical merit and force that a worker could not just turn up at exactly 7am to start work because clearly she would be required to put her bag away from her work area. I find that the employer clearly envisaged this by providing lockers and the only inference to be drawn is that they were for the use of workers as they were in the back of house area. I find that when Ms Goodwin was walking to put her lunch in the refrigerator, when she fell, she was performing a task ancillary to her employment.
It was submitted that because she was injured not when she was performing her actual work tasks is an important factor. While this is a fact to take into account, I do not find this is determinative because, as I have found, walking to put her lunch in the refrigerator was ancillary to her work tasks. She clearly was preparing to perform her actual work tasks by clocking on, putting her bag in the locker and then walking to put her lunch in the refrigerator.
It was argued what she was engaged to do had nothing to do with this injury because she fell over her feet. However, as I have mentioned above the case of Muscat illustrates how an injury can occur in circumstances ancillary to employment when Judge Neilson found an injury drinking a cup of tea immediately before work was ancillary to work. I find the facts in Ms Goodwin’s case are very similar in that regard particularly since her fall occurred minutes before her shift was due to start.
Mr Krieg attempted to distinguish Ms Goodwin’s case with that of Clifton because
Dr Stephenson does not give evidence that the particular type of floor was causative of the injury whereas in Clifton the fact that it was a concrete floor was the subject of evidence. It was argued it is relevant that Dr Stephenson refers to her falling on “the ground”, because if she had fallen elsewhere on “the ground” she also could have been injured. However, I do not accept this submission. The respondent’s own evidence states in writing that she fell on a tiled floor, as do the photographs depict a tiled floor. Clearly it can be inferred that the tiled surface was a hard surface. Dr Stephenson says the injury involved a “direct impact” with the knee in the fall, the hospital notes refer to the knee taking “the brunt of the fall” and Dr Pillay refers to the floor being tiled. I find all of this evidence needs to be considered together. I find the respondent’s submission does not really take into account that the force of the fall at work onto the tiled floor was of sufficient force to fracture her patella. There is no evidence that a fall on “ground” elsewhere would have caused such an injury.The respondent then made the submission about the s 9A(2) factor of “state of health or hereditary risks”. Mr Krieg referred to his researches about various medications, and their side effects, taken by Ms Goodwin for conditions including restless legs syndrome and high blood pressure. However, it is not appropriate for a respondent to refer to their “researches” without putting before the Commission proper medical opinion. I reject this submission as there is no medical evidence to support an argument that Ms Goodwin fell due to any prior medical conditions. Similarly, the respondent referred to a prior lumbar CT scan. However, there is no evidence she fell due to back pathology. The respondent argued that
Dr Pillay and Dr Stephenson do not deal with her prior health conditions and so their opinions have not been given in a fair climate. I do not accept this submission.
Dr Stephenson has provided his opinion based on a consistent history with that given by
Ms Goodwin to her co-workers immediately after the fall, that she simply fell.Mr Perry in reply submitted even if the respondent had brought evidence that the fall could have been caused by medication, that would not preclude s 9A applying as it was applied in Clifton when coughing caused the worker to blackout and fall.
In summary, I find the submission is persuasive that when Ms Goodwin was injured on
6 January 2022 she was performing tasks ancillary to her employment with the respondent. She had arrived at her place of employment and clocked on to the Kronos system. I find this was in preparation for her being ready to start her shift at 7am. She had put her bag in the locker provided for staff by the respondent employer and she was walking to place her lunch in the refrigerator in the work lunch room when she fell on the tiled floor.I accept her submission that an inference can be drawn that the surface of the work floor was hard enough to cause her to fracture her patella, as borne out by the X-rays taken at the hospital and her immediate presentation after the fall witnessed by her work colleagues. I find all of these facts lead to the view the causal connection to her employment was real and of substance.
I find the factors in s 9A(2), as discussed above, support a finding in favour of Ms Goodwin that her employment was a substantial contributing factor to her injury.
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