Gray v Sydney South West Area Health Service (Rozelle Hospital)
[2010] NSWWCCPD 125
•2 December 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Gray v Sydney South West Area Health Service (Rozelle Hospital) [2010] NSWWCCPD 125 | |||||
| APPELLANT: | Margaret Ellen Gray | |||||
| RESPONDENT: | Sydney South West Area Health Service | |||||
| INSURER: | Employers Mutual Limited | |||||
| FILE NUMBER: | A1-2878/10 | |||||
| ARBITRATOR: | Ms Christine D’Souza | |||||
| DATE OF ARBITRATOR’S DECISION: | 23 August 2010 | |||||
| DATE OF APPEAL DECISION: | 2 December 2010 | |||||
| SUBJECT MATTER OF DECISION: | Section 4 of the Workers Compensation Act 1987, arising out of or in the course of employment; section 10 of the Workers Compensation Act 1987, place of employment; section 9A of the Workers Compensation Act 1987, employment a substantial contributing factor to injury | |||||
| PRESIDENTIAL MEMBER: | Deputy President O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Carroll & O’Dea Lawyers | ||||
| Respondent: | Turks Legal | |||||
| ORDERS MADE ON APPEAL: | The awards made by the arbitrator in paragraphs (1) and (2) of the Certificate of Determination dated 23 August 2010 are revoked and (3) is to be substituted with an appropriate costs order. The arbitrator’s awards are to be replaced by the following award and orders. “1. Award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 in the sum of $1708.23 being medical hospital and rehabilitation expenses incurred as a result of injury. 2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for the purpose of assessment of any permanent impairment resulting from the injury received on 11 April 2008 to the applicant’s left leg. The documentary evidence before the Commission is to be forwarded to the approved AMS. 3. The respondent is to pay the applicant’s costs.” The Respondent is to pay Ms Gray’s costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
Margaret Ellen Gray is employed as a registered psychiatric nurse by Sydney South West Area Health Service (the respondent). Ms Gray has held that position since 1972. She performed her duties at Rozelle Hospital from the date of commencement of her employment until the relocation of that hospital to premises at Concord, which occurred in 2008. On 11 April 2008, before that relocation, Ms Gray was injured when she fell from an electric powered bicycle as she was riding at the respondent’s Rozelle premises. Ms Gray received a significant left leg injury which required surgical treatment and a course of rehabilitation.
The injury received occurred before the commencement of her shift, being the 11pm night shift, which she had regularly performed. A claim was made seeking compensation benefits which alleged that the injury was received whilst on a journey to her place of employment. Liability was declined with respect to that claim on behalf of the respondent by its insurer. A review of that decision was conducted by the insurer however, on 8 August 2008, Ms Gray was informed that the insurer’s denial of liability had been confirmed. Correspondence of that date included a notice pursuant to s 74 of the Workplace Injury Managementand Workers Compensation Act 1998 (the 1998 Act) which set out the reasons for the insurer’s decision to dispute liability. That notice was in broad terms and included denials that the subject injury had occurred on a journey within the meaning of s 10 of the Workers Compensation Act 1987 (the 1987 Act) or that the injury had occurred in the course of Ms Gray’s employment. Reliance was also placed upon the provisions of s 9A of the 1987 Act.
A dispute arose concerning Ms Gray’s entitlement to compensation benefits and an Application to Resolve a Dispute was filed on her behalf with the Commission on 9 April 2010. That application, at Part 4, alleged injury “whilst journeying to work”. The claim made was in respect of medical expenses and a lump sum for whole person impairment.
The application came before an arbitrator for conciliation/arbitration on 30 June 2010. At the hearing, whilst there is no recorded amendment to Ms Gray’s application, the claim was made upon alternate grounds. The first allegation was that the subject injury occurred on a journey within the meaning of the 1987 Act. It was argued, in the alternative, that the injury arose out of or had been received in the course of Ms Gray’s employment. The matter proceeded to hearing following which the Arbitrator reserved her determination. A Certificate of Determination issued on 23 August 2010.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 23 August 2010 records the Arbitrator’s orders as follows:
“The Commission determines:
1. Award in favour of the Respondent in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.
2. Award in favour of the Respondent in respect of the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987.
3. No order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An application seeking leave to appeal from the Arbitrator’s decision was lodged with the Commission on 20 September 2010.
LEAVE
There is no dispute between the parties concerning threshold requirements as prescribed by s 352 of the 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.
ISSUES IN DISPUTE
The issues in dispute on the appeal are whether the Arbitrator erred in finding:
(i)that Ms Gray was not on a journey to her place of employment within the meaning of s 10 of the 1987 Act at the time of injury, and
(ii)that the subject injury did not arise out of or in the course of Ms Gray’s employment.
THE ARBITRAL PROCEEDINGS
The documentary evidence which was before the Arbitrator is noted at [8] of the Arbitrator’s Statement of Reasons (Reasons). The proceedings before the Arbitrator were recorded and a transcript [T] has been produced and made available to each party. An application was made at the hearing for leave to adduce oral evidence of Ms Gray. That leave was granted and Ms Gray’s evidence is recorded at [T9] to [T11].
Ms Gray’s evidence
Ms Gray relies upon two written statements dated 31 March 2010 and 31 May 2010. The following is a summary of evidence found in those statements. Ms Gray’s oral evidence is noted below at [64]:
(a) Ms Gray is 63 years of age and has been employed by the respondent as a registered psychiatric nurse since 1972. During the past 30 years Ms Gray has been engaged on the night shift which commences at 11:00pm and finishes at 7:00am.
(b) Ms Gray resides in Rozelle and is not the holder of a drivers licence. Her practice was to walk to work each night leaving home at 10:30pm. She would sometimes travel by bus. Her usual time of arrival at the grounds of the hospital was between 10:45pm and 10:50pm. Upon arrival she would “sign in” at the nurses station where an attendance book is kept.
(c) In or about 2005 Ms Gray learnt that the respondent was relocating “from Balmain to the suburb of Concord”. At sometime before she received injury on 11 April 2008, Ms Gray had given thought to the manner in which she would transport herself to the new workplace. She made a decision that “the best way would be to cycle to the hospital” and she arranged to purchase from a colleague, Mr Hugh Clark, a battery assisted fold up bicycle.
(d) On 11 April 2008 Ms Gray walked to the hospital from her home and went to Ward 25 which is located inside the hospital grounds. She met with Mr Clark at which time she “picked up the bicycle”. Mr Clarke showed Ms Gray how to use the bicycle and gave her a helmet. Ms Gray put on the helmet and commenced riding on the bike intending to reach Ward 28 which is her usual place of work. The meeting with Mr Clark occurred at approximately 10:20pm.
(e) As Ms Gray was riding through the hospital grounds the bicycle skidded across the asphalt surface of the road causing Ms Gray to fall. Ms Gray is unsure as to what caused the accident. At the time she was riding the bicycle she was not under the influence of alcohol or any other drug. It was her intention to travel from Ward 25 to Ward 28. The point at which the accident occurred was within the grounds of the hospital.
(f) Ms Gray proceeds, in the first of those statements, to describe her injuries, medical and rehabilitation treatment and her ongoing disabilities. Those matters are not directly relevant to the issues raised on this appeal.
(g) The text of the statement dated 31 May 2010 is as follows:
“1.As [sic] I was journeying through the hospital grounds on the bicycle from Ward 25 towards Ward 28, being my place of employment, and in order to commence work.
2.I was on the general transport pathway within the hospital grounds.
3.I was travelling towards Ward 28 in the most direct route that I was aware of given that the paths allowable for traffic, I believe, are one way.”
A copy of “Supplementary Form For Injury On The Journey” signed by Ms Gray and dated 18 April 2008 is in evidence. The relevant details which were provided in that form are as follows:
“(a) The accident occurred at approximately 10:30pm within the hospital grounds at Rozelle.
(b) Ms Gray was using an electric bicycle as her mode of transport as she travelled “to” work.
(c) In response to a question “did you divert from your usual route?” a tick appears next to the word YES and the word “No” also appears in the form. In response to the question “if so, for what reason?”, it is recorded “to pick up bicycle”.
(d) When describing how the accident occurred Ms Gray recorded “came off bicycle when I veered to the side of the road. Falling to the gravel”.
The s 74 notice issued by the respondent’s insurer together with all attachments is in evidence. Included among those documents is a report from Worksite Investigations dated 20 May 2008. That report is addressed to the respondent’s insurer. The report summarises those enquiries conducted concerning the circumstances of Ms Gray’s injury and matters stated by various individuals. Copies of statements of those individuals are attached to the report. There is also a copy of a statement made by Ms Gray dated 8 May 2008. A number of photographs of the respondent’s hospital grounds and of the scene of Ms Gray’s accident are included in the report. Also attached to that report is a diagram showing the layout of the Rozelle Hospital. Detail of that diagram, where relevant, is noted below. There is also a two page document which is entitled “Directions from Google Maps”. That document includes a map of the route from Ms Gray’s home to the Rozelle Hospital. That route is described as :
“1.Head north east on Evans St towards Mansfield St.
2.Turn left at Merton St.
3.Turn left at Darling St.
4.Continue on Balmain Road”. (distances are specified, the total distance being approximately 1.2 kilometres).
The statement made by Ms Gray which is attached to the investigation report is comprehensive. The following matters are of some relevance to the issues raised on this appeal:
(a) Ms Gray normally arrived at work at about 10:45 to 10:50pm. She usually arrived early to get the report from the staff from the previous shift who leave at 11:00pm;
(b) Ms Gray always walks to work as she does not have a drivers licence;
(c) Ms Gray had discussed car pools and bus routes with fellow workers in connection with the planned relocation of the hospital to Concord;
(d) Ms Gray has ridden push bikes all her life, the last one being a Peugeot fold up bicycle which she owned until a couple of months before her injury. She liked the idea of an electric bike “for the hills”. A work colleague Mr Hugh Clark informed Ms Gray that he had an electric bike and said that he would “bring it in so you can have a trial run and see if you like it”;
(e) On 11 April 2008 Ms Gray left home early and arrived at her workplace at approximately 10:15pm. She did not sign on or stop. She walked through the grounds of the hospital towards Ward 25 to collect the bicycle. She was to ride the bicycle back to Ward 28 West, Rehabilitation Ward where she was due to commence work at 11:00pm, and
(f) Ms Gray met Mr Clark at 10:20pm approximately. Mr Clark showed Ms Gray how the battery powered bicycle worked. Ms Gray put Mr Clark’s crash helmet on and tried sitting on the bicycle. This took place on the “internal access road near the car park at the front of Ward 25”. It was Ms Gray’s intention to ride on the right hand side of the road toward Ward 26, then to do a u-turn, turn to the left at the front of admissions at Ward 26 and then ride back to the “rehab” ward where she intended to start her shift. Street lighting was on and there was plenty of light. The road is asphalt but there was fine soil/sand on some of the road surface of which Ms Gray “became aware of when I fell”. Ms Gray does not know what caused the accident “apart from the loose surface”. She remembers sliding across the road and landing against a clump of palms on the left side of the road.
The statement by Mr Hugh Clark made on 16 May 2008 confirms matters as found in Ms Gray’s evidence. A statement by Ms Loren Sharrock made on 13 May 2008 is in evidence. Ms Sharrock is employed as a Nurse Manager – Recruitment with the respondent. Ms Sharrock states that when Ms Gray commenced her usual night shift at the respondent hospital “she reported to 28 West Ward where she worked and completed an attendance book”.
There is a statement made by Mr Keith Fletcher dated 13 May 2008 in evidence. Mr Fletcher is the Occupational Health and Safety Manager employed by the respondent. Mr Fletcher is responsible for maintenance and repair issues. Mr Fletcher is familiar with the site at which Ms Gray’s accident occurred. At that point the concrete is a rough surface but not pot holed. There are expansion strips across the surface but it is not hazardous. The asphalt is very smooth and is in good condition. Mr Fletcher cannot recall receiving any reports of loose gravel, sand or soil upon the surface of the road or car park at or prior to the time of Ms Gray’s accident.
Ms Gray relied upon a large number of documents which relate to her treatment and rehabilitation. Those documents are not directly relevant to the issues raised on this appeal and it is not intended to fully summarise them. The evidence reveals that Ms Gray suffered a comminuted fracture of the upper end of the left tibia involving the tibial plateau extending into the left knee joint. Notwithstanding a course of rehabilitation Ms Gray continued to experience difficulty with her knee. Ms Gray came under the care of Dr Waddell who carried out an arthroscopic procedure on 21 October 2008 following which she experienced symptomatic improvement.
The respondent’s evidence
A Reply filed on behalf of the respondent on 4 May 2010 was admitted by the Arbitrator as a late document. The only attachment to that Reply was an annexure marked “A” which sets forth the matters in dispute. The respondent noted in that annexure that it relied upon the s 74 notice, and the annexures thereto, which had been attached to the Application to Resolve a Dispute filed on behalf of Ms Gray. That annexure proceeded to itemise very broad grounds upon which the application was disputed. A further copy of the s 74 notice which is referred to at [13] above was tendered in evidence on behalf of the respondent. No other evidence was adduced on its behalf.
Ms Gray’s submissions
Ms Gray’s counsel addressed the question as to whether the alleged injury had occurred on a journey within the meaning of s 10 of the 1987 Act. It was acknowledged that, given the fact that Ms Gray suffered her injury within the grounds of the hospital, a number of authorities would suggest that the injury did not occur on such journey. Particular attention was given to the decision in Musumeci v Gem Engines Pty Ltd (2002) 23 NSWCCR 128 (Musumeci) and Hogno v Fairfax Regional Printers Pty Limited [2009] NSWWCCPD 33 (Hogno). It was put that the journey allegation would be defeated having regard to those decisions unless Ms Gray’s matter was distinguished in some way. Counsel argued that the present case may be distinguished upon the facts. It was put that Rozelle Hospital was not “the normal work area”. It was also put that the hospital was “a very large complex of interconnecting roads and buildings and so would be different to a situation where you [sic] arrive out the back and stop at a car park”.
It was argued that, if it be accepted that Ms Gray was on a relevant journey, there was no deviation. It was put that Ms Gray was “accessing the bike in order to continue her journeys to and from work”. It was put that her activity was “clearly connected with the journey and therefore there was no deviation”. Reliance was placed upon the decision in Napoli v Arthur H Stevens (NSW) Pty Ltd [1969] 43 WCR (NSW) 30 (Napoli).
In the alternative to the journey allegation, it was put that the injury may be seen to have occurred “in the course of employment” within the meaning of s 4 of the 1987 Act. It was put that Ms Gray, at the relevant time, was at the “place of work”. It was argued that the “course of employment” commences “at a time that Ms Gray arrives at work”. It was put that “the respondent can’t have it both ways, to say its not a journey and say she’s not at work. She’s clearly at work”. (T 12.30).
It was argued that there was no evidence of misconduct that would take Ms Gray “out of the course of employment”.
Counsel proceeded to address the application to the facts of the provisions of s 9A of the 1987 Act. It was argued that there should be “a common sense assessment to [sic] causation in the course of employment”. It was put that there was both a “temporal and causative nexus” and that Ms Gray was in the course of her employment “and what she is doing arises out of employment because [Ms Gray] wouldn’t be doing it unless she needed to journey to work at a difference place. So that fulfils the obligation under s 9 and s 9A”. Reliance was placed upon the decision in Badawi v Nexon Asia Pacific Pty trading as Commander Australia Pty Ltd [2009] NSWCA 324; 7 DDCR 75 (Badawi). Counsel summarised the facts as found in the matter of Badawi and it was put that the facts in the present case provide “much stronger grounds: we’re actually in the premises of employment doing no more than moving from one ward to another to test out a bike”. Counsel placed reliance upon the decision in Da Ros v Qantas Airways Ltd [2010] NSWCA 89 (Da Ros). The findings in that appeal were addressed in the course of submissions and it was put that “the only reason that [Ms Gray] was on this bike was for reasons connected to her employment. In those circumstances you can’t have a stronger case in relation to 9A”. (at T 14.51)
The Respondent’s submissions
The respondent’s counsel commenced submissions by addressing the allegation made by Ms Gray that her injury had occurred whilst on a journey. It was the respondent’s case that there had been a deviation during such journey, and further that there had been no proof that the risk of injury was not materially increased because of that deviation.
It was acknowledged in the course of submissions that the injury occurred within the grounds of the respondent’s hospital however it was put that Ward 28 was the “place of employment” within the meaning of s 10.
Counsel made reference to the evidence of Ms Gray and sought to emphasise what was said to be “inconsistencies” in that evidence concerning her intended course or path between the point where the bicycle was picked up and Ward 28. The argument was advanced that the travel for the purposes of picking up the bicycle amounted to a deviation and it seems that an argument was advanced that that fact alone “deprives [Ms Gray] of any compensation under the journey provisions of the legislation”.
Counsel proceeded to consider the question as to whether the risk of injury was materially increased because of the deviation. It was argued that there had been a material increase in risk of injury by reason of a number of factors including the fact that Ms Gray was travelling at 20 kilometres per hour at the time of the accident; that Ms Gray was unfamiliar with the bicycle, and that she was unable to stop. Reference was also made in the course of submissions to the state of the road surface which was said to have caused the front wheel of the bicycle to “slip”.
A submission was put that Ms Gray’s alternative argument that she was in the course of her employment at the time of the subject injury should not be accepted. It was argued that the evidence established Ms Gray had not started at her place of employment at the time of the injury and that she was not, at the relevant time, under the control or direction of the respondent. It was put that her actions were “outside the course of employment”.
A further argument was advanced that, should there be a finding that the injury occurred in the course of employment, the provisions of s 9A defeat Ms Gray’s claim.
Submissions in Reply
Short submissions were made by Counsel in reply. It was argued that there had been no deviation during the course of the alleged journey and that, if it be found that there was such a deviation, there had been no material increase in risk.
The Arbitrator’s decision
The Arbitrator, between [9] and [26] addressed the allegation made by Ms Gray that the subject injury had occurred whilst she was on a journey between her place of abode and her place of employment within the meaning of s 10 of the 1987 Act. Following a consideration of the terms of that provision and relevant authority, the Arbitrator rejected Ms Gray’s submission concerning the relevance of the “journey provisions”. The Arbitrator accepted the evidence which established that Ms Gray was, at the time of the injury, within the hospital grounds and concluded that Ms Gray’s journey to her place of employment had ceased as she crossed the boundary of the hospital grounds. Having so concluded, the Arbitrator expressed the view that it was unnecessary for her to consider the respondent’s allegation that Ms Gray had deviated from the journey at the time of injury and that the claim was defeated by the provisions of s 10(2).
The Arbitrator proceeded to consider the question as to whether Ms Gray had established that she had received an injury (Reasons) [27] to [39]). The Arbitrator appears to have taken into account the provisions of s 9A when addressing the question of “injury”. The Arbitrator’s approach to these issues is addressed more fully below. It appears that the Arbitrator’s conclusion was that Ms Gray did not receive an injury within the meaning of s 4 of the 1987 Act. In the circumstances, it was stated by the Arbitrator, it was not necessary for her to consider whether Ms Gray’s employment was a substantial contributing factor to her injury. Having regard to her conclusions as to the relevance of the journey provisions and her finding as to the issue of injury the Arbitrator proceeded to enter the awards as are noted at [5] above.
SUBMISSIONS ON THIS APPEAL
Ms Gray’s submissions
The submissions provided by Ms Gray on this appeal demonstrate that there has been a change of emphasis as to the suggested basis of her entitlement. It appears that Ms Gray’s primary submission on appeal is that the Arbitrator had erred in concluding that the injury received by Ms Gray was not received in circumstances arising out of or in the course of her employment.
The submissions, at [2.8.1], enumerate a number of factual matters which Ms Gray asserts are “uncontradicted”. It is put that at the time of injury Ms Gray was at her place of employment during work hours at the time she fell suffering injury. At that time Ms Gray was not engaged in activities which “could be considered to be ‘misconduct’”. It is suggested in submissions that the Arbitrator “seems to be applying a test that the employer has to have actual knowledge of the activity which causes the injury” and that such reasoning demonstrates error.
Reference is made in the course of submissions to a number of authorities which, it is put, are relevant to a consideration as to the application of s 4. Particular reliance is placed upon the decision in Glenbuddah Pty Limited v Williams (1995) 12 NSWCCR 468 (Glenbuddah). Attention is drawn to those matters stated by Priestley JA in Glenbuddah at 472. The reasoning in that decision is said to support a conclusion that Ms Gray’s injury was one “that not only arose out of her employment but was [sic] in the course of her employment with the respondent”.
Ms Gray’s submissions appear to address the question as to the relevance of s 9A of the 1987 Act. It is put “that applying a common sense approach to the issue of causation [Ms Gray] has established that her employment was a substantial contributing factor to her injury”. The argument was advanced that a worker’s means of transport to work are “intimately related to work activities”.
An alternative argument is advanced on behalf of Ms Gray that the subject injury occurred whilst she was on a journey within the meaning of s 10. It is put that “an injury arising out of or in the course of employment is not inconsistent with the injury having occurred on a journey”. Reference is made to the decision of Hogno in which the Commission made a finding that an injury received after a worker had crossed the boundary of his place of employment was not one received on a journey within the meaning of that section. Ms Gray, in her submissions, seeks to distinguish the present matter upon the relevant facts. It is put that Ms Gray’s journey “did not end until she arrived at Ward 28”. Ms Gray further submits that there was no deviation “or if there was a deviation the riding of a pushbike did not material [sic] increase the risk of injury”. These arguments were not elaborated. It is put that, should Ms Gray succeed with respect to her allegation of injury within the meaning of s 4 “there is no need for [this question] to be decided”.
The Respondent’s submissions
It is put on behalf of the respondent that Ms Gray’s argument concerning the occurrence of injury in the course of employment is no more than “an assertion that merely because [Ms Gray] was in her place of employment and sustained injury, that such injury occurred in the course of [Ms Gray’s] employment”. It is put that Ms Gray has failed to adduce any evidence to demonstrate that “other than being inside the geographical boundaries of the Rozelle Hospital, she was engaged in any employment during work hours and acting in the course of her employment with the respondent”.
It is argued that Ms Gray’s suggestion that the wrong “test” had been applied by the arbitrator is made without regard to the arbitrator’s finding, at [37] of reasons, that “it cannot be said that [the purchase of the bicycle] was ancillary to her work”.
The respondent argues that the evidence supports the proposition that “any prospective purchase of the bicycle in question was for personal reasons and purpose”. Attention is drawn to Ms Gray’s evidence when cross examined before the arbitrator. It is put that whilst Ms Gray gave evidence that it was her intention to ride the bike “eventually to the ward (no 28) where she performed her work, it was also conceded that the process itself would be contingent upon the purchase or acquisition of the bicycle in question”. Reliance is placed upon the decision in Badawi, and it is put that a commonsense approach must be adopted to those questions raised when considering the operation of s 4.
Further reference is made to the decision of Badawi and the focus in submissions is again upon the question as to whether the subject injury arose out of the employment. Some reliance appears to be based upon matters stated by the Court of Appeal in Da Ros v Qantas Airways Limited [2010] NSWCA 89 (Da Ros). The submissions include a quotation of [3] of the headnote to that decision. It is then stated in submissions that “the private acquisition or purchase… of a bicycle by [Ms Gray] does not of itself expose her in the course of employment to a situation to which she would not otherwise have been exposed”.
The respondent’s submissions between [17] and [27] include citation of numerous authorities which touch upon the question as to whether an injury may be found to have arisen out of or in the course of employment. Those submissions also touch on the provisions of s 9A and its relevance to the present facts. These arguments are addressed more fully below.
The respondent, between [31] and [33] of submissions, draws attention to the difference in approach adopted by Ms Gray in her submissions on this appeal and those matters put on her behalf before the arbitrator. The primary submission is that, having regard to relevant authority, the subject injury did not occur whilst Ms Gray was on a journey within the meaning of s 10. In the alternative it is argued that, if the journey to the place of employment had not been completed, Ms Gray had deviated whilst upon that journey and that such deviation gave rise to a material increase of risk. In the circumstances Ms Gray is not entitled to the benefit of the legislation.
DISCUSSION AND FINDINGS
As earlier noted the argument advanced on behalf of Ms Gray, on this appeal, places particular emphasis upon suggested error concerning the finding that the subject injury did not arise out of or in the course of employment within the meaning of s 4 of the 1987 Act. Whilst there has been a shift in emphasis concerning the basis of Ms Gray’s claimed entitlement to compensation, it is clear that Ms Gray maintains her alternative argument, that is, that the injury was received whilst on a journey. Should Ms Gray on this appeal make out a case that in fact the subject injury was received whilst on a journey, the provisions of s 9A have no relevance to a determination of the respondent’s liability: s 9A(4). In the circumstances it is appropriate to consider firstly the question as to whether the journey provisions found in s 10 have relevance, following which Ms Gray’s arguments concerning injury within the meaning of s 4 may be addressed.
Section 10 - Was injury received whilst on a journey?
The provisions of s 10 operate to deem an injury received by a worker on a journey to which the section applies as being one arising out of or in the course of employment. That section, so far as is relevant, 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.
(1A)Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.
(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.
(1C) (Repealed)
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
(2) Subsection (1) does not apply if:
(a) the injury was received during or after any interruption of, or deviation from, any such journey, and
(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,
unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(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;
…….
(4)For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.
…….
(5A)Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.”
In the course of submissions before the arbitrator, counsel appearing on behalf of Ms Gray properly acknowledged that the decisions in Hogno and Musumeci are authority for the proposition that a journey terminates at the boundary of a worker’s place of employment. Having regard to what was said by the Commission and the Compensation Court in those decisions, counsel sought, as noted at [19] above, to distinguish the present case upon its facts.
It appears that the argument advanced on behalf of Ms Gray was, to an extent, misunderstood by the arbitrator. That misunderstanding is demonstrated by what appears in the first sentence at [22] of Reasons where it was stated by the arbitrator “submissions for Ms Gray were that she was not on a journey as, in accordance with the decisions in Hogno and Musumeci, the journey ended when Ms Gray reached the hospital boundary”.
Notwithstanding the apparent misstatement of the argument as advanced by counsel, the arbitrator did proceed to address the argument that the present case may be distinguished on the facts (at [22] of Reasons). The arbitrator’s conclusion was:
“In my view the size of the grounds does not affect the principle that the journey has ceased where the employer’s boundary has been crossed. In the above cases, as in this matter, the worker was within the employer’s boundaries when the injury occurred”.
Ms Gray challenges the finding as quoted immediately above. The same argument is advanced on appeal as was put to the arbitrator at the hearing. It is common ground that at the relevant time Ms Gray had journeyed from her place of abode to her place of employment. The evidence established that she had entered the grounds of Rozelle hospital before occurrence of the subject injury. The only evidence before the Commission concerning the physical layout of the grounds of the respondent’s hospital is found in the investigation report which formed part of the documentary evidence relied upon by both parties. There is a map of the hospital premises annexed to that report which indicates that the hospital is bounded by Balmain Road (south), Iron Cove on Parramatta River (north) and Glover Street to the west. The easterly boundary is not indicated on the map however it appears to be a very considerable distance east of Glover Street, and the hospital complex plainly occupies an area of many acres. The premises are serviced by a multitude of roadways which are marked on the map. It is reasonably clear that the distance between Ward 28, the point at which Ms Gray habitually performed her duties, and Ward 25 where she met Mr Clark and took possession of the bicycle, is a very considerable distance. It is to be regretted that the evidence does not include any estimates of area or distance. The evidence establishes that the injury occurred a relatively short distance from Ward 25, but at a point considerably distant from Ward 28.
The point at which a journey commences from or ends at a worker’s place of abode is precisely described as being the boundary of the land on which the place of abode is situated: s 10(4). There is no corresponding description concerning “place of employment”. In the matter of Chawla v Transgrid, an unreported decision of Burke AJ of the former Compensation Court of New South Wales (38010 of 2001, 11 June 2002) (Chawla), which concerned an injury received by a worker whilst walking to his employer’s administration building after parking his vehicle in the employee’s car park, his Honour made the following observation:
“Absent any definition of either ‘place of abode’ or ‘place of employment’ I would think general principle would indicate the legal boundaries of either property as defining their ambits. The present definition of ‘place of abode’ as being reached or left when crossing the “boundary of the land upon which the abode is situated” would, I believe, be declaratory of the common law position. It would be much the same with or without definition. The Act has from time to time essayed more restrictive definitions but seems to have returned to its roots.”
Burke AJ proceeded to determine that “the place of employment is reached or left upon crossing the boundary of the land upon which the workplace is situated. That being so I would believe that at the time of injury [the worker], having reached, and passed, a terminus, was no longer “on” a journey and was not “between” his place of abode and place of employment”. Burke AJ noted that the questions raised on the facts of the case with which he was dealing had earlier been decided by Quirk J in Musumici. His Honour acknowledged the correctness of the decision of Quirk J and adopted her Honour’s reasoning.
The facts in Musumici again concerned the arrival of a worker within the car park occupied by his employer following a journey from his abode. He was injured when attacked by a former co-worker following an altercation concerning a private matter unconnected with the worker’s employment. The journey provisions were relied upon by the worker in that matter. Her Honour reviewed earlier authority and made the following observation:
“The point of all these cases seems to be that a journey must have a starting point and an end point in temporal terms and cannot, in a difficult case such as this, be artificially extended to when the worker actually commences his daily labours, even though he has arrived at his ‘place of employment’”. (at [18])
In Hogno the President, Keating DCJ, considered the relevance or otherwise of the journey provisions in circumstances where a worker, who had travelled from his place of abode and parked his vehicle in the work car park, was injured as he was alighting from his vehicle. That decision includes an exhaustive review of relevant authority including the decisions of Quirk J and Burke AJ. His Honour expressed his agreement with the reasoning as found in those earlier cases and determined that the injury, which was received after the worker had crossed the boundary of his place of employment, was not one received whilst on a journey within the meaning of s 10(3)(a).
Having regard to the state of the authorities, the inevitable conclusion must be that the journey undertaken by Ms Gray came to an end as she crossed the boundary of the hospital grounds. On the present facts, notwithstanding the undisputed facts that Ms Gray had not reached the point within the grounds at which she normally discharged her duties, and that she was injured a very considerable distance from that point, there is no point of distinction between those facts and the facts of Hogno, Musumici and Chawla. I conclude that the arbitrator’s determination that the injury was not received whilst Ms Gray was on a journey was correct. In the circumstances it is unnecessary to consider the respondent’s allegation that there had been a relevant interruption during, or deviation from, the alleged journey which gave rise to a material increase in the risk of injury.
Injury
The arbitrator at [34] of Reasons has misstated the test concerning the occurrence of injury within the meaning of s 4. It was said that “Ms Gray needs to establish that there is a causal connection between her employment and the injury she suffered, and that her activities when injured were reasonably incidental to her employment” (emphasis added). Those words of the arbitrator are a misstatement of the wordage of s 4 and fail to distinguish that section and s 9A. The requirements in the section concerning arising out of or in the course of employment are disjunctive and proof of either of those two elements is sufficient to establish injury within the meaning of the Act. Subject to satisfying the requirements of s 9A, a worker is entitled to the benefits of the legislation. It is proposed to review the evidence to determine the correctness or otherwise of the Arbitrator’s ultimate conclusions.
Section 9 of the 1987 Act provides that a worker who has received injury shall receive compensation from the employer in accordance with the Act. Injury is defined in s 4 and includes personal injury arising out of or in the course of employment: s 4(a). Given the fact that Ms Gray had reached and was upon her place of employment at the time of injury, it is proposed to firstly consider the latter concept.
Did the injury arise in the course of employment?
In Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis) the High Court had occasion to review relevant authority concerning the meaning of the words “in the course of employment”. The facts in Hatzimanolis concerned an injury received by a worker during an interlude or interval in an overall period or episode of work. Early authority was considered in the joint judgment delivered by Mason CJ, Deane, Dawson and McHugh JJ where it was stated:
“For the purposes of section 4, the course of employment is not identical with the period of employment of a worker or with the work which that person performs. From a very early stage in the history of the law of workers’ compensation, it was recognised that the course of employment covered not only the actual work which a person was employed to do but also ‘the natural incidents connected with the class of work’ (Charles R. Davidson & Co v. M’Robb (1918) AC 304 at 321). In 1931 in Whittingham v. Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, Dixon J said that there can “no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service”. But his Honour went on to say that it was “another matter to be sure what is included within this conception”. He thought that, in considering what was incidental to service, the sufficiency of the connection between the worker’s employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.”
The Court in Hatzimanolis proceeded to consider subsequent authorities including Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 (Henderson) and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 (Speechley) in which the Court considered entitlement in respect of injuries which were not received during a period of actual work. In each of those matters Dixon J observed that it was necessary to determine whether the worker was doing something which he was “reasonably required, expected or authorised to do in order to carry out his duties” when deciding whether an injury occurred in the course of employment. That test was considered in Hatzimanolis in the light of more recent authority and the following observation was made in the course of the joint judgment:
“Beneficial as the Henderson-Speechley test has proved to be in the law of workers’ compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something “in order to carry out his duties” at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases particularly the decisions of this Court in Oliver and Danvers.”
Whilst the Court in Hatzimanolis was considering factual circumstances which in many respects may be distinguished from the present, it is clear that guidance may be gained from the reasons expressed in that decision when considering the proper application of s 4. Following a consideration of the more modern authorities their Honours expressed the view:
“[T]hat, 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’, Danvers (1969) 122 CLR at 537”.
The reformulation of relevant principle which is apparent in the decision of Hatzimanolis was considered by the Court of Appeal in Glenbuddah. The facts of that case concerned a worker who had been at a party until the early hours of the morning from which he had been given a lift back to Buddah Station where he worked and resided in a cottage with his uncle. On arrival at the boundary fence of the property the worker got into a “work car” which was utilised on the property and drove towards the house where he lived. He was followed by his friend who had given him the lift. At his house the worker changed into his work clothes. It was then about 3:15am. The trial Judge had found that his usual work hours were 5:00am to 2:00pm however a further finding was made that the worker could start earlier so long as he put in his nine hours. The worker said that he was intending to commence work on a tractor at Paddock number 33 on the property. The worker’s friend and her passenger wanted to return to the main road. The route was not easy to follow. The worker said he would guide his friend’s car out of the property and onto the main road on his way to Paddock 33. Whilst guiding his friend, along the access road leading to Paddock 33, his vehicle left the road and hit a tree causing serious injury.
The Court in Glenbuddah noted the trial Judge’s findings that at the time of the injury the worker was driving along the access road for a dual purpose. He intended to lead his friend to the main road and to proceed to Paddock 33 where the tractor to be used in his work was located. Given the distinction between the facts in Glenbuddah and those considered by the High Court in Hatzimanolis, the Court of Appeal considered it appropriate to have regard to that which was stated by Lord Macmillan in Northumbrain Shipping Co v McCullum (1932) 48 TLR 568 at 572 where it was stated:
“[I]t has been recognised time and again that the sphere of a workman’s employment is not necessarily limited to the actual place where he does his work. If in going to or coming from his work he has to use an access which is part of his employer’s premises, for which he is only entitled to traverse because he is going to or coming from his work, he is held to be on his master’s business while he is using that access.”
Priestley JA (with whom Meagher JA and Rolfe A-JA agreed) concluded that there is no statement in Hatzimanolis which suggests that the test as formulated by Lord Macmillan should not be applied in an appropriate case (at 472). His Honour determined that such test was applicable. In the course of his reasons Priestley JA also made reference to the decision in Hook v Rolfe (1986) 7 NSWLR 40 (Hook). Reference was made to the reasons expressed by Glass JA (with whom Hope JA agreed) where it was stated, as summarised by his Honour:
“[T]hat where a worker is injured in the course of doing something motivated by several purposes, a conclusion that the worker is then in the course of his employment is not challengable in point of law so long as the employment purpose was operative at the relevant time, and irrespective of the fact that some other non employment purpose was also operative” (at 472).
The conclusion reached in Glenbuddah is to be found in the decision of Priestley JA (at 473) where it was stated:
“The fact that at the time of the accident the worker was driving for the purpose of proceeding to the particular place on his employer’s property where he was to do his work means that at the time of the accident he was doing something incidental to the work he was employed to do. The fact that he was also driving for the purpose of showing his friends off the property did not cancel out or make too remote the connection between what he was doing and his employment obligations. The connection was in truth a very direct one”.
In the present case it was clearly stated by Ms Gray when giving oral evidence before the arbitrator that after taking possession of the bicycle it was her intention to ride it back to her ward being Ward 28 West (T 9). When cross examined Ms Gray acknowledged that she was test riding the bicycle (T 10.6) and that, had she found the bicycle was unsuitable for her, she would have given it back to Mr Clark (T 11.1). It is Ms Gray’s contention that she was at that point in time in the course of her employment. It is the respondent’s contention that Ms Gray’s acquisition and testing of the bicycle was not something, as stated in Speechley, which she was reasonably required or authorise to do in order to carry out her duties. The submissions put on this appeal by the respondent give rise to some difficulty given that the arguments do not appear to differentiate between the concept of “injury arising out of” and injury received “in the course of” employment. There is a further element of confusion given that there seems to be some over lapping of those arguments advanced in relation to the concept of “arising out of employment” and the proper application of s 9A of the 1987 Act. A similar problem is apparent when the Reasons given by the arbitrator are considered. However both the arbitrator in her Reasons, and the respondent in submissions on this appeal, touch on those authorities and principles relevant to the separate and distinct matters which have arisen for determination on the present facts. Those questions are:
(a) Was the injury received in the course of employment?
(b) Did the injury arise out of the employment?
(c) Was employment a substantial contributing factor to the injury?
The first question enumerated above, broadly stated, concerns a temporal connection with the employment. It was this concept that was considered in depth by the Court in Hatzimanolis. The respondent makes brief mention of the decision in Hatzimanolis (at [20] of submissions) and proceeds to refer to the decision of the Court of Appeal in Carthew v Badger & Ors [2004] NSWCA 317 (Carthew). The argument is that Ms Gray’s conduct at the relevant time “took her outside the course of her employment” as did the worker’s conduct as found by the trial Judge in Carthew. The arbitrator, following consideration of a similar argument reached the following conclusion:
“It appears to me that the purchase of the bike was a personal matter, and for the reasons discussed above I find that, on the particular facts of this matter, Ms Gray’s action in taking steps to buy the bike was not ancillary to her employment”(at [39]).
The reasons given by the arbitrator for that conclusion have failed to adequately address those three questions enumerated at [64] above and it is necessary, in my view, to review the facts to determine the correctness or otherwise of her conclusion.
The following facts are not controversial:
(a) Ms Gray was upon the employer’s premises at the time of injury;
(b) She had arrived on those premises immediately following termination of her daily journey from her place of abode to her place of employment;
(c) Her shift was to commence at 11:00pm;
(d) The injury occurred at approximately 10:30pm following a meeting with Mr Clark which occurred at 10:20pm;
(e) It was Ms Gray’s intention to test ride the bicycle as she made her way to Ward 28 for the purpose of commencing her shift;
(f) The injury occurred a short time after Ms Gray rode from Ward 25 towards Ward 26 at which time she had an intention to do a u-turn. The evidence suggests that the injury occurred before Ms Gray made the u-turn to which she refers in her statement dated 8 May 2008;
(g) Ms Gray usually walked to work arriving within the grounds of the hospital at approximately 10:45 to 10:50pm;
(h) Ms Gray’s practice was to arrive before commencement of the shift to “get the report from the staff on the previous shift”, and
(i) Ms Gray was test riding the bike with a view to purchase as a means of transport to and from work once the respondent relocated to new premises at Concord.
The respondent has placed reliance upon the decision in Carthew however that case, unlike the present, concerned conflict in the evidence concerning the circumstances giving rise to injury. It was stated by Giles JA with whom Santow JA and Ipp JA agreed at [9]:
“It appears to have been accepted below (and was accepted on appeal) that Ms Carthew’s injury did not arise out of or in the course of her employment if it occurred in the circumstances described by Mr Badger and Mr Quinn rather than in the circumstances described by Ms Carthew and Ms Krohn. Whether Ms Carthew’s employment included the provision of free swimming lessons was material to finding the circumstances in which the injury was suffered, although not determinative. The judge preferred the evidence of Mr Badger and Mr Quinn to that of Ms Carthew and Ms Krohn. He found that Ms Carthew ‘was not in the course of employment nor were her injuries arising out of employment’”.
I am of the opinion that the decision of Carthew is of no assistance to the respondent given that the Court was there concerned with the question as to whether the trial Judge had discharged his duty to give reasons. The trial Judge had rejected the worker’s evidence as to the facts fundamental to her establishing that the subject injury arose out of the employment or was received in the course of that employment.
The facts of the present matter are to an extent analogous to those in Glenbuddah. In Glenbuddah the worker was found to have been injured in the course of his employment notwithstanding his intention to drive an extra 500-600 metres for a non employment purpose. He was at the time, as stated by Priestley JA “following basically the same route that he would have had to follow for the purpose of reaching his work”. That fact, his Honour found, did not destroy “the sufficiency of connection between the worker’s conduct and his employment at the time of injury” (at 474).
Ms Gray had, as the worker had in Glenbuddah, the intention to commence her shift. She was travelling to Ward 28 with that intention. There was a dual purpose for that trip between Ward 25 and Ward 28, being to test ride the bicycle. It seems that the route adopted by Ms Gray involved an intended course involving a u-turn at Ward 26, a short distance from her starting point at Ward 25. Notwithstanding Ms Gray’s intention to make that short diversion I have reached the conclusion that her conduct, once she had concluded her journey to her place of employment, was conduct within the course of her employment and that her attendance at Ward 25 to take delivery of the bicycle and her intention to test ride it were activities which she was entitled to perform on the premises. Having regard to her intention to ride to the specific point on those premises where she was to perform her shift I conclude that she was on her employer’s business whilst using the roadway and was thus in the course of her employment when injured.
Should my conclusion concerning the relevance of Ms Gray taking possession of the bicycle be wrong, the matters stated by Glass JA in Hook (at 44) have relevance:
“The existence of conduct inspired by multiple purposes is a common phenomenon. It raises the problem of classification in connection with a legal standard defined in terms of purpose. The solution normally adopted is to act upon the relevant purpose, to disregard others and not to inquire which of them is dominant or earlier: Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617 (withhold supply for the reason that); National Mutual Life Association of Australasia Ltd v Federal Commissioner of Taxation (1970) 122 CLR 13 (land used for the purpose of producing assessable income). The same approach has been adopted in relation to the question whether conduct motivated by several purposes can fall within the course of employment (Humphrey Earl Ltd v Speechley (at 134).)
‘…There is a great difference between, on the one hand, the worker’s taking advantage of an allowable interval for lunch in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants. Such questions must involve matters of degree, but it does not follow that their decision is always a question of fact open in point of law to a finding either way.’”.
Did the injury arise out of employment?
The question whether the subject injury arose out of the employment involves an inquiry as to the existence or otherwise of a causal nexus between the employment and the injury. The comments of Starke J in Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504 (at 517-518) are instructive:
“The expression “arising out of” imports some kind of causal relation with employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do – out of his service (Stewart v Metropolitan Water Sewerage and Drainage Board, and the cases there sited)”.
Ms Gray was upon her employer’s premises at the relevant time for the purpose of commencement of her shift. She was travelling to the ward at which she was to take up her duties and had taken possession of a bicycle to be used in the near future for transport to and from the new place of employment. The authorities cited in Badawi at [73] of the judgment of the plurality suggest that a commonsense approach be adopted when applying the phrase “arising out of employment”. In the circumstances of the present case I conclude that there was, plainly, a causal relationship between the employment and the occurrence of the injury and that the injury, in those circumstances occurred not only in the course of employment but arose out of that employment.
Section 9A
The third question posed concerns the application of the provisions of s 9A to the facts. That section provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2)The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and the place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at or about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
The question as to whether the injury is one arising out of employment is a separate question to whether the employment was a substantial contributing factor to the injury. Each question requires separate consideration. However as stated by the plurality in Badawi (at [85]) “there may be circumstances where the factors considered necessary and sufficient to satisfy the test arising out of employment for the purposes of s 9, are sufficient to satisfy the test in s 9A”. It was further observed that “it is not sufficient to find that the injury arose out of ‘employment’ and to thereby be able to conclude that the employment concerned was a ‘substantial contributing factor’. Such a reasoning process is expressly proscribed by s 9A(3).”
The matters enumerated in s 9A (2) must be considered when application of the section to the facts is made. It is proposed to deal with each matter in order:
(a) The time and place of the injury: The fall from the bicycle causing injury occurred at approximately 10:30pm, some 30 minutes before the commencement of Ms Gray’s shift and some 15 or 20 minutes before her usual time of arrival. The injury occurred upon the respondent’s hospital premises.
(b) The nature of the work performed and the particular tasks of that work: Ms Gray worked as a registered nurse at Ward 28. She was required to enter the grounds of Rozelle Hospital and make her way to Ward 28 for the purpose of commencing her nursing duties. It was her practice, and a part of her duties, to arrive before the commencement of the shift to obtain a report from the earlier shift workers.
(c) The duration of the employment: Ms Gray had been employed by the respondent since 1972 and had performed work on that 11:00pm night shift since approximately 1980.
(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: The issues raised by this provision have no relevance to the present facts given that the fall from the bicycle occurred at the place of employment as Ms Gray was travelling to the ward.
(e) The worker’s state of health before the injury in the existence of any hereditary risks: This consideration is not relevant to the present facts.
(f) The worker’s lifestyle and his or her activities outside the workplace: These considerations, again, have no relevance to the present facts.
There is no dispute that Ms Gray was testing the bicycle with a view to purchase to provide a means of transport to her new place of work at Concord. The respondent, in submissions, has characterised that fact as being a “private dalliance or purpose”. That argument must be rejected given the circumstance that the bike to be tested was required for transport to work purposes, and at the time of injury was being utilised to transport Ms Gray to Ward 28. I conclude that Ms Gray’s employment was a substantial contributing factor to her injury.
For the reasons I have attempted to summarise I conclude that the arbitrator has erred in her conclusion that Ms Gray did not receive an injury arising out of or in the course of her employment. I have found that her employment was a substantial contributing factor to that injury and hence Ms Gray is entitled to the relief which she has sought in her application. In the circumstances, following a review on the merits, it is necessary that the arbitrator’s determination recorded in the Certificate of Determination dated 23 August 2010 be revoked. Having regard to all the circumstances I consider it appropriate that a new decision be made on this appeal in place of the arbitrator’s determination. Appropriate orders appear below.
DECISION
The awards made by the arbitrator in paragraphs (1) and (2) of the Certificate of Determination dated 23 August 2010 are revoked and (3) is to be substituted with an appropriate costs order.
The arbitrator’s awards are to be replaced by the following award and orders.
“1.Award for the applicant pursuant to s 60 of the Workers Compensation Act 1987 in the sum of $1708.23 being medical hospital and rehabilitation expenses incurred as a result of injury.
2.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for the purpose of assessment of any permanent impairment resulting from the injury received on 11 April 2008 to the applicant’s left leg. The documentary evidence before the Commission is to be forwarded to the approved AMS.
3.The respondent is to pay the applicant’s costs.”
COSTS
The Respondent is to pay Ms Gray’s costs of the appeal.
Kevin O’Grady
Deputy President
2 December 2010
I, PENELOPE FLEMING CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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