Grosvenor v Axia Solutions Pty Ltd ATF Axia Solutions Family Trust

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Grosvenor v AXIA Solutions Pty Ltd ATF Axia Solutions Family Trust [2025] NSWPIC 261
APPLICANT:	Hayley Grosvenor
RESPONDENT:	AXIA Solutions Pty Ltd ATF Axia Solutions Family Trust
MEMBER:	John Turner
DATE OF DECISION:	11 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; sections 4, 9A and 10; injury; course of employment; place of employment; journey; real and substantial connection; main contributing factor; substantial contributing factor; cases applied: Federal Broom Co Pty Ltd v Semlitch; Zinc Corporation v Scarce; New South Wales Police Force v Cox; Musumeci v GEM Engines Pty Ltd; Henderson v Commissioner of Railways (WA); Whittingham v Commissioner of Railways (WA); Mercer v ANZ Banking Corporation; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited; Dayton v Coles Supermarkets Pty Ltd; McMahon v Lagana; AV v AW; Bina v ISS Property Services Pty Ltd; Dewan Singh and Kim Singh T/AS Krambach Service Station v Wickenden; State Super Financial Services Australia Limited v McCoy, and Ward v Corrimal-Balgownie Collieries Ltd considered and applied; La Macchia v MCS Holdings (Australia) Pty Ltd [2024] NSWPIC 629 distinguished; Held – applicant sustained psychological injury in the form of an aggravation and/or exacerbation of a disease as defined by section 4(b)(ii); applicant was at her place of employment at the time of the accident; applicant was in the course of her employment at the time of the accident; applicant’s employment is the main contributing factor to the aggravation and/or exacerbation of the disease injury; at the time of injury the applicant was not a journey to which section 10 applies; applicant was incapacitated for work from 20 August 2023 to 20 October 2023; respondent to pay applicant pursuant to section 36; award for respondent in respect to claim for weekly compensation from 21 October 2023 to 5 November 2023; matter remitted to President for referral to Medical Assessor.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained psychological injury in the form of an aggravation and/or exacerbation of a disease as defined by s 4(b)(ii) of the Workers Compensation Act 1987. 2. That the applicant was at her place of employment at the time of the accident on 20 August 2023. 3. That the applicant was in the course of her employment at the time of the accident on 20 August 2023. 4. That the applicant’s employment is the main contributing factor to the aggravation and/or exacerbation of the disease injury. 5. That at the time of injury the applicant was not a journey to which section 10 of the Workers Compensation Act 1987 applies. 6. That the applicant was incapacitated for work from 20 August 2023 to 20 October 2023. 7. The respondent is to pay the applicant pursuant to s 36 of the Workers Compensation Act 1987: (a) $ 737.84 per week from 20 August 2023 to 30 September 2023, and (b) $755.25 per week from 1 October 2023 to 20 October 2023. 8. There is an award for the respondent in respect to the claim for weekly compensation from 21 October 2023 to 5 November 2023. 9. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 20 August 2023 – personal injury; (b) Body systems / parts: primary psychological/psychiatric disorder, and (c) Method of Assessment: whole person impairment. 10. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) attachments to Application to Lodge Additional Documents lodged on behalf of the respondent dated 16 May 2025, and (d) this Certificate of Determination and Statement of Reasons. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Hayley Grosvenor (applicant) has brought proceedings in the Personal Injury Commission (Commission) in which she alleges that she sustained a psychological injury in the course of her employment as a casual support worker with Axias Solutions Pty Limited ATF Axia Solutions Family Trust (respondent) on 20 August 2023 when she was involved in a car accident.
The applicant claims weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 (1987 Act) from 20 August 2023 to 5 November 2023 as well as permanent impairment compensation pursuant to s 66 of the 1987 Act.
The parties have agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $776.67 unindexed.
The applicant commenced employment with the respondent as a casual Contact Support Person on or around 30 January 2023. Her work duties for the respondent involved taking children who were in foster or respite care for visits with their biological family. She would collect the children from the care family and take them to visit the biological parent or family member; supervise the visit and then return the child to the care family. She may do this multiple times during the day. She would write a report for each visitation which was submitted to the respondent.
On 20 August 2023 the applicant left her home at about 8.15am to drive to collect a child for a visitation. During the journey from her home to the place where the child that she was to collect was staying she stopped at a roundabout. Whilst she was waiting for the roundabout to clear so she could proceed the vehicle which she was driving was struck from behind by a vehicle driven by a Hayden Jenkins. It is the applicant’s evidence that she was thrown forward by the collision and was in shock.[1] Prior to the collision the applicant had observed the vehicle driven by Mr Jenkins to be behaving erratically.
[1] Application to Resolve a Dispute (ARD) p 4.
Following the collision the applicant turned right at the roundabout and then pulled over to the side of the road so that she could exchange particulars with the driver of the vehicle which had collided with the rear of her vehicle. It is the applicant’s evidence that she looked in her rearview mirror and observed that the driver and passenger in the vehicle which had struck hers had their faces covered in blood.
It is the applicant’s evidence that Mr Jenkins got out of his car, pulled her car door open, grabbed her left hand and dragged her out of her car. The applicant attempted to telephone the police however Mr Jenkins grabbed her phone, pushed her onto the bonnet of her car and swore abuse at her. It is the applicant’s evidence that she managed to run away obtaining assistance from a nearby resident who took the applicant into their home until the police arrived.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the respondent disputes that the applicant sustained injury in the course of her employment or arising out of her employment;
(b) the respondent asserts that pursuant to s 10 of the 1987 Act the applicant is not entitled to compensation as at the time of the accident and the alleged injury she was on a journey to work and there was no real and substantial connection between the employment and the accident or incident out of which the injury arose;
(c)    the respondent asserts that pursuant to s 9A of the 1987 Act no compensation is payable as the applicant’s employment was not a substantial contributing factor to the injury, and
(d)    the respondent disputes that the applicant has suffered an incapacity for work which results from an injury.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 22 May 2025. Mr David King, counsel, instructed by Beilby Poulden Costello Lawyers, appeared for the applicant, who was present. Mr Djordje Pecelj, counsel, instructed by Turks Legal, appeared for the respondent. The proceedings were conducted in-person. 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 Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    attachments to Application to Lodge Additional Documents lodged on behalf of the respondent dated 16 May 2025.

Oral evidence

No oral evidence was adduced.

FINDINGS AND REASONS

Injury

Injury is defined in s 4 of the 1987 Act which relevantly states:
“4 Definition of ‘injury’
In this Act—
injury—
(a)means personal injury arising out of or in the course of employment,
(b)includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and…”
That the applicant sustained a psychological injury as a result of the event on 20 August 2023 is not contentious.
In my view the medical evidence support’s that the applicant sustained a psychological injury as a result of the confrontation and assault that followed the subject motor vehicle accident on 20 August 2023 rather than the collision itself.
The applicant’s general practitioner (GP), Dr Mark Hwee Ming Wong, in a report dated 25 February 2025 diagnosed post-traumatic stress disorder “following a physical assault”.[2]
[2] ARD p 22.
Dr Ben Hooi-Bend Teoh, psychiatrist, who provided a forensic report to the applicant diagnosed a post-traumatic stress disorder. The doctor did not specifically state whether the confrontation and assault or the collision itself (or both) is the cause of the psychological injury. However, the doctors focus appeared to be on the confrontation and assault.
Dr Nabil Malik, psychiatrist, who provided a forensic report to the respondent diagnosed post traumatic stress disorder and major depressive disorder with anxious distress. In the opinion of Dr Malik whilst “the applicant had a history of postnatal depression, anxiety, and PTSD linked to earlier life events, it was the assault during this work-related incident that triggered a significant exacerbation of her symptoms.”[3]
[3] Reply p 96.
Dr Adrian Keller, the applicant’s treating psychiatrist, reported to Dr Wong on 19 December 2023 that the applicant had experienced a severe assault whilst noting that the applicant had a prior history of being assaulted and observing that patients with a history of accumulative assault and trauma often experience complex protracted responses.[4]
[4] Reply p 136.
In my view the medical evidence supports that the injury which the applicant sustained was an aggravation and/or exacerbation of a disease for the purposes of s 4(b)(ii) of the 1987 Act.

Kitto J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) said at [632]:
“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason I can see for reading it in the present context as not extending to mental illness.”
The Court of Appeal applied Semlitch in Cook v Midpart Pty Ltd t/as McDonalds Foster [2008] NSWCA 151.
As previously discussed Dr Keller reported to Dr Wong on 19 December 2023 that the applicant had experienced a severe assault whilst noting that the applicant had a prior history of being assaulted and observing that patients with a history of accumulative assault and trauma often experience complex protracted responses.[5]
[5] Reply p 136.
Dr Teoh observed that the applicant’s condition is caused by the incident on 20 September 2023 whilst noting that the applicant had pre-existing psychiatric illnesses. Whilst Dr Malik, as previously noted, is of the opinion that the assault triggered a significant exacerbation of the applicant’s symptoms.

“arising out of or in the course of employment”

Mr King submits on behalf of the applicant that the injury arises out of or was sustained in the course of the applicant’s employment. In the submission of Mr King, the motor vehicle which the applicant was driving at the time of the accident was the applicant’s place of employment by virtue of the high degree of control which was exercised by the respondent over the vehicle which was to be used in the course of the applicant’s duties.
Mr Pecelj submits on behalf of the respondent that at the time of the accident the applicant was driving to work and was not in the course of her employment nor in the respondent’s submission does the alleged injury arise out of the applicant’s employment with the respondent.
The respondent’s letter of engagement which the applicant signed on 26 January 2023 identifies the “primary component” of the applicant’s role as:
“Supervised Contact Visits – providing supervision at contact visits between children and their birth families. Transport to and from supervised contact visits is also required in most circumstances.”[6]
[6] Reply p 31.

The letter of engagement also identifies the “secondary components” of the applicant’s role which includes:
“Children’s Supervised Transport – involves transporting children to and from school, appointments and other locations.”[7]
[7] Reply p 31.
Clause 12 of the letter of engagement states that a “core requirement of the role” is to have a “current Full Driver’s Licence” and that the applicant “must” inform the respondent immediately if she loses her driver’s licence.
The clause also provides that no “unauthorised person” is permitted to travel in the motor vehicle during an “access or transport” without prior written approval from the respondent, that the applicant must at all times “comply with the law whilst driving”, that as a requirement of her position the applicant must have a “fully maintained vehicle to transport children”, that the applicant is required to have her vehicle serviced at the intervals recommended by the respondent and maintain the vehicle in a roadworthy condition at all times, that the vehicle must have comprehensive car insurance and that the applicant must inform the insurer that she will be using the car for work purposes and in particular that it will be used to transport children for the purposes of her work.[8]
[8] Reply p 29.
It is the applicant’s evidence that the children which she transported were often quite young and that she had purchased three car seats which she used for work. If she had not purchased the car seats she would have been required to drive to the respondent’s premises each day to collect seats before proceeding to pick up the child(ren).
Clause 15 of the letter of engagement states that as the applicant is to be employed on a casual basis her “employment will be terminated at the end of each shift. You agree that you have no ongoing expectation of employment with us.”[9]
[9] Reply p 30.
It is not in dispute that the applicant at the time that the accident occurred was in the course of a journey from her place of abode to the place where she was to collect a child whom she would then transport to another place for the purposes of a visit with a biological family member which the applicant would supervise. The applicant was not required to attend the respondent’s premises prior to or for the purposes of commencing work. It is also not in dispute that the applicant would neither receive wages nor be paid a travel allowance for that journey. The applicant would commence to be paid wages only once she arrived at the collection point.[10]
[10] Reply p 16.
Causation requires a commonsense evaluation of the causal chain.[11]
[11] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
If injury occurs in the course of employment, subject to the tests of “substantial contributing factor” in s 9A of the 1987 Act and “main contributing factor” in s 4(b) of the 1987 Act, the mere temporal connection with employment is enough; it is unnecessary to show some further relationship with the employment to establish “injury”.[12]
[12] Kavanagh; The Commonwealth v Oliver [1962] HCA 38; 107 CLR 353 (Kavanagh).
An injury which arises directly out of the circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment.[13]
[13] Upton v Great Central Railway Co (1924) A.C. 302; Brooker v Thomas Borthwick & Sons (Aus.) Ltd (1933) A.C. 669, at pp. 676, 677; (1933) N.Z.L.R. 1118.
Clarke JA in Zinc Corporation v Scarce (1995) 12 NSWCCR 556 (Zinc Corporation) at [570F] observed:
“What needs to be established is that the event which is sought to be linked with injury ‘was so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as the cause of it’ (see Halverson Boats Pty Ltd v Robinson (1993) 31 NSWLR at 7).”
There is no definition of “place of employment” in the workers compensation legislation.
Mr King, in support of his submission that the applicant’s motor vehicle was her place of employment, referred to the decision in New South Wales Police Force v Cox [2009] NSWWCCPD 20 (Cox). In Cox Roche DP observed that a workers place of employment is not fixed to a geographical location stating:
“114. There is no definition of ‘place of employment’ and there is no commencing or finishing boundary for a worker’s ‘place of employment’. That there is no definition of ‘place of employment’ or boundary line for a ‘place of employment’ is important in the context of the present argument. It acknowledges that a worker’s place of employment is not a fixed geographical location. Depending on the terms of the contract of employment, a worker’s place of employment can be anywhere the employer requires the worker to be to perform his or her duties or to engage in activities that are incidental to those duties (see Bull v Schweppes (Australia) Pty Ltd [1960] WCR 67 and Cunningham v Tobin & others t/as Stingray Café (2001) 21 NSWCCR 524 at [83]). It having been conceded that Mr Cox was in the course of his employment on the morning of 13 June 2004, his ‘place of employment’ was the police car. Having arrived at his ‘place of employment’, he could no longer be on a journey within the terms of section 10.” [Emphasis added]
I accept the applicant’s submission that the applicant was at her place of employment at the time that the accident occurred. As was observed by Roche DP in Cox “[d]epending on the terms of the contract of employment, a worker’s place of employment can be anywhere the employer requires the worker to be to perform his or her duties or to engage in activities that are incidental to those duties”.
The terms of the applicant’s employment required her to transport children to and from supervised visits and to supervise those visits. Not only did the terms of the applicant’s employment require her to collect and transport children it also specified how the children were to be transported including what vehicle was to be used and how the vehicle was to be operated (albeit simply within the law), the requirements of that vehicle including the nature of the insurance which was to be in place in respect to the vehicle as well as the condition of the vehicle.
“Incidental” to the performance of her work duties transporting the children it was necessary for the applicant to fit an appropriate child seat to the car if required and for the particular vehicle to be driven to the location where the child was to be picked up from.

The applicant was not required to attend the respondent’s premises prior to commencing her journey to where the child was to be picked up from unless she needed to obtain and install an appropriate children’s seat which she did not as she had purchased her own. The place where the child was picked up from seems in the circumstances to be of little significance being simply the collection point. It was not a point where the applicant would stay to perform any duties other than to collect the child following which she would continue on to the place where the supervised visit would take place.
In my view the fact that applicant’s casual employment, according to the terms of the letter of engagement was terminated after each shift, and that she did not commence to receive remuneration until the child had been collected is not determinative of the place of employment. In Musumeci v GEM Engines Pty Ltd [2002] NSWCC 8; (2002) 23 NSWCCR 128 (Musumeci) the worker sustained injury in the car park of the employer’s premises and before he had “bundied-on” for work. Quirk CCJ stated at [18] after considering the relevant case law:
“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’.”
Mr King submits on behalf of the applicant that as the accident occurred at the applicant’s place of employment the injury was sustained in the course of the applicant’s employment.
That a worker is at their place of employment is not determinative of whether they are in the course of their employment. A worker may attend their place of employment for reasons unrelated to the performance of work duties such as attending a shop where they work as a customer rather than for the performance of work duties.
However, the course of employment extends beyond a worker’s normal hours and place of work, to “the natural incidents connected with the class of work”. If a worker “is doing something which is part of or is incidental to his service”, they are in the course of their employment.[14]
[14] Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22 (Whittingham).
The High Court considered what constituted “in the course of” employment in Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 (Henderson). In Henderson, Dixon J stated at [294]:
“Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties.”
In my view the applicant was in the course of her employment at the time that the accident occurred. It is uncontroversial that the applicant at the time of accident was driving to pick up a child for the purposes of performing her work duties.
It was “incidental” to the applicant being able to perform her work duties that the particular vehicle which the applicant was driving at the time of the accident be driven to the place of pickup so that she could collect the child which was to be transported in that particular vehicle to the supervised visit. The respondent’s requirements in respect to the transport to be used were very specific. The applicant could not take any other transport or use other methods of transport to transport the child. There was no other practical or logical method of transporting that specific vehicle to the place of pickup other than for the applicant to drive the vehicle.
I find that the applicant was both at her place of employment and in the course of her employment at the time of the accident.

“substantial contributing factor”

Whilst I have previously expressed the view, and found, that the injury which the applicant sustained was an aggravation and/or exacerbation of a disease for the purposes of s 4(b)(ii) of the 1987 Act; in the event that I am wrong I now consider s 9A of the 1987 Act.
An injury is not compensable simply because it arose out of or in the course of, or arose both out of and in the course of, a worker’s employment. Except in the case of disease injuries the employment concerned must also be a “substantial contributing factor to the injury.”
Section 9A of the 1987 Act relevantly 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 (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note.
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(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 that 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.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree[15] to be decided after a consideration of all the evidence.
[15] Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]; McMahon v Lagana [2004] NSWCA 164 at [32].
Section 9A requires that employment must be a substantial contributing factor to the event causing the injury or the receipt of the injury.[16]
[16] Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725.
Causation requires a commonsense evaluation of the causal chain.[17]
[17] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
Employment must be “a” substantial contributing factor to the injury, not “the” substantial contributing factor. As Mason P said in Mercer v ANZ Banking Corporation [2000] NSWCA 138; (2000) 20 NSWCCR 70 (Mercer) at [16] “[t]here may be more than one substantial contributing factor to a single injury.” In Mercer the Court of Appeal also excluded the relevance of a predisposition or susceptibility to injury, Mason P saying at [27]:
“Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane (1994) 4 Tas R 156).”
In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi) Allsop P, Beazley JA and McColl JA in a joint decision said at [48]:
“The following propositions distilled from Mercer in respect of the operation of s 9A have been accepted as correct and can be taken to be uncontroversial:
(1) The strength of the causal linkage between the employment concerned and the injury is the question in issue: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [36] per Santow JA (Beazley and Ipp JJA agreeing).
(3) Both s 4 and s 9A require independent satisfaction: McMahon v Lagana (t/as The Vessel ‘Nimble II’) [2004] NSWCA 164; 4 DDCR 348 at [25] 355 and [33] 356 per Hodgson JA (Santow JA and Stein AJA agreeing) and Larson v Commissioner of Police [2004] NSWCA 126; 3 DDCR 365 at [38] 378 per Tobias JA (Mason P and Santow JA agreeing).
(4) Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [49] 216 per Spigelman CJ (Hodgson and Bryson JJA agreeing); and Dayton at [22] per Giles JA.
(5)     Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge: Hevi Lift at [105]-[106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(6)     Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634 at [56] 646 per Basten JA (Giles and McColl JJA agreeing); WorkCover Authority of NSW v Walsh [2004] NSWCA 186 at [99]; McMahon v Lagana at [32] per Hodgson JA (Santow JA and Stein AJA agreeing), Dayton at [22] per Giles JA and Murray v Shillingsworth [2006] NSWCA 367 at [65] per Einstein J.
(7)     The phrase ‘employment concerned’ in s 9A(1) bears the same meaning as ‘employment’ in the phrase ‘arising out of or in the course of employment’: Mercer at [13] 745 and Federal Broom at 632-633. We agree.”
At [82] they went on to state in respect to “substantial”:
“We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in s 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’. We agree with his Honour that it is not useful to search for or use other terms, such as ‘large’, or ‘weighty’, or by way of further example, other concepts such as ‘predominant’. We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue.” [Emphasis added]
In the respondent’s submission the contribution from employment was not “real or of substance”, particularly in circumstances where the applicant’s employment was terminated at the end of each shift and she had not yet commenced duties per employment contract.
Mr King submitted on behalf of the applicant that if it was found that the applicant was in the course of her employment at the time of the accident, which I have found, then it should be found that work is a substantial contributing factor because the applicant would not have been involved in the motor vehicle accident but for her employment.
In Mr King’s submission the assault which occurred following the motor accident has sufficient nexus for it all to be effectively the one event. In Mr King’s submission employment is a substantial contributing factor because the accident occurs and then the assault occurs as a result of the accident. It is in Mr King’s one rapid sequence of events that should not be broken into parts.
In Mr King’s submission the examples of matters to be taken into account in s 9A(2) for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury all, where relevant, weigh in favour of the applicant’s employment being a substantial contributing factor.
The matters set out in s 9A(2) must be taken into account to the extent that they are relevant to the case. A decision maker however is not confined to the matters set out in s 9A(2) and may take into account other matters relevant to whether employment was a substantial contributing factor to the injury.[18]
[18] Badawi.
Turning to a consideration of the matters set out in s 9A(2).

(a) “the time and place of injury”

It is not disputed that the applicant was on route to pick up a child for a supervised visit at the time that the motor vehicle accident occurred.
This factor in my view weighs in favour of the applicant.

(b) “the nature of the work performed and the particular tasks of that work”

As previously discussed, the applicant was required to transport children and supervise their visits with biological family members. Whilst the vehicle which the children were transported in was owned by the applicant, the respondent had very specific requirements as to the vehicle which was to be used. The vehicle which the applicant was driving at the time of the accident was the vehicle which was approved by the respondent for that purpose.
At the time that the injury was sustained however the applicant was not being paid wages.
As previously discussed the fact that the applicant was not being paid wages at the time of the accident is not determinative of whether the applicant was in the course of her employment at the time of the accident. It was incidental to the performance of the applicant’s work duties that she drive that particular vehicle to the collection point to pick up the child.
In my view this factor weighs in favour of the applicant.

(c) “the duration of the employment”

This factor is not relevant in this case.

(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”

In my view this factor is not relevant.

(e) “the worker’s state of health before the injury and the existence of any hereditary factors”

This factor is not relevant.

(f) “the worker’s lifestyle and his or her activities outside the workplace”

This factor is not relevant in this matter.
I accept the applicant’s submission. In my view there is a strong “causal linkage between the employment concerned and the injury”. The link between the applicant’s employment and the injury is in my view “real and of substance”.
At the time of the motor vehicle accident the applicant, as I have previously found, was in the course of her employment and at her place of employment. The applicant would not have been involved in the accident if she had not been driving to the place of pickup to collect a child for a supervised visit. Being involved in a motor vehicle accident is an inherent risk with either driving or being a passenger in a motor vehicle.
I agree with Mr King that the events and the assault which followed the motor vehicle accident should not be treated separately. Both the motor vehicle accident and the assault are all part of the one incident. The assault is born out of the accident with the applicant being assaulted by the driver of the vehicle which struck the rear of her vehicle. The causal connection between the motor vehicle accident and the assault is emphasised, if any emphasis is required, by the applicant’s assailant accusing her (incorrectly on the evidence) of hitting his vehicle. The evidence in my opinion supports that if the motor vehicle accident had not occurred then the assault would not have occurred but rather that the assault was born directly out of the accident.
In any event I am of the view that even if the motor vehicle accident and the assault were to be treated as separate incidents employment would still be a substantial contributing factor to the injury. The assault occurred whilst the applicant was in the course of her employment travelling to the pickup location. The applicant would not have been undertaking that journey, been driving that vehicle and been present at that place at that point in time to be assaulted if she had not been in the course of her employment.
For the above reasons I am of the view that the applicant’s employment was a substantial contributing factor to the injury

“main contributing factor”

I have previously expressed the view that the medical evidence supports that the injury which the applicant sustained was an aggravation and/or exacerbation of a disease for the purposes of s 4(b)(ii) of the 1987 Act.
Section 4(b)(ii) requires the employment to be “the main contributing factor” to the aggravation and/or exacerbation of the disease.
The respondent in its submissions referred to the decision in AV v AW [2020] NSWWCCPD 9 where Snell DP said at [66]:
“I have previously expressed the view that the test of ‘main contributing factor’, inserted into the definition of ‘injury’ in s 4(b) by the 2012 amendments, is more stringent than the test applicable pursuant to s 4(b) in its previous form, which was subject to s 9A of the 1987 Act.[97] There may be more than one ‘substantial contributing factor’. ‘Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors.’[98] (emphasis in original). On the other hand, the requirement in s 4(b) inserted by the 2012 amendments, that employment be ‘the main contributing factor’ (emphasis added) permits the existence of only one such factor. The requirement of ‘the main contributing factor’ involves a more stringent connection with the employment than the requirement of a ‘a substantial contributing factor’ that applied to ‘disease’ injuries prior to the 2012 amendments.”
In the respondent’s submission the prior incident’s (including prior assaults) which the applicant had endured, and her prior psychological illnesses meant that her employment was not the main contributing factor to the disease injury.
I do not accept the respondent’s submission. Employment only has to be the main contributing factor to the aggravation. As Snell DP said in Av v AW at [78]:
“It is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
The medical evidence, as I have previously discussed, supports that the applicant’s prior psychological/psychiatric condition was aggravated and/or exacerbated by the confrontation and assault which followed the motor vehicle accident. There is no evidence that any other factors or events contributed to that aggravation and/or exacerbation.

For the above reasons I find that the applicant’s employment is the main contributing factor to the aggravation and/or exacerbation of the disease.

Section 10 of the 1987 Act – journey claims

Section 10 of the 1987 Act relevantly states:
“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(3) The journeys to which this section applies are as follows—
(a)the daily or other periodic journeys between the worker’s place of abode and place of employment,…
(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
…
(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…”
As I have previously found that the applicant was at her place of employment at the time that the accident occurred the applicant was not therefore on a journey to which s 10(3)(a) applies. However, if I am wrong that the applicant was at her place of employment at the time of the accident and she was on a journey at the time of the accident to which s 10(3)(a) applies then I am of the view that “there is a real and substantial connection between the employment and the accident” for the purposes of s 10(3A).
In Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina) President Keating said at [112]:
“The Arbitrator’s essential conclusions, with which I agree, may be summarised as follows:
(a)that a substantial connection is one ‘of substance’ (Badawi at [82]-[83], [107]);
(b)that ‘employment’ in s 10(3A) is the same as in s 9A, that is, it is the activities of, or incidental to the employment, as opposed to the (mere) fact of being employed (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at [11]);
(c)the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident - there must be some real relationship (connection) between the activities of the employment and the accident out of which the personal injury arose, and
(d)if merely travelling to and from work was sufficient to establish the relevant connection, s 10(3A) would be otiose.”
The President went on at [117] to state:
“It is therefore clear that s 10(3A) has work to do. Its purpose is found in the words used in the subsection, read in the context of the 1987 Act as a whole. In my view, the purpose of the provision is to ensure that injuries received in the circumstances provided for are injuries that are deemed to arise out of or in the course of employment and compensation is payable accordingly. The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.”
In Dewan Singh and Kim Singh T/AS Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (Wickenden) Roche DP observed that it was not necessary for employment to cause the accident or incident for there to be a real and substantial connection. All that is required is “a” connection of substance between the employment and the accident or incident out of which the personal injury arose. In State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26 (McCoy) President Keating observed that what was required was an “association or relationship between the employment and the accident or incident.”
The respondent submitted that the circumstances of the subject accident are unusual. The driver of the other vehicle was driving erratically. As a general proposition a reasonable person would not have driven in an erratic manner. The respondent submits that due to the bizarre and random events arising out of the incident the relevant link between the applicant’s employment in her particular job, that being a supervised family worker, is remote and tenuous and not of substance. In the respondent’s submission the incident involved is far removed from the applicant’s employment as a supervised family worker.
In the respondent’s submission given the circumstances of the subject accident there is no real and substantial connection between some feature of what the applicant was reasonably required, expected or authorised to do by reason of her employment and the accident or incident out of which the personal injury arose. The circumstances of the psychological injury were simply as a result of an erratic driver, followed by a random assault which was unrelated to the applicant’s employment.
The respondent also submitted that the applicant was not at work at the time of the accident and this further separates the relevant event between the employment and the accident.
Mr King submitted on behalf of the applicant that there is a “real and substantial connection between the employment and the accident”. Mr King in his submissions essentially restated his submissions in respect to place of employment and injury arising out of or in the course of employment.
For the same reasons which I have previously given for why the applicant was at her place of employment, in the course employment at the time of the accident and in respect to substantial contributing factor, which for the sake of brevity I will not restate here, I am of the view that there was a “real and substantial connection between the employment and the accident or incident out of which the personal injury arose” for the purposes of s 10(3A).
I do not accept that the assault which caused the injury was to remote or tenuous to satisfy s 10 (3A) for the same reasons as I have given in respect to the issue of “substantial contributing factor”.
The respondent referred to the decision of Member Halstead in La Macchia v MCS Holdings (Australia) Pty Ltd [2024] NSWPIC 629 (La Macchia) where the Member said at [32]:
“Any general acceptance of the proposition that a worker who requires a motor vehicle to facilitate certain essential functions of their employment would operate to circumvent the intention of s 10(3A) of the Act. If such a notion were to be accepted, many trades, professions, and other vocations where a motor vehicle is essential to the performance of the work would automatically meet the ‘real and substantial connection’ requirement of s 10(3A) thereby defeating its limiting effect. That is plainly not the intention of the provision. It is however in essence what is being requested in this case and is not accepted.”
In La Macchia the worker was rostered to work at particular places, the homes of disabled clients whom the worker assisted. The worker in La Machia would use their vehicle as required to transport clients from their homes to medical appointments and other lifestyle activities. The worker performed other duties within the client’s homes including providing support on an overnight basis.
Unlike in La Macchia, in the current matter the applicant did not have a place where she attended and commenced work. She would collect the children from specific locations and transport them to a supervised visit before returning them to their foster or respite care family. A process which the applicant may repeat several times with different children throughout the course of a day. The only significance of the place of pickup was that she collected the children from there and she commenced to receive wages. She performed no other duties at the place of pickup.
For the above reasons I am of the view that there is a real and substantial connection between the applicant’s employment and the accident.

Incapacity

The applicant attended on Dr Wong on 23 August 2023 following the accident on 20 August 2023 at which time she reported suffering from flashbacks, anxiety, extreme hypervigilance, nausea and headache. Dr Wong diagnosed post-traumatic stress disorder.[19] Dr Wong saw the applicant again on 1 September 2023 at which time she described continuing emotional stress, flashbacks, anxiety, depression and symptoms suggesting sympathetic overdrive such as rapid heartbeat, tension, headaches and hypervigilance. The doctor understands that the applicant returned to work a few months later in mid November 2023. The applicant had not recovered at that time, but felt compelled to work for financial reasons.[20]
[19] ARD p 21.
[20] ARD p 21.
Dr Wong records that the applicant continued to receive treatment and to be symptomatic after returning to work including a flare up of her post traumatic stress disorder symptoms after seeing a court appointed psychiatrist in early 2024.[21]
[21] ARD pp 21-22.
Dr Wong observed that the applicant was continuing to suffer post-traumatic stress disorder symptoms 1½ years after the incident.[22]
[22] ARD p 22.
It is the evidence of Ms Blakemore that the applicant initially provided Certificates of Capacity which advised that the applicant had no capacity for work and that the respondent required a full medical clearance before she was permitted to return to work. The applicant provided a certificate from her general practitioner dated 2 September 2023 which Ms Blakemore advised the applicant she could not accept because it didn’t outline whether she could perform her full duties or if there were any restrictions.
In an email exchange between 23 August 2023 and 26 September 2023 Ms Blakemore advised the applicant that she would need a full clearance for work and that Ms Blakemore would need to obtain clearance from the company Director.
On 20 October 2023 the applicant emailed a full clearance certificate dated 20 October 2023 to the respondent and asked the respondent to advise when she could “start back”.[23] It is the evidence of Ms Blakemore that the respondent provided confirmation from 2 November 2023 however the applicant did not return to work until 7 November 2023.
[23] Reply p 57.
The wage records and payslips which are in evidence do not indicate that the applicant worked for the respondent between being cleared for pre-injury duties on 20 October 2023 and the end of the period for which weekly compensation is claimed on 5 November 2023.
In a series of Certificates of Capacity the applicant was certified by Dr Wong with no current capacity for any form of work from 20 August 2023 to 1 September 2023, with capacity for some type of work from 2 September 2023 to 4 October 2023 working normal work hours but only with familiar clients whilst noting that the applicant had intense post-traumatic stress disorder.
A non workcover medical certificate by Dr Wong certified the applicant fit for full duties from 20 October 2023.[24]
[24] Reply p 60.
The medical evidence supports that applicant’s injury persisted after she returned to work with Dr Keller on 19 December 2023 reporting to Dr Wong that the applicant was finding her current medication dose inadequate to manage her anxiety and Dr Teoh in his report dated 28 May 2024[25] providing a diagnosis of chronic post-traumatic stress disorder and Dr Malik in his report of 30 September 2024 diagnosing post-traumatic stress disorder and major depressive disorder with anxious distress.
[25] ARD pp 12-19.
In Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1938) 61 CLR 337 Latham CJ said incapacity is measured by loss of earning power.
The respondent submits that at its highest the applicant was incapable of working from 20 August 2023 to 1 September 2023. In the respondent’s submission whilst the respondent may not have allowed the applicant to return to work a qualified medical practitioner had certified her as fit for normal work hours and the employer is not medically qualified to comment on such a matter.
I do not accept the respondent’s submission. The applicant as a result of the injury was unfit for work as it was a requirement of the respondent that she be fully fit which she was not due to her injury.
The applicant was however cleared for full duties on 20 October 2023. Whilst the applicant’s condition may have been continuing there is no evidence that the respondent questioned the certification due to the applicant’s continuing symptoms or that they sought any additional information. There is no evidence to explain why the respondent did not confirm that the applicant could return to work until 2 November and was not returned to actual duties until 7 November 2023. The reason for the applicant not returning to work prior to 7 November 2023 may have been during to the rostering arrangements, the applicant being a casual employee, however this would be nothing more than pure speculation.
In any event the applicant was fit to return to full duties on 20 October 2023 and had no incapacity from that point and therefore in my view not entitled to weekly compensation from 21 October 2023.
I find that the applicant was incapacitated for work from 20 August 2023 to 20 October 2023.

Section 66 – permanent compensation

As I have found that the applicant has sustained an injury I will remit the matter to the President for referral to a Medical Assessor for impairment.

[2025] NSWPIC 261

11 June 2025