Hills v Pioneer Studios Pty Limited (No 2)
[2014] NSWWCCPD 42
•20 June 2014 10 July 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Hills v Pioneer Studios Pty Limited (No 2) [2014] NSWWCCPD 42 | ||
| APPELLANT: | Kathryn Hills | ||
| RESPONDENT: | Pioneer Studios Pty Limited | ||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-6838/10 | ||
| ARBITRATOR: | Ms D Moore | ||
| DATE OF ARBITRATOR’S DECISION: | 13 January 2011 | ||
| DATE OF APPEAL HEARING: DATE OF APPEAL DECISION: | 20 June 2014 10 July 2014 | ||
| SUBJECT MATTER OF DECISION: | Section 4 of the Workers Compensation Act 1987; injury arising out of or in the course of employment; injury received during interval between discrete periods of work; employer’s inducement or encouragement of worker to be at a particular place during such interval; injury received at that place and by reference to that place; employment caused or to some material extent contributed to injury; injury arose out of and in the course of employment; s 9A of the Workers Compensation Act 1987; employment a substantial contributing factor to injury | ||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr B Gross QC, instructed by Carroll & O’Dea Lawyers | |
| Respondent: | Mr B Olding, instructed by Bartier Perry | ||
| ORDERS MADE ON APPEAL: | 1. The decision of the Senior Arbitrator and orders made as found in the Certificate of Determination dated 13 January 2011 are revoked and the following findings and orders are made in their place: (a) The injury received by Ms Hills on 14 March 2004 was an injury within the meaning of s 4 of the Workers Compensation Act 1987. (b) The respondent is to pay Ms Hills’ reasonably necessary hospital and medical expenses under s 60 of the Workers Compensation Act 1987. (c) The matter is remitted to the Senior Arbitrator for consideration of Ms Hills’ lump sum claims brought pursuant to ss 66 and 67 of the Workers Compensation Act 1987. (d) The respondent is to pay Ms Hills’ costs of the proceedings conducted before the Senior Arbitrator. 2. The respondent is to pay Ms Hills’ costs of this appeal. | ||
BACKGROUND
This appeal comes before the Commission pursuant to an order of remitter made by the Court of Appeal on 26 September 2012. These proceedings were instituted in the Commission by Ms Kathryn Hills in August 2010. Ms Hills claimed medical expenses and lump sum compensation. The respondent to that application, Pioneer Studios Pty Limited (the respondent), Ms Hills’ former employer, had at first paid compensation benefits but had subsequently disputed Ms Hills’ entitlement to such benefits, following receipt by her of serious head and brain injuries in the early hours of the morning of 14 March 2004. Ms Hills had fallen over a balustrade at the respondent’s premises where she was attending a party which had commenced on the night of 13 March 2004. The respondent denied that the injury was a compensable injury in terms of ss 4, 9 and 9A of the Workers Compensation Act 1987 (the 1987 Act).
The Application came before Senior Arbitrator Deborah Moore for arbitration on 10 December 2010. The hearing concluded on that day and the Senior Arbitrator reserved her decision. On 13 January 2011, a Certificate of Determination, accompanied by a Statement of Reasons (Reasons), was issued. An award in favour of the respondent was entered.
Ms Hills brought an appeal against the Senior Arbitrator’s decision as was permitted by the terms of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as it stood before the operation in 2011 of amendments made to relevant legislation. That appeal was heard by Deputy President Roche on 19 May 2011. The Deputy President delivered his decision on 1 June 2011. An order was made, inter alia, that the Senior Arbitrator’s determination be revoked. That order, and associated orders, followed findings by the Deputy President that the subject injury arose out of Ms Hills’ employment and that her employment was a substantial contributing factor to the injury.
The respondent brought an appeal against the Deputy President’s decision pursuant to s 353 of the 1998 Act. The appeal was heard by the Court of Appeal on 26 September 2012. That appeal was upheld and the Court delivered its reasons extempore on that day.
Ms Hills subsequently made application to the High Court of Australia seeking special leave to appeal against the whole of the judgment of the Court of Appeal. That Application was refused by the High Court on 2 April 2014 (Hayne and Crennan JJ). A direction was made pursuant to r 41.11.1 of the High Court Rules 2004 that the Registrar draw up, sign and seal an order dismissing the application with costs.
In accordance with the order made by the Court of Appeal, this matter then came before the Commission for consideration according to law. A preliminary telephone conference was conducted on 9 May 2014 at which time each party was represented. The reasons stated by the Court of Appeal were the subject of consideration and discussion at that conference. Mr Gross QC, appearing on behalf of Ms Hills, advised the Commission that, having regard to the reasons stated by the Court of Appeal, it was proposed to argue on the present appeal that the injury received by Ms Hills was one which had arisen in the course of her employment in terms of s 4 of the 1987 Act. That argument had not been advanced before the Senior Arbitrator. The allegation made at that time had been expressly limited to an allegation that the injury had arisen out of Ms Hills’employment within the meaning of that last mentioned section.
No objection to Ms Hills’ proposal to raise a new argument on appeal was taken by Mr Silva, solicitor for the respondent. The respondent’s position was put upon the basis that the Commission should obviate any prejudice by permitting it to raise new argument in reply, and if necessary, to tender additional evidence. That position was acknowledged by Mr Gross QC and a direction was made that fresh submissions be put by the parties together with any application, in the respondent’s case, concerning additional evidence.
PRELIMINARY MATTERS
Leave
The Senior Arbitrator’s decision was made before the operation in 2011 of the amendments to s 352 of the 1998 Act effected by the Workers Compensation Amendment Act 2010, thus Ms Hills requires leave to proceed with this appeal: Sch 6.19G.8(1) to the 1987 Act.
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of the former s 352(2) and of s 352(4) have been met. Having regard to the subject matter of the appeal and the arguments raised, Ms Hills is granted leave to bring the appeal.
Hearing
Having regard to the history of the proceedings and the issues raised by the parties on appeal it was determined that a hearing be conducted. That hearing took place on 20 June 2014 at which Ms Hills was represented by Mr Gross QC and the respondent was represented by Mr Odling of counsel. Ms Hills was granted leave to file an Amended Application concerning the appeal. The relevant amendment, as found at [6] of that document, is as follows:
“The correct finding to be made by the Presidential Member Division [sic] is that the injury arose out of and in the course of the employment and that [Ms Hills’] claim is not defeated by s 9A.”
Nature of the Appeal
Having regard, again, to the date of the Senior Arbitrator’s decision, this appeal is by way of a review of that determination as was provided by s 352(5) of the 1998 Act before amendment of that subsection as was effected by the 2011 amendments. The concept of “review” was considered by the Court of Appeal in State Transit Authority of NSW v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler) where it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“A Presidential member exercising a power to review a decision must decide whether the original decision is wrong, or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit.”
ISSUES IN DISPUTE
The grounds of appeal as enumerated by Ms Hills, including the ground raised following amendment as noted above at [10], contend that the Senior Arbitrator had erred:
(a) by applying the wrong test, namely the test concerning the question as to whether the injury arose in the course of employment, when determining whether the injury arose out of Ms Hills’ employment;
(b) in failing to address submissions put by Ms Hills that Ms Martel:
“(a) had actual and ostensible authority on behalf of the respondent to encourage [Ms Hills] to attend the party for work purposes, and
(b) did exercise that authority by encouraging Ms Hills to attend the party.”
(c) in her “consideration of the evidence and misapprehending the effect of the whole of the evidence”. Error is alleged in respect of suggested misapprehension of evidence given by Ms Martel including suggested concessions made by that witness in cross examination.
(d) in her apparent conclusion that Ms Hills’ employment was not a substantial contributing factor to her injury, and
(e) in failing to find that “the injury arose out of and in the course of employment” and that Ms Hills’ claim “is not defeated by s 9A”.
It is to be noted that, as particularised and subsequently amended, the numbering of grounds of appeal is somewhat confusing. Where relevant, the grounds are referred to below as enumerated immediately above. I note in passing that the first ground was not pressed by Ms Hills at the hearing before Roche DP. It should also be noted that Ms Hills does not concede that the Senior Arbitrator has, at [133] of her Reasons, expressly found that any causal connection (between the employment and injury) was not “real and of substance”.
THE EVIDENCE
It is convenient to record those matters established on the evidence which give rise to no dispute between the parties. The respondent conducts the business of providing studio space and renting photographic equipment to the public. The business deals primarily with photographers concerned with the fashion industry. Mr Richard Ludbrook is the sole director and manager of the respondent. The respondent occupies premises at 134 Broadway, Ultimo. The respondent employs approximately 20 employees. Ms Hills, a native of New Zealand, had qualifications and employment experience in the photographic industry. She had been employed by the respondent approximately 2 weeks before the date of the subject accident. Her position was to be manager of the equipment rental department. She was to replace the incumbent manager, Ms Jennifer Martel, who had plans to depart for overseas in 2004. Ms Hills had been engaged by the respondent following an interview by both Mr Ludbrook and Ms Martel. In a statement made by Mr Ludbrook on 15 June 2006, it was said:
“I remember around that time that [Ms Hills] had been employed to work in the equipment room and once that had happened I stepped back and let my staff train her and allowed her to settle into her new job. That is what I do with all new employees.”
Ms Hills’ duties were to liaise with the clients and rent equipment to them. Her hours of work were 10.00 am to 7.00 pm weekdays. She did not work overtime.
An employee of the respondent, Mr Alistair Buchanan, and two friends, Mr Jordan Cvetanovski and Mr Peter Fleming, had planned to jointly celebrate their birthdays at a party to be held in March 2004. Neither Mr Cvetanovski nor Mr Fleming were employed by the respondent. Mr Buchanan had approached Mr Ludbrook at some time before 13 March 2004 and asked if he and his two friends could use one of the studios at the respondent’s premises as a venue for the proposed party. As a result of that discussion Mr Ludbrook gave permission for the use of the premises. The party, which was to take place on Saturday 13 March 2004, was to be both a joint birthday party and a farewell party for Mr Buchanan who had sometime earlier given notice to his employer of his proposed resignation. Organisation of the party was to be conducted by Mr Buchanan. He and his friends were required by Mr Ludbrook to provide security on the night. The premises were “set up” by Mr Buchanan and others on the day of the party.
On the night of the party Mr Buchanan and his two friends had arranged and paid for the attendance of a security guard who was to ensure the attendance only of invited guests, all of whom were expected to bring drinks. A disc jockey was also hired by them to provide entertainment. Guests began to arrive at around 8.30 pm. The party was attended by a large crowd, estimated by Mr Buchanan to number “between 100 and 130” people. Among those present were Mr Ludbrook, Ms Martel, Ms Hills and other employees of the respondent. Ms Hills had attended in the company of a friend, Ms Cable, who had no connection with the respondent.
At approximately 2.00 am on 14 March 2004, Mr Ludbrook directed Ms Martel, who then resided in a residential flat on level five of the premises, to “go around and to start to get people to move out” (Ms Martel’s statement to police, dated 16 March 2004).
Some time thereafter, Mr Buchanan was told by Ms Hills that she was unable to find her camera. They then went to level five where studio six, the studio made available for the party, was located. They failed to locate the camera after a search. Mr Buchanan and Ms Hills, in the company of three or four other people, danced for 15 or 20 minutes. Mr Buchanan resumed the search for the camera and said to Ms Hills that it may be in the Equipment Room. Mr Buchanan, with Ms Hills following behind, began to descend the stairs when Ms Hills fell over the ballestrade and landed, striking firstly her head and shoulder, upon the landing of level four. Ms Hills was obviously seriously injured and an ambulance was called.
Ms Hills was admitted to Royal Prince Alfred Hospital where investigations of her brain revealed left frontal contusions, subarachnoid haemorrhage and a right occipital skull fracture. She remained in that hospital until 13 April 2004 following which she was transferred for further treatment to the Brain Injury Unit at the Royal Rehabilitation Centre, Ryde, where she remained until 18 May 2004. Ms Hills returned to New Zealand in that month where she underwent further treatment and rehabilitation. Ms Hills had intermittent periods of employment between December 2004 and July 2007, at which time she returned to Australia. She worked as a waitress in Australia and later as a photographer. She returned to New Zealand in December in either 2009 or 2010, her statement being ambiguous. She resumed work five months after her return to that country.
The evidence of circumstances leading up to the occasion of the party
It was Ms Hills’ evidence that she had been told by Mr Ludbook that “Jennifer Martel, who was leaving the company and who I was taking over from, would tell me what I was required to do in the job” (Ms Hills’ statement made on 18 May 2006 at [1]). It was there further stated:
“Some time in the week before Saturday 13 March 2004 (when the party was held), either Richard Ludbrook or Jennifer Martel said to me at work words to the effect of ‘we are going to have a farewell party here for Alistair (Buchanan) on Saturday night. Alistair’s leaving to become a freelance photographer. It would be good if you came to the party. Most of the people from here will be there. We are having the party in one of our studios here. There will be a lot of our clients and photographers who we hire equipment to who are going to be at the party. This will be a good chance for you to be able to meet a lot of the clients that we do business with and to get to know them better’.
After being told this by either Richard or Jennifer Martel, I spoke to both of them and also other people at Pioneer Studios about the party, and in every conversation I had those persons said to me words to the effect of ‘are you coming to our party for Alistair on Saturday night’ and I would say ‘yes’ or words to that effect.
In conversations which I had with Jennifer and anyone else at the company, I felt that it was important for me to be at the party to meet the clients face to face and get on good terms with them. I thought this was very important for me to do, so that I could impress my superiors at work and have a good relationship with the people that I would be hiring equipment to.
I always thought that the party on the Saturday night was a work function and the first I heard that the party was also for two of Alistair’s flatmates was when I saw it in some of the Police statements which were recently sent to me.
I did not get a written invite and I did not, so far as I recall, get told about the party by email. I was definitely told verbally about the party on a number of occasions in the week before the Saturday night, and in all these conversations I understood that it was a work function in which we were farewelling Alistair, who was leaving the company in order to become a freelance photographer.”
In his statement dated 7 April 2006, Mr Ludbrook stated:
“I am aware that a function was being held in our studio 6 commencing on 13 March 2004. Alistair Buchanan was an employee of our company and approached me with a view to using the studio for a farewell party. Alistair was leaving our company at the time. The party was also to be a combined birthday party for Alistair and two of his friends. I do not know those friends.
The studio is a vacant room. I just asked him to arrange for security. Alistair was a very responsible employee and I trusted him. Alistair was going to arrange for everything including catering and cleaning. There was no money that exchanged hands. I respected Alistair and was happy for him to use the room.
As far as I am aware the party was by invitation only. Access to the building was by the Broadway entrance and Alistair had arranged security to be at the door to check people coming and going.
Our company had no involvement in the organisation or control over what was happening at the party. I attended myself on the evening because I was invited.
No employees, including [Ms Hills] were directed to attend the function. It was purely voluntary attendance and by invitation.”
In a subsequent statement made on 15 December 2006, Mr Ludbrook further stated:
“I don’t recall discussing Alistair’s party with [Ms Hills] and advising her that it was in her best interests to go. That is not something I would have done as it was not a work function and I had no idea who was going to be there in any event. Alistair and his friends were responsible for who was invited and as far as I know the party was by invitation only.
The invitations and all arrangements for the party were done by Alistair and his friends. Our company had no involvement in who was being invited.
I also had no prior knowledge as to who was going to be at the party. I do not recall Alistair discussing with me who was going to be at the party or who he had invited. I specifically do not recall him telling me that he had invited clients of our company.
We do have parties and functions for our clients however this was not a work function. I do not recall any clients being there on the night. The mix was a lot of people I did not know, some I knew as Alistair’s friends, and my own employees.
This was not a party which was organized for our clients. This was a party which our company had no involvement in organizing.
Alistair came to me and asked me whether he could use the premises to have a party. I recall asking him specifically to arrange security however all the arrangements and organizing were done by Alistair or his friends. Our company was not involved in any way apart from my workers and me being invited as guests.
There were a lot of people at the party that I didn’t know. I probably didn’t know about two thirds of them. The only people I knew were my own employees. Again I do not recall any clients being there. The majority of people there were either friends or contacts of Alistair or his two friends. I knew some of Alistair’s friends but a lot of them were not known to me.”
There are three statements made by Ms Martel in evidence. The first made to the police on 16 March 2004, included the following which concerned circumstances of the party:
“About 2.00am on the 14th March 2004 I ran into my boss – Richard. Richard asked me to go around and to start to get people to move out. I went to the roof via the rear stairwell. I spoke to Sam and Jenny who work[ed] for Pioneer for a while. I told everyone to start moving back into the studio. I went back down to studio 6. I saw Kathryn on the dance floor dancing. At the end of the song Kathryn came over to me and told me she didn’t know where her bag [was]. She told me she was worried about her camera. We looked around studio 6 for it. Kathryn found her bag with her camera and belongings behind one of the couches. I said goodbye to Kathryn and went into my flat…”
In her second statement made 7 April 2006, the following was stated by Ms Martel:
“I first met Kathryn Hills when she started working here. I did not know her beforehand. She was going to replace me at the time because I was going overseas. I trained her for about two weeks.
I found her to be a positive person. She picked up things easily. I knew she had been in photography for some years. There were no problems during the time I worked with her.
A farewell party had been organised for Alistair Buchanan who was leaving our company. Alistair invited me to the party. The party was outside of work hours. The party was by invitation only. As far as I know Alistair invited people and two of his friends also invited people as the party had been made into a combined birthday party for the three of them and it was also a farewell for Alistair.
As far as I am aware the company did not provide anything for the party.
We were also not directed to go to the party by the company. It was purely voluntary attendance and by invitation only. There may have been a bit of alcohol at the party but it was also byo.
I recall seeing Kathryn at the party. I was living on the premises at the time and I recall leaving after midnight but definitely before 3.30am. I was staying in a separate apartment at the premises.
I went out at about 3.30am and people were running past me screaming saying ‘she was dead’. It was apparent something had happened and I went over to where the people were running from. I looked over the stairwell from level 5 where studio 6 was and saw Kathryn lying on the ground on level 4. I saw a lot of blood. I saw Alistair and another person with her.”
A further statement by Ms Martel made 15 June 2006 (which involves some repetition) included the following:
“A farewell party had been organised for Alistair Buchanan who was leaving our company. Alistair invited me to the party. The party was outside of work hours. The party was by invitation only. As far as I know Alistair invited people and two of his friends also invited people as the party had been made into a combined birthday party for the three of them and it was also a farewell party for Alistair.
As far as I am aware the company did not provide anything for the party.
We were also not directed to go to the party by the company. It was purely voluntary attendance and by invitation only. There may have been a bit of alcohol at the party but it was also byo.
I recall seeing Kathryn at the party. I was living on the premises at the time and I recall leaving after midnight but definitely before 3.30am. I was staying in a separate apartment at the premises.
I went out at about 3.30am and people were running past me screaming saying ‘she was dead’. It was apparent something had happened and I went over to where the people were running from. I looked over the stairwell from level 5 where studio 6 was and saw Kathryn lying on the ground on level 4. I saw a lot of blood. I saw Alistair and another person with her …
I do not recall any conversation with Kathryn prior to the party in which I indicated to her that it would be in her best interests to go to the party. I do not recall telling her that a lot of our clients would have been there. It was not my position to invite other people to the party. I was not able to invite other people. The only reason I was going to the party was because I had been invited. I could not have gone if I was not invited.
I also had no idea who was going to be at the party. All of the invitations and inviting was done by Alistair or his two friends.
The only conversation I had with Kathryn about the party was in asking her if she was going to go to the party. I recall she said she thought so. I told her it would be a lot of fun and there would be a lot of work people there. I did not mention clients because I didn’t know who was going to be there. I only knew from work colleagues that some of them had been invited.
The party was not meant as any type of networking party for our clients. It was originally just a birthday party for Alistair and two of his friends and it then also turned out to be a farewell party for Alistair who was leaving our company. Alistair and his friends were in total control of who was invited and came, and the catering and other arrangements.
I do recall an invite coming through on my email at work for the invite to the party. It only mentioned a birthday. I don’t have the email anymore. I recall it was a birthday for Alistair and at least one of his friends at that time.
There was no mention of clients going to the party. I don’t remember discussing with Alistair who was going to be at the party so I would not have told Kathryn to go to the party to meet clients.
As far as I know the company was not involved in any of the arrangements for the party.”
Ms Samantha Hawken, an employee of the respondent at the time of Ms Hills’ injury, made a statement on 15 June 2006 in which the following appears:
“I did not meet Kathryn Hills prior to the party on 13 March 2004. I also only met her briefly on the evening.
I have no recollection of anyone compelled or ordered by the company to go to the party.
Attendance at the party was purely voluntary. It was also by invitation only. You did not have to attend if you did not want to. There was no directive given that staff had to attend in order to mix or network with clients. You could have also left the party at any time.
I don’t recall being told who was going to the party. I arrived only knowing that some of my work colleagues were going to be there. I had no pre-knowledge of any of our clients being invited.
I do not recall any clients of the company being at the party on the evening. The mix of people appeared to be a lot of friends or colleagues of Alistair’s and his two friends, who were also celebrating their birthdays on the evening, and my own work colleagues whom I knew. I only met Kathryn on the evening.
I have no knowledge of who was involved in setting up the party on the evening.”
I note that Ms Hawken had made an earlier statement on 11 April 2006 which is not in evidence.
Ms Hills and Ms Martel each gave oral evidence before the Senior Arbitrator. Mr Ludbrook was not required for cross examination.
When cross examined Ms Hills agreed that, following the injury, she had lost memory of the previous “4 to 7 nights” prior to the accident. When further questioned, she stated:
“Q. and that doctor recalls that you had fallen down 2 flights of stairs, landed on your head and that as a result you’d lost memory of the previous 4 to 7 nights prior to the accident?
A. Yes
Q. That’s still the difficulty that you have is that right?
A. I am getting back memories from those previous 2 weeks. I definitely remember my time of employment there day to day, especially with Jennifer Martel in the same office. Definitely I don’t have – remember the night of my accident, but I remember the previous more so than probably the year after my accident.
Q. I see, so in the week before the accident you’re getting some memory back?
A. Yes.”
Ms Hills later stated that she could not recall the precise words used by Mr Ludbrook and Ms Martel concerning her attendance at the party, however “they did say there will be clients there”.
In response to a question as to whether Mr Buchanan invited her to the party, Ms Hills replied at [T9]:
“Q. You said in your statement I did not get a written invite and I did not, as far as I – get told about the party by email. You said you were definitely told verbally about the party on a number of occasions and in all these conversations you’ve said, ‘I understood it was a work function in which we were farewelling Alistair’.
A. Yes.
Q. Did Alistair invite you to the party?
A. I only - think I met Alistair maybe briefly once, so I don’t know if he did. It was – unfortunately he wasn’t part of my day to day work so – .”
When questioned concerning her attendance at the party in the company of her friend Ms Cable, Ms Hills stated:
“… she was only covering as my support, I didn’t know anyone there.”
When questioned by her counsel concerning her attendance at the party, Ms Hills gave the following evidence at [T16]:
“Q. You were asked about going to the party and whether it was a social event that you would enjoy. If Richard Ludbrook and Jennifer Martel hadn’t told you why they wanted you at the party, would you have gone to the party?
A. No.
Q. Why not? What else would you have done?
A. I probably had more friends that I’d probably go and spend the Saturday night with, not people that I don’t know.”
When cross examined, Ms Martel stated that she believed that Mr Ludbrook trusted her judgment in relation to employees at [T20]. Ms Martel agreed that Ms Hills was under her direction in terms of what she should do in the following terms at [T21]:
“Yeah, in the equipment room, yeah.”
Further cross examination of Ms Martel concerning the circumstances of the party was as follows at [T26–27, excluding objections upheld by the Senior Arbitrator]:
“Q. Now isn’t it the situation that you did urge Kathryn Hills to go to the party?
A. In order to meet the other employees, yeah. I said it would be, you know, a nice idea.
Q. Yeah and you thought it important yourself that she should meet the employees because it’s important to have a good, happy working team, is that right?
A. I guess so. It was more because, you know, you don’t see – in that situation you didn’t see everyone, you know, every day kind of thing and it was a nice opportunity for her to meet a few people she might not have met.
Q. Yes and you also told her there’d be clients and photographers at the party didn’t you?
A. No. No because I didn’t know who was invited so I wouldn’t have known if there was photographers. I don’t know though, it’s a long time ago.
Mr Gross: Yeah, yeah.
Ms Martel: I mean obviously photographers would have been there because they were friends with Alistair but –
[Objections …]
Q. In any event you considered that photographers were likely to be at the party?
A. Yeah I guess so.
Q. Yeah and by photographers you meant photographers who Pioneer hire equipment to?
A. Yeah I guess so.
Q. Right and you told her that you wanted her to meet those people?
A. No I didn’t tell her I wanted her to.
Q. but you told her you wanted her to go to the party and you told her that those people would be there?
A. I didn’t necessarily want her to go to the party, I just said to her, there’s a party, there’ll be people there from work, you know, it might be a nice idea for you to meet them.
Q. Yeah but also you told her that there’d be photographers there didn’t you?
A. I don’t remember saying the exact words but maybe I did say that. I mean it was a – you know, I’m sure there was photographers going to be there.
Q. Yeah and including photographers who would be the sort of persons who’d hire equipment from Pioneer?
A. Yeah, well that’s probably how they met Alistair who was having the party, yeah.
Q. And her job – that is Kathryn’s job – was basically to, in effect, do business with photographers who hired photographic equipment wasn’t it?
A. Yeah at work, yeah, not at parties.”
When questioned by the respondent’s counsel, the following evidence was given by Ms Martel at [T30]:
“Q. Do you recall any clients being there?
A. I remember there being photographers there, you know, essentially clients but, you know, I don’t – you know I don’t know of their relationship with Alistair outside of work so –.”
MEDICAL EVIDENCE
The injuries received by Ms Hills described at [20] above are not disputed. A matter relevant to the dispute was recorded by Dr Christopher Lynch, Neurologist and Neurophysiologist, in his Report addressed to Ms Hills’ general practitioner dated 26 January 2005, that being the following history:
“[Ms Hills] was attending a work function at Pioneer Studios where she was a Manager of the Equipment Department when she apparently fell down two flights of a stairwell, a distance of approximately six metres, landing on her head. As a result the patient has lost memory of the previous 4-7 nights prior to the accident and has no clear recollection of events for four weeks after the accident.”
SUBMISSIONS BEFORE THE SENIOR ARBITRATOR
Counsel for the respondent argued that the totality of the evidence established that the function conducted on the night in question was “simply a birthday party for young people”, two of whom had no connection to the respondent. Mr Ludbrook did no more than to give permission to use the premises and insist that security be provided. Provision of the premises was not, it was argued, of any significance. Mr Ludbrook’s evidence had made it clear that it “was not a company function”. That evidence also suggests that there were no clients present. Ms Martel’s evidence was that there were photographers present who were friends of Mr Buchanan.
It was further argued that the requirement that guests bring their own alcohol suggested that it was not a “client function”. It would be unusual to have such a function where guests present had “no connection whatsoever with the company, but were invited by two individuals who had no connection with the company”.
The respondent, it was submitted, had “no control over who would be invited”. All this evidence established, it was put, that the party was not a “work function”.
It was relevant to consider Mr Ludbrook’s evidence that no employees, including Ms Hills, were directed to attend the function. Attendance, it was put, was “voluntary” and “by invitation”.
It was put that Ms Hills’ evidence concerning circumstances before the function was a “reconstruction” rather than a “true recollection”. That evidence, it was argued, was not accurate. Reference was made to Dr Lynch’s evidence as to memory loss.
Reliance was placed upon the decision of the Court of Appeal in Haider v JP Morgan Holdings Australia Ltd (2007) 4 DDCR 634 (Haider). It was put that the present facts concern “simply a social party, no degree of compulsion, no degree of employer sponsorship other than saying ‘yeah you can have the party here’”. There was less employer involvement in the present case, it was argued, than in Haider.
Counsel for Ms Hills addressed on the facts and proceeded to argue that Ms Martel had “sufficient authority from Mr Ludbrook” to make a statement to Ms Hills that “she should attend this work party in order to mix…and meet with her fellow employees…and also to meet with the others which [sic] are plainly photographers…”.
That there were “two other birthday boys” was not relevant. One looks, it was argued, not at what other people were doing at the party, but what Ms Hills was doing there. Had she not been told she should attend, for the reasons stated, Ms Hills would not have attended.
It was expressly put by counsel that the injury “arises out of the employment”.
The attendance of Ms Hills at the party was, it was argued, “very important in terms of having a cohesive organisation of good corporate espirit de corps…”.
Counsel made particular reference to the evidence of Mr Buchanan found in his statement made to the police on 14 March 2004, where it was stated:
“I approached Richard Ludbrook and asked him if we could use one of the studios to have a party. Richard agreed and suggested that I have the party as a farewell as well.”
It was put that the evidence established that Mr Ludbrook wanted the party as a farewell. The fact that the function had “a mixed purpose” does not, on the relevant authorities, “change the complexion in terms of arising out of the employment or being in the course of the employment”.
Reference was made to the evidence of Mr Ludbook and it was put that “the arrangements for the party to be held at the [respondent’s premises] was in the context of the farewell party…”.
Mr Buchanan had been asked to provide security. Mr Buchanan was said by Mr Ludbrook to be a very responsible and trusted employee. It was argued that there was a “delegation down” to Mr Buchanan an, employee of the respondent, “in relation to making sure what occurs”.
Counsel proceeded to make reference to authorities that had been included in a list earlier provided to the Senior Arbitrator. Those decisions include Wolmar v Travelodge Australia Ltd (1975) 26 FLR 249; Roncevich v Repatriation Commission (2005) 222 CLR 115; Haider, and Hook v Rolfe (1986-1987) 7 NSWR 40 (Hook).
Counsel made it clear that, notwithstanding the fact that the concept of “arising out of employment” in terms of s 4 of the 1987 Act, had received little attention in the various decisions cited during argument, Ms Hills’ case was that she did not have to “force [herself] also into the straight jacket of the course of the employment” at [T67].
THE SENIOR ARBITRATOR’S DECISION
Following a thorough summary of the evidence and submissions, the Senior Arbitrator proceeded to consider the question as to whether Ms Hills’ injury had arisen out of her employment. That was the only question raised with respect to s 4 of the 1987 Act, given that it was not argued by Ms Hills that the injury had been received “in the course of employment” within the terms of that section.
The Senior Arbitrator concluded that the injury was not one within the meaning of s 4. Matters taken into account by the Senior Arbitrator in reaching this conclusion appear at [114] to [116] of her Reasons as follows:
“There was no evidence of organisation, promotion or commitment of resources by the employer to the function (Van Haeften and Haider). Indeed, Mr Ludbrook specifically stated that he was present as an invited guest only, and merely authorised the holding of the party at his premises to assist a long term and trusted employee. As I see it, the only connection with ‘employment’ was that the function was held at the employer’s premises. Originally it was to have been held at Mr Buchanan and his friends’ flat, but Mr Buchanan approached his employer to hold the function elsewhere in deference to his elderly neighbours. Although Mr Ludbrook permitted the party to be held on his premises, I do not consider that the evidence discloses that he either encouraged or induced employees, including the applicant, to attend.
Of significance is the comment made by both Ms Martel and Mr Ludbrook that they could not have told the applicant that clients were attending since they themselves were unaware of the guest list. As Mr Ludbrook said, it was not something he would have discussed with the applicant since it was a private party, and not a work function, and the guests were invited by Mr Buchanan and his friends. He had held client functions previously, but this was not one of them. Their comments make sense, and I find them persuasive. In addition, both Ms Martel, Mr Ludbrook and Ms Hawken all state that they did not see any clients at the party. Ms Martel agreed that there were photographers present, but if they did happen to also be clients of the company, they were invited only in their capacity as friends or colleagues of Mr Buchanan. In these circumstances, I do not accept the applicant’s submission that clients were in attendance, and that this is further evidence that the party was not a work function.
Other features of the party confirm my view that it was not a function that could be considered reasonably incidental to the applicant’s employment (Clancy). It was held outside of work hours. It was a fancy dress party, with the invited guests being asked to dress as something starting with A, P or J, the initials of the three hosts. It was a ‘BYO’ event, with the security guard being urged to ensure guests brought a bottle, an unlikely scenario for a client function. Mr Buchanan and his friends organised and set up the party, and themselves paid for the security guard.”
The Senior Arbitrator acknowledged Ms Hills’ argument that the party was “not just a birthday party for Mr Buchanan, but a farewell party as well”. An argument advanced, that “the emphasis changed from a ‘birthday’ to a ‘farewell’ party”, was rejected by the Senior Arbitrator upon the basis that the evidence did not support the proposition that “the primary purpose of the function was a farewell party”. The Senior Arbitrator accepted (at [118] of Reasons) that the evidence:
“Although indicative of a ‘mixed purpose’, it is not possible in the circumstances of this case to state that the ‘farewell’ aspect of the party could be regarded as the ‘relevant purpose’ of the event (Hook and Seaburn) such that [Ms Hills] attendance could be said to have arisen out of or in the course of her employment.”
The Senior Arbitrator proceeded to consider whether there was “sufficient evidence to conclude that [Ms Hills], or indeed other employees were either encouraged or induced to attend the party”. The Senior Arbitrator’s reasoning when rejecting that proposition is found at [119] and [120] of Reasons as follows:
“I am not persuaded that there is sufficient evidence to conclude that the applicant, or indeed other employees, were either encouraged or induced to attend the party. To begin with, both Mr Ludbrook, Ms Martel and Ms Hawken all specifically deny that this was the case. Ms Martel did concede that she had suggested to the applicant that it would be a nice idea to attend, and an opportunity to meet fellow employees because she was a relative newcomer to the company. But I do not consider that these comments amounted to ‘encouragement’ by the respondent to attend the party but rather more in the way of a suggestion to enjoy a fun night out. Rather like the circumstances in Worrell, attendance was in response to an invitation, and that invitation was issued by a fellow employee, not Mr Ludbrook. As in Worrell, the premises became, on that Saturday evening, a place of entertainment, not employment. The applicant also agreed that she was not under the impression that she would lose her job if she did not attend.
As Armitage CCJ observed in Powell, it is reasonable to assume that an employer would have an interest in fostering good relations among its employees. In the present case, like the analogy with playing golf to which Armitage CCJ referred, the mere fact that one attends a party with other employees, even management and clients, is not enough to bring the attendance at the party within the course of one’s employment. There must be more. There must be some encouragement or inducement to attend.”
The Senior Arbitrator stated her acceptance that Ms Hills faced difficulties given the nature and extent of her injuries and her memory problems. Without making any criticism of Ms Hills, the Senior Arbitrator expressed the view that “much of her evidence suggests that she has no clear independent recollection of events, and has essentially reconstructed them”. Following further consideration of the evidence, the Senior Arbitrator expressed the following conclusion at [125]:
“Ultimately, [Ms Hills] must establish that she was encouraged or induced to attend the function. In my view, her evidence falls short of that requirement for the reasons stated.”
The Senior Arbitrator distinguished the present case from those cases in which a worker had succeeded upon the basis that relevant circumstances concerned office or Christmas parties “where the employer had a significant role in either the organisation or funding of the event”. The Senior Arbitrator proceeded to state (at [130] of Reasons):
“As in Worrell, I am of the view that the employer’s premises on the night of 13 March 2004 had become a place of entertainment, rather than a place of employment.”
The Senior Arbitrator returned to the question as to whether the injury arose out of employment and stated (at [131] of Reasons):
“I am not satisfied, as Clarke JA said in [Zinc Corp Ltd v Scarce (1995) 12 NSWCCR 566 at 571], ‘as a matter of ordinary common sense and experience’ there is such a connection between [Ms Hills’] injury and her employment that her injury could be regarded as having arisen out of that employment.”
The Senior Arbitrator made reference to the decision of Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd (2009) 75 NSWLR 503 (Badawi) in support of the proposition that the expression “arises out of employment” involves a causal element. The necessary “causal element” had not, in the Senior Arbitrator’s view, been established on the evidence. An award for the respondent was entered.
In concluding remarks, the Senior Arbitrator relevantly stated that it was, in the circumstances, not necessary to consider other issues raised, but stated that she would not be persuaded that Ms Hills’ employment was a substantial contributing factor to her injury “since the causal connection was not [in her view] ‘real and of substance’ (Badawi)”.
DISPOSITION OF THE APPEAL
The Commission, in the conduct of this review, is to determine whether the decision of the Senior Arbitrator is, as stated by Spigelman CJ in Chemler as earlier noted, “wrong”, or it “must decide what is the true and correct view”. In the present circumstances that task concerns not only a consideration of the matters determined by the Senior Arbitrator but also of the fresh argument which Ms Hills has, with leave, raised on this appeal, namely that the evidence establishes that the injury arose in the course of her employment.
Section 9 of the 1987 Act provides that a worker who has received an injury shall receive compensation from the employer in accordance with the Act. The definition of injury appears at s 4 of that Act which, relevantly, provides:
“4 Definition of ‘injury’
‘injury’ :
(a) means personal injury arising out of or in the course of employment
…”
Ms Hills had expressly limited her allegation of injury to it being one which had arisen out of her employment when the matter was before the Senior Arbitrator and subsequently when the first appeal was conducted before Roche DP. Notwithstanding that circumstance, many of the authorities raised by Ms Hills in argument during each of those hearings concerned facts as found which led to a finding that the injury alleged did or did not arise in the course of the relevant employment.
It has been generally accepted that the words “arising out of employment” denote a causal relationship whilst the words “in the course of employment” denote a temporal relationship with the employment (see discussion C P Mills, Butterworths, Workers Compensation New South Wales, Second Edition at [40]).
The facts of the present matter concern an injury which was received by a worker during an interval between discreet periods of work. Ms Hills was not, at the relevant time, performing her employment duties. Those circumstances do not, on the authorities, necessarily preclude her injury from being one which falls within either limb of the definition of “injury”. Such operation of the section is demonstrated by a long line of authority including the decision of Perdriau J in Carr v Donnelly (1937) 11 WCR 294 and that of the High Court in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 (Henderson).
Notwithstanding the manner in which Ms Hills presented argument limited to an allegation of injury arising out of employment, it is apparent that the Senior Arbitrator addressed the evidence and the facts as found by reference to those authorities relevant to a consideration as to whether an injury arose in the course of her employment (Reasons at [119] and [120] noted at [57] above). Whilst there is no express finding made concerning the question of injury arising in the course of employment, the Senior Arbitrator appears to have implicitly made a finding relevant to that question at [125] of Reasons, where it was said:
“Ultimately, [Ms Hills] must establish that she was encouraged or induced to attend the function. In my view, her evidence falls short of that requirement for the reasons stated.”
The Senior Arbitrator appears to have applied to the facts, as found, the principle found in the decision of the High Court in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis). That principle was identified and discussed by the majority (French CJ, Hayne, Crennan and Kiefel JJ) recently in Comcare v PVYW [2013] HCA 41; 303 ALR 1 (PVYW). It is helpful to set out that reasoning in full which is as follows (between [23] and [31] omitting references):
“Two cases upon which the joint reasons drew in Hatzimanolis – Henderson and The Commonwealth v Oliver – had in common that the injury was suffered by the employee during a lunch break, between periods of actual work. The circumstance that distinguished them was that in Henderson, rather like Danvers, the employee, a railway ganger, was living remotely in a camp for a period of time, whereas in Oliver the employee was injured at his permanent workplace.
In Henderson, an employee was killed in his lunch break by a train whilst crossing the railway line on his way to the camp provided by the employer. Dixon J said that an accident may arise in the course of employment notwithstanding that it occurs during an interval in actual performance and went on to state the principle referred to above, which had regard to the nature and terms of the employment and circumstances in which the work is done in determining what an employee is ‘reasonably required, expected or authorized to do’ (in order to carry out his duties).
In Oliver, employees were playing cricket in their lunch break at their place of work, when one employee was injured. He had tripped over a metal disc as he walked forward to pick up a ball. In a passage which is set out in Hatzimanolis, Dixon CJ said that an inference could properly be drawn that the course of employment extended over the lunch break because of the circumstances of employment, including that employees were not expected to leave the premises and that playing games was a recognised practice. Menzies J explained that Whittingham, which had involved a similar situation to that in Oliver but reached a different conclusion, one denying compensation, was not comparable to the ‘widely-accepted and sensible present-day practice’ of employers encouraging workers to spend intervals between working hours in recreational activities.
The joint reasons in Hatzimanolis concluded that, useful as the Henderson test had been, its formulation no longer adequately covered all relevant cases of injury. In reformulating the principle, Hatzimanolis identified as a striking feature of these cases that, where an injury occurred in an interval between periods of actual work, ‘the employer has authorized, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way.’ Clearly enough, the reference to a case involving a ‘particular place’ was to Danvers. It was the only case which turned on the employee’s presence at a place. Oliver, like the earlier cases, was a case where the employee was engaged in particular activity.
An interval between periods of actual work
In what follows in the joint reasons the notion of an ‘interval’ between periods of actual work in which an injury is sustained was explored. It was approached in the following way.
In the ordinary situation, where work is performed at a permanent place of work, an injury occurring after the working day would not normally be regarded as occurring in the course of employment. An injury occurring between two discrete periods of actual work is less likely to be seen as in the course of employment. On the other hand, an injury occurring in a lunch break might be understood as occurring in an interval in an overall period of work.
The reasoning continues. Where an employee is required to live in a remote location for a period until a particular work-related undertaking is completed, the notion of an overall period or episode of work could apply to that whole period. Thus, on the facts in Danvers, it might be concluded that the time spent at the remote location and in the accommodation provided by the employer constituted one whole period of work, rather than a series of discrete periods. In such a circumstance, an injury which occurs in an interval between periods of actual work might more readily be understood as being within the course of employment than one occurring after working hours in the ordinary situation.
The joint reasons then observed, in the passage extracted above, that Oliver and other cases show that an interval will ordinarily be accepted as being part of the course of employment if the employer has induced or encouraged an employee to spend the interval ‘at a particular place or in a particular way.’ Indeed, absent gross misconduct, injury occurring in such an interval will invariably result in a finding that it occurred in the course of employment.
The principle in Hatzimanolis is then stated. ‘Accordingly’, it is said, it should ‘be accepted that an interval or interlude within an overall period of 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.’ To this it may be added ‘and the employee does so’. That is implicit in what follows.”
DID MS HILLS’ INJURYARISE IN THE COURSE OF HER EMPLOYMENT?
It is important to note that the High Court in both Hatzimanolis and PVYW were concerned with injury occurring during an interval or interlude in an overall period of work. The present facts concern an injury received at the respondent’s premises during an interval between discreet periods of work. Notwithstanding that factual distinction, the injury in the present matter may be found to have occurred in the course of employment if it can be established on the evidence that the respondent expressly or impliedly induced or encouraged Ms Hills to spend that interval at a particular place, or in a particular way. Whilst it was made clear in Hatzimanolis that “an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work, than when it has been sustained in the interval between two discreet periods of work” (Hatzimanolis at 483), the occurrence of compensable injury may nonetheless be found as having occurred in the latter circumstance.
It is also important to note the following observations made in the course of the joint judgment of Hatzimanolis (at 482 and 483):
“However, it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorized, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. That formulation would cover not only the case of the “lunchtime” injury, as in Oliver, and the case of the railway worker, as in Danvers, but also many cases involving injuries occurring during intervals between daily periods of work which could not fairly be regarded as within the course of employment. Thus, an employee who is encouraged by his or her employer to see a doctor after working hours is not ordinarily within the course of employment if injured while visiting the doctor, although the case would come within such a formulation.”
Mr Ludbrook’s evidence is found in his statements made in 2006. In the second of those statements he said that he did not “recall discussing Alistair’s party with [Ms Hills] and advising her that it was in her best interests to go”. He stated that “that was not something he would have done”, and reasons were given for that assertion.
Whilst Mr Ludbrook asserted in his first statement that “[n]o employees, including [Ms Hills] were directed to attend the function. It was purely voluntary attendance and by invitation”, the Senior Arbitrator has taken Mr Ludbrook’s evidence, which had not been tested in cross examination, as a “denial” that he “either encouraged or induced [Ms Hills] to attend the party” (Reasons at [119]). It must be noted, in my view, that Ms Hills’ evidence was not specific concerning the identity of the person who informed her of the “farewell party [at the business premises]” and that “it would be good if [Ms Hills] came to the party”. The evidence of Ms Hills is fully set out at [21] above. Ms Hills was, she stated, unsure as to whether it was Mr Ludbrook or Ms Martel who spoke to her in the terms described. However, Mr Ludbrook is nominated by Ms Hills as one of those to whom she subsequently spoke concerning the party, each of whom enquired of her as to whether she was “coming to our party for Alistair”.
I have reached the view that, whilst the evidence of Ms Hills fails to establish on the balance of probabilities that Mr Ludbrook had spoken to Ms Hills in the terms first described in her evidence, I consider that the probability is that Mr Ludbrook had enquired of her as to whether she was going to attend the farewell party, and I so find. I reach that view having regard to the absence of any evidence on the question from Mr Ludbrook, whose second statement post-dated the statement of Ms Hills by many months.
I have reached that view having also considered the state of the evidence concerning the character of the party (a farewell party as well as a joint birthday party) and Mr Ludbrook’s role as sole director and manager of the respondent. Mr Ludbrook’s evidence (statement made 7 April 2006 noted above at [22]) is that Mr Buchanan “approached” him “with a view to using the studio for a farewell party”. That evidence contrasts with the evidence of Mr Buchanan found in his statement to the police made on the day of the injury which is as follows:
“About two and half weeks ago my flatmates – Peter Fleming, Jordan Cvetanovski I started organising a party to have on the 13th March 2004 to celebrate our birthdays. All our birthdays are in March 2004. Originally we decided to have it at our unit at 3/591 New South Head Road, Rose Bay. We thought about it and decided that it wouldn’t be a good idea because of the elderly neighbours. I approached Richard Ludbrook and asked him if we could use one of the studios to have the party. Richard agreed and suggested that I have the party as a farewell as well.” (emphasis added)
The evidence concerning the subject of nominating the party as being also a “farewell party” leads me to conclude that Mr Buchanan’s near contemporaneous evidence is more probably correct than that of Mr Ludbrook on this point, and I so find on this review. That being the case it is reasonable to infer that Mr Ludbrook intended that staff members would attend the party to farewell Mr Buchanan. In such circumstances, in my view, it is not surprising that, as I have found, Mr Ludbrook had enquired of Ms Hills as to whether she was going to attend the party. The relevance of Mr Ludbrook’s enquiry as to Ms Hills’ attendance is addressed below.
The relevant evidence of Ms Martel, as found in her written statements and when cross-examined, has been set out above between [34] and [36]. I accept Ms Hills’ submission on this appeal (at [122] of submissions) that “[Ms Martel] did urge Ms Hills to attend [the party] to meet other employees”, and that Ms Martel, when cross-examined, conceded that “clients would be present”. When questioned as to whether Ms Martel thought it important that Ms Hills should meet fellow employees to ensure a “good happy team”, Ms Martel stated “I guess so,” and said that the party was a “nice opportunity for [Ms Hills] to meet a few people she might not have met”.
I also accept Ms Hills’ submission that the Senior Arbitrator, when addressing Ms Martel’s evidence, had “placed little, if any, weight on this evidence”, that is the “concessions” made in cross-examination.
Notwithstanding the lack of particularity in Ms Hills’ evidence concerning identification of the individual who spoke to her as noted at [21] above, I have reached the view that, on the probabilities, not only was Ms Hills spoken to in such terms, but that it was Ms Martel who spoke to her as described. Ms Hills’ inability to be more precise about the identity of the individual, that is that it was either Mr Ludbrook or Ms Martel, may be explained having regard to the neurological effects of her injury upon her memory. Unlike the Senior Arbitrator, I do not consider that the matters stated by Ms Hills concerning this particular matter constitutes a “reconstruction” or that the evidence is, in any relevant sense, unreliable. I reach that view having regard to the very terms of Ms Hills’ statement and its lack of particularity, considered together with the evidence of Ms Martel given on the subject in the course of cross-examination. The relevance of exchanges between Ms Martel and Ms Hills and the question of Ms Martel’s authority are discussed below.
It may be seen that I differ with the Senior Arbitrator in my assessment of the evidence of Ms Hills. It is important to note that the Senior Arbitrator had made her findings concerning the weight of Ms Hills’ evidence without criticism and only, if at all, partly upon an assessment of credibility. In reaching my view of the evidence I have kept in mind that which was stated by Bathurst CJ (with whom McColl JA agreed) in Workers Compensation Nominal Insurer v Al Othmani (2012) 10 DDCR 290 which matter concerned the manner of conduct of a review such as the present (at [50]):
“Although the views of the arbitrator to the extent they are based on credit should be given weight, the Presidential member should not be constrained from reaching what he or she regards as the correct decision by a principle of restraint limiting his or her ability to reach different findings to the arbitrator where the latter's findings were based wholly or partly on credit.”
Ms Hills’ evidence is that the conversations she had with her superiors had led her to believe that it was “important for [her] to be at the party to meet the clients face to face and get on good terms with them”. Ms Hills’ understanding of the discussions, which on this review I accept, is not determinative of the issue as to whether, in attending the party, she was in the course of her employment. As was stated by Basten JA in the appeal heard in this matter (at [45]):
“None of these findings [as to motive and belief] is sufficient to engage the conclusion that her attendance was in the course of her employment. Her motives and beliefs may provide some evidential support for a conclusion that she was in fact attending in the course of her employment, but they do not form the relevant test. The course of employment is determined by the employer.”
In reaching my conclusions as to the happening of the conversations between Ms Hills and both Mr Ludbrook and Ms Martel, and their probable content, I have had regard to the respondent’s submissions at [6] of written submissions, which were amplified in the course of oral submissions at the hearing. It is clear that my findings as to probable statements made by Mr Ludbrook and Ms Martel constitute a rejection of the matters there raised as to what passed between Ms Hills and both Mr Ludbrook and Ms Martel. Whether those exchanges constituted relevant encouragement or inducement is addressed below.
The majority in PVYW, in the course of its close examination of the authorities concerning “arising in the course of employment”, in particular the court’s decision of Hatzimanolis, stated (at [50]) that the principle found in that last mentioned decision:
“… may create a temporal element, in the notion of an interval, but it also creates a factual association or connection with the employee’s employment. It does so by the fact of the employer’s inducement or encouragement.”
I have reached the view that Mr Ludbrook’s enquiry of Ms Hills concerning her attendance at the party for Mr Buchanan constituted an inducement of or encouragement to her to in fact attend. Mr Ludbrook conducted a relatively small business which, on his evidence, employed 20 employees. It might be inferred that, at any farewell occasion in which the company participated, Mr Ludbrook would reasonably anticipate that members of staff would attend. The evidence establishes that there were “many” employees at the party (see statement of Ms Sonia Borella, not summarised above, made 16 on March 2004 at [10]).
The respondent in its submissions on this appeal has placed great emphasis upon the circumstance that the party was not organised, financed or controlled by the respondent, nor, it was argued, did the respondent invite attendees. Subject to one matter, the respondent is correct in so arguing. The aspect of the submission I do not accept is the suggestion that Mr Ludbrook did not invite the guests. Whilst the evidence establishes that the invitors were Mr Buchanan and his two friends, it is Ms Hills’ unchallenged evidence that she had not been invited by Mr Buchanan, but attended by reason, in part, of Mr Ludbrook’s enquiry as to whether she was going to attend. Such inquiry, I find, whilst it did not constitute a formal invitation, was alone sufficient to induce or encourage Ms Hills’ attendance.
The exchanges, which I have accepted, that took place between Ms Martel and Ms Hills also, in my opinion, constituted relevant inducement or encouragement to attend the party. However, the respondent argues that “Ms Martel’s work authority over the appellant was limited to matters pertaining to the equipment room only” (submissions at [8]).
It is correct, as argued, that Ms Martel’s evidence in cross-examination suggests such limited “authority”, however the actual and implied authority with which Ms Martel was invested must be assessed having regard to Mr Ludbrook’s evidence of “stepping back” and delegating the training of Ms Hills to his staff. It is plainly the case, on the evidence, that it was Ms Martel who assumed the role of trainer and supervisor. It must be remembered that Ms Hills’ evidence, which is unchallenged, was that Mr Ludbrook said to her that Ms Martel would “tell me what I was required to do in the job”. The evidence which I have accepted is that Ms Martel spoke to Ms Hills about attendance at a “farewell party here for Alistair on Saturday night”. Having regard to her role as supervisor and the fact that the party was described by her in terms similar to those used by Mr Ludbrook, that is, as a “farewell”, I conclude that Ms Martel was acting within her actual or implied authority granted by Mr Ludbrook in so inducing or encouraging Ms Hills’ attendance.
The relevant circumstances of Ms Hills’ injury were that:
(a) it occurred during an interval between periods of employment;
(b) the respondent, through Mr Ludbrook and Ms Martel, had encouraged or induced Ms Hills to be present during that interval at a particular place, namely the business premises in Broadway Sydney;
(c) a purpose of Ms Hills’ presence was employment related, being a farewell party for a fellow employee;
(d) the “factual association or connection” with Ms Hills’ employment, which matter is considered in PVYW (at [50] of the majority judgment), concerned the respondent’s inducement or encouragement to be at that place, and
(e) the injury was received at the place (the business premises) and by reference to that place (Ms Hills fell on the stairs).
The matters enumerated immediately above establish that the subject injury “was suffered at and by reference to a place where [the respondent] had induced or encouraged [Ms Hills] to be”: PVYW at [61]. I note that the respondent did not place reliance upon any argument as to misconduct in terms of s 14 of the 1987 Act. I find on this review that the subject injury was received in the course of Ms Hills’ employment.
Where an injury occurs in the course of employment, it will almost invariably be found to have arisen out of that employment. It is my view that such is the case in the present circumstances. Ms Hills’ presence at the party came about by reason of the matters discussed above and concerned her participation in a farewell of a fellow worker. Her unchallenged evidence was that she knew nothing concerning any other purpose for the holding of the party other than that farewell. The evidence suggests no reason other than employment related reasons for her presence upon the premises at the time of injury. In such circumstances the employment, in my opinion, caused or to some material extent contributed to the subject injury. Having regard to that fact and to the decision in Nunan v Cockatoo Docks and Engineering Co Pty Ltd (1941) 41 SR (NSW) 119 (per Jordan CJ and Roper J at 124), I find that the subject injury, being causally related to her employment, arose out of that employment within the meaning of s 4 of the 1987 Act.
Ms Hills’ argues that the requirements of s 9A of the 1987 Act have been satisfied and, in her submissions on this appeal, has adopted the reasoning expressed by Roche DP in his earlier decision in this matter. Whilst one must immediately acknowledge that the Deputy President’s findings and orders were set aside by the Court of Appeal, it should be noted that the reasoning of the Court (per Allsop P) drew attention to the need to consider the matters raised by s 9A by reference to the decision of Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740, in particular the reasons expressed by Mason P (at 745).
As was stated by Mason P, the term “employment” as it appears in s 9A(1) refers not to “the fact of being employed, but to what the worker in fact does in the employment” (at 745). What Ms Hills was doing in her employment as discussed above was, I have found, causally related to her injury, and the strength of such causal linkage, I find, was real and of substance. In reaching that conclusion I have taken into account the reasoning expressed by the Deputy President as found at [143] and [144] of his decision (Hills v Pioneer Studios Pty Ltd [2011] NSWWCCPD 30) concerning matters raised by s 9A(2) with which I agree and gratefully adopt. I find that Ms Hills’ employment was a substantial contributing factor to the injury.
For the reasons stated the appeal should be upheld and the decision of the Senior Arbitrator should be revoked. Appropriate orders appear below.
I note that the Commission papers reveal that a Medical Assessment Certificate was issued by Dr Robin Fitzsimons on 8 August 2011 following the original order of the Deputy President. That Certificate, which binds the parties, contains an assessment of whole person impairment of 17 per cent. The fact that that Certificate has issued requires remitter of the matter to the Senior Arbitrator to permit any submissions concerning the entry of appropriate orders with respect to lump sum compensation, including Ms Hills’ claim made pursuant to s 67 of the 1987 Act.
DECISION
The decision of the Senior Arbitrator and orders made as found in the Certificate of Determination dated 13 January 2011 are revoked and the following findings and orders are made in their place:
(a) The injury received by Ms Hills on 14 March 2004 was an injury within the meaning of s 4 of the 1987 Act.
(b) The respondent is to pay Ms Hills’ reasonably necessary hospital and medical expenses under s 60 of the 1987 Act.
(c) The matter is remitted to the Senior Arbitrator for consideration of Ms Hills’ lump sum claims brought pursuant to ss 66 and 67 of the 1987 Act.
(d) The respondent is to pay Ms Hills’ costs of the proceedings conducted before the Senior Arbitrator.
COSTS
The respondent is to pay Ms Hills’ costs of this appeal.
Kevin O'Grady
Deputy President
10 July 2014
I, JACQUELINE HAGGER, 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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