Hitchings v Secretary, Department of Planning, Industry and Environment
[2021] NSWWCCPD 12
•19 February 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Hitchings v Secretary, Department of Planning, Industry and Environment [2021] NSWWCCPD 12 |
| APPELLANT: | Vaughan Hitchings |
| RESPONDENT: | Secretary, Department of Planning, Industry and Environment |
| INSURER: | Allianz – As Agent for the NSW Self Insurance Corporation |
| FILE NUMBER: | A1-3864/20 |
| ARBITRATOR: | Mr J Isaksen |
| DATE OF ARBITRATOR’S DECISION: | 25 September 2020 |
| DATE OF APPEAL DECISION: | 19 February 2021 |
| SUBJECT MATTER OF DECISION: | Section 4 of the Workers Compensation Act 1987 – whether the injury occurred in the course of employment – Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 considered and applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr R Harrington, counsel | |
| Stacks Law Firm | |
| Respondent: | |
| Mr D A Baker, counsel | |
| Rankin Ellison Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The name of the respondent, wherever it appears in these proceedings and in the proceedings below, is amended to read “Secretary, Department of Planning, Industry and Environment.” 2. The Certificate of Determination dated 25 September 2020 is revoked. 3. The matter is remitted to a different arbitrator for determination of the remaining issues. |
INTRODUCTION AND BACKGROUND
Mr Vaughan Hitchings (the appellant) was employed by the Secretary, Department of Planning, Industry and Environment (the respondent) as a procurement officer. He commenced that employment in February 2019. Initially he was required to work from the respondent’s Queanbeyan office. The appellant resided at Port Macquarie. The arrangements that the appellant was required to work five days per week at the Queanbeyan office were subsequently changed, and ultimately the arrangements were that the appellant was to attend the Queanbeyan office on Mondays and Tuesdays, work in the Sydney office on Wednesdays and work from home in Port Macquarie on Thursdays and Fridays. As part of his duties, the appellant was also required to visit clients at various places within New South Wales.
On 8 October 2019, the appellant was driving from home very early in the morning in his manual vehicle, intending to travel to the Queanbeyan office, in accordance with the latest arrangements in place. When the appellant reached the vicinity of Kew, which is not far from Port Macquarie, the appellant suffered a severe onset of lower back pain associated with shooting left leg sciatica. The appellant was unable to continue the journey and returned to Port Macquarie, where he sought medical treatment. He was thereafter certified as having no current capacity for work.
The appellant made a claim for compensation. The respondent disputed the claim on the basis that, at the time the injury occurred, the appellant was on a journey within the meaning of s 10 of the Workers Compensation Act 1987 (the 1987 Act) and there was not a real and substantial connection between and the incident from which the injury arose, as required by s 10(3A) of the 1987 Act. In the alternative, the respondent disputed the claim on the basis that the appellant’s injury did not arise out of or in the course of his employment and that the employment was not a substantial contributing factor to the injury, in accordance with s 9A of the 1987 Act.
The appellant brought proceedings in the Commission claiming weekly payments of compensation on an ongoing basis. The appellant alleged that he was injured in the course of his employment, or that the injury arose out of his employment, or alternatively that he was on a journey in accordance with s 10 of the 1987 Act, and there was a real and substantial connection between his employment and the occurrence of his injury (as required by s 10).
The matter proceeded to arbitration. Arbitrator Isaksen delivered a Certificate of Determination on 25 September 2020. He determined that the appellant did not suffer an injury in the course of his employment, the injury did not arise out of the appellant’s employment and there was no real or substantial connection between the appellant’s employment and the incident out of which the injury arose, while the appellant was on a journey between his place of abode and his place of employment.
The appellant appeals that decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties indicating that the appeal can be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers.’
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
A PRELIMINARY MATTER
In the documents lodged with the Commission, the name of the respondent was described as the “State of New South Wales t/as Department of Finance, Services and Innovation.”
A Direction was issued by a delegate of the Registrar on 22 October 2020, directing the parties to advise of the correct name of the legal entity of the appellant.
On 4 November 2020, the respondent advised that it was instructed that the correct name of the appellant was “Secretary, Department of Planning, Industry and Environment” and that the appellant agreed to the name of the respondent being amended to reflect the correct entity.
Accordingly, the name of the respondent, wherever it appears in these proceedings and in the proceedings below, is amended to read “Secretary, Department of Planning, Industry and Environment.”
THE EVIDENCE
The appellant’s statement evidence
The appellant provided a statement dated 3 July 2020.[1] He advised that he commenced as a procurement manager for the respondent on 4 February 2019 and his particular role description was that of a category manager, which required him to meet with external businesses in order to engage indigenous companies to supply to the New South Wales Government. The appellant said that he was required to travel between Queanbeyan, Sydney, Port Macquarie and Coffs Harbour. He said initially he was based in Queanbeyan but in July 2019 it was agreed that he could work full-time from the Port Macquarie office. He said that the arrangement was then changed, so that each week he attended the Queanbeyan office on Monday and Tuesday, the Sydney office on Wednesday and the Port Macquarie office on Thursday and Friday. He said he would drive to those locations.
[1] Application to Resolve a Dispute (ARD), pp 1–3.
The appellant disclosed that he had experienced minor back symptoms about eighteen months to two years previously, which were not associated with any precipitating incident. The appellant described the onset of severe lower back pain with pain down the left leg on 8 October 2019 when he was driving from his home to the Queanbeyan office. He said he was unable to keep driving, so returned to Port Macquarie where he consulted Dr Paul Goodridge, general practitioner, at the Port Macquarie Medical and Dental Centre.
The appellant referred to a healthy lifestyle promotion being conducted by the respondent (the burpee challenge) in which he had been participating and said that he had been able to work up to 40 sit ups, squats and push ups per day. The appellant asserted that this challenge was strongly encouraged by the employer.
The appellant advised that he attended Dr Paul Jones, general practitioner of the same practice as Dr Goodridge, on 10 October 2019 and on 14 October 2019, who provided a medical certificate, prescribed medication and arranged for him to undergo a CT scan of the lumbosacral spine. The appellant also attended physiotherapy, which he said was beneficial, but was not of sufficient assistance for him to be able to return to work. He advised that his symptoms worsened when the physiotherapy was discontinued about two months later. He said that in early 2020, physiotherapy was re-introduced, which resulted in some minor improvement of his symptoms.
The appellant stated that he also consulted Dr Simon Spedding and Dr Fiona McDonald, general practitioners at the Flynns Beach Medical Centre, who provided him with medication and certificates of capacity. He underwent an MRI scan of his back on 9 June 2020 and was referred to Dr Michael Edgar, neurosurgeon at Newcastle.
The appellant complained of ongoing severe pain in his lower back, left hip, buttock and left leg and restriction of movement. He said he was unable to return to work, or to his previously active lifestyle. The appellant described his ongoing restrictions.
The appellant provided a supplementary statement dated 9 September 2020 in response to a statement made by Ms Mary Sexton,[2] his manager. He stated that Ms Sexton had been overseas for the majority of his employment and had not raised any performance issues with him. He said that, in meetings prior to his injury, he was in fact praised for his performance and was given an exemplary performance review in September 2019. He said that he was unaware of any conflict of interest he may have had in a business in which he had been involved, did not undertake any work in that business and the business was essentially not operating.
[2] Appellant’s Application to Admit Late Documents (AALD) dated 9 September 2020, p 4.
The appellant disputed Ms Sexton’s comments about his attendance at work and gave explanations for the inaccuracy in the records. He confirmed that on 8 October 2019, he had an appointment with a client in Queanbeyan and this appointment had been entered in his Outlook calendar.
Ms Mary Sexton, Senior Manager
Ms Sexton was employed by the respondent as a Senior Manager and was the appellant’s substantive line manager. She provided a statement dated 14 July 2020.[3] Ms Sexton said that she was, however, on extended leave at the time of the appellant’s appointment to the position and did not return to work until 29 July 2019.
[3] Respondent’s AALD dated 14 September 2020, pp 1–8.
Ms Sexton confirmed that the position was based in Queanbeyan, where the appellant was expected to work on a full-time basis but shortly before she returned from leave, the appellant was given permission to work from the Port Macquarie office. Ms Sexton said there were still occasions when the appellant was required to attend meetings in Queanbeyan and Sydney. Ms Sexton advised that there was no provision for travel expenses, except for attendances in Sydney and any travel to and from Port Macquarie was required to be taken in the appellant’s own time.
Ms Sexton spoke of concerns she had with the appellant’s working arrangements and in August 2019, she said she negotiated with the appellant to return to work in the Queanbeyan office on Mondays and Tuesdays, work in Sydney on Wednesdays and Port Macquarie on Thursdays and Fridays. Ms Sexton described some dissatisfaction with the appellant’s performance. She advised that she arranged a Skype meeting with him for 4 October 2019 in which she intended to raise those performance concerns, but the internet connection failed, and the meeting was cut short. She said that because the appellant went off work on 8 October 2019, there had been no discussion with the appellant about his performance.
The clinical records
The clinical notes of the Port Macquarie Medical and Dental Centre
The Port Macquarie Medical and Dental Centre notes from 8 October 2019 to 11 December 2019 were in evidence.[4] Relevantly, on 8 October 2019, the appellant consulted Dr Goodridge, who recorded:
“Non traumatic radiculopathic back pain
- while driving - pushed pedals -> acute LBP
- radiating to L hamstring/calf/sole of foot
- nil previous back injuries
…”.[5]
[4] ARD, pp 49–58.
[5] ARD, p 57.
Dr Goodridge prescribed medication and back exercises and provided a medical certificate. The appellant then attended Dr Jones on 10 October 2019, complaining of persisting lower back pain with sciatic radiation. The appellant attended Dr Jones again on 14 October 2019. Dr Jones arranged for the appellant to undergo a CT scan of his lower back and provided a further medical certificate.
On 21 October 2019, the appellant consulted Dr Spedding. Dr Spedding took a detailed past history, which included a complaint of previous back pain two years prior to the consultation. Dr Spedding noted that the appellant was working in procurement and that he had been servicing a bigger area over Canberra, Sydney and Port Macquarie in the past three months. Dr Spedding further noted that the appellant required physiotherapy and was to have a CT scan that morning. Dr Spedding prescribed medication and provided a certificate of capacity.
The appellant sought physiotherapy treatment from Mr Shane Murray, who was also from the Port Macquarie Medical and Dental Centre, on 22 October 2019. Mr Murray recorded the history of a sudden onset of low back pain while driving on 8 October 2019, following which the appellant was unable to weight bear on the left leg. Mr Murray noted that the appellant was “In car all day some days.”[6]
[6] ARD, p 55.
The appellant returned to see Dr Spedding on 28 October 2019. At that consultation, Dr Spedding recorded that the CT Scan of the lumbar spine disclosed an old injury at the L1 and 2 levels, no other injuries, and the presence of arthritis and disc problems. Subsequent consultations with Mr Murray and Dr Spedding indicate that there had been limited improvement in the appellant’s symptoms.
The Flynns Beach and Lachlan Medical Centre clinical notes
The Flynns Beach and Lachlan Medical Centre notes were also in evidence.[7] The appellant attended Dr McDonald on 19 December 2019. Dr McDonald noted that the appellant:
(a) was suffering from chronic lower back pain;
(b) was unable to drive due to the pain;
(c) suffered a workplace injury in October 2019, and
(d) complained of previous sciatica, which had resolved.
[7] ARD, pp 45–48.
Dr McDonald further noted that a CT scan of the lumbar spine showed mild degenerative changes at the L1-2 level. The appellant continued to consult Dr McDonald, who recorded on 30 January 2020 that the appellant had attempted to return to work on 9 January 2020 but his back had locked up. Dr McDonald referred to the appellant’s employment as a procurement officer which involved a bit of driving to Sydney and Queanbeyan. Dr McDonald noted the appellant got as far as Sydney.
The Hastings Sports Injury and Physiotherapy Centre
Dr McDonald referred the appellant to Hastings Physiotherapy on 19 December 2019. She referred to the left lower back injury in October 2019 and advised that the appellant was “still suffering from a [l]ot [sic] of pain, and unable to return to work at this stage. His occupation involves drives for long periods of time.”[8]
[8] ARD, p 34.
Mr Paul Seward, physiotherapist, reported back to Dr McDonald on 29 January 2020.[9] Mr Seward provided the history of the appellant having participated in the respondent’s physical fitness challenge and advised that that exercise was likely to have irritated the appellant’s left lumbar spine. He said that the left side of the back would be irritated by any physical activity or sitting in a car for more than an hour. Mr Seward reiterated that there was a bit of wear and tear in the appellant’s back which was most likely aggravated by the physical fitness challenge.
[9] ARD, p 41.
The certificates of capacity
A number of certificates of capacity were issued by the appellant’s treating general practitioners. Relevantly, in certificates dated 21 October 2019 and 11 November 2019, Dr Spedding indicated that the injury was related to work because of “excessive sitting driving and work pressure.”[10]
[10] ARD, pp 27–29.
There were also certificates from Dr McDonald. Dr McDonald issued an undated certificate which appears to have been completed on 9 January 2020,[11] and a further certificate dated 30 January 2010.[12] Dr McDonald indicated that the injury was related to the appellant’s employment because of long periods of driving from Port Macquarie to Queanbeyan, with the appellant suffering pain “en route” on 8 October 2019.
[11] ARD, pp 22–24.
[12] ARD, pp 42–44.
Dr Murray Hyde-Page, orthopaedic surgeon
Dr Murray Hyde-Page was requested to conduct a video link conference with the appellant and provide a medico-legal opinion for the purposes of the appellant’s case. He provided a report a report dated 1 April 2020.[13]
[13] ARD, pp 16–20.
Dr Hyde-Page took a history of the journey taken by the appellant from his home on 8 October 2019. He noted that the appellant was intending to travel to Queanbeyan and left home at 2 am in his small SUV, but only managed to drive for about twenty minutes, when he suddenly developed severe low back pain and shooting pain down his left leg.
Dr Hyde-Page said that he had read the notes of the general practitioners and he recorded a history of the treatment provided to the appellant after the onset of symptoms, as well as the symptoms the appellant reported to him in the interview. Dr Hyde-Page referred to the fitness challenge in which the appellant participated. He took the history that the appellant was performing those exercises before the injury satisfactorily and that it did not cause him any back problems. Dr Hyde-Page recorded the past history of some low back pain two years previously, which settled quickly without treatment. He reviewed the radiological evidence.
Dr Hyde-Page reiterated that the appellant had suffered an acute onset of lower back pain with left sided sciatica in the early hours of 8 October 2019, noting that the appellant drove a manual car. He felt that the CT scan did not show any significant underlying cause for the appellant’s symptoms. He opined that:
“Overall, I have concluded that the acute onset of his low back pain and left sided sciatica is a consequence of his early morning driving on 8 October 2019, when in the course of his work he had left Port Macquarie to drive to Canberra. His acute low back pain and sciatica is therefore directly related to his employment.”[14]
[14] Dr Hyde-Page’s report, ARD, p 19.
Dr Hyde-Page considered that the appellant’s employment as a procurement officer was a substantial contributing factor to the injury.
The letter of offer of employment
The respondent’s letter to the appellant offering him employment with the respondent as an Aboriginal Procurement Manager was in evidence.[15] The document confirmed that the appellant would start his employment on 4 February 2019 and that his commencement location would be Queanbeyan.
[15] ARD, pp 75–76.
THE ARBITRATOR’S REASONS
The Arbitrator noted that, at the commencement of the appellant’s employment with the respondent, his “commencing location” was Queanbeyan, and that the appellant resided in Port Macquarie. The Arbitrator also noted that on 8 October 2019, the appellant commenced driving from his home in Port Macquarie to Queanbeyan for work purposes and, when in the vicinity of Kew, suffered the onset of severe lower back pain with pain down his left leg. He recorded that the pain caused the appellant to stop his journey and return to Port Macquarie for medical treatment, following which the appellant did not return to work.
The Arbitrator identified the issues for determination as:
(a) whether the appellant suffered a “personal injury” within the meaning of s 4 of the 1987 Act;
(b) whether the personal injury to the appellant’s lower back on 8 October 2019 arose out of or in the course of his employment with the respondent in accordance with ss 4 and 9A of the 1987 Act, and
(c) if the journey from the appellant’s place of abode to his place of employment was a journey within the meaning of s 10 of the 1987 Act, whether there was a real and substantial connection between the appellant’s employment and the accident or incident out of which the personal injury arose, as required by s 10(3A) of the 1987 Act.
The Arbitrator noted that the respondent did not dispute that the appellant was on a journey to his place of work. He referred to the documents that were adduced into evidence and said that he had taken that evidence into account in making his determination. He summarised the evidence provided by the appellant in his statements dated 9 September 2020. He also summarised:
(a) the evidence given by Ms Sexton;
(b) the evidence recorded in the clinical notes of Port Macquarie Medical and Dental Centre between 8 October 2019 and 21 October 2019;
(c) the contents of the certificate of capacity issued by Dr Spedding on 21 October 2019, together with the report of the CT scan undertaken on that date;
(d) the evidence provided by Dr McDonald, and
(e) the evidence from Dr Hyde-Page.
The Arbitrator referred to the authority of Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear,[16] in which Roche DP quoted from Kennedy Cleaning Services Pty Ltd v Petkoska,[17] where Gleeson CJ and Kirby J observed that a personal injury is a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state.” The Arbitrator noted that the appellant attended Dr Goodridge on the day of the injury complaining of tenderness and was prescribed medication, and two weeks later was referred for a CT scan and again prescribed medication.
[16] [2014] NSWWCCPD 47.
[17] [2000] HCA 45; 200 CLR 286, [39].
The Arbitrator said that, on the basis of the appellant’s evidence that he suffered a sudden onset of pain and on the basis of the records of the Port Macquarie Medical and Dental Centre commencing from 8 October 2019, he accepted that there was a sudden pathological change, even though it was not identified in the radiology. Consequently, he was satisfied that the appellant did suffer a personal injury to his lower back on 8 October 2019.
The Arbitrator turned to the issue of whether the injury was sustained in the course of the appellant’s employment. He noted the appellant’s submissions that all of the journeys undertaken by the appellant were in the course of his employment, because the appellant, unlike other workers, was required to travel a considerable distance each week from his home to his place of employment, which creates a significant risk of injury.
The Arbitrator quoted from the High Court decision in Hatzimanolis v ANI Corporation Ltd,[18] in which Mason CJ, Deane, Dawson and McHugh JJ observed that:
“… The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.”[19]
However,
“… there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work.”[20]
And:
“… In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’.”[21]
[18] [1992] HCA 21; 173 CLR 473 (Hatzimanolis).
[19] Hatzimanolis, [14].
[20] Hatzimanolis, [15].
[21] Hatzimanolis, [16].
The Arbitrator further referred to Comcare v PVYW,[22] in which French CJ, Hayne, Crennan and Kiefel JJ said:
“It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer’s liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee’s employment. It did so by characterising the interval by reference to the employer’s inducement or encouragement. The employer’s liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer's liability beyond that.”[23]
And:
“The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.”[24]
[22] [2013] HCA 41; 88 ALJR 1 (PVYW).
[23] PVYW, [34].
[24] PVYW, [38].
The Arbitrator observed that, in accordance with Hatzimanolis, the appellant’s course of employment would ordinarily be perceived as when he commenced work in Queanbeyan and ending when he completed his work that day in Queanbeyan. The Arbitrator noted that Dr Hyde-Page opined that the appellant’s injury was caused by driving to work, which activity the Arbitrator considered was no different from the activity of thousands of workers each day. The Arbitrator said that the appellant was not in the course of his employment until he arrived at his workplace. The Arbitrator said that Hatzimanolis acknowledged that the:
“whole period of an undertaking for the purposes of work can constitute an overall period or episode of work, and that the general nature, terms and circumstances of employment must be considered in determining whether injury has occurred in the course of employment.”[25]
[25] Hitchings v Secretary, Department of Finance, Services and Innovation [2020] NSWWCC 339 (reasons), [71].
The Arbitrator considered that this gave some support to the appellant’s submissions that the requirement for the appellant to travel significant distances between three locations meant that, during the entire period from when he left his home until he returned, the appellant was in the course of his employment. The Arbitrator noted that the appellant met clients in Queanbeyan and out of the office, travelling over a large area of NSW, but said that when the appellant experienced lower back pain, he was on a journey to commence his work for the week. The Arbitrator observed that the injury which occurred while driving from Port Macquarie to Queanbeyan was not part of an overall period or episode of work but occurred on a journey before the appellant commenced his employment activities. The Arbitrator added that he did not consider that the respondent encouraged or induced the appellant to undertake that activity, which would have brought the appellant’s injury within the course of his employment.
The Arbitrator referred to the appellant’s contract of employment, which initially required the appellant to work full time from the Queanbeyan office, but that arrangement was subsequently altered, ultimately requiring him to work at the three locations each week. The Arbitrator noted that the appellant was amenable to those arrangements and did not assert that he was persuaded or motivated by the respondent to undertake those arrangements. The Arbitrator said that there was no evidence to say that the respondent persuaded or motivated the appellant to do so. The Arbitrator observed that:
“It was simply a necessary requirement of his employment that the applicant work each Monday and Tuesday in Queanbeyan. So long as the applicant lived in Port Macquarie, he needed to undertake a journey each week to Queanbeyan, so that he could undertake his employment duties in accordance with the terms of his contract of employment with the respondent.”[26]
[26] Reasons, [77].
The Arbitrator concluded that he was not satisfied that the injury was sustained in the course of the appellant’s employment, and that the injury sustained by the appellant occurred while he was on a journey from his place of abode.
The Arbitrator turned to the question of whether the appellant’s injury arose out of his employment with the respondent. He referred to the Presidential decision of Bina v ISS Property Services Pty Limited.[27] He said that matter involved proceedings in which the worker alleged that the injury either arose out of her employment or occurred while the worker was on a journey within the meaning of s 10 of the 1987 Act in circumstances where she was travelling home after the first of two shifts. The Arbitrator quoted the following passage from the reasons of Arbitrator Sweeney, who was the Arbitrator at first instance:
“I do not believe that it is open to an arbitrator to hold that an injury on a journey, between a worker’s place of abode and place of employment, arises out of the employment unless there is some greater connection with the employment than having to get to and from the place of employment.
… If a journey arose out of the employment why was it necessary for the legislature to enact a provision whereby such an injury was to be treated or deemed an injury arising out of the employment?”[28]
[27] [2013] NSWWCCPD 72 (Bina).
[28] Bina v ISS Property Services Pty Limited [2013] NSWWCC 328, [38]–[39].
The Arbitrator also quoted from the observations of Keating P in the appeal determination, in which Keating P said:
“The Arbitrator’s Reasons establish that he identified and applied the correct causal connection test to his consideration of whether the injuries sustained by Ms Bina during the journey between her place of work and her home arose out of her employment. He concluded (at [44]) that the mere fact that a worker must travel to or from work, of itself, does not establish a causal connection between her injury and the activities of, or incidental to, her employment. In the present case, there is no causal relationship between Ms Bina’s employment and her injury. For the reasons given, I am satisfied that the Arbitrator identified and applied the correct test.”[29]
[29] Bina, [62].
The Arbitrator considered that, in his view, the mere fact that the appellant had to drive from his home to Queanbeyan to commence work was not sufficient to establish a causal connection between his lower back injury and his employment. The Arbitrator said that the fact that the appellant was required to travel long distances in his work did not create a greater connection with his employment in the journey he undertook on 8 October 2019. The Arbitrator said that that journey was merely a journey between the appellant’s place of abode and his place of work. The Arbitrator added that there was little medical evidence that supported a claim that the injury to the appellant’s back was caused by prolonged driving.
The Arbitrator referred to the certificate of capacity issued by Dr Spedding on 21 October 2019, who opined that the injury was caused by excessive sitting, driving and the pressure of work and also noted that the appellant was servicing a larger area. The Arbitrator noted that Dr McDonald said on 19 December 2019 that the injury was related to work because of the long periods of driving the appellant was required to do between his home and the Queanbeyan office. The Arbitrator observed, however, that there were no reports from those doctors to explain their conclusions as to the cause of injury. The Arbitrator considered that the reference to long periods of driving by Dr McDonald in the referral to the physiotherapist was simply an observation, providing some background about the appellant.
The Arbitrator said that Dr Hyde-Page was the only medical expert to provide a detailed opinion on causation, which was that the onset of lower back pain with left leg sciatica was a consequence of the early morning drive that day. The Arbitrator did not accept that Dr Hyde-Page’s opinion went further than to say that the cause of the injury was the driving the appellant was doing that morning. He added that Dr Hyde-Page did not record details of the extensive driving the appellant undertook in his employment. The Arbitrator concluded that he did not accept that the injury sustained by the appellant arose out of the appellant’s employment.
The Arbitrator proceeded to consider the issue of whether there was a real and substantial connection between the appellant’s employment and the injury, in accordance with s 10(3A) of the 1987 Act. He referred to Keating P’s observations in Bina, in which his Honour observed (citations omitted):
“(a) that a substantial connection is one ‘of substance’;
(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;
(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.”[30]
[30] Bina, [112].
The Arbitrator also quoted the following observations made by Keating P in Bina:
“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.”[31]
And:
“Whether, and in what circumstances, s 10(3A) will be satisfied will be a question of fact, applying the words of the provision, in a commonsense and practical manner in each case.”[32]
[31] Bina, [117].
[32] Bina, [120].
The Arbitrator observed that Ms Bina was unsuccessful in establishing that there was a real and substantial connection between her employment and the motor vehicle accident that occurred in her journey between two shifts.
The Arbitrator also considered the decisions of Roche DP in Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden[33] and Field v Department of Education and Communities,[34] and Keating P in State Super Financial Services Australia Limited v McCoy,[35] noting the circumstances of injury in each case and noting that each of the workers were successful in establishing a real and substantial connection between the employment and the incident in which the injury occurred. The Arbitrator referred to the appellant’s submission that the long periods of driving undertaken by the appellant caused the appellant’s injury, which established a real and substantial connection between the employment and the injury. He did not accept that submission because Dr Hyde-Page’s opinion was limited to the cause of the injury being the driving the appellant did that morning. The Arbitrator reiterated that Dr Hyde-Page did not record details of the extensive driving the appellant undertook each week in his employment, so that there was no support for the appellant’s assertion that it could be inferred that Dr Hyde-Page’s opinion was that the extensive driving caused the injury.
[33] [2014] NSWWCCPD 13 (Wickenden).
[34] [2014] NSWWCCPD 16 (Field).
[35] [2018] NSWWCCPD 26 (McCoy).
The Arbitrator concluded that he could not identify any real and substantial connection between the appellant’s activities of employment and the onset of the lower back pain during the journey the appellant undertook on 8 October 2019. He reasoned that:
“The journey which the applicant undertook was not reasonably required, expected or authorised by reason of his employment, other than what would ordinarily be expected of an employee to travel from his place of abode to attend his place of employment. The applicant’s driving on that morning was simply a journey to his place of work which was required as part of his contract of employment.”[36]
[36] Reasons, [105].
The Arbitrator said that the circumstances of the journey undertaken by the appellant on 8 October 2019 were consistent with Keating P’s observations in Bina, that is, that the mere fact that a worker is required to travel to and from work is not sufficient to show a real and substantial connection between the appellant’s employment and the incident. As Keating P observed, if it were, then s 10(3A) of the 1987 Act would be otiose.
The Arbitrator distinguished the facts in Wickenden, Field, and McCoy, because those cases involved events that could be related to an employment activity or a requirement of that employment. He observed that the onset of lower back pain did not result from the appellant’s employment activity, or something which was incidental to that employment.
The Arbitrator concluded that the appellant was on a journey from his abode to his place of work and the provisions of s 10(3A) of the 1987 Act were not satisfied.
The Certificate of Determination issued on 25 September 2020 records:
“The Commission determines:
1. The applicant did not sustain an injury in the course of his employment with the respondent on 8 October 2019.
2. The applicant did not sustain an injury arising out of his employment with the respondent on 8 October 2019.
3. There was no real and substantial connection between the applicant’s employment and the incident out of which the applicant’s injury arose in the journey undertaken by the applicant from his place of abode to his place of employment on 8 October 2019.
The Commission orders:
1. An award for the respondent.”
GROUNDS OF APPEAL
The appellant brings three grounds of appeal, alleging the Arbitrator erred as follows:
(a) Ground One: error of fact, law or discretion in finding that the medical evidence did not support the assertion that there was a connection between the back injury and the need to drive long distances as part of the appellant’s work duties;
(b) Ground Two: error of fact and law in finding that there was not a real and substantial connection between the appellant’s back injury and the need for the appellant to drive long distances in order to carry out his duties, and
(c) Ground Three: error of fact and law in finding that the appellant’s back injury did not arise out of or in the course of his employment when the Arbitrator had found that the appellant had injured his lower back as a result of driving to work.
LEGISLATION
Section 4 of the 1987 Act provides:
“Definition of ‘injury’ (cf former s 6 (1))
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
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 10 of the 1987 Act relevantly provides:
“Journey claims (cf former s 7 (1) (b)-(d), (f), (g))
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.
(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport Act 2013), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
(2) Subsection (1) does not apply if:
(a) the injury was received during or after any interruption of, or deviation from, any such journey, and
(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,
unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(3) The journeys to which this section applies are as follows:
(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,
…
(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.
…”
SUBMISSIONS
Grounds One and Two of the appeal pertain to the question of whether there was a connection between the appellant’s employment and his injury. For the reasons set out below, I have determined that the third ground of appeal succeeds, and the Certificate of Determination is to be revoked. It is not necessary therefore to reproduce the parties’ submissions in respect of Grounds One and Two or to discuss those grounds.
Ground Three
The appellant’s submissions
The appellant submits that it was irrelevant to the question of whether the respondent authorised or encouraged the appellant to work in the manner he did, or that the contract of employment initially required him to work in Queanbeyan and changes to that contract were made which were of benefit to the appellant. The appellant submits that whether the respondent encouraged or authorised him to perform the activity is only relevant to the circumstance that a worker was doing something outside of his contract of employment, such as going on a sightseeing trip. The appellant refers to the Arbitrator’s finding that the journey was not one which was reasonably required, expected or authorised, other than what would ordinarily be expected of an employee to travel from home to his workplace. The appellant submits that this characterisation is untenable. The appellant points out that:
(a) the journey was approximately 663 kilometres;
(b) the journey commenced at 2 am and would take about eight hours;
(c) the journey was undertaken pursuant to a contract of employment to work in different towns in New South Wales and serviced an area from Queanbeyan to Coffs Harbour;
(d) the journey was inherently dangerous and could not have been undertaken on public transport;
(e) the appellant could not participate in shared rides to work or fly to these places because of incompatible flight schedules;
(f) he was required to take clothing and personal items that he would require over the following three to four days in various towns, together with his laptop;
(g) he did not return home after each day’s work;
(h) the means of travelling to work were not requisites of an ordinary journey, and
(i) the journey would be tax deductable, unlike an ordinary journey to work.
The appellant submits that, in a number of cases, it has been accepted that a journey from a place of abode to work can also be a journey arising out of or in the course of employment, citing the cases of Smith v Brown,[37] Scharrer v The Red Rock Co Pty Ltd[38] and Hook v Rolfe.[39]
[37] [1998] NSWCC 24; 16 NSWCCR 492 (Smith).
[38] [2010] NSWCA 365 (Scharrer).
[39] (1986) 7 NSWLR 40 (Hook).
The appellant refers to the Arbitrator making reference to PVYW, and says that their Honours also said that:
“When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.”[40]
[40] PVYW, [38].
The appellant submits that the Arbitrator focussed on the event which led to the injury, rather than the circumstances which brought the appellant to the place where the injury occurred. The appellant says that in Hatzimanolis, the worker would have been unsuccessful if the connection to employment was determined by the injury because the worker was on a sightseeing tour, unrelated to his employment. The appellant submits that in this case, not only did the respondent induce and encourage him, it was part of his contract to service the extensive area.
The appellant asserts that the journey on the day of the accident should not be looked at as a single journey, but as part of the overall journey required to carry out his duties. In conclusion, the appellant submits that there is no reason to distinguish the journey he was undertaking from the various other journeys he was required to take.
The respondent’s submissions
The respondent submits that the appellant assumes that because the Arbitrator found that the appellant was injured on a journey, it should result in a finding that the injury arose out of or in the course of the appellant’s employment. The respondent reiterates that the appellant’s contract did not require him to travel by car, the decision to do so was his own, and the appellant was not reimbursed for the travel from his abode to Queanbeyan and return.
The respondent refers to the appellant’s submission that the finding that the appellant was on a journey from his place of abode was untenable. The respondent submits that the fact that the journey was lengthy, inherently dangerous, commenced early in the morning, and the other matters referred to in the appellant’s submission, is irrelevant to this journey and completely contrary to the evidence of Ms Sexton.
The respondent says that the appellant relied upon three decisions where the worker was on a journey, but it was found that the injury arose out of or in the course of employment. The respondent recites the facts of Smith, Scharrer and Hook and submits that each of those matters were determined on their specific facts, which had no correlation with the facts in this case and are of no assistance to the appellant.
The respondent submits that both PVYW and Hatzimanolis dealt with the period of time between periods of employment where the employer encouraged or induced the worker to be in the place that the injury occurred. The respondent describes the facts of each case and asserts that in the present case, the Arbitrator found that the appellant was on a journey to which s 10 of the 1987 Act applies and the respondent did not encourage or induce the appellant to undertake that journey. The journey was a requisite part of the job which was based in Queanbeyan.
The respondent contends that the Arbitrator’s conclusion was readily available to him and the facts as determined by the Arbitrator have not been shown to be wrong, as required in order to displace the decision. The respondent asserts that the Arbitrator was entitled to make the findings that he made.
THE RELIEF SOUGHT
The appellant does not identify the relief he is seeking in this appeal.
The respondent submits that the Certificate of Determination should be confirmed.
CONSIDERATION
The Arbitrator was required to determine whether the appellant was in the course of his employment when he suffered the injury or whether the injury arose out of the appellant’s employment. The issue in the alternative was that he was on a journey within the meaning of s 10 of the 1987 Act, and there was a real and substantial connection between the appellant’s employment and the incident out of which the injury arose.
The challenge to the Arbitrator’s finding that the appellant was not in the course of his employment when the injury occurred is found in Ground Three of the appeal. If Ground Three succeeds, there is no need, and nor in the circumstances is it appropriate, to address the submissions as to whether there was a sufficient connection between the appellant’s employment and the incident resulting in the injury (Grounds One and Two of the appeal). It is therefore convenient to consider Ground Three of the appeal before turning to the remaining two grounds.
This challenge is in part premised on the assertion that the Arbitrator made a finding that the appellant had injured his lower back as a result of driving to work. In the process of determining whether the appellant suffered a personal injury on 8 October 2019, the Arbitrator reviewed the medical evidence and the relevant authorities as to what constitutes a “personal Injury” for the purpose of s 4 of the 1987 Act. The Arbitrator concluded as follows:
“I accept from the applicant’s evidence of a sudden onset of lower back pain, and the records made by the doctors at Port Macquarie Medical and Dental Centre on and from 8 October 2019, that there was a sudden pathological change in the applicant’s lower back, even though it might not have been positively identified in any subsequent radiology. I accept from this evidence that the applicant did sustain a personal injury to his lower back on the morning of 8 October 2019.”[41]
[41] Reasons, [59].
The Arbitrator did not make a finding that the personal injury was caused by the appellant driving to work. The Arbitrator simply accepted, on the basis of the evidence before him, that the onset of symptoms was sufficient to identify a sudden pathological change, which satisfied the requirements of s 4 of the 1987 Act.
Whether the injury occurred in the course of the appellant’s employment involves a temporal element. Of course, if the appellant had been successful in establishing the temporal element, he would have then had to satisfy the Arbitrator that his employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. However, having found against the appellant, the Arbitrator did not proceed to determine the issue in relation to s 9A.
The appellant contends that it is not relevant whether the respondent required, encouraged or authorised the appellant to drive to Queanbeyan. The appellant describes the Arbitrator’s conclusion that the journey was one which would ordinarily be expected of an employee as “untenable.” This was said to be so because the journey was lengthy, had commenced at 2 am, and was a journey which could not have been taken by other means of transport. It also required the appellant to take with him his electronic devices and other items he would need over the working week.
The appellant refers to Hatzimanolis and PVYW. Those cases each involved an injury sustained between two intervals of employment where the worker was at a particular place where he or she was required to be for the purpose of undertaking his or her employment duties. It is important that this case does not involve an injury occurring during an interval in, or interruption to, the appellant’s employment duties. That is not to say that the observations of the High Court in Hatzimanolis provide no assistance in the determination of whether the injury in this case occurred in the course of the appellant’s employment. While the Court in Hatzimanolis was considering factual circumstances which can be distinguished from the present case, the Court expressly considered the phrase “in the course of employment.” The reasons expressed in that decision provide useful guidance in a consideration of the proper application of s 4. In a joint judgment delivered by Mason CJ, Deane, Dawson and McHugh JJ, the Court made the following useful observations (citations omitted):
“For the purposes of section 4, the course of employment is not identical with the period of employment of a worker or with the work which that person performs. From a very early stage in the history of the law of workers’ compensation, it was recognised that the course of employment covered not only the actual work which a person was employed to do but also ‘the natural incidents connected with the class of work’. In 1931 in Whittingham v. Commissioner of Railways (WA) Dixon J said that there can ‘no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service’. But his Honour went on to say that it was ‘another matter to be sure what is included within this conception’. He thought that, in considering what was incidental to service, the sufficiency of the connection between the worker’s employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.”[42]
And:
“… In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’.”[43]
[42] Hatzimanolis, [7].
[43] Hatzimanolis, [16].
The Arbitrator acknowledged that the passages above lent support to the appellant’s argument that he was in a unique role that involved significant travelling, and that during the entire period from when the appellant left home until he returned, the appellant was in the course of his employment. The Arbitrator concluded that the journey undertaken on 8 October 2019 could not be found to be part of the appellant’s whole course of employment and that at the time of the injury, the appellant was on a journey from his home to his place of employment.
The respondent argues that the appellant’s contract did not require him to travel by car, the decision was that of the appellant and the appellant was not reimbursed for the travel from his abode to Queanbeyan and return. Further, the journey was a requisite part of the job which was based in Queanbeyan.
I do not regard that the fact that the appellant travelled by car, which was not at the direction of the respondent, is determinative of whether the appellant was or was not in the course of his employment. The contractual arrangement between the appellant and the respondent that the respondent would not pay an allowance for the trip between the appellant’s abode and the respondent’s Queanbeyan office is also not determinative. The fact that the appellant travelled by car was clearly a practicality and the appellant’s acceptance that he was not to be reimbursed for that expense does not of itself indicate that the journey undertaken was a journey within the meaning of s 10 of the 1987 Act.
The determinative question is whether the journey undertaken by the appellant was a journey between the appellant’s place of abode and his place of employment, or whether the appellant was in the course of his employment once he left his abode on the morning of 8 October 2019. This requires a consideration of what was the appellant’s “place of employment.”
It is clear that the Arbitrator’s observation that the appellant’s course of employment would ordinarily be perceived as when he commenced work in Queanbeyan and ending when he completed his work that day in Queanbeyan indicates that the Arbitrator did not give proper consideration to the special circumstances in which the appellant worked. The nature of his duties were such that he would not have ceased to be in the course of his employment when he finished work in Queanbeyan on that day. He was then required to continue on to Sydney. In addition, the Arbitrator considered that the activity of driving to work on 8 October 2019 was no different from the activity of thousands of workers each day. That observation also indicates that the Arbitrator did not fully appreciate the circumstances in which the appellant attended to his weekly duties.
The appellant’s contract of employment stipulated that his commencing location was Queanbeyan. It is apparent from the evidence of both the appellant and Ms Sexton that the arrangements as to where the appellant worked changed over the course of time. In July 2019, he was based in Port Macquarie on a full-time basis. Then, in August 2019, the working arrangements were again changed, requiring the appellant to work in the Queanbeyan office for the first two days of the week, the Sydney office on Wednesdays, and the remaining working week in Port Macquarie. The appellant was also required to service clients outside of those areas, including the Coffs Harbour area. Thus, the appellant’s working week did not begin and end at the Queanbeyan office.
Applying the principles enunciated in Hatzimanolis, a consideration of the general nature, terms and circumstances of the appellant’s employment shows that the appellant was not simply embarking upon a journey from his place of abode to his place of employment. The Queanbeyan destination was just one destination on the overall route upon which the appellant embarked, having taken with him all of the things, both business and personal, which he would require at each destination throughout the working week. The character of the journey on 8 October 2019 was therefore not a journey within the meaning of s 10 of the 1987 Act. The circumstances were that once the appellant embarked upon that journey, he was in the course of his employment.
It follows that the Arbitrator’s determination that the appellant was not in the course of his employment when the injury occurred was wrong. Ground Three of this appeal succeeds and the Arbitrator’s Certificate of Determination must be revoked. It is therefore not necessary to consider the two remaining grounds of appeal.
The Arbitrator did not determine the cause of the appellant’s injury. As a result of his findings he also did not give consideration to whether the appellant’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act.
An appeal from a decision of an Arbitrator is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error.[44] As a determination of the matter involves a consideration of matters not determined by the Arbitrator, those issues cannot be determined on appeal. It is appropriate therefore to remit the matter to a different arbitrator for determination of the cause of the injury and whether the appellant’s employment was a substantial contributing factor to the injury.
[44] Section 352(5) of the 1998 Act.
CONCLUSION
The Certificate of Determination is revoked, and the matter is to be remitted to another arbitrator for determination of the outstanding issues.
DECISION
The Certificate of Determination dated 25 September 2020 is revoked.
The matter is remitted to a different arbitrator for determination of the remaining issues.
Elizabeth Wood
DEPUTY PRESIDENT
19 February 2021
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