Ingram v Norco Co-operative Limited
[2003] NSWWCCPD 1
•4 September, 2002
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | Stephen Albert Ingram v Norco Co-operative Limited [2003] NSWWCCPD 1 |
| APPELLANT: | Stephen Albert Ingram (Applicant) |
| RESPONDENT: | Norco Co-operative Limited (Respondent) |
| INSURER: | QBE Workers Compensation (NSW) Limited |
| FILE NO: | WCC505–2002 |
| DATE OF DECISION: | 4 September, 2002 |
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron |
| DECISION UNDER APPEAL: | Award for the Respondent |
| DATE OF DECISION UNDER APPEAL: | 14 January, 2003 |
| HEARING: | Appeal determined on the papers |
| REPRESENTATION: | Appellant: Somerville Laundry Lomax, Lismore |
| Respondent: Mulcahy Lawyers, Lennox Head | |
| ORDERS MADE ON APPEAL: | The Appeal is not allowed. The decision appealed against is confirmed. No order is made as to costs. |
THE APPEAL
On 18 June, 2002, the Applicant, Stephen Albert Ingram (“the Appellant”) lodged with the Workers Compensation Commission (“the Commission”) an Application to resolve a dispute. The Appellant claimed to have sustained an injury to his foot on 22 May, 2001 when his foot was run over by a forklift while he was present at his place of employment at a time when he was on approved recreation leave. The basis of his claim is that he suffered non-economic loss as a result of the injury that arose out of and in the course of his employment with the Norco Co-operative Limited (“the Respondent”). The insurer is QBE Workers Compensation (NSW) Limited (“the Insurer”).
The Appellant notifed the Respondent of the injury and a Compulsory Third Party Claim was made to NRMA Insurance. The claim was accepted by NRMA and Mr. Ingram was reimbursed lost wages.
Mr. Ingram lodged a claim with the Insurer in this matter on 15 February, 2002 in the sum of $5,600 for compensation for non-economic loss. A claim for medical expenses was also lodged but that claim was not quantified. The Respondent disputed liability pursuant to section 281 of the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”).
The Act provides at section 354(6) that if the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, it may exercise functions under the Act without holding any conference or formal hearing. The parties agreed that the Commission, constituted by the Arbitrator, should proceed to determine the dispute without a conference or formal hearing, that is, “on the papers”. Accordingly, the Arbitrator having satisfied himself in accordance with the section and being satisfied “that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied”, proceeded to determine the dispute “on the papers”. On 4 September, 2002 the Arbitrator found that the Appellant did not receive an injury on 22 May, 2001, arising out of or in the course of his employment with the Respondent, and further that the Appellant’s employment was not a substantial contributing factor to his injury. Accordingly, an award was made in favour of the Respondent.
The Appellant lodged an Application for Leave to Appeal against the Arbitrator’s decision on 20 September, 2002 and the Respondent submitted a response to that Application, on 1 October, 2002. Following clarification of some aspects in December, 2002, this appeal is determined “on the papers” in accordance with the request of the parties.
THE ISSUES IN DISPUTE
The issues in dispute as set out in the appeal documents, are as follows:
(1)Whether the Applicant’s injuries arose out of or in the course of his employment (s. 4(a)), and
(2)Whether the Applicant’s employment was a substantial contributing factor to his injuries (s.9A) – (1987 Act).
In the response to the Application for Leave to Appeal Against a Decision of an Arbitrator the Respondent claimed that there must be serious doubts as to whether the Appellant would exceed the threshold in section 352(2)(a) of the Act and that leave should not be granted to review the decision of the Arbitrator.
JURISDICTION TO HEAR THE APPEAL
Section 352 of the Act provides for appeal against a decision of the Commission constituted by an Arbitrator. Subsection (1) provides:
(1)A party to a dispute in connection with a claim for compensation may with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
Subsection (2) provides:
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against
Subsection (4) provides:
(4)An Appeal can only be made within 28 days after the making of the decision appealed against.
Subsection (5) provides:
(5)An appeal under this section is to be by way of review of the decision appealed against.
The Arbitrator’s decision was made on 4 September, 2002 and the Certificate of Determination was issued on the same day. The appeal was lodged at the Commission on 20 September, 2002 and further documents in support of the appeal were submitted by letter dated 27 September, 2002 and received at the Commission on 1 October, 2002. The appeal is therefore made within 28 days pursuant to section 352(4).
Section 354(6) of the 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.
Having regard generally to President’s Direction Number 1 of 2002, the exhaustive submissions that have been made by both parties, and the parties’ agreement that the appeal should proceed to be determined “on the papers”, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing, and that this is the appropriate course in the circumstances of this matter.
Submissions have been made with regard to the question of leave to appeal and this issue is addressed and determined hereunder.
SUBMISSIONS
The Appellant submitted that the Arbitrator is incorrect in fact and law. The basis for that submission may be summarized as follows:
(1)Whether or not the Applicant/Appellant attended the premises for a work related purpose, the fact is that he did perform work related duties after arriving at his workplace, and his purpose for attending is irrelevant as a result of being overridden by the fact that work duties were actually performed after he got there.
(2)There was a “temporal and geographical” connection between the duties that he was performing and his injuries. The Appellant sustained his injuries immediately after performing his work related duties and in the same location where he had performed those duties. If the Arbitrator is correct no worker who, at the moment he is injured, is not actually performing duties, would be entitled to workers compensation. The Arbitrator has misinterpreted the decision in Stanton-Cook v NSW TAFE Commission [1999] NSWCC 5. That case can be distinguished from the facts of this case as Mrs Stanton did not attend work for a work related purpose; did not perform any work related duties while there, and was injured in a car park, being a different geographic location to the one in which she normally performed her duties. On the other hand, the Appellant actually performed duties and was injured immediately after doing so, in the same location where he normally performed his duties.
In later clarification regarding the activities of the Appellant at the worksite, for the purposes of this appeal, it was submitted that the evidence of the Appellant (that he did perform the work), should be accepted, rather than his previous statement of 1 March, 2002 which did not contain any reference to performance of work. It was submitted that what the Appellant did prior to the injury was recorded initially by an investigator “and there were obviously no questions put to the Applicant as to what he did during this period.” However, the later statement of 30 July, 2002 was taken by his Solicitor who did address this with him. It was submitted that there is no contradiction between the statements (this being an assumption on the part of the Arbitrator), and that the second statement represents “the uncontradicted evidence of the Applicant”.
In relation to the question of leave to appeal, the Appellant submitted that the amount of compensation in question is $5,600 and in light of the fact that nil compensation was awarded, the threshold in section 352(a) and (b) are met.
The Respondent’s submission is that the Arbitrator correctly applied the decision in Stanton-Cook in determining that the Appellant’s employment was not a substantial contributing factor to his injury. It was further submitted in clarification for the purposes of this appeal, that the two apparently contradictory statements must be read together. In the first statement Mr. Ingram said that he was waiting beside the truck on the loading dock, before he approached his work colleague, Mr. Ruane, driving the forklift, whereas in the second statement he said that he removed three stacks of empty pallets from the contractor’s truck with the pallet jack fork lift, which took about 15 minutes. It is further submitted that the Appellant made no attempt to quantify the elapsed time between ceasing work and his approach to Mr. Ruane. Further, it is submitted that his statement of 1 March, 2002 is to be believed as the later statement “obviously seeks to bolster his claim”. In relation to the phrase “some time later” in paragraph 1.5 in the Respondent’s submissions dated 8 August, 2002, it is submitted that this should be interpreted “in accordance with the Applicant’s statement of 1 March, 2002, that is, no less than 15 minutes”. It is submitted that the Arbitrator’s determination was correct in fact and law.
In relation to the question of leave to appeal, it is submitted by the Respondent that the Appellant has not yet been assessed by an approved medical specialist, and there must be some doubt that he will exceed the threshold prescribed in section 352(2)(a) of the Act. Consequently, leave should not be granted to review the decision of the Arbitrator.
DETERMINATION OF LEAVE TO APPEAL
The amount of compensation at issue on the appeal is in fact, $5,600 notwithstanding that Mr. Ingram had not been assessed by an approved medical specialist. Both parties agree that the “amount in issue” is $5,600 at present. That is Mr. Ingram’s claim and it is recognized as the “amount in issue” by the Respondent (see Mulcahy Lawyers’ letter of 18 November, 2002 in clarification for the purposes of this appeal). The argument that Mr. Ingram may “ultimately” not exceed the threshold prescribed in section 352(2)(a) may be countered by the argument that he may exceed it. Both are speculative arguments and I consider that I should proceed on the agreed basis that at this time, the amount of compensation at issue on the appeal is $5,600. The threshold in section 352(2)(a) is satisfied.
In relation to section 352(2)(b) no award was made by the Arbitrator. However, the appeal is against the decision of the Arbitrator and may proceed notwithstanding that no monetary award was made as part of that decision. I refer to my earlier decision in Mawson v Fletchers International Exports Pty Ltd [2002] NSW WCC PD 5 on this point.
Leave to appeal the decision of the Arbitrator is granted.
EVIDENCE FINDINGS AND REASONS
The Arbitrator proceeded to determine the dispute “on the papers” pursuant to section 354(6) of the Act, with the agreement of the parties. There was therefore, no opportunity to ask Mr. Ingram to clarify or expand upon his statements of 1 March, 2002 and 30 July, 2002.
The following documents were before the Arbitrator:
For the Applicant
(1) Statement of Stephen Ingram dated 30 July, 2002
(2)Medical Report of Dr. Richard Deaker, the Applicant’s treating doctor, dated 17 December, 2001
(3)Medical Report of Mr. Richard Arnot, the Applicant’s consultant general surgeon, dated 9 January, 2002
(4)Report of Mr. Karl Sprogis, Physiotherapist, dated 13 November, 2001
(5)Lismore Base Hospital clinical notes
(6) Written submissions dated 12 August, 2002.
For the Respondent(1) Statement of John Charles Kendall, dated 28 February, 2002
(2) Statement of Roy Ruane dated 28 February, 2002
(3) Statement of Stephen Ingram dated 1 March, 2002
(4)Investigative report of P. H. Dunn of North Coast Appraisals and Agencies Pty Ltd, dated 4 March, 2002
(5) Letter dated 18 February, 2002 from John Kendall
(6) Employer’s Report of Injury form dated 18 February, 2002
(7) Written submissions dated 8 August, 2002.
The Arbitrator was required to determine whether or not the injury arose out of or in the course of Mr. Ingram’s employment and secondly, whether that employment was a substantial contributing factor to that injury.
There is no dispute that the Appellant was employed by the Respondent and had been so employed from 30 September, 1991. There is no dispute that he attended and was present at his usual place of employment on Tuesday 22 May, 2001, on which day he was in fact on recreation leave. It is not in dispute that he attended his place of work of his own volition, for his own purposes and was not there at the request of or with the knowledge of, his employer. It is not in dispute that he attended his place of employment for the purpose of obtaining a lift to Brisbane with a sub-contractor, Mr. Mick Lovett. Mr. Ingram stated in his statement of 1 March, 2002 “I had arranged the week before to get a lift to Brisbane with one of the sub-contracted delivery drivers after he had loaded his truck at Norco. This driver’s name is Mick Lovett. I have organized to get a lift to Brisbane with another driver before, but not with Mick. My intention on that day was just to accompany Mick on his trip and come home later. I was not going to Brisbane for any specific purpose.” Mr. Ingram said that he had made this arrangement with Mr. Lovett during the week before this date. In his statement of 30 July, 2002 Mr. Ingram more specifically said “On that Friday I had organized to do a run with Michael Lovett, one of the truck drivers, to Brisbane. I did this because I’m mates with Mick and I was going to give him a hand. I had done this on two occasions previously.”
The Appellant said in his statement of 1 March, 2002: “While waiting for Mick to finish in the loading of his truck, I waited beside the truck, waiting on the loading dock. I was waiting for about fifteen minutes, when I saw a work colleague, Roy Ruane, driving a forklift through the loading area towards the store. I waved to him and he waved back upon seeing each other. Roy suddenly stopped his forklift between Mick’s truck and the store. He sat the load than (sic) he was carrying on the forklift, onto the ground. I then jumped down from the loading dock and walked over to where Roy had parked the forklift. Roy would have only been about ten metres away from the loading dock.” He then went on to explain how the forklift driven by Mr. Ruane had come to run over his foot. In his statement of 30 July, 2002 the Appellant gave a more specific and different account of what transpired up to the point where the injury to his foot occurred. He said “I arrived at about 12.30 pm at that time the truck was parked in the parking area near the road. I got into the truck there and Mick drove around and backed into the loading bay. There were three stacks of empty pallets to be taken off the truck before we left. I went inside to the storage room, got a mobile palletjack forklift and manoeuvred it to the truck. I then removed the pallets from the truck, which took about 15 minutes. I think Mick was doing paperwork whilst I was using the palletjack. After that I jumped down from the loading dock onto a concrete pad. Mick was driving the truck and I got out to open up the back doors to allow him to back onto the dock. There was no discussion about me operating the forklift, he would have known that I was experienced and knew what I was doing. I saw Roy drive the forklift around the corner of the building to my left; there was a pallet on the forklift at the time. I recognized the driver as Roy Ruane. Roy drove between the front of the truck and the corner of the old petrol station. He stopped on the gravel area of the drive and put his load down. As he drove past me I waved and called out a greeting, Roy said good day back. I know Roy as a work mate. When Roy stopped I thought he was going to talk to me. At that time the forklift was facing away from me. I walked up to talk to Roy going between the truck and the right hand side of then fork lift, there was about 2 metres between the two.” He then went on to describe how the forklift driven by Mr. Ruane had run over his foot, causing the injury.
In his statement of 28 February, 2002 Mr. Ruane stated that he had driven a loaded forklift to the front of the factory and drove past a delivery truck that was parked in the loading dock. He said that the truck was being loaded at the time and “…standing beside the truck, was another employee of Norco, Stephen Ingram. I waved to him as I drove past him. I noticed that the pallet had slipped slightly on the forklift, so I stopped the forklift and lowered the pallet to the ground. I then re-adjusted the load on the forklift by turning the wheels and accelerating slightly to force the forks under the pallet. As I did so, I heard a noise, and I turned to look behind me, and there I saw Stephen Ingram lying on the ground. I stopped the forklift and spoke to him. He said that I had run over his foot.” Later in the same statement he said: “I learned later that Stephen was on leave at the time of the incident, and was at the ice cream factory loading dock, waiting to get a lift to Brisbane with one of the sub-contracted delivery drivers. I was not aware of this at the time of the incident.”
A statement was made by John Charles Kendall on 28 February, 2002. Mr. Kendall is the Payroll Manager employed by Norco Co-operative Limited. He did not witness the accident, but stated, inter alia, in his report: “The circumstances of Stephen Ingram’s injury was that he commenced recreational (sic) on the 21st May 2001 and was due to complete his leave on 25th May 2001. He lodged a formal application for his leave. Stephen Ingram arrived at the Norco ice-cream factory at some time in the morning of 22nd May 2001. From the information supplied to me, Stephen Ingram had arranged to get a lift with one of the drivers to Brisbane. The person driving the truck was Mick Lovett, who is a sub-contractor to Norco, delivering frozen product as required. Mick Lovett’s truck was parked in the ice cream freezer loading dock at the time, but I am uncertain as to where he was at the time Stephen Ingram suffered his injury. It is possible that Mick Lovett was assisting in the loading of his truck at the time. I believe that Stephen Ingram was standing by Mick Lovett’s truck when one of the forklift drivers stopped the forklift he was driving near Mick Lovett’s truck. Stephen Ingram is alleged to have approached the forklift, the driver then moved off again, the rear wheel of the forklift running over Stephen Ingram’s left foot.”
According to Mr. Kendall the Appellant was not requested to attend on the date in question. It is submitted by the Respondent that he was on leave and was there for his own personal reasons, and without the knowledge or authority of the employer.
Following their investigation, North Coast Appraisals and Agencies Pty Limited reported in conclusions 2, 3 and 4 at page 8 of the report dated 4 March, 2002 that Mr. Ingram was on recreational leave (off duty) on 22nd May, 2001, attending the insured’s premises to accompany a delivery driver on his trip to Brisbane. While waiting at the loading dock of the insured’s ice cream factory, the claimant approached a work colleague driving a forklift truck. The driver of the forklift truck was unaware of Mr. Ingram approaching him, and drove off suddenly, running over his foot.
Dr. Arnot, who examined Mr. Ingram on Tuesday 8 January, 2002 referred briefly in his letter of 9 January, 2002, to the circumstances of the injury sustained by the Appellant, stating: “At approximately 12 noon on 22 May, 2001 your client, who was on holiday at the time, attended the Norco factory to get a lift to Brisbane with a truck driver taking a load of ice-cream. Your client was standing between the truck and the forklift talking to the truck driver, when the driver of the forklift, who did not realize that he was so close, reversed, and in the process the wheel of the truck passed over his left foot.”
There was no statement or other evidence from the sub-contracted truck driver, Mr. Michael Lovett, before the Arbitrator.
There was no reference in any of the documents before the Arbitrator, save for the Appellant’s second statement of 30 July, 2002 that pointed to any work being done by the Appellant at his place of employment on 22 May, 2001, while he was on recreation leave. None of the statements made or reports prepared gave any suggestion that he had been working while he was there on that day. Mr. Ruane’s direct evidence is that he saw the truck being loaded and the Appellant waiting by the truck. That is consistent with the Appellant’s statement of 1 March, 2002. It has been submitted that there is no contradiction in the two statements made by the Appellant and that it is quite an assumption on the Arbitrator’s part to imply such a contradiction. However, I consider that having regard to the whole of the evidence before the Arbitrator, it was reasonable for the Arbitrator to come to the conclusion that the Appellant attended his place of employment for reasons other than to perform work and further, that there was a conflict of substance between the two statements made by the Appellant as to whether he did or did not engage in work.
The Arbitrator went on to find at paragraph 23 “Even if I am satisfied that he did carry out the work that he says he did, that is the operation of a pallet jack fork-lift, it was not whilst he was carrying out that work that he sustained his injury. It was after he had allegedly done that work that he then approached the other worker for personal reasons, not to do something he was required, expected or authorized to do. I do not consider that at the time the Applicant went off to talk with Mr. Ruane that he was in the course of his employment.”
The Arbitrator’s view of the evidence was not that he necessarily accepted that the Appellant did do the work, but even if he did, he considered that the task had been completed by Mr. Ingram who was then waiting by the truck for the purpose of accompanying his friend, Mr. Lovett to Brisbane. After waiting for a period of time the Appellant was injured by the forklift driven by Mr. Ruane who in fact said that he saw Mr. Ingram waiting by the truck. In any event, according to Mr. Ingram’s statement of 30 July, 2002 at paragraph 3, he said that he was simply giving Mr. Lovett, (a sub-contractor and not his employer), “a hand” on a day on which he was actually on leave from his employment. Mr. Ingram states in paragraphs 2, 3 and 4 of his statement “I had started annual leave two days before hand on the Friday. On that Friday I had organized to do a run with Michael Lovett, one of the truck drivers, to Brisbane. I did this because I’m mates with Mick and I was going to give him a hand. I had done this on two occasions previously. I did not report my presence on site to anybody, as far as I am aware this is not required.” He then went on to describe how he assisted Mr. Lovett.
There is no dispute that the Appellant suffered the injury to his foot on the date, in the manner described and at the premises of his employer, Norco Co-operative Limited. Section 4 of the Act defines “injury” for the purposes of workers compensation as follows:
(a)means a personal injury arising out of or in the course of employment, and
(b) includes:
(i)a disease contracted by a worker in the course of employment, where the employment was a contributing factor to the disease, or
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, but
(c) does not include…
Was the injury suffered by the Appellant an injury that arose out of or in the course of his employment? The injury may (or may not) arise either “out of”, or alternatively “in the course of employment” to satisfy the definition for the purposes of workers compensation. Also, Section 9A of the Workers Compensation Act 1987 (“the 1987 Act”) provides:
”9ANo compensation payable unless employment substantial contributing factor to injury
(1)No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.”
If an injury arises out of employment there must be a causal connection between the injury and the work that was required to be performed: Mercer v The Australian and New Zealand Banking Group Ltd (Unreported, 15 December 1998 Matter 30455/97; Stanton-Cook v NSW TAFE Commission [1999] NSW CC 5. (But see Mercer v ANZ Banking Group Ltd [2000] NSWCA 138 where in relation to the application of Section 9A of the 1987 Act it was held that the trial Judge had erred in holding that a “substantial contributing factor” is as stringent a causal-linkage concept as that of “arising out of” the employment. It was said that one might envisage situations in which an injury might satisfy the former test yet would not satisfy the latter test – Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 per Ashley J at [54] considered and followed). If the person’s employment in that particular job caused or contributed to the injury sustained, then the injury can be taken to have arisen out of the employment: Nunan v Cockatoo Docks and Engineering Co Pty Ltd (1941) 41 SR (NSW) 119 per Jordan CJ. In Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504, Starke J said inter alia, at page 517:
“The expression ‘arising out of’ imports some kind of causal relationship between the employment, but it does not necessitate direct or physical causation. Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do out of his service: Stewart v Metropolitan Water Sewage and Drainage Board (1932) 48 CLR 216 at 226.”
An injury arising in the course of employment is one that arises during the whole of the time that the person is engaged in the performance of his or her duties of employment and other things that are reasonably incidental to it: Davidson and Another and Mould [1944] 69 CLR 96. In Katroullis v E R McNamara Pty Ltd [1993] NSWCC 6, Geraghty J observed that the words ‘in the course of employment’ “do not seem to bear any longer their obvious and immediate meaning. They have an extended meaning, a development which has taken place since Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.” His Honour also referred to Hatzimanolis v ANI Corporation Ltd (1992) 8 NSWCCR 242. He said:
“In their joint judgments, Mason CJ, Dean, Dawson and McHugh JJA, refer to section 9 of the Act which provides that a worker who has received an injury is to receive compensation. Section 4 of the Act defines injury as meaning ‘personal injury arising out of or in the course of employment’. For the purposes of section 4, ‘course of employment’ is not identical with a period of employment of a worker, or with the work which the person performs. It includes ‘the natural incidents connected with a class of work’. It also includes episodes, incidents in which the worker may be injured in doing something which is part of or incidental to his service.
Dixon J, in Whittingham v Commission of Railways (WA) (1931) 46 CLR 22 at 29 thought that in considering what was incidental to service:
‘the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment.’”
In that case Dixon J also said that there could ‘no longer be any doubt that the accident must happen while the employee is doing something which is part of or incidental to his service.”
In Humphrey Earl Ltd v Speechley, Dixon J, said at 133 that the question whether a worker had been injured in the course of employment is aided by asking was the worker doing “something which he was reasonably required or authorized to do in order to carry out his duties.”
However, in Hatzimanolis v ANI Corporation Ltd, cited above, the High Court held:
“an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.”
McManamey, Goldberg and Monaghan, Workers Compensation Law Manual at par 2.440 state that the essential thread running through the cases (since Hatzimanolis) is that the employer expressly or impliedly induced or encouraged the activity. The mere authorization by an employer of an activity will not be enough to bring it within the course of employment: WorkCover Authority (NSW) v Billpatt Holdings Pty Ltd (1995) 11 NSWCCR 565.
Turning to section 9A of the 1987 Act Neilson J, in Stanton-Cook v NSW TAFE Commission, previously cited, said:
“Since the enactment of s9A it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorized to do in pursuit of his employment contract.”
In Mercer v ANZ Banking Group Ltd, previously cited, the Court of Appeal held, inter alia:
“In applying s 9A(1) of the Act, it is the strength of the causal linkage between the employment concerned and the injury that is in question. The words ‘employment concerned’ reinforce the view that it is the work activity in which the worker was actually engaged at the time of injury that is relevant. A ‘contributing factor’ must be some event, or occurrence in the course of employment or some characteristic of the work performed or the condition in which it was performed. The ultimate question is whether the activity or task was a ‘substantial contributing factor to an injury’ bearing in mind that the concept is exegeted in s 9A(2) and 9A(3). Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 applied.”
It is not the fact of employment but the actual work that the injured person is required to do in the course of that employment that is relevant. It is what the injured person was in fact doing in his or her employment that caused or contributed to the injury as defined in section 4 of the Act.
The Court of Appeal also agreed with Bishop J of the Compensation Court that “substantial” meant “more than minimal - large or great”.
In the final analysis, there is no suggestion in any of the documents or statements before the Arbitrator, other than the Appellant’s second statement of 30 July, 2002, that he engaged in any work. In that statement, which was not consistent with the contents of his statement of 1 March, 2002, he said that he attended at his place of employment while on leave, in order to give his friend, Mick Lovett, a sub-contracted driver, (not his employer) a hand, and to accompany him to Brisbane. There was no statement made by Mr. Lovett that was put before the Arbitrator. Mr. Lovett may have been in a position to say one way or the other, whether the Appellant did or did not perform the work that he claimed to do, in what capacity and for whom he did it. On the available evidence it was open to the Arbitrator to conclude on the balance of probabilities, that no work was undertaken by the Appellant that related to his employment.
The Appellant did not attend his employer’s premises for the purpose of performing work in the course of his employment. Having regard to the authorities cited, it is clear that the employer would have been required to have “expressly or impliedly induced or encouraged the activity.” The fact is that Mr. Ingram’s employer did not induce, nor authorize nor encourage him to perform the work that he alleged he undertook. His employer did not know that he was present on the premises, had not requested him to attend and did not expect him to be there. Mr. Ingram said himself that he did not report his presence, as he did not think that this was required. He attended for his own purposes, that is, to give his friend Mr. Lovett “a hand” and to accompany him to Brisbane, as he clearly stated. In any event, whatever the facts regarding the alleged work, the Appellant at best had completed what he was doing to assist Mr. Lovett, and was waiting to accompany him to Brisbane. On the evidence it was open to the Arbitrator to conclude that the injury did not arise out of or during the course of, his employment. Accordingly, I do not agree that the Arbitrator is in error.
Having regard to the evidence and the authorities cited, I agree with the Arbitrator that the Appellant’s employment was not a substantial contributing factor to the injury sustained by him.
Section 352(7) of the Act provides that on appeal, the decision (of the Arbitrator) may be confirmed or may be revoked and a new decision made in its place. In this matter, the decision should be confirmed.
DECISION
The appeal is not allowed. The decision appealed against is confirmed.
COSTS
No order is made as to costs.
Gary Byron
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission
Registrar Date:
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