ISS Property Services Pty Limited v Laundess - [2024] NSWPICPD 24

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	ISS Property Services Pty Limited v Laundess [2024] NSWPICPD 24
APPELLANT:	ISS Property Services Pty Limited
RESPONDENT:	Kelly Laundess
INSURER:	Self-insured
FILE NUMBER:	A1-W802/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	23 April 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 June 2023 is confirmed. 2. I decline to grant the respondent leave to pursue its cross-appeal.
CATCHWORDS:	WORKERS COMPENSATION – injury sustained during an authorised absence from work – section 11 of the Workers Compensation Act 1987
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Murray, solicitor
lntegroe Partners
Respondent:
Mr R Stanton, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL:	Laundess v ISS Property Services Pty Ltd [2023] NSWPIC 274
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	13 June 2023

INTRODUCTION

The circumstances of the occurrence of injury in this matter are both short and uncontroversial. The respondent, Kelly Laundess, was employed by the appellant, ISS Property Services, as a cleaner at the Heckenberg Public School. The respondent had worked at this school for the five years prior to her accident on 5 September 2022, working a 40-hour week performing a wide range of duties.[1] The respondent commenced work at approximately 5 am on 5 September 2022. The respondent unlocked the school front gates and then performed a number of other tasks.[2] The respondent walked out of the main school gates and onto the public footpath in order to walk around to open another set of school gates. While so doing, the respondent noticed that the interior light in her motor vehicle had been left on. The motor vehicle had been parked immediately outside the school in the street. The respondent decided to turn the light off so she walked across the nature strip to the motor vehicle. In so doing, the respondent tripped on the nature strip, falling forward into the gutter, suffering injury. The respondent opened the other set of gates and then called her supervisor, Ms Danielle Watts, and reported the injury’s occurrence. The respondent stopped work and left to attend upon her local medical centre. Later that day the respondent presented to the Emergency Department at the Liverpool Hospital, being admitted and kept overnight for soft tissue injuries to her left shoulder, hip, and lower back.[3] The respondent was certified unfit for work by the hospital in a certificate of capacity the next day.[4]
[1] Respondent’s statement 7 December 2022, Application to Resolve a Dispute (ARD), p 2, [12].
[2] See ARD, p 2, [14].
[3] ARD, p 31.
[4] ARD, p 43.
The respondent has not worked since 5 September 2022, with subsequent certificates of capacity issued by various treating doctors with varying diagnoses related to her injury, one of which being a “cervical spine strain/whiplash, contusion of left wrist and knee”.
A claim for compensation was made on her employer, the appellant, which was denied[5] pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act), on the basis that the respondent had left her place and site of employment to attend to a personal task when sustaining her injury. A subsequent application for a review of this decision was rejected by the appellant.[6] This rejection also raised that the injury was not sustained on a journey pursuant to s 10 of the 1987 Act. These proceedings were then filed in the Personal Injury Commission (the Commission) by the respondent worker, pleading injury to the lumbar spine, stomach, cervical spine, left shoulder, left wrist, left knee and left hip.
[5] Notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 12 September 2022, ARD, p 9.
[6] Notice issued pursuant to s 287A of the 1998 Act dated 28 November 2022, ARD, p 13.
The questions before the Member were whether the respondent’s injury occurred within the course of employment, and capacity. The evidence before the Member included statements from the respondent and Ms Watts. Ms Watts stated that it was not part of the respondent’s duty to turn off her car lights, or leave the school premises without permission, although she may have given it if asked. It was acknowledged that some duties were conducted outside the premises, including opening and closing school gates, and leaf blowing.[7] The respondent stated that her role was autonomous, self-directed and she did not have set break times.[8]
[7] Statement of Danielle Watts dated 12 December 2022, Reply to Application to Resolve a Dispute (reply), p 22, [54]–[57].
[8] Respondent’s supplementary statement dated 21 March 2023, Application to Admit late Documents (AALD) 21 March 2023, pp 1–2.
The question of whether the injury was sustained during an ordinary recess or authorised absence under s 11 of the 1987 Act was first raised by counsel for the respondent in oral submissions. The appellant objected, alleging an inability to defend this new argument; but the Member ultimately allowed the respondent to argue s 11 after hearing from the parties.[9]
[9] See Laundess v ISS Property Services Pty Ltd [2023] NSWPIC 274 (reasons), [46]–[54].
In a decision dated 13 June 2023, Member Wynyard found in favour of the respondent, on the basis that the injury was sustained during an authorised absence from work, satisfying s 11 of the 1987 Act. Satisfaction of s 11 meant that the Member did not need to engage in determining whether injury arose out of, or in the course of, employment pursuant to s 4, or whether employment was a substantial contributing factor (as provided by s 9A(4) of the 1987 Act). I outline the decision in more detail below. It is the Member’s specific finding in respect of s 11 which is appealed.

THE MEMBER’S REASONS

The main argument submitted by the appellant was that the respondent had taken herself out of the course of employment through the act of turning her car light off. The appellant referred to Humphrey Earl Ltd v Speechley,[10] Davidson v Mould[11] and Carthew v Badger & Ors.[12] It was argued that Davidson, a case involving a worker injured by a drink bottle top which had misfired, was authority that an injury could arise out of employment only if it arose from an incident in which labour was performed. To establish a causal relationship with employment, the worker must have been either doing the work they had been contracted to do, or work incidental to it at the time of injury. In Humphrey Earl, a worker was involved in an accident whilst returning from a café during lunch, and in Carthew, a worker was injured after jumping into a pool where the employer was conducting a swimming school. In the latter, it was found that the injured worker was not authorised to jump into the pool. These cases, it was submitted, supported the proposition that the worker’s injury did not arise out of, or in the course of employment, as she had taken herself out of employment when turning her car light off, and was engaged in activity she had not been authorised to do. The appellant argued that employment was not a substantial contributing factor as contemplated by s 9A and Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd,[13] even if Ms Watts said she would have allowed the respondent to return to her car.[14]
[10] [1951] HCA 75; 84 CLR 126 (Humphrey Earl).
[11] [1944] HCA 10; 69 CLR 96, (Davidson).
[12] [2004] NSWCA 317 (Carthew).
[13] [2009] NSWCA 324.
[14] Reasons, [19]–[30].
The respondent’s counsel argued that the respondent’s regular duties took her outside school grounds when required to open school gates. It was argued that it was unrealistic to expect the respondent to call her supervisor at 5.30am for permission to turn off her car light. This action, it was said, was a momentary distraction from an activity that was in the course of her employment. The respondent discussed the reality of persons taking breaks at work, such as bathroom breaks, drink breaks, smoking breaks and lunch breaks. With reference to Humphrey Earl, it was argued that the question of whether an accident occurring during a work interval was compensable depended on whether a worker was reasonably required, expected or authorised to be there in order out to carry their duties. According to the respondent, preserving her transport (by turning its light off) in order to get to and from her place of work was a requirement of employment.[15]
[15] Reasons, [36]–[43].
The respondent said that Ms Watts’ concession that she would have permitted the respondent if asked, illustrated that workers have an implied authority to do certain things. With regard to s 11 of the 1987 Act, the respondent submitted that she had an implied authority to take breaks, say, to apply lipstick or go to the bathroom, albeit without express authority to do so. It was argued that it was possible to be both in the course of employment and a recess, as these provisions were not mutually exclusive, and the degree of authorisation could arise by implication, with reference to Thompson v Lewisham Hospital.[16] The effect of s 11 was that s 9A was irrelevant, but either way, s 9A(2) would be satisfied by the facts. In response to the s 11 argument, the appellant argued that the provision required an ordinary recess or an authorised absence, and Ms Watts could not retrospectively provide this authorisation, nor did the circumstances satisfy a recess.[17]
[16] [1978] WCR 111.
[17] Reasons, [43]–[49].
The Member considered the evidence of Ms Watts and Ms Laundess, and made the following findings in respect of the respondent’s absence being authorised:
“65.   There was, as [counsel for the appellant] quite properly acknowledged, no attack on Ms Laundess’ credit. Her statements were supported by Ms Watts who agreed that Ms Laundess had a wide number of duties to perform during her day, and that she was not supervised in her performance of them. Ms Watts said that Ms Laundess generally worked independently, and I accept Ms Laundess’ description of her position as being autonomous.
66.    I accept that the working relationship between Ms Laundess and Ms Watts was harmonious, and that Ms Watts found Ms Laundess to be competent and reliable in the performance of her duties. Ms Watts inspected Ms Laundess’ work once per month, but it appears that they also had a degree of familiarity as evidenced by their occasionally sharing cigarette breaks, as stated by Ms Laundess.
67.    It is also noteworthy that Ms Watts stated that, although Ms Laundess was able to call her at any time, Ms Laundess had never done so.
68.    These matters enable me to find that Ms Laundess was indeed able to choose when and where she completed her duties, and when she could take her breaks from them. The system of work operated on her assumption that she was permitted to self-direct her movements – including when she had a break for any reason. I am satisfied that permission for all these matters was implied, and indeed inherent in her role.
69. [Counsel for the appellant] submitted that as the evidence stood, Ms Watts had not given permission for Ms Laundess to go to her car to turn her lights off. Ms Watts had stated that Ms Laundess was not entitled to leave the school premises for that purpose. The effect of that submission however was somewhat reduced by Ms Watts statement that, had Ms Laundess asked, she probably would have given permission. In view of the evidence I have just referred to, I have little difficulty in inferring that Ms Laundess’ temporary absence was an authorised absence, and that consequently she is entitled to the benefit of s 11, which deems her injury ‘for the purposes of this Act,’ to have arisen out of or in the course of her employment.”
The Member acknowledged that a finding in respect of s 11 had the “deeming effect” of not requiring consideration of s 4 of the 1987 Act, but proceeded to consider the submissions in respect of this provision. With reference to the authority relied on by the parties, the Member thought it clear that the application of Davidson meant the respondent’s injury did not arise from a risk which was incidental to her duties, nor was the action of turning the car light required for her to carry out her duties. On this basis, the Member observed that the respondent would not satisfy the test under s 4 of injury arising out of, or in the course of employment; but found it to be compensable due to the application of s 11.[18]
[18] Reasons, [71]–[79].
Accordingly, the Member made the following orders in the Certificate of Determination issued on 13 June 2023:
“The Commission determines:
1. The [respondent] was injured during an authorised absence from work pursuant to s 11 of the Workers Compensation Act 1987.
The Commission orders:
1. The [appellant] will pay the following weekly payments:
(a)$664 ($1,038 - $374) from 5 September 2022 – 5 December 2022, and
(b)$500 ($874 - $374) from 6 December 2022 to date and continuing.
2. The [appellant] will pay the [respondent’s] s 60 expenses on production of accounts, receipts and/or current HIC Notice of Charge.”

GROUNDS OF APPEAL

The appellant advances two grounds of appeal limited to the application of s 11 of the 1987 Act to the circumstances of this case. They are:
Ground One – Error of fact and law in determining that the worker was able to authorise her own absence.
Ground Two – Error of fact and law in determining that the worker’s temporary absence from the place of employment on 5 September 2022 was ‘authorised’.

Notice of contention

The respondent, in answering the appeal, has lodged an additional submission entitled “Notice of Contention”. The respondent notes that while there is provision in the Personal Injury Commission Rules 2021 (the Rules)[19] for a party to file a notice of contention, there is no provision for the filing of a cross-appeal. The respondent seeks to utilise the ‘vehicle’ of the notice of contention to pursue a cross-appeal. The respondent seeks an order dispensing with the Rules under r 6, and further that the Commission make directions under r 7 to facilitate the hearing of what the respondent describes as its cross-appeal.
[19] Rule 125.

Cross-appeal

The cross-appeal is advanced on the following two grounds:
Ground One – The Member erred in law in requiring that for an injury to occur in the course of employment, the activity being performed when a worker was injured had to be an activity which was expressly or impliedly authorised so that she could carry out her work duties.
Ground Two – That the Member did not give reasons for concluding the worker’s actions in walking to her car was performing a task that was not required to carry out her duties.
The respondent seeks to vary the Certificate of Determination by finding that the injury arose out of, or in the course of employment, in addition to a finding under s 11 of the 1987 Act.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.

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.

LEGISLATION

Section 11 of the 1987 Act deals with recess claims and provides:
“If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract—
(a)     is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b)     does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c)     receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”
The respondent refers in its submissions in respect of its notice of contention/cross-appeal to rr 6 and 7 of the Rules. These provide as follows:
“6      Dispensing with requirements of Rules
(1)     The Commission may, by order, dispense with a requirement of these Rules in relation to particular Commission proceedings if satisfied it is appropriate to do so.
(2)     The President may, by order, dispense with a requirement of these Rules in relation to particular applicable proceedings, or particular kinds of applicable proceedings, if satisfied it is appropriate to do so.
(3)     The power given to the President by subrule (2) extends to a requirement of Part 5 of the Act applied to applicable proceedings, other than Commission proceedings, by a provision of these Rules.
(4)     A requirement may be dispensed with under this rule before or after the occasion for compliance with the requirement arises.
7      Directions in circumstances not covered by Rules
(1)     The Commission may give directions in relation to particular Commission proceedings concerning an aspect of practice or procedure for which these Rules or the procedural directions do not provide.
(2)     The President may give directions in relation to particular applicable proceedings, or particular kinds of applicable proceedings, concerning an aspect of practice or procedure for which these Rules or the procedural directions do not provide.
(3)     The power given to the President by subrule (2) extends to a requirement of Part 5 of the Act applied to applicable proceedings, other than Commission proceedings, by a provision of these Rules.”
Also relevant is r 125 which is in the following terms:
“125 Notice of contention and reply
(1)     The respondent must file a notice of contention if the respondent—
(a) wishes to contend that the decision to which a workers compensation dispute appeal relates should be affirmed on grounds other than those relied on by the non-presidential member, and
(b) does not seek a discharge or variation of any part of the decision.
(2)     The notice of contention must—
(a) be lodged and a sealed copy served on the other parties to the proceedings at the same time as the notice of opposition in the proceedings is lodged and served, and
(b) state, briefly but specifically, the grounds relied on and submissions in support of the contention.
(3)     The appellant may, within 14 days of service of the notice of opposition and notice of contention—
(a) lodge submissions in reply to the notice of opposition and the notice of contention, and
(b) serve a sealed copy of the submissions on the other parties.”

DISCUSSION

Given the manner in which the parties have fashioned their submissions, and in particular the novel circumstance of the respondent pursuing a cross-appeal, I propose to firstly deal with the appellant’s grounds of appeal, which I will describe below as the “primary appeal”. I will then address the respondent’s notice of contention which is expressed as a cross-appeal.

As to Ground One of the primary appeal

The appellant, having referred to the Member’s findings at reasons [68]–[69] (which I have repeated at [10] above), submits as follows:
“The appellant submits that, to the extent the Member determined that the worker was able to authorise her own absence, that finding was not supported by the evidence and constituted error of both fact and law.”[20]
[20] Appellant’s submissions 10 July 2023, [11].
The appellant argues that on the critical issue of whether the respondent could authorise her own absence, there was a conflict in the evidence between the respondent and Ms Watts, the supervisor, that the Member did not resolve. The appellant states that “the Member certainly did not reject Ms Watts’ evidence, that the worker was not entitled to leave the school premises without her permission. That evidence plainly establishes that the worker did not have autonomy to leave the worksite of her own volition.”[21] The appellant submits the factual finding that the worker could authorise her absence was wrong.
[21] Appellant’s submissions 10 July 2023, [18].
Additionally, the appellant submits that “to the extent the evidence of the worker and that of Ms Watts was in conflict on that issue, the Member has failed to make any finding as to which evidence he preferred, constituting error of law”.[22]
[22] Appellant’s submissions 10 July 2023, [23].
The appellant filed supplementary submissions dated 28 July 2023. These submissions were made as a result of the appellant receiving a copy of the transcript of the proceedings before Member Wynyard and in response to a Direction made on 14 July 2023.
The appellant identifies: “Critically, the appellant also submitted [to the Member] that the evidence in the worker’s supplementary statement – to the effect that permission for breaks was implied – was ‘denied by her superior.’ (transcript, page 19, paragraph 13-15).”[23] The appellant complains that at reasons [65] the Member said that the worker’s evidence was supported by Ms Watts, but that the identified inconsistency between the two was not addressed.[24]
[23] Appellant’s supplementary submissions 28 July 2023, [7].
[24] Appellant’s supplementary submissions 28 July 2023, [10].
The appellant then puts the following proposition on this issue of authorisation to take a break and the conflict in the evidence:
“The appellant had squarely submitted that the evidence of Ms Watts and that of the worker on this critical issue was not consistent. If indeed the Member did not accept Ms [Watts’] evidence on that issue, which is not clear from the decision, the Member has failed to make a finding as to which evidence he preferred, and why, and has failed to provide any reasons for that decision constituting error of law.”[25]
[25] Appellant’s supplementary submissions 28 July 2023, [20], citing Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430.
In reply, the respondent argues that the Member made certain observations at reasons [65]–[66], one of which accepted the autonomous nature of the respondent’s position.[26] The respondent says that “the term autonomous relevantly means functioning independently without control by others”.[27] The respondent submits that in light of this finding about the autonomous nature of the respondent’s work, the finding made by the Member at reasons [68] was open to the Member to make.[28]
[26] Respondent’s submissions 6 August 2023, [1.5].
[27] Respondent’s submissions 6 August 2023, [1.6].
[28] Respondent’s submissions 6 August 2023, [1.7].
The respondent points to Hawkins v MW & KF Hawkins Hotel Pty Ltd[29] per Neilson J at [8] where His Honour “observed with respect to a s 11 authorised absence that ‘where an employee is the de-facto employer the employee can authorise their own absence’.”[30] The respondent says that this same situation exists in this matter.
[29] [2002] NSWCC 37 (Hawkins).
[30] Respondent’s submissions 6 August 2023, [1.8].
The respondent then submits the following:
“In ground 1 the appellant argues the Member's finding that [the respondent] was able to authorise her own absence was ‘contrary to the evidence’ and hence an error of fact finding ... In explaining this argument, the appellant really only points to a few parts of the statement evidence of Ms Watts … which they assert in [appeal submissions paragraph [20]] ‘plainly establishes ... she did not have any authority to approve her own absence (and that) ... She was not permitted to leave the site without permission.’. The submissions do not define what they mean by the term ‘site’ but it is assumed they are describing the boundaries of the school - delineated by things such as fences and gates.
With respect it is submitted Ms Watts’ statement does not ‘plainly’ establish the respondent worker ‘was not permitted to leave the site without permission’. This is because Ms Watts’ statement also describes the respondent worker had to attend to ‘opening and closing the school gates’ ([reply, p 17]), that she ‘blows the driveway just outside the School gates with the leaf blower’ ([reply, p 22]) and that ‘the Cleaners pick up’ .... ‘rubbish on the footpath just outside the school premises’ (an activity she subsequently told cleaners not to do) ([reply, p 22]). As such the statement evidence of Ms Watts was describing the respondent worker actually had to ‘leave the site’ to attend to various expected tasks, or tasks they took on, such as picking up external rubbish.
As such the principal premise underlying Ground 1, that the respondent worker had no permission to leave the site, is wrong. Hence the principal part of the ground is not made out.”[31]
[31] Respondent’s submissions 6 August 2023, [1.11]–[1.13].
In terms of the appellant’s argument that there was a conflict in the evidence on the question of autonomy, and the assertion that the Member has failed to say which evidence he preferred, the respondent says that the error of law asserted is not described. However if the error is a failure to give reasons, the respondent says that the reasons discussed in her submissions at paragraphs [1.5]–[1.7] (which I have summarised above at [30]–[31]) were sufficient.
The appellant filed submissions in reply, arguing the following:
“The evidence of Ms Watts was that the worker was not able to leave the premises without permission. Accordingly, any ‘self authorising’ power was limited in scope, and did not extend to authorising her own absence from the workplace.
The Member did not resolve that inconsistency, and his ultimate finding was against the weight of the evidence. The evidence in the appellant’s submission did not permit a finding that the worker was able to authorise her own absence from the place of employment, and accordingly the Member’s finding was in error.
In her submissions, the respondent attempts to draw an analogy between the circumstances in which the worker was injured in the current matter, and the situation that would apply if she were injured taking a cigarette break ... The appellant in reply submits that it is immaterial what the legal situation would be if the worker were injured in circumstances different to those presently under consideration. It does not assist to argue that if she had been injured on a cigarette break, she would fall within the terms of s 11. They are not the circumstances in which the worker was injured.”[32]
And:
“Further, the matters cited by the respondent at [paragraph [1.12] of her submissions] were squarely addressed by Ms Watts. In her statement (Reply, page 22), Ms Watts squarely noted the limited circumstances in which the worker may perform duties ‘just outside’ the school gates. She however advised that ‘none of the insured’s staff are authorised to leave the site they clean during the duration of the shift…’ The clear inference being that permission to leave the site does not extend beyond the very limited circumstances where some duties must be performed at or just outside the school gates.
As the injury occurred after the worker had well and truly left the school premises to turn the interior light in her car off, and was not performing any of the limited duties outlined by Ms Watts (at Reply, page 22) the question is whether the evidence permitted the Member to find that this absence was able to be authorised by the worker herself. The evidence of Ms Watts was that it was not.
In the appellant’s submission, the respondent has not pointed to any proper basis on which the Member’s finding that the worker was able to authorise her own absence was correct, particularly when one has regard to the unequivocal evidence of Ms Watts.”[33]
[32] Appellant’s submissions in reply 5 September 2023, [14]–[16].
[33] Appellant’s submissions in reply 5 September 2023, [19]–[21].

Consideration

The essence of the appellant’s complaint in this ground is that the Member was in error in finding that the respondent could “self-direct her movements – including when she had a break for any reason”.[34] This, it is asserted, is wrong because it is contrary to the evidence of Ms Watts and the Member has not made any finding rejecting her evidence or explaining why it was not preferred to that of the respondent. This conflict in the evidence, it is submitted, was not resolved.
[34] Reasons, [68].
The respondent’s evidence was provided in two statements. In the first statement,[35] the respondent described her duties as follows:
“(a)    Open the school gates in the morning and close them in the evening,
(b)     Clean the school grounds, toilets, offices, staff room and community block,
(c)     Clean classrooms, including but not limited to removing rubbish, dusting, wiping tables and vacuuming,
(d)     Mop school bathroom floors and clean the toilets and sinks,
(e)     Clean outside school areas, including but not limited to washing the concrete, gutters, driveways, walkways, and playground areas,
(f)      Replace the soap, toilet paper and hand towels in the school bathrooms; and
(g)     Order cleaning supplies and dispense them to each cleaning room.”[36]
[35] Dated 7 December 2022, ARD, p 1.
[36] ARD, p 2, [12].
In the same statement the circumstances of the injury are described thus:
“On the day of the subject injury, [I] arrived at Heckenberg Public School and clocked on at about 5:04am. I began my workday as usual, I unlocked the front school gate, opened the front office, turned off the alarms, turned on the lights and collected all the rubbish from the front office. I then walked out of the main school gates and onto the public footpath, so I could walk around to open the other school gates. However, on my way to open the other gates, I noticed that I had left my interior car light on. As my car was parked only a few metres away from where I was then standing, I decided to quickly turn off my car light. However, on my way over, I tripped on the nature strip and fell forward into a ditch. My left knee landed heavily on the ground, and my stomach fell forward into the gutter. The rest of my upper body fell onto the curb and road in front of me. I immediately felt an onset of intense pain in these areas and felt quite shaky. After the initial shock subsided, I slowly got up and walked over to open the other gates. I then called my manager, Danielle Watts and told her what had happened. Danielle suggested that I make an appointment with my GP and take it easy for the rest of the day. By about 6am however, I had to stop working because I could not manage the intense, throbbing pain I felt all over my body.
…
Additionally, whilst the Insurer has disputed my claim because I left the school grounds, I can confirm that I needed to leave the school grounds regardless to undertake my usual duties, in this case to open the other school gates. Therefore, I believe that my injury occurring off school grounds is irrelevant. My job description is to clean the school grounds, not to stay on school grounds, and, as mentioned above, I often have to leave the school grounds to complete my usual duties.”[37]
[37] ARD, pp 2–3, [14]; p 7, [30].
The second statement is dated 21 March 2023[38] and was produced in response to the statement of Ms Watts relied on by the appellant. The statement relevantly provides as follows:
“[Ms Watts] correctly notes that I did not ask permission to take my break, however if I did, permission would have been provided.
There are many reasons I did not ask permission and I will outline these below.
As I am a cleaner, my role is extremely autonomous. A specific time for breaks is never given, and I am able to self-direct when it comes to breaks and works completed. The usual practice was that I could take my particular breaks whenever needed as long as I got the job done and kept the client happy. I am also often working alone without [Ms Watts] or any other managers, which is why it makes sense that my role is extremely autonomous, and permission for breaks was always implied.
At the time of my injury, I was the only person on site as it was so early, so there was no body I could ask or speak to about walking to my car. Regardless, it was not common practice to ask permission anyway and as mentioned above the usual practice is that my role is very self-guided and permission for breaks was inherent in the role.
On previous occasions when [Ms Watts] or any of my other managers had been at the site, we had both traversed the same land near where I had fallen on the date of my work injury, to take cigarette breaks as we could not take these breaks on the school grounds near the children due to no smoking laws.
In addition, I had also traversed the same land during the course of my employment as we are sometimes directed by the school to keep the area outside the school grounds clean and tidy. [Ms Watts] had always told me to ‘do whatever it takes to keep the client happy’ which sometimes meant cleaning the area outside the school and picking up any of the rubbish children or parents had left at school drop off/pick up or any rubbish that had blown over the fence.
As my role was autonomous, and I had on many occasions, left the premises to go to the area near where my car was parked for normal cigarette breaks or for my regular duties as a cleaner, I saw no issue with taking a self-directed break to turn my light in my car off. Further, permission to do so was implied in the autonomy of my role and the fact that my managers and I had even taken these types of breaks together when they occasionally visited the site.”[39]
[38] AALD 21 March 2023, p 1.
[39] AALD 21 March 2023, pp 1–2, [6]–[12].
Ms Watts’ statement which is relied upon by the appellant appears at page 15 of the reply. Ms Watts describes that the respondent reported to her. The statement relevantly provides:
“The [respondent] does not have a written Position Description for her duties. The [respondent] has a Work Schedule which shows what areas she has to clean, the duties she has to perform and the timeframes for each task/duty. I am not aware if the [respondent] does not understand her duties.
The [respondent] cleans internally and externally. Her main internal duties are vacuuming, mopping, dusting, wiping, emptying rubbish bins, cobwebbing and cleaning toilets.
Her main external duties are using the leaf blower, using the Billygoat (machine that looks like a lawn mower), cobwebbing, sweeping, emptying rubbish and opening and closing School gates in the mornings and evenings, respectively.”[40]
“The [respondent] is not supervised in the performance of her duties. The [respondent] generally works independently. I inspect the [respondent’s] work once per month. The [respondent] is able to call me at any time for any reason at all, however she has not done so.”[41]
“The [respondent] has not had to perform any duty outside a normal [cleaner’s] duties, except opening and closing the School gates, to my knowledge. She has not had to perform any duty which she is not comfortable in performing.
The [respondent’s] duties are repetitive in nature due to the fact that she performs them each day. However, she does not perform each duty from start to finish without breaking it up. She performs all her duties interchangeably. The [respondent] is allowed and able to take breaks if she requires them. The [respondent] can choose the order in which she performs her duties.”[42]
“I did not know the [respondent] left the School to go to her car to turn the interior light off, until she told me following her injury.
It was not part of the [respondent’s] duties to go to her car to turn off her interior lights.
The [respondent] is not entitled to a break in the morning shift. She was not entitled to leave the School premises to go to her car to turn the interior light off. However, if she had have asked me for permission, I probably would have provided it.”[43]
“None of the lnsured’s staff are authorized to leave the site they clean during the duration of the shift, however each day the [respondent] blows the driveway just outside the School gates with the leafblower, which is technically just outside the School premises. She does this each day.”[44]
[40] Reply, p 17, [15]–[17].
[41] Reply, p 17, [20].
[42] Reply, p 18, [23]–[24].
[43] Reply, p 22, [53]–[55].
[44] Reply, p 22, [57].
In terms of what was submitted to the Member, counsel for the appellant says in that in relation to the respondent’s assertion that permission was implied and that she could take a break when she wished: “Now that is denied by her superior”[45] (meaning Ms Watts). Counsel for the appellant then stated to the Member: “Now, of course, there’s no credit issue in this case”[46] and further: “I want to make that quite clear that there’s no attack at all on [the respondent].”[47]
[45] Transcript of proceedings 28 March 2023 (T), T19.13.
[46] T19.27–28.
[47] T20.3–4.
The relevant findings made by the Member are at reasons [65]–[69] which I have set out above in full at [10].
When one examines the statements of Ms Watts and of the respondent, and in particular the extracts I have set out above, there is very little disagreement between the two witnesses. It is not contested that the respondent is not supervised and works independently, the duties described are broadly consistent, including open school gates and cleaning driveways. The respondent says she takes breaks as she requires and Ms Watts agrees.[48] Later in Ms Watts’ statement she appears to contradict this statement when she says: “The [respondent] is not entitled to a break in the morning shift.”[49]
[48] Reply, p 18, [24].
[49] Reply, p 22, [55].
The key statement of Ms Watts relied upon by the appellant is at reply p 22, paragraph [55] where she says:
“[The respondent] is not entitled to a break in the morning shift. She was not entitled to leave the School premises to go to her car to turn the interior light off. However, if she had have asked me for permission, I probably would have provided it.”
The appellant, having submitted to the Member that there was no issue taken with the respondent’s credit, now asserts on appeal that the identified conflict in the evidence had to be resolved by the Member. In Bajramovic v Calubaquib[50] Emmett JA (Leeming JA and Adamson J agreeing) said that “[i]t is axiomatic that a party is normally bound by the way in which his or her counsel conducts a trial on behalf of the party”. The appellant cannot submit that the respondent’s credit was not issue before the Member, and then on appeal complain that the Member mirabile dictu accepted the respondent’s evidence. By accepting the respondent’s evidence on the issue of autonomy, this takes the matter into the circumstances where s 11 is satisfied as described by Neilson J in Hawkins. I am not persuaded, when one considers the entirety of the evidence, that the appellant’s attempt to distinguish Hawkins can be accepted.[51]
[50] [2015] NSWCA 139, [38].
[51] Appellant’s submissions 10 July 2023, [19].
Further on the point about whether the respondent could take a break whenever she liked, Ms Watts agrees with this proposition only to contradict it later in her statement as I have outlined at [42] above. But Ms Watts did agree that the respondent worked independently. As I have set out above, much of the evidence between the respondent and Ms Watts was not in issue. In light of the way the matter was conducted before the Member, the Member was entitled to accept the respondent’s assertion that she worked autonomously. Having accepted this, walking outside the front gates of the school was part of the respondent’s normal duties while opening the school’s sets of front gates. However, the appellant argues that the lack of authority arises when the respondent goes outside the gates to attend to the light in her car. Nowhere has the appellant taken the Member to any evidence limiting the respondent’s autonomy which had been brought to her attention. The evidence of the respondent was that she worked autonomously and no issue was taken with her credit.

I would also make this remark about one aspect of the appellant’s submissions, namely the complaint that the Member did not reject Ms Watts’ evidence. The rules of evidence do not apply in Commission proceedings.[52] Rather, the Member’s function is to assess and accord the evidence such weight as is appropriate in the evaluative exercise undertaken. Given the acknowledgement about the respondent’s credit, the Member was free, without error, to give weight to the respondent’s evidence that she had the autonomy to authorise her own absence. It was not necessary for the Member to reject Ms Watts’ evidence to make this finding.
[52] Section 43(2) of the 2020 Act.
No error has been established.
Ground One of the primary appeal is dismissed.

As to Ground Two of the primary appeal

The appellant takes issue with the Member’s remarks at reasons [69]. The argument is that by referring to Ms Watts’ statement that she would have given the respondent permission to turn off her car light, in finding that the respondent was on an authorised absence, errors of fact and law were made by the Member. The appellant says that the proper construction of s 11 requires the absence to be authorised at the time of the absence – it cannot be retrospectively authorised. This evidence from Ms Watts, the appellant submits, does not permit a factual finding that the absence was authorised.[53]
[53] Appellant’s submissions 10 July 2023, [27]–[28], [36]–[37].
In the appellant’s supplementary submissions the argument is developed in the following way:
“Before the Member, the appellant squarely submitted that the terms of Section 11 must be properly adhered to, and that the Section did not permit ‘a recess that later on someone says that had they have been contacted probably would have been permitted’ (sic) (transcript, page 45, paragraphs 29–33).
The Member did not deal with that submission.”[54]
[54] Appellant’s supplementary submissions 28 July 2023, [22]–[23].
The respondent says that the appellant has misstated the correct test. The respondent argues as follows:
“It is submitted this is not a correct statement of what ‘the test’ is. Burke J was simply describing whether a break had been permitted ‘in the circumstances’. Circumstances can infinitely vary. An authority to be absent could be given well in advance. An authority could also be a standing one which does not have to be repeated. As illustrated by [Hawkins] an authority can also be self-given. As illustrated by Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 authorisation to be away from a work site can also be provided simply by an activity being actively encouraged. As illustrated by Thompson v Lewisham Hospital the past regular taking of breaks within the knowledge of supervisors, evidences approval when further breaks are taken – which is a type of standing approval.
Given the matters and cases detailed … above it is submitted there is no requirement that any authority has to be provided ‘at the time of the absence’. As such the legal premise underlying ground 2 is incorrect and it is submitted the ground is not made out.”[55]
[55] Respondent’s submissions 6 August 2023, [2.3]–[2.4].
In reply the appellant submits the following:
“In reply, the respondent has submitted … that:
‘Circumstances can infinitely vary. An authority to be absent could well be given in advance. An authority could also be a standing one which does not have to be repeated.’
The appellant agrees. The appellant was not suggesting in initial submissions that the authorisation must actually be given at the immediate time the absence occurs. Rather, it was submitted that at the time the absence occurs, the authorisation must have already been given. This could be at the time, or at some time prior.
In both the scenarios proffered by the respondent … at the time the absence occurs the worker has been authorised. They are leaving the place of employment with the given authority of the employer.
This may be contrasted with the situation in the present matter, where no authorisation at all had been given at the time the absence occurred.
…
Moreover, the respondent has not responded to the submission that the evidence of Ms Watts was no more than she would ‘probably’ have given permission if she had been asked. The appellant has submitted that this does not constitute authorisation for the purpose of s 11. The appellant submitted that to the extent the Member’s finding at [69] was that such evidence permitted a conclusion that the absence had been authorised, this finding was not open on that evidence. The respondent has not addressed that submission in her reply.”[56]
[56] Appellant’s submissions in reply 5 September 2023, [25]–[28], [32].
The appellant also argues that Hatzimanolis,[57] relied on by the appellant, does not apply to recess injuries under s 11.[58]
[57] Hatzimanolis v ANI Corporation Ltd [1992] HCA 21.
[58] Appellant’s submissions in reply 5 September 2023, [30]–[31].

Consideration

To commence with, there is no evidence of any express authorisation being made by the appellant which was to the effect that the respondent was permitted to attend her car and turn the lights off. The real issue in this case was whether the respondent, being a worker with autonomy to carry out her duties in the order she saw fit and take breaks, could authorise her absence. As can be seen from my decision with respect to Ground One of the primary appeal, this aspect of the Member’s decision[59] has not been altered on appeal.
[59] Reasons, [68].
In terms of this ground, the evidence of Ms Watts is simply in the category of hypothetical musing or conjecture about what she would have authorised had she been asked. There is no dispute that Ms Watts had not been expressly asked for any such authority. In terms of dealing with this evidence, the Member said that it reduced the weight of the appellant’s submission that the respondent was not entitled to leave the school premises for the purpose of turning her car light off. The Member also said that this evidence enabled him to infer that the temporary absence was authorised.[60]
[60] Reasons, [69].
I do not accept that this evidence could be used by the Member in the manner in which he did, that is, by inferring a temporary absence. No actual authorisation was ever given that could be used for the purposes of bestowing authority for a temporary absence under s 11. The Member was in error for construing this particular evidence to support the finding made at reasons [69].
Ground Two of the primary appeal has been established. However, given that I have dismissed Ground One, I will be confirming the Certificate of Determination notwithstanding upholding Ground Two as the error in Ground Two does not affect the result. Although the error asserted in this ground is established (namely, that an absence cannot be authorised retrospectively), the error will not affect the result[61] given the Member’s decision that the respondent could authorise her own absence. I did not find error in the Member’s decision in this regard, in Ground one.
[61] Walshe v Prest [2005] NSWCA 333, [27].

Notice of contention – proposed cross-appeal

This now leaves the mooted cross-appeal, which in light of how I have dealt with the primary appeal grounds is for all intents and purposes redundant. However the respondent does seek a variation of the award and so I will deal with this application.
In short, the respondent wishes to pursue a cross-appeal. Neither the Rules nor the 1998 Act provide for a cross-appeal. The respondent submits that an order dispensing with the Rules should be made, pursuant to r 6, and that orders under r 7 for the further disposition of matters between the parties should be made.[62]
[62] Notice of contention, [1.4].
Given this situation, it is not clear from the respondent’s submission which of the Rules are sought to be dispensed with pursuant to r 6. This submission could be read as an application to dispense with the Rules relating to appeals and notices of contention in toto and to simply make directions under r 7 with respect to the proposed cross-appeal. I am assuming this is the case because the respondent’s application to pursue a cross-appeal is directly contrary to r 125(1)(b) and not in compliance with the rules applying to appeals (r 123). To adopt the respondent’s understated descriptor of this situation,[63] it is indeed an ‘irregular’ request.
[63] Notice of contention, [1.4].
The Rules however do provide for a party to file a notice of contention.[64] While the respondent has filed a notice of contention, this notice has been used as a vehicle by which a cross-appeal is pursued, contrary to r 125.
[64] Rule 125.
Had the respondent, having received the appellant’s appeal, wished to advance its own appeal there is a ready process available under the 1998 Act and the Rules. Namely the respondent could have filed its own appeal under s 352 of the 1998 Act and, if beyond the 28-day appeal period provided for in the section, sought leave in the usual way and in accordance with the decided cases on the extension of time in which to file an appeal.[65]
[65] See Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 (Land Enviro); Lazio Formwork Pty Ltd v Kelly; Kelly v Lazio Formwork Pty Ltd [2023] NSWPICPD 40.
To the extent that the respondent’s notice of contention/cross-appeal submissions deal with the requirement to extend time to appeal,[66] these submissions do not grapple with the primary considerations identified by the Court of Appeal in Land Enviro at [9] for such an extension to be granted. As the notice of contention is expressed in terms effectively constituting an appeal, it is axiomatic that it must comply with the provisions of the 1998 Act and the Rules associated with the filing and conduct of appeals. It does not. No submission has been made as to why relief from these rules is desirable or necessary.
[66] Notice of contention, [1.5].
The appellant opposes the filing of the cross-appeal. While I do not repeat the appellant’s submissions,[67] I accept their force and reasoning.
[67] Appellant’s submissions in reply to notice of contention, 5 September 2023, [1]–[7].
I do not grant leave to extend time for the filing of the respondent’s cross-appeal. No proper application in accordance with authority has been made for an extension of time in which to file an appeal. The application to dispense with the Rules and to make directions for the further conduct of the matter has been made in global terms. It is hard to discern exactly what it is that the respondent seeks.
This application to file a cross-appeal is rejected.

DECISION

Ground One is dismissed. Given this decision, the Member’s finding that the respondent had the capacity to authorise her own absence will stand. This is consistent with the decision of Hawkins relied upon by the respondent. This has the effect of satisfying the requirements of s 11 of the 1987 Act.
I have found that Ground Two is established, but notwithstanding the error made by the Member, this has not affected the result in light of my decision in Ground One. As a consequence, I will confirm the Certificate of Determination.
The orders are:
(a) The Certificate of Determination dated 13 June 2023 is confirmed.
(b) I decline to grant the respondent leave to pursue its cross-appeal.

Judge Phillips
PRESIDENT

23 April 2024