Knezevic v Laticrete Pty Ltd - [2018] NSWWCCPD 11

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Knezevic v Laticrete Pty Ltd [2018] NSWWCCPD 11
APPELLANT:	Bronwyn Louise Knezevic
RESPONDENT:	Laticrete Pty Ltd
INSURER:	AAI Ltd t/as GIO as agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-2946/17
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	23 October 2017
DATE OF APPEAL DECISION:	19 March 2018
SUBJECT MATTER OF DECISION:	Inferential finding of fact in determination of liability; r 10.5 of the Workers Compensation Commission Rules 2011 – dependants required to be party to proceedings for lump sum benefits.
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Adelstein Solicitors
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 23 October 2017 is revoked. 2. The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

Ms Bronwyn Knezevic brought proceedings in the Commission in respect of the death of her husband, Mr Jovo (John) Knezevic.
Mr Knezevic died at approximately 10.00 am on 13 June 2012 when he was struck by a truck on the M7 Motorway. At the time of his death, Mr Knezevic was married with three dependent children under the age of 9 years.
Ms Knezevic claimed a lump sum benefit for herself and “on behalf of” the three dependent children pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act). She also claimed weekly benefits pursuant to s 25(1)(b) of the 1987 Act with respect to the dependent children. In these proceedings, Ms Knezevic alleged her husband was in the course of his employment when the incident occurred or, in the alternative, it arose out of his employment.
The Insurer issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 22 January 2015, declining liability.
The s 74 notice recorded that the initial notification of injury was made on 22 October 2014. The claim was disputed on the basis that it was alleged that:
(a)    Mr Knezevic had abandoned his employment with Laticrete Pty Ltd (Laticrete) on 12 June 2012 and Laticrete was therefore not his employer;
(b)    in the alternative, he was not in the course of his employment when the incident occurred;
(c)    employment was not a substantial contributing factor to the injury (s 9A), and
(d)    the death was caused by intentional self-inflicted injury within the meaning of s 14(3) of the 1987 Act.
The matter proceeded to Arbitration on 18 September 2017. There was no application to cross-examine and the matter proceeded ‘on the papers’. The Arbitrator handed down his decision on 16 October 2017 giving oral reasons. He determined that he was not satisfied the death of Mr Knezevic arose out of or in the course of employment.
A Certificate of Determination (COD) was issued to that effect on 23 October 2017.
Ms Knezevic appealed the decision. In the Application – Appeal Against Decision of Arbitrator (Appeal Application) the name of the appellant was nominated as:
“Bronwyn Louise Knezevic in her own right and on behalf of Matthew James Knezevic, Lachlan David Knezevic and Montana Maree Knezevic”.
The above description accorded with the description of the applicant in the proceedings below.
A Direction was issued by a delegate of the Registrar on 16 November 2017 which included a direction that the appellant file an Amended Appeal Application correctly identifying the dependants who were under a legal incapacity.
On 18 December 2017, Ms Knezevic filed an amended first page of the Appeal Application nominating only herself as the appellant.
The dependent children are therefore not a party to these proceedings.

BACKGROUND

Mr Knezevic was employed as a Technical Sales Representative by Laticrete and commenced on 5 December 2011. His position required him to achieve sales goals by promoting and selling the company product, working with tile shop “partners”, tilers, contractors and architects. He was based in Sydney, with the possibility of interstate travel. His direct report was the Sales Manager and otherwise was accountable to the General Manager.[1] It appears Mr Knezevic was also supervised by the Technical Services Manager.
[1] Contract of Employment, Application to Resolve a Dispute (ARD) at 83.
Sometime prior to 12 June 2012, Mr Glen Mannix (Technical Sales Representative) and Mr Richard Wood (Sales Manager) had discussions in relation to Mr Knezevic’s (in their view) unsatisfactory performance. A decision was made that Mr Knezevic’s employment would be terminated.
Mr Fred Gray (Technical Services Manager) was also of the opinion that Mr Knezevic was not performing to the required standard.
As Mr Wood was located in the United States, a meeting was convened between Mr Gray, Mr Mannix and Mr Knezevic to discuss Mr Knezevic’s employment. The meeting was scheduled to take place at the Moorebank premises of Laticrete on 12 June 2012 at 9.00 am.
Although Mr Knezevic attended the premises that morning, the meeting did not commence, and Mr Knezevic suddenly departed the premises in the company vehicle.
During the course of 12 June 2012, email communications in relation to the status of Mr Knezevic’s employment (discussed below) passed between Mr Knezevic, Laticrete and Mr Knezevic’s legal representatives.
On 13 June 2012, while travelling on the M7 motorway in his father-in-law’s vehicle, Mr Knezevic pulled into the breakdown area. He exited the vehicle and was fatally struck by a truck travelling in the left-hand lane (lane 1) of the motorway at about 10.00 am (the incident).

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to quantum found in s 352(3) of the 1998 Act has been met.
Ms Knezevic says her Appeal Application was filed within the time required by s 352(4) of the 1998 Act. That is, within 28 days of the COD incorporating the decision appealed against.
Laticrete says the Arbitrator’s extempore reasons were given on 16 October 2017 and the Appeal Application was received by the Commission on 14 December 2017. Laticrete declines to make submissions on whether Ms Knezevic has complied with the time to appeal prescribed in s 352(4) of the 1998 Act.
It is correct to say the oral reasons for determination were delivered on 16 October 2017, however, the COD was not issued until 23 October 2017. The 28 day period commenced from the day after the issue of the COD.[2]
[2] Bielecki v Rianthelle Pty Ltd t/as Belflora [2008] NSWWCCPD 53 at [45]; Winter v New South Wales Police Force [2010] NSWWCCPD 121 at [20].
The initial Appeal Application was filed in the Commission on 13 November 2017. A Direction was issued by a Delegate of the Registrar to Ms Knezevic to file an amended Appeal Application. An amended first page of the Appeal Application (which purported presumably to comply with the Registrar’s Direction) was filed on 18 December 2017, after the time required by the Direction and after the time required to file an appeal.
Rule 16.2(11) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provides that for the purposes of s 352(4) of the 1998 Act, an appeal is made when it is registered by the Registrar. Rule 2.5 provides that the Commission is to have a seal and the seal is to be affixed to all documents registered by the Commission.
The Commission’s seal was affixed to the initial Appeal Application on 13 November 2017.
Consistent with the decision of Deputy President Snell in Ky v Blue Leaf Food Group Pty Ltd,[3] I accept that the appeal was registered on 13 November 2017. The Appeal Application was filed within the time prescribed.
[3] [2016] NSWWCCPD 55 at [23]–[31].

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“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.”
Ms Knezevic requests the appeal be given an oral hearing. She submits that an oral hearing would enable a proper consideration of the issues to be addressed and would afford justice to the parties.
Laticrete submits that consistent with the observations of the Arbitrator, the factual issues are not of a “wide compass, not generally in dispute and not necessarily complex.”[4]
[4] Laticrete’s submissions Part A at [3].
As acknowledged by the Arbitrator, the transcript of the submissions at arbitration is of very poor quality. It is particularly difficult to understand the complete submissions made by Laticrete’s counsel on the day.[5]
[5] Transcript of oral reasons of 16 October 2017 (T), 2.18–23.
A decision as to whether a matter ought to be determined on the papers of course requires a consideration of all of the evidence and submissions and whether the parties have been afforded procedural fairness in order to address any issue arising from such evidence.[6]
[6] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399; 80 NSWLR 43 (Hancock) at [115]–[120] (per Tobias JA).
This appeal is limited to whether the Arbitrator erred with respect to the inferences drawn from the facts available. Both parties have had the opportunity to address in written submissions before me as to whether the Arbitrator has fallen into error.
I accept Laticrete’s submission that the factual matrix is not complex.
While the absence of an accurate recording of submissions at arbitration is likely to be an impediment to the re-determination of the matter, I am of the view that consideration of the merits of this appeal can be undertaken on the evidence before me and the submissions made on appeal.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions made on appeal by the parties, 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.

THE EVIDENCE

Fred Gray

Mr Gray made a statement dated 21 November 2014. He described Laticrete’s business operations and Mr Knezevic’s role within the company.
He said that Mr Knezevic’s performance fell short of expectations and that Mr Mannix had the same concerns. Following a discussion with Mr Mannix, a meeting was scheduled to take place at 9.00 am on 12 June 2012 between Mr Knezevic, Mr Mannix and himself.
With respect to the events of 12 June 2012, Mr Gray stated that Mr Knezevic attended on time, but Mr Mannix was late. He said Mr Knezevic queried why the meeting was being held.
Mr Gray said he advised him that it was about his performance and his future with the company. He was not certain whether he used the phrase “exit strategy” but was sure he did not tell him he was being terminated that day.
Following that conversation, Mr Gray reported that Mr Knezevic went downstairs to make a phone call. He said Mr Mannix arrived and they both went downstairs to wait for Mr Knezevic to finish his call.
He stated that Mr Knezevic drove off in his car, despite them trying to stop him. He subsequently attempted to contact Mr Knezevic and left several messages for Mr Knezevic to call him.

Glen Mannix

In his statement dated 25 November 2014, Mr Mannix confirmed that he also had concerns in relation to Mr Knezevic’s performance and had discussed these with Mr Wood. He said that following Mr Wood’s decision to terminate Mr Knezevic, he and Mr Gray arranged a meeting with Mr Knezevic to discuss an “exit strategy”.[7]
[7] ARD, p 215 at [10].
He further confirmed that it was not conveyed to Mr Knezevic that he would be terminated.
Mr Mannix stated that when he arrived, Mr Knezevic was talking animatedly on the phone. He said after the phone call Mr Knezevic got into his car and drove off, passing them. He said they waived at him to stop, but Mr Knezevic proceeded out of the yard.
Mr Mannix said he rang Mr Knezevic several times and left messages for Mr Knezevic to contact him, which were not returned.

Bronwyn Knezevic

Ms Knezevic provided a statement dated 16 June 2016.[8] I have constrained my summary of her evidence to those parts that are relevant to the issue on appeal.
[8] ARD, pp 70–75.
She said that on the morning of 12 June 2012, she received a phone call from Mr Knezevic advising that when he arrived at work that day he was called to a meeting. She recalled that he told her that Laticrete had raised a performance issue and requested he leave his company vehicle at work. He was unsure whether the performance issue related to him or the company.
She said she advised him he should contact her father, Mr Melvyn Meyers.
She stated that when she returned home, she had a conversation with Mr Knezevic, who appeared calm. They discussed the advice provided by Mr Meyers. She provided some observations of his positive attitude to the events and the supportive family environment. She described what was apparently a fairly normal family evening.
Ms Knezevic provided her recollection of the events that transpired at home on the morning of 13 June 2012.
She indicated that at about 6.15 am, she and Mr Knezevic commenced to get ready for work. While she was dressing, he attended to the children’s breakfast. She said that this was often his practise, especially when he was visiting clients close to home, because he could leave home later.
She stated that at approximately 8.30 am “we started to head out the door. John was ready for work and was checking his emails on his laptop at the dining table … He said ‘I’m not leaving yet, so I can drop Montana to pre-school if you want.’”[9] Ms Knezevic declined the offer.
[9] ARD, p 72 at [20].
She recalled that during the day she did send Mr Knezevic a text message and may have called his phone. She did not receive a response.
Ms Knezevic said she then received a visit from the police, who were in the company of her parents and siblings. She was advised by the police officer of Mr Knezevic’s death and that it appeared to have been self-harm. She cited her husband’s character, his commitment to the family and their religious faith as reasons why she did not accept the notion of self-harm.
She stated that Senior Constable Hurst attempted to obtain statements from her and Mr Meyers but they declined any communication with the police on legal advice.

Melvyn Meyers

Mr Meyers provided a statement dated 13 June 2016.[10] As with Ms Knezevic, I have summarised only the relevant parts of the statement.
[10] ARD, pp 64–69.
He stated that Mr Knezevic telephoned him on the morning of 12 June 2012 and advised him he had a disagreement in relation to work with Mr Mannix and Mr Gray. Mr Knezevic said he was to leave his work vehicle at work. Mr Meyers said he advised Mr Knezevic to return home with the vehicle and that the family solicitors would deal with Laticrete.
Mr Meyers then engaged the solicitor, Mr Zwar.
In relation to the events of 13 June 2012, Mr Meyers said early that morning he had a brief conversation with Mr Knezevic. Relevantly, it included Mr Meyers reminding Mr Knezevic of the legal advice provided by Mr Zwar that he should go about his business as usual. Mr Meyers offered the use of his own vehicle, especially if Mr Knezevic was attending Laticrete’s premises. Mr Knezevic had reported to him that the company required him to leave his vehicle at work. Mr Meyers said that Mr Knezevic agreed to take the vehicle.
Mr Meyers stated that he was advised of the death at about 10.00 am that morning by police officers who came to the house. In a conversation with one of the officers, he mentioned the events that had transpired the day before.
He said that he, the family and the police officers attended at Ms Knezevic’s office and informed her of the death. They subsequently attended the morgue to identify the body. Mr Meyers reported that he and Ms Knezevic were involved in a conversation with Senior Constable Hurst that they felt was rather unusual. On that basis and on advice from Mr Zwar, they had no further communication with the police.

Andrew Nash

Mr Nash was the tow truck driver who was requested by the police to remove the vehicle from the motorway that had been driven by Mr Knezevic. In a statement dated 17 February 2016 Mr Nash said he had attempted to start the vehicle, but as it did not start he winched the vehicle onto the tow truck. He further stated that a Mr Mario Gaffa from Suburban Towing came to retrieve the vehicle from the holding yard. This time, with the assistance of a battery pack, the vehicle again did not start.

Mario Gafa

Mr Gafa confirmed the evidence of Mr Nash. He added that when he delivered the vehicle to Billy’s Automotive Service at Thornleigh, “Billy” attempted to start the vehicle with a battery pack and there was no response. Thereafter “Billy” tested the vehicle and advised that the vehicle was not responding whatsoever and had an “unexplained” failure. Mr Nash said that in September 2014 he relocated the vehicle to another yard.

The Police records

Four police officers attended the accident scene (Senior Constables Banks, Tanti, Hurst, and Brodie).
Several witnesses and the driver of the truck involved in the incident were interviewed and their verbal statements were recorded in the police notebooks. Relevant to Laticrete’s submissions at arbitration, Senior Constable Hurst recorded that Mr Knezevic was dressed in blue jeans, a zip up black jumper and a grey t-shirt.[11]
[11] ARD, p 21.
Only two witnesses gave statement evidence that they had seen Mr Knezevic’s vehicle before it pulled into the break down lane. Those witnesses (Mr Brown and Mr Wattling) were both travelling in the same vehicle. They did not make statements on the day of the incident. Their typed statements dated 26 August 2012 were unsigned and only the first page of two pages of the statement of Mr Brown was in evidence.
Further witness interviews were conducted and typed statements were taken in the ensuing days and in August 2012.
Although there were some inconsistencies in the witness statements, all consistently observed that Mr Knezevic alighted from his vehicle and stepped from the breakdown lane into lane 1 of the motorway, into the path of the oncoming truck.
Senior Constable Hurst provided a typed statement dated 16 August 2012 which was signed by him on 14 October 2012. He provided a background that Mr Knezevic had left home that morning at 8.30 am and at 9.50 am had parked his vehicle (a silver Ford Falcon) in a westerly direction in the breakdown lane of the M7 at Kings Park. He recorded the observations made by him at the scene of the incident. He further stated that Senior Constable Banks from Bass Hill Crime Scene attended the scene and took photographs, examined the scene and searched the vehicle driven by Mr Knezevic. He stated that “During the search, nothing of interest was located.”[12]
[12] Statement of Senior Constable Hurst signed 14 October 2012 at [10], ARD, p 44.
Senior Constable Hurst stated that he discussed the circumstances leading up to Mr Knezevic’s death with Mr Meyers. Senior Constable Hurst said Mr Meyers had informed him that Mr Knezevic had lost his job the day before the incident, that legal action in relation to the termination had been planned and that Mr Knezevic “appeared too [sic] had lost his soul after being fired … but never mentioned hurting himself.”[13]
[13] Statement of Senior Constable Hurst signed 14 October 2012 at [20], ARD, p 47.
He further stated that Ms Knezevic and Mr Meyers declined to make statements. He said they did, however, indicate that they did not believe Mr Knezevic would take his own life. At the end of the statement Senior Constable Hurst reported that Mr Meyers told him that Mr Knezevic “was going shopping when he left the house.”
None of the matters referred to in [71] and [72] above were recorded by Senior Constable Hurst in the more contemporaneous pages of his notebook adduced in evidence.

Copies of the photographs taken inside the vehicle were also annexed to the police report but are of poor quality. The poor quality of that evidence makes it difficult to establish that any particularly relevant objects were inside the vehicle.
There is no itemised list of personal belongings that may have been removed from the vehicle.
Included in the police records was an Expert Certificate issued by pharmacologist Judith Pearl confirming the driver of the truck was not under the influence of any drug at the time of the incident.
Also included was one of two pages of a Notice of Dispensing with Inquest issued by the Coroner (undated).
The unsigned initial notification of injury (referred to in the s 74 notice as having been lodged on 22 October 2014) described the accident location as “normal workplace”, the circumstances of injury as “Commuting/Journey” and under the heading of additional information “travelling from home to place of work.”[14]
[14] ARD, p 30.

Correspondence

There are a number of emails and letters passing between Mr Knezevic, Laticrete, and each of their legal representatives. The relevant correspondence is as follows:
(a)    An email was sent from Mr Knezevic to Laticrete at 11.24 am on 12 June 2012. It advises that “The matter of my unlawful termination was immediately referred to my lawyers this morning, and I have acted in accordance with their advice”;
(b)    Laticrete responded, indicating that it was unclear what was meant by unlawful termination and that if anything was deemed to be unlawful they would endeavour to correct it;
(c)    This was followed by a letter from Mr Zwar directed to Mr Wood, advising that he was instructed by Mr Knezevic that Mr Knezevic’s employment was terminated without notice and with immediate effect. Mr Zwar further advised that on the basis the termination was said to be unlawful. Mr Knezevic was proceeding to attend to his duties in accordance with his contract of employment;
(d)    Maddocks Lawyers responded on 14 June 2012 on Laticrete’s behalf, advising there had been a decision to terminate the employment, that one week of salary would be paid in lieu of notice and any performance of the duties would not be compensated. A demand was made for the return of company property including the laptop, phone, credit card and brief case, and
(e)    A response of the same date from Mr Zwar indicating that Mr Knezevic had continued in his employment, but tragically died on 13 June 2012.
Thereafter, further correspondence passed between the legal representatives with respect to recovery of the company property. It appears the Knezevic family were having difficulties locating the laptop and mobile phone. By 23 August 2012, it appears at least some of the property (including the laptop) had not been returned to Laticrete. The reason proffered was that the family were not in a fit state to attend to it.

Other evidence

Ms Knezevic relied on a report from Dr Stephen Allnutt, psychiatrist, who provided a medicolegal opinion with respect to Mr Knezevic’s state of mind at the time of the incident. The opinion was based on the documents provided to him. He formed the view that there was no evidence that Mr Knezevic suffered from a pre-existing psychiatric disorder. He opined that assuming the intention was to commit suicide, it was more likely to be an impulsive act rather than planned and deliberate.
As the arbitration proceeded, the medical evidence as to Mr Knezevic’s psychological state was not ultimately relevant to the Arbitrator’s determination.

THE ARBITRATOR’S REASONS

The Arbitrator observed that despite the limited compass of the facts in the matter, drawing inferences from them was difficult. He noted the written submissions annexed to the ARD on behalf of Ms Knezevic and the oral submissions made by both counsel at arbitration.
Despite the difficulties with the transcript, he indicated he had access to his notes and had a reasonable recollection of the submissions made by the parties. Further, he recorded that both parties were content for him to proceed to determination.
The Arbitrator provided a summary of Mr Knezevic’s employment duties and conditions, noting that Mr Knezevic was involved in travelling to various locations in Sydney and was also required to attend Laticrete’s premises at Moorebank.
The Arbitrator observed that in the absence of direct evidence from Mr Knezevic, “the events of 12 June are critical to the arguments of both parties”.[15]
[15] T, 3.22–23.
He reviewed the statements made by Mr Mannix, Mr Gray and Mr Wood. He referred to Mr Knezevic’s mobile phone records as being consistent evidence that there were several phone calls made to Mr Knezevic that morning.
The Arbitrator further referred to the correspondence by emails passing between Laticrete, Mr Knezevic, and their respective legal representatives that day and following. The Arbitrator noted that an assumption had been made in those emails that Mr Knezevic’s employment had been terminated.
Following the review of the lay evidence referred to above, and the email correspondence, the Arbitrator formed the view that despite the email correspondence, he was “unable to accept that notice of termination of employment was given to the deceased prior to his death.” The Arbitrator preferred the evidence of Mr Gray and Mr Mannix that Mr Knezevic had not been advised that his employment had been terminated.[16]
[16] T, 6.11–29.
The Arbitrator then reviewed, in some depth, the lay evidence of Ms Knezevic and Mr Meyers. He included their evidence as to what transpired at home on the morning of 13 June 2012. He noted the inconsistencies between the evidence of Mr Meyers and the more contemporaneous statement of Senior Constable Hurst. Those inconsistencies were identified by the Arbitrator as Mr Meyers having reportedly told the Senior Constable that:
(a) Mr Knezevic had appeared to have lost his soul after being fired from his job, and
(b) on the morning of the fatality Mr Knezevic had said he was going shopping.[17]
[17] T, 7.20–25.
The Arbitrator also reviewed the observations of the witnesses who were present on the motorway prior to and at the scene of the incident on 13 June 2012.
With respect to the issue as to whether Mr Knezevic was in the course of his employment when he was fatally injured, the Arbitrator noted the written and oral submissions of the parties and observed:
“There are many aspects of the evidence that would compel a conclusion that the deceased was in the course of his employment as a salesman when he was struck by the truck on the morning of 13 June.”[18]
[18] T, 8.17–19.
He distilled that evidence consisted in:
(a) Ms Knezevic’s statement that the Mr Knezevic’s appearance was suggestive of him going to work, and
(b) there was an explanation from Mr Meyers as to why Mr Knezevic was driving his father-in-law’s vehicle that day.
The Arbitrator also noted Laticrete’s submission that the description of Mr Knezevic’s attire from witnesses at the scene of the fatality was inconsistent with him being in the course of employment. He observed there was no evidence to say what was the usual attire, other than Ms Knezevic’s observations in [93(a)] above.
The Arbitrator expressed the view that the most forceful argument that Mr Knezevic was in the course of his employment was that Mr Knezevic was on a direct route to work that day.
However, he referred to aspects of the evidence that, in his view, caused doubt that Mr Knezevic was travelling to work or visiting a client at 10.00 am on 13 June 2012.
The evidence was:
(a) the time of day that Mr Knezevic was travelling on the motorway, which the Arbitrator said was an odd time to be intending to start work, and
(b) the relatively contemporaneous statement of Senior Constable Hurst that Mr Meyers had said Mr Knezevic was going shopping when he left the house.
In that relation to that evidence, the Arbitrator noted the submission of Ms Knezevic’s counsel that Mr Knezevic could have been caught up in traffic and the potential that he had left late for work that day. Further, there was no record in Senior Constable Hurst’s police notebook of Mr Meyers informing him that Mr Knezevic said he was going shopping.
He observed that statement to be un-contradicted by other evidence, although it “may be incompatible with much of Mr Meyers’ evidence.”[19] He further observed that a salesman who travels to perform his work may be in the course of his employment from the time he leaves his place of abode until he returns.
[19] T, 9.25–27.
Taking into account the communications that transpired between Mr Knezevic and Laticrete’s employees on 12 June 2012, the Arbitrator concluded that “the hypothesis that the deceased was in the course of his employment at the time of his death is speculative.”[20] He formed the view that in the circumstances it was unlikely that Mr Knezevic would attend Laticrete’s premises without first having made a phone call.
[20] T, 9.32–10.1.
He said there was also no evidence to suggest Mr Knezevic was intending to visit a client that morning.
Taking into account the examination of the evidence above, the Arbitrator concluded that the evidence was conflicting and speculative, and that he was unable to draw an inference that Mr Knezevic was in the course of his employment.
The Arbitrator then considered the alternative argument that Mr Knezevic’s death arose out of his employment. He noted that the apparent mechanical problems with Mr Meyers’ car was an explanation as to why Mr Knezevic had pulled into the breakdown lane.
He recorded the argument that Mr Knezevic committed suicide was not pressed at arbitration. He said:
“… to my understanding, it was not put that there was an arguable case of causal nexus between the death of the deceased and his employment.”[21]
[21] T, 10.15–17.
The Arbitrator also said that the thrust of the submissions made by counsel for Ms Knezevic was that Mr Knezevic did not commit suicide.
The Certificate of Determination issued on 23 October 2017 records:
“The determination of the Commission in this matter is as follows:
1. It has not been established that the death of Mr Knezevic on 13 June 2012 arose out of or in the course of his employment.
2. Award for the respondent.”

GROUNDS OF APPEAL

Ms Knezevic alleges error on the part of the Arbitrator on the following grounds:
“Ground 1: The Arbitrator erred when he found that the Deceased was not in the course of his employment at the time of his injury and death.
Ground 2: The Arbitrator erred when he found that the deceased would have travelled to his place of work before going to visit clients.
Ground 3: The Arbitrator erred when he applied and relied upon a statement from Constable Hurst that the Deceased’s father-in-law had said he had been told that the deceased was going shopping at Myers.”

THE LEGISLATION

Section 25(1) of the 1987 Act provides for benefits to dependants of a deceased worker. Section 25 was amended by the Workers Compensation Amendment Act 2015. Clause 5 of Pt 19I of Sch 6 of that Act provides that the amendments to s 25 do not apply to deaths that occurred before 5 August 2015 (the date the Bill was introduced to the Legislative Assembly). Section 25(1) of the 1987 Act, as it appeared prior to that date and as it applies to this claim, provided:
“25 Death of a worker leaving dependants (cf former s 8 (1))
(1) If death results from an injury, the amount of compensation payable by the employer under this Act shall be:
(a)the amount of $425,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and
(b)in addition, an amount of $66.60 per week in respect of:
(i)each dependent child of the worker under the age of 16 years, and
(ii)each dependent child of the worker being a student over the age of 16 years but under the age of 21 years.”
Rule 10.5 of the 2011 Rules provides:
“10.5 Applications in the case of death of a worker
(1) In proceedings for lump sum compensation under section 25 of the 1987 Act, the following persons shall be joined as respondents:
(a)the personal representative (if any) of the worker, if that personal representative is not already an applicant,
(b)if the proceedings are brought by or on behalf of only some of the dependants, the other dependants, and
(c)any other person claiming to be a dependant.”

SUBMISSIONS

Ms Knezevic’s submissions

Grounds 1 and 2

Ms Knezevic refers to the Arbitrator’s observations that there was “compelling” evidence in favour of the proposition that Mr Knezevic may have been on a journey to work. The Arbitrator described as “most forceful” the argument Mr Knezevic was on a direct route to his place of work.
Ms Knezevic submits no reasons were provided as to why that evidence was rejected in favour of what she describes as a “speculative finding” that the time of day was a rather odd time to be travelling to work.
She describes as unsound the finding that the time of day was incompatible with Mr Knezevic travelling to work or going about his work duties.
Ms Knezevic says that the evidence of Mr Meyers and her own evidence is indicative of Mr Knezevic intending to go about his normal work duties.
In addition, the evidence (regarded as compelling) should have led the Arbitrator to accept that Mr Knezevic was travelling from his place of residence either to a customer, to his place of work, from one customer to another or from a customer to his place of work.
Ms Knezevic submits that if that evidence was expressly rejected, the reasons should have been enunciated.
Ms Knezevic points to the evidence of what occurred on the morning of 13 June 2012 as being entirely consistent with Mr Knezevic’s duties. She submits that the inference was available that he was going about his normal duties. She refers to the following evidence:
(a)    Ms Knezevic says the laptop and phone records were available to and not relied on by Laticrete so that in the absence of competing evidence, the inference that they did not assist Laticrete’s case should be drawn;
(b)    The evidence of Mr Gray was that he simply did not know whether Mr Knezevic was performing his duties at the time, and
(c)    Senior Constable Hurst’s statement that he had been told Mr Knezevic was going shopping. Ms Knezevic says that if that was the case it is reasonable to presume shopping items would be found in the car, which were not evident from the photographs.

Ground 3

Ms Knezevic complains that the Arbitrator based his decision on a “hearsay comment” made by Mr Meyers to Senior Constable Hurst that was not recorded in the police officer’s notebook, nor is it found in Mr Meyers’ statement.
Ms Knezevic points to two aspects of Senior Constable Hurst’s evidence that were clearly incorrect, namely that the vehicle did not appear to have mechanical problems and that Mr Knezevic had committed suicide (expressly rejected by the Arbitrator). On that basis, Senior Constable Hurst’s evidence was unreliable.
Ms Knezevic submits that in arriving at his ultimate conclusion, the Arbitrator placed considerable weight on the statement from Senior Constable Hurst that Mr Meyers told him Mr Knezevic had said he was going shopping on the morning of the incident.
Ms Knezevic maintains that there were no items of shopping found in the car to support the notion that Mr Knezevic was on a shopping trip.
Ms Knezevic submits that the errors in Senior Constable Hurst’s evidence were such that it would be dangerous to accept his conclusions, especially in the absence of corroboration and the preponderance of contrary evidence.

Laticrete’s submissions

Grounds 1 and 2

Laticrete maintains that Ms Knezevic explicitly conceded in her submissions that the “essential” issue to determine was whether Mr Knezevic was in the course of his employment when the incident occurred. This concession is said to be at [20] of her submissions.
Laticrete interpolates the allegation of error to be that the Arbitrator failed to find that Ms Knezevic had established that the death occurred in the course of employment.
Laticrete submits that the Arbitrator did not “find” Mr Knezevic was not in the course of employment. He found he was not persuaded by the evidence and the arguments that he was in the course of employment.
Laticrete refers to the Arbitrator’s application of the reasoning of the High Court in Bradshaw v McEwans Pty Ltd[22] and Fuller-Lyons v New South Wales.[23] Laticrete relies on the Bradshaw test as adopted in Jones v Dunkel.[24] It submits that the Arbitrator found he was not satisfied to the requisite degree of certainty of the inference that Mr Knezevic was travelling to work or seeing a client.
[22] [1951] HCA 480; 217 ALR 1 (Bradshaw).
[23] [2015] HCA 31; 89 ALJR 824; 323 ALR 639.
[24] [1959] HCA 8; 101 CLR 298.
Laticrete says that that was the only inference Ms Knezevic could ask the Arbitrator to draw. It submits the material relied upon by Ms Knezevic was, in the Arbitrator’s view, insufficient to support that inference.
It submits that the Arbitrator provided sufficient reasoning when he identified the competing facts and circumstances, that is:
(a)    the time of the accident;
(b)    Ms Knezevic’s observations on the morning of 13 June 2012 that were consistent with Mr Knezevic going about his usual work day;
(c)    Senior Constable Hurst’s recollection of being told Mr Knezevic was going shopping;
(d)    the absence of evidence from Mr Meyers to refute that recollection;
(e)    no expression of intention by Mr Knezevic to Mr Meyers that he planned to proceed to work or the warehouse, and
(f)    the fact that the deceased was on a direct route between his place of abode and his place of employment.
Laticrete submits that the Arbitrator attempted and failed to reconcile the competing inferences. The Arbitrator, in applying the relevant authorities, was not convinced that inferences in favour of either party were sufficient to compel a finding in favour of one party over the other.
It was that reasoning, Laticrete submits, that led to the Arbitrator to make the finding that Ms Knezevic had not discharged the onus of proof.
Laticrete notes the Arbitrator’s comments that the question of arising out of the course of employment was not pressed at arbitration.

Ground 3

Laticrete refers to “ground three” of the appeal, that is, the Arbitrator applied and relied on the statement from Senior Constable Hurst that Mr Knezevic was going shopping. It submits that the Arbitrator did not apply or rely on that statement. It is said he observed that evidence as being before him and was evidence from which he was invited to draw an inference, as did the evidence of Mr Meyers.
Laticrete submits that the Arbitrator’s reasoning process does not disclose any error.
Laticrete maintains that the available inference that Mr Knezevic was travelling to his place of employment was no more compelling than a general assumption that might be available from Mr Knezevic’s occupation.
Laticrete submits that the inference available to the Arbitrator that Mr Knezevic was heading to a client’s premises is no more than an inference that might be drawn from Mr Knezevic’s occupation.
Laticrete further submits that there was other evidence that could have been available and was not adduced that may have assisted the Arbitrator. An example was given that evidence could have been adduced as to Mr Knezevic’s usual or routine practice.
Laticrete submits that Ms Knezevic bore the onus of proof and failed to adduce sufficient evidence to discharge that onus. It submits that the Arbitrator’s approach does not disclose error.

Ms Knezevic’s reply to Laticrete’s submissions

Ms Knezevic again submits there were compelling reasons to conclude that at the time of his death, Mr Knezevic was in the course of his employment. She submits that he was required to attend on customers at their business addresses which he could do before attending the workplace and during work hours. She maintains that a submission was made to the Arbitrator that such a practice was commonplace.

Ms Knezevic maintains there was a reasonable explanation as to why he was driving Mr Meyers’ vehicle and there was evidence that the vehicle had a mechanical fault.
Ms Knezevic further submits that Senior Constable Hurst was unaware of the mechanical failure of the vehicle. In addition to the inaccuracies in Senior Constable Hurst’s statement referred to in her primary submissions, Ms Knezevic says it is unclear from the evidence as to why he formed the view that Mr Knezevic parked the vehicle in the breakdown lane at 9.50 am.
Ms Knezevic provides a summary of the witness statements taken by police.
She submits that the only evidence that the car pulled over at about that time comes from Mr Brown and Mr Wattling who said the car was a white four-wheel drive, when Ms Knezevic submits it was a green sedan. She submits that evidence is unreliable. If the vehicle had been there for some time, then that is consistent evidence that Mr Knezevic was in the course of his employment.
Ms Knezevic submits that the Arbitrator did not take into account the erroneous nature of the conclusions reached by Senior Constable Hurst when weighing up that evidence.
It is submitted that the Arbitrator placed too much weight on the time of the incident because:
(a)    at 8.30 am Mr Knezevic was ready for work and checking emails less than two hours prior;
(b)    if Mr Knezevic had been shopping there would have been evidence of shopping bags found in the car;
(c)    Senior Constable Hurst made no contemporaneous record of the alleged conversation about shopping;
(d)    Mr Meyers’ evidence was that he did not speak to or meet with Senior Constable Hurst;
(e)    Mr Meyers denies the conversation, and
(f)    the conversation on the morning of 13 June 2012 between Mr Meyers and Mr Knezevic was entirely consistent with Mr Knezevic going about his normal work duties.
In summary, Ms Knezevic submits that it was unsafe for the Arbitrator to rely on Senior Constable Hurst’s evidence. She submits there is sufficient evidence to conclude that Mr Knezevic was in the course of his employment.

PRELIMINARY DISCUSSION

It is unsatisfactory that the three dependent children are not joined to these proceedings.
The compensation claimed in these proceedings includes a claim for lump sum benefits pursuant to s 25(1)(a) of the 1987 Act. Rule 10.5(1) of the 2011 Rules mandates that in respect of such a claim, all dependants are to be joined as parties to the proceedings.
A direction was issued to Ms Knezevic’s legal representatives to file an Amended Appeal Application correctly nominating the parties. Her legal representatives failed to comply. No submissions from Ms Knezevic have been provided as to why that is so or why the Commission should dispense with r 10.5(1).
Although the dependent children have privity of interest with Ms Knezevic in relation to the question of liability, they have competing interests with respect to the apportionment of any potential lump sum entitlement.
In the event that the decision of the Arbitrator is set aside, the lump sum benefit cannot be determined either on appeal or on remitter without those dependants being party to the proceedings.

DISCUSSION OF ISSUES ON APPEAL

It is clear from the manner in which the matter proceeded and the submissions made that Ms Knezevic was not ultimately pursuing an argument that there was a causal nexus between the death of Mr Knezevic and his employment. That is, it was alleged the death occurred in the course of employment rather than arising out of his employment.
The Arbitrator’s finding that Mr Knezevic had not been terminated from his employment at the time of his death has not been challenged on appeal.
The grounds of appeal are poorly drafted. The first ground of appeal is said to be that the Arbitrator erred when he found that Mr Knezevic was not in the course of his employment at the time of his injury or death.
As submitted by Laticrete, the Arbitrator did not make that finding. The conclusion reached by the Arbitrator was that he was unable to draw an inference that Mr Knezevic was in the course of his employment.
The two further grounds raised by Ms Knezevic are that:
(a) The Arbitrator erred when he found that the deceased would have travelled to his place of work before going to visit clients, and
(b) The Arbitrator erred when he applied and relied on a statement from Constable Hurst that Mr Meyers had said Mr Knezevic told him that he was going shopping at Myers.
The reference to shopping at “Myers” does not appear anywhere in the evidence or in any part of the reasons for decision given by the Arbitrator. The Commission is not assisted by Ms Knezevic’s legal representative misstating the facts in this case.
Ground 1 cannot succeed as the Arbitrator did not make the finding about which Ms Knezevic now complains.
Grounds two and three of the appeal rest on a consideration of whether the Arbitrator fell into error by either drawing inferences that were not available on the facts or failing to draw inferences that were.
As the same legal principles apply to both grounds of appeal I do not regard them as separate grounds and will deal with them on that basis.
An assessment of the submissions made in respect of the appeal disclose that the real challenge to the Arbitrator’s decision is limited to whether the Arbitrator erred in his determination by:
(a) failing to accord sufficient weight to the evidence that was supportive of Mr Knezevic being in the course of employment, and
(b) giving weight to the evidence of Senior Constable Hurst, when that evidence was unreliable.
For Ms Knezevic to succeed on appeal, she must establish that the Arbitrator made an error of fact, law or discretion. It is not sufficient to establish a different view is preferable.[25]
[25] Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217; 87 NSWLR 198; 13 DDCR 139 at [25].
As identified by the Arbitrator, the facts comprised a narrow compass. The following relevant facts are in favour of Ms Knezevic’s hypothesis that her husband was in the course of employment:
(a)    On 12 June 2012, Mr Knezevic was told his employment was to be terminated. The Arbitrator found that there was no acceptable evidence that the termination had taken effect. That finding has not been challenged;
(b)    Mr Meyers retained Mr Zwar to act on what he considered an unlawful termination. Mr Knezevic, in an email dated 12 June 2012 to his employer said he was acting in accordance with his legal advice;
(c)    On the same day, Mr Zwar wrote to Laticrete expressing his view that the termination was unlawful and informing Laticrete that “In those circumstances, Mr Knezevic is proceeding with his everyday duties in accordance with his contract of employment”;
(d)    On the morning of 13 June 2012, Ms Knezevic observed that Mr Knezevic was dressed for work and was using his mobile phone and his laptop. He advised her he was leaving late that day and he could drop off their daughter. She declined the offer;
(e)    Mr Meyers had a conversation with Mr Knezevic in which he reminded Mr Knezevic of the legal advice provided by Mr Zwar that he should go about his business as usual and let Mr Zwar handle the matter. Mr Knezevic agreed. Mr Meyers offered the use of his own vehicle, especially if Mr Knezevic was attending Laticrete’s premises, given Mr Knezevic had reported to him that the company required him to leave his vehicle at work. Mr Meyers said that Mr Knezevic agreed to take the vehicle;
(f)    On 13 June 2012 Mr Knezevic, while driving Mr Meyers’ car on the M7 pulled in into the breakdown lane. At approximately 10.00 am, he stepped into the path of a passing truck;
(g)    It appears to be accepted that travel in a westerly direction on the M7 at that point was consistent with a direct route to Mr Knezevic’s place of employment;
(h)    A number of witnesses provided statements of the incident. The only witness statements that purported to observe Mr Knezevic pull into the breakdown lane were not signed and were dated 16 August 2012 (some 10 weeks later). Their description of the vehicle (a white four-wheel drive) was wrong. Ms Knezevic says the vehicle was green, but the police records describe it as a silver Ford Falcon;
(i)    Senior Constable Hurst attended the scene and also informed Mr Meyers and then Ms Knezevic of the death of Mr Knezevic, and
(j)    In a letter dated 14 June 2012, Laticrete’s lawyers advised that Mr Knezevic’s employment was terminated and that if he performed any work, he would not be renumerated. The date of that letter indicates it had not come to the attention of Mr Knezevic.
The competing evidence was:
(a) Senior Constable Hurst’s statement that Mr Meyers said Mr Knezevic left home at 8.30 am and it was reported to him by Mr Meyers that Mr Knezevic was going shopping, and
(b) The assertion that Mr Meyers said Mr Knezevic was going shopping was not denied by Mr Meyers.
As discussed below, in my view in the circumstances of this case, the time of day Mr Knezevic was on the M7 motorway was not determinative. As acknowledged by the Arbitrator, Mr Knezevic’s occupation was relevant. The evidence of Ms Knezevic was that he would leave later if visiting clients and that morning had informed her that he was leaving later that day. Taking that evidence into account it could not be inferred from the time of day that Mr Knezevic could or could not have been in the course of his employment.
Ms Knezevic submits the Arbitrator’s finding rests predominantly on:
(a) whether it was open to him to accept Senior Constable Hurst’s evidence that Mr Meyers told him Mr Knezevic was going shopping, and
(b) whether the conclusion that 10.00 am was an odd time to be travelling to work was sound.
In the first instance, if Senior Constable Hurst’s evidence is reliable then it raises the probable inference that Mr Knezevic was not in the course of his employment at the time of the incident. Ms Knezevic challenges that reliability.
Firstly, she maintains that the Senior Constable said there was no mechanical failure of the vehicle, which was established to be incorrect. Secondly, he formed the view that Mr Knezevic had committed suicide, and there was no basis for that conclusion. Thirdly, he stated that Mr Knezevic had pulled into the breakdown lane at 9.50 am, which was not supported by any probative witness evidence.
There are other matters that need to be addressed with respect to Senior Constable Hurst’s statement. The Arbitrator considered the statement to be more contemporaneous. While the statement purports to be made at Quakers Hill Police Station on 16 August 2012, it was not signed by him until 14 October 2012, some 4 months after the event. It is unclear whether the typed version was fully prepared in August, or whether it was begun and not finished until the date it was signed.
In any event there is, as submitted by Ms Knezevic, no evidence as to when Mr Meyers made the statement referred to by Senior Constable Hurst. This is relevant in the light of Mr Meyers saying that on legal advice he refused to provide a statement. As it does not appear in evidence otherwise than in Senior Constable Hurst’s statement, it would likely be a paraphrased recollection made at least 8 weeks after the incident.
It would be reasonable, in my view, to consider that the recollection at least two months later of a police officer going about his usual duties might not be entirely accurate in terms of direct conversation. It was part of Mr Knezevic’s business activity to visit tile shops. An intention to “visit shops” would not be inconsistent with either the evidence of Mr Meyers and Ms Knezevic or the police officer’s recollection.
Senior Constable Hurst also records that Mr Knezevic left home at 8.30 am on 13 June 2012. There is no other document that records that information and it is somewhat inconsistent with the evidence of Ms Knezevic, who states she left at around 8.30 am and Mr Knezevic had informed her he was not leaving yet. Mr Meyers also said he had a conversation at about that time and does not put a time to when Mr Knezevic left the house.
Without some explanation, the questions raised with respect to the evidence of Senior Constable Hurst would not, in my view, tend to give that evidence the weight accorded to it by the Arbitrator. However, although Ms Knezevic maintains that Mr Meyers denied the conversation, there is no such denial in the evidence. A failure by Ms Knezevic to exclude that information is relevant as to whether an inference favourable to Laticrete can be drawn.
The relevance of the time of the incident depends very much on the evidence surrounding why Mr Knezevic would be on the M7 at 10.00 am.
If Mr Knezevic had left home at 8.30 am then that is a significant time lapse between then and the short distance he travelled.
Mr Knezevic’s contract of employment required him to travel to various clients, as well as his workplace.
The evidence of Ms Knezevic was that if Mr Knezevic was visiting clients closer to home, he would not need to leave the house early and would help out with the children on those mornings. Her evidence was that he did help out with the children on the morning of 13 June 2012.
Taking that evidence into consideration, I consider the time of 10.00 am was not an odd time for Mr Knezevic to be on the M7, either visiting clients or travelling to his place of work. It was not open to the Arbitrator to infer that Mr Knezevic was unlikely to be travelling to work at that time.
Further, the Arbitrator observed that it was unlikely that in the circumstances Mr Knezevic would travel to his place of employment without first contacting Laticrete by phone. In my view, it is mere conjecture that a worker who might elect to go about duties in any event, despite his termination, would be likely to contact his employer before travelling to the premises.
On the basis of the time of the incident, the failure to notify the employer that Mr Knezevic intended to go to their premises and the evidence of Senior Constable Hurst, the Arbitrator found that the hypothesis that Mr Knezevic was in the course of his employment was speculative.[26]
[26] T, 9.32–10.1.
Where there is no direct evidence of the circumstances, a conclusion can be arrived at by inferential finding of fact. The ultimate conclusion must rest on inferences made from the known facts.[27]
[27] State of New South Wales v Fuller-Lyons [2014] NSWCA 424 at [31].
To allow the appeal I must be satisfied that the Arbitrator’s decision is erroneous. I may be so satisfied if the Arbitrator failed to draw inferences that should have been drawn from the facts established by the evidence, as opposed to simply choosing between available inferences.[28] If the Arbitrator drew inferences that were not available on the evidence, then I may equally be satisfied that the decision was erroneous.
[28] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359 per Beaumont and Lee JJ at [24].
I am of the view that the Arbitrator’s decision is affected by error by taking into account the following speculative conclusions:
(a) that the time of day was an odd time for Mr Knezevic to be travelling at that point on the M7, and
(b) that had he been travelling to work, he would likely have contacted his place of employment first.
Those inferences were not available on the evidence and tainted the Arbitrator’s decision.
I revoke the Certificate of Determination of 23 October 2017.
As indicated, some parts of the transcript of arbitration are of poor quality.
Additionally, the three dependent children are not party to the proceedings and have a vested and competing interest in the outcome.
On that basis, I decline to re-determine the matter and the appropriate course is to remit the matter for re-determination by another Arbitrator.

DECISION

The Certificate of Determination dated 23 October 2017 is revoked.
The matter is remitted for re-determination by another Arbitrator.

Elizabeth Wood

Deputy President

19 March 2018