Knight v State of New South Wales (Western NSW Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Knight v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 587
APPLICANT:	Jessica Knight
RESPONDENT:	State of New South Wales (Western NSW Local Health District)
Member:	Rachel Homan
DATE OF DECISION:	24 October 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant sustained physical and psychological injuries when she intervened in a dog attack at her home; applicant permitted to work from home and performing work duties when the attack commenced; whether “in the course of employment”; whether employment was a “substantial contributing factor” to the injury; Bill Williams Pty Ltd v Williams; Blacktown City Council v Smith discussed; Held – the attack occurred in the workplace; the applicant’s intervention in the dog attack to protect her daughter’s puppy was a reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances; the applicant remained “in the course of employment” at the time of the injury; the puppy was tied up outside in order to facilitate a quiet and appropriate workplace in which to take work calls; employment a substantial contributing factor to the injury; awards in favour of the applicant.
determinations made:	1. The applicant sustained an injury in the course of her employment with the respondent on 8 October 2021 pursuant to s 4(a) of the Workers Compensation Act 1987. 2. The employment concerned was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987.
ORDERS made:	3. The respondent to pay the applicant weekly compensation from 8 October 2021 to date and continuing, pursuant to ss 36 and 37 of the Workers Compensation Act 1987, based on the agreed pre-injury average weekly earnings rate of $1,433.39, as periodically indexed. 4. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts, and/or valid Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Ms Jessica Knight (the applicant) was employed by the State of New South Wales (Western NSW Local Health District) (the respondent) as a case worker in a court diversion program. On 8 October 2021, the applicant was injured at her home when she intervened in a dog attack.
The applicant made a claim for compensation which was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 October 2021.
The insurer disputed that the applicant’s injury occurred “in the course of employment” or arose out of employment for the purpose of s 4 of the Workers Compensation Act 1987 (the 1987 Act). It was also disputed that employment was a “substantial contributing factor” to the injury pursuant to s 9A of the 1987 Act.
That decision was maintained following internal review on 24 May 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 18 July 2022. The applicant seeks weekly compensation from 8 October 2021 and compensation pursuant to s 60 of the 1987 Act for incurred medical and related treatment expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared before the Commission for conciliation conference and arbitration hearing on 19 September 2022 via Microsoft Teams. The applicant was represented by
Mr Andrew Parker of counsel, instructed by Ms Aleisha Nair. The respondent was represented by Mr Phillip Perry of counsel, instructed by Mr Najeh Marhaba. A representative from the insurer, Ms Johnston, was also present.
During the conciliation conference the parties informed me that the pre-injury average weekly earnings (PIAWE) rate was agreed at $1,433.39, indexed to $1,460 from 1 April 2022. The respondent agreed that there was no dispute as to the extent of the applicant’s incapacity. The only issue was whether the incapacity and any need for treatment resulted from a compensable injury under the 1987 Act. The parties agreed that in the event of a favourable determination for the applicant, a general order pursuant to s 60 of the 1987 Act would be appropriate.
An application to cross-examine the applicant was made by the respondent. The applicant indicated an objection to the application and, following some informal discussion, the application was withdrawn.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury in the course of or arising out of employment pursuant to s 4 of the 1987 Act, and
(b) whether employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    documents attached to an Application to Admit Late Documents lodged by the applicant on 9 August 2022.
The applicant’s evidence is set out in a written statement dated 30 April 2022.
The applicant gave evidence that during the July to October 2021 COVID-19 lockdown, she was mostly required to work from home. The applicant and her co-workers were able to go into the office, if necessary, but the applicant was immunocompromised and not able to work from the office.
On 8 October 2021, the applicant was working from home. The applicant’s job required her to constantly be on the phone and take video calls. The applicant was looking after her daughter’s puppy on the date of the accident and had to keep the puppy outside so he did not disturb her calls.
The applicant did not have adequate fencing in her backyard and so had tied the puppy up to a post about a metre from her front door.
The applicant stated:
“Around 8:45AM, I had just gotten off the phone with my boss and went to sit back down at my work-from-home desk in order to check some emails.
Just after I sat down, I heard my daughter’s puppy crying.
I do not have a screen door, and my wooden front door was closed. I opened the front door, and saw that a stray blue heeler cattle dog had hold of my daughter’s puppy.
I tried to pull my daughter’s puppy away from the dog in order to bring him inside. While doing so, the stray blue heeler cattle dog latched onto my right hand.”
As a result of the dog attack, the applicant suffered severe lacerations to her hand and a severe post-traumatic stress disorder. The applicant remained unfit for work and continued to experience ongoing pain and restriction in her hand and severe psychological symptoms.
Amongst the medical evidence attached to the ARD was a discharge summary from Orange Hospital, which included the following note,
“Bitten by cattle dog in street while working from home
No previous injuries to hand”
A SIRA certificate of capacity was issued on 14 October 2021 by Dr Madhukar Kumar which described the injury as follows:
“Pt was working from home, ventured out to save her pet dog @ the front door and got attacked by the dog.”
Clinical records from psychologist, Ms Lisa Cunial, include a note made on 14 October 2021 as follows:
“Events that occurred on Friday just passed. She reported that she was attached by a dog at the front door. The dog had tried to attack her dog (a whippet) but it was ok. The dog then attacked her daughter’s puppy. The dog latched onto her hand.”
On 26 October 2021, Ms Cunial noted:
“Dog is still across road, got out on Friday, tried to attack her dog again. It kept running at fence.”
On 9 November 2021, Ms Cunial noted:
“Still not working, Dog is still across the road. She has bad days. She had a good day on Friday. Shower, 1st proper day. Sunday she hit a low. Doesn’t know what is happening with workcover. In a lot of pain. Worried about Dog coming back. Big fence up – found some money. Builder doing it.”
A medicolegal report was prepared in support of the applicant’s claim by psychologist,
Dr Frank Chow on 29 January 2022. Dr Chow recorded a history in that report as follows:
“She stated that on 8 October 2021, she was working from home. She was on a phone call with her manager. She stated that her dog was tied up to the front door. She was working when her dog was attacked by another dog belonged to her neighbour. She stepped out through the front door and was subsequently attacked by the neighbour's dog, sustaining a right hand injury with nerve damage. Her daughter drove her to the hospital and she was transferred to Orange Hospital for further surgery.”
Orthopaedic surgeon, Dr Todd Gothelf also prepared a medicolegal report on 12 April 2022 which recorded the following history:
“Jessica indicated that the injury occurred on 8 October 2021 while working from home. Jessica indicated that her position required her to constantly be on the phone and take video calls. Jessica recently purchased a puppy for her daughter which they kept outside in order to not disturb phone calls. Jessica explained that they often tied the puppy up to a post outside the front door as they did not have a high enough fence. On the morning of 8 October 2021, Jessica heard the puppy crying and she noticed that a stray Blue Heeler cattle dog had hold of the puppy. Jessica went to take the puppy away from the stray dog and in doing so the dog latched onto her right hand.”
An incident form completed on 11 October 2021, attached to the Reply, described the injurious event, as follows:
“@ 8.45 on Friday 8th October 2021, whilst working from home …, i heard dogs fighting on my front porch. As I opened my front door, a stray Blue Cattle Dog had ahold of my daughters pup and woudn’t let go. I attempted to pick up my daughters pup to protect it and as I did this, the cattle dog let go of the pup, latched onto my hand and wouldnt let go. I screamed out to my daughter and when she came running out the front the cattle dog let go of my hand. My daughter then rushed me staright to Molong hospital. I was then transported to Orange Hosptial by and underwent surgury of my hand on Saturday 9th October 2021 [sic].”
Attached to the Application to Admit Late Documents lodged by the applicant on
9 August 2022 was a blank ‘Request to Work from Home’ form on the respondent’s letterhead.
The form included a “working from home self-assessment” checklist. The checklist required responses in relation to a range of matters covering essential equipment, workstation, telephone and environment. In relation to environment, the worker was asked,
“Do you find the noise levels appropriate (are you able to concentrate)?”
The form provided for signatures for the “Manager’s authorisation” and “Worker’s acceptance”.

Applicant’s submissions

The applicant submitted that she was, at the time of the injury, working in her workplace, which was her home.
The applicant referred to the High Court decisions in Weston v Great Boulder Gold Mines Ltd[1] and Commonwealth v Oliver[2] as setting out the applicable law, being that, with some exceptions, anything at all that happens to a worker while at work happens in the course of employment.
[1] [1964] HCA 59.
[2] [1962] HCA 38.
The applicant said her home was indisputably her workplace. Like millions of Australians, during the pandemic, the applicant was working from home. Unlike many workers, however, the applicant’s employer had a significant degree of control over the workplace.
The applicant submitted that it could be inferred from the unsigned Request to Work from Home document attached to the applicant’s Application to Admit Late Documents, that a careful arrangement was in place, following a thought out process for the applicant to work from home. In order to pass the threshold to work from home, the applicant had to indicate that she had access to essential equipment including a first-aid kit, fire extinguisher and smoke detector. The power outlets were not to be overloaded. The work area had to be clean and tidy and there had to be clear and direct emergency egress. An ergonomic evaluation of the workstation was required. Noise levels were required to be appropriate and facilitate concentration.
The applicant submitted that the requirement for a quiet workspace was significant given the applicant’s evidence that she had to take the puppy outside because she was required to be on the phone and take video calls in the performance of her duties.
The document indicated that the applicant’s performance of work at the home based site would be monitored. The applicant’s manager was required to undertake to provide appropriate supervision and support to the applicant for the duration of the agreement and to monitor the terms of the agreement as required.
The applicant submitted that there could be no doubt that the employer was aware that the applicant was working from home and permitted it.
The applicant referred to her evidence as to her duties, noting that she was required to constantly be on the phone and take video calls. This required her to be able to concentrate and have a quiet environment. It could be inferred that the applicant was required to conduct herself with a degree of professionalism, which would be inconsistent with a puppy running around in the background.
In these circumstances, the applicant justifiably did not want to have the dog in the house. The applicant submitted that this was what was required by her employer, whether this was specifically articulated by the employer or not. The applicant was reasonably expected to conduct herself in a professional way and ensure she was able to concentrate. This is why the applicant put the dog outside while she was working.
The applicant did not have adequate fencing in her backyard for the dog and so put the dog out the front of the house where it was attacked.
The applicant referred to her evidence that she had just gotten off the phone with her boss and had sat down to check some emails when she heard the puppy crying. The evidence established that the applicant was actually undertaking her work duties when the attack occurred.
The applicant submitted that the applicant had not taken herself out of employment. The attack occurred whilst the applicant was performing her duties. Although the applicant then went out to intervene in the attack, the attack had already started whilst the applicant was working.
The applicant submitted that there was an obvious expectation that in working from home, from time to time she may be required to go out the front door. It was entirely expected and reasonable for the applicant to go out of her front door to see what was happening in the circumstances.
To the extent that the respondent suggested the applicant had taken herself out of employment or was injured in an “interlude”, the respondent mistook and misconceived the law on s 4 of the 1987 Act. The applicant referred to the summary of the authorities in the presidential decision in SB v XFPL[3].
[3] [2022] NSWPICPD 7.
Referring to the requirements of s 9A of the 1987 Act, the applicant noted that the applicant was in her workplace at the time of the injury. Her workplace just happened to be her home. Had it not been for the applicant’s employment, the dog would not have been outside and left unattended. The dog attack would not have taken place. It was the location of the applicant’s work which lead to the injury.
The applicant referred to the decisions in Kelly v Secretary, Department of Family and Community Services, Department of Corrective Services v Clifton[4] and Smith v Australian Woollen Mills Ltd[5].
[4] [2006] NSWWCCPD 310.
[5] [1933] HCA 60.
The applicant was required to work in an environment in which she could concentrate. As a result, she had to take the puppy outside. It was a peculiar feature of her work environment that the backyard did not have an appropriate gate and so the dog was required to be tied up at the front. The attack by a stray dog occurred in that environment.
The applicant noted that it was not alleged that she had engaged in any gross misconduct taking her outside of employment. Having regard to the time and place of the attack, employment was a substantial contributing factor to the injury. The employer would have expected any worker to go and protect the puppy in the circumstances. The attack would not have occurred if the applicant had been at her usual workplace.
The applicant’s state of health and lifestyle were said to be irrelevant factors.
The applicant submitted that the tests in ss 4 and 9A were comfortably satisfied.
The circumstances of this case were distinguished from cases to which the respondent might refer in which the worker had taken themselves outside of employment at the time of their injury.

Respondent’s submissions

The respondent confirmed that there was no dispute with regard to the effect of the dog bite to the applicant’s right hand. The injury was well described in the medicolegal reports.
The respondent submitted, however, that the dog bite was remote from the nature of the applicant’s employment activities. The applicant’s job had nothing to do with dogs.
The respondent noted that it was the applicant who bore the onus of establishing the requisite chain of causation. The injury in this case was not of a nature commonly seen in the Commission. Rather, the alleged injury was a dog bite suffered in a suburban street in Molong. The connection to employment was not at all clear.
The respondent noted some inconsistencies between the applicant’s statement evidence and the histories provided in the medical evidence. The applicant’s statement described the attacking dog as a “stray” blue heeler cattle dog. In the history provided to her medicolegal expert, psychiatrist, Dr Frank Chow, the applicant described the dog as belonging to her neighbour. The applicant stated that it was her daughter's dog that got attacked and her daughter and her dog had moved out since. The applicant still had one dog at home with her.
The respondent noted that the clinical notes recorded by the applicant’s Employee Assistance Program (EAP) counsellor on 14 October 2021, only six days after the event, indicated that a dog had tried to attack the applicant’s own dog (a whippet) but it was okay. The dog then attacked her daughter’s puppy and latched onto the applicant’s hand.

The respondent also noted that in the records of Orange Hospital, the applicant gave an account of being bitten by cattle dog “in the street”. That account did not sit easily with any of the other histories provided. At least three different accounts of what occurred appeared on the evidence.
The respondent submitted that it had intended to raise these inconsistencies with the applicant under cross-examination, but the applicant had objected to the cross examination.
In these circumstances, the applicant’s submissions on the link between employment and putting the puppy outside fell away.
The respondent submitted that the dog attack would have been a noisy event that took the applicant away from her employment. The attack was occurring outside and had nothing to do with the applicant’s employment. The applicant claimed she went to the rescue of the puppy but that had nothing to do with employment. Employment had been ceased by the applicant to attend to something that had nothing to do with her work.
The respondent submitted that there was nothing to suggest the injury “arose out of” employment. The respondent submitted that the injury also did not occur “in the course of” employment.

The respondent submitted that Carthew v Badger & Ors[6] provided guidance on the kinds of circumstances in which employment is broken and worker has engaged in an activity which is completely remote from employment. The respondent also relied on Bill Williams Pty Ltd v Williams[7] (Williams) and Van Wessem v Entertainment Outlet Pty Ltd[8]
[6] [2004] NSWCA 317.
[7] [1972] HCA 23.
[8] [2010] NSWWCCPD 97.
Even if the applicant were successful in establishing an injury for the purposes of s 4, the requirements of s 9A applied. The respondent referred to the authorities in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[9] and Mercer v ANZ Banking Group[10].
[9] [2009] NSWCA 324 (8 October 2009); (2009) 7 DCR 75.
[10] [2000] NSWCA 138.
The respondent submitted that there was no link between the applicant putting the puppy outside and the applicant’s employment. It was clear on the evidence that there were two dogs in the home. There was no evidence that the applicant had put the whippet outside in order to facilitate a quiet work environment.
The connection to employment needed to be “substantial” or real and of substance. In the present case, the connection to employment was tenuous and made more tenuous by the discrepancies in the factual evidence.

The respondent submitted that the evidentiary value of the Request to Work from Home form was minimal as the form was blank. It was not disputed that the applicant had been approved to work from home. The document was of no moment or significance.
The link between the applicant’s injury and employment was tenuous. A dog known to the applicant got into an engagement with her dog. The applicant left her place of work because she was concerned about the neighbour’s dog and there were two dogs on her property that might be attacked. The applicant was right to be so concerned, but this circumstance had nothing to do with employment.
The respondent noted that records from the applicant’s counsellor suggested a fence was now being built because the applicant was worried about the dog coming back.
The applicant left her place of employment in order to attend to a domestic issue which had nothing whatever to do with employment. The applicant was not in the course of employment at the time of the injury. Employment was not a factor, let alone a substantial contributing factor to the applicant’s injury.

Applicant’s submissions in reply

The applicant submitted that there was no inconsistency in the factual evidence, and any inconsistency, if there was one, was completely immaterial. It did not matter whether there was one or two dogs on the property and it did not matter to whom the dogs belonged.
The applicant came upon the scene of a dog attack because she was working from home. Contemporaneous evidence of that circumstance could be found in the hospital records, incident form and first certificate of capacity.

FINDINGS AND REASONS

Injury

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act. The term ‘injury’ is defined in s 4:
“In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The expressions, “arising out of” and “in the course of” employment were considered in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[11] (Badawi) at [72]:
“Section 4 defines injury as ‘personal injury arising out of or in the course of employment’. The use of the disjunctive is significant, in that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9. It is established that the second limb of the definition ‘in the course of employment’ involves a temporal element and does not of itself contain a causative element. It was for that reason that Mr Zickar succeeded when his congenital aneurism ruptured when he was at work: Zickar v MGH Plastic Industries Pty. Difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but that arises not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances.”
[11] [2009] NSWCA 324 (8 October 2009); (2009) 7 DCR 75.
The applicant in this case submits that an injury was sustained “in the course of employment”.
The undisputed facts in this case are that the applicant was, on 8 October 2021, working from home. There is no suggestion that the applicant was not authorised or approved to work from home, although the evidence remains unclear as to whether the approval to work from home took place following the process outlined in the blank Request to Work from Home document.
It is also not disputed that, immediately prior to the injury, the applicant had been performing her work duties. The injury occurred at approximately 8:45 am on a Friday. The applicant’s undisputed evidence is that she had been on a call to her boss and had sat down at her workstation to check her work emails when she was drawn outside by the sound of dogs. The applicant intervened in a dog attack which resulted in a physical injury to the applicant’s hand and a psychological injury.
The applicant’s medical evidence regarding the physical and psychological effects of the dog bite is uncontradicted.
The respondent’s submissions do, however, call into question aspects of the applicant’s factual evidence by reference to various accounts of the injurious event in the documentary evidence. The respondent submits that there are inconsistencies in the factual evidence with regard to whether the applicant was attacked by a stray dog or a dog owned by her neighbour; whether there was one or two dogs at her house; whether a dog owned by the applicant (a whippet) was also attacked by the cattle dog before it attacked the applicant’s daughter’s puppy; and whether the attack occurred near the applicant’s front door as alleged or in the street.
In considering the respondent’s submissions, it is relevant to note that clinical records are not typically prepared in contemplation of litigation and are susceptible to error, particularly in relation to finer factual detail. The records to which the respondent has referred are also susceptible to differing interpretations. For example, the reference in the Orange Hospital records to being “bitten by cattle dog in street” could be interpreted as meaning the location of the attack was the road or street. Alternatively, the note could be read as meaning the attack was inflicted by a dog who lived in the same street as the applicant.
Similarly, the reference to the cattle dog having attacked the applicant’s whippet in the EAP records could be interpreted as meaning the applicant’s dog was attacked in the same incident. Alternatively, the note could be read to mean at some previous point in time the cattle dog had attacked the applicant’s whippet.
Having regard to the evidence as a whole, I accept the applicant’s submissions that any inconsistencies in the factual evidence, if they are present, are ultimately immaterial. The account consistently provided of the event by the applicant in her statement evidence and in the histories provided to her treating practitioners and medicolegal experts is that she was working, heard a dog attack outside the front of her house, went outside to investigate, saw a cattle dog with her daughter’s puppy in its mouth, intervened and was injured by the same cattle dog.
Having accepted those facts, the next issue for the Commission to determine is whether the injury occurred “in the course of employment” for the purposes of s 4.
The respondent referred to a number of authorities in submitting that the applicant had taken herself outside the course of employment when she got up to investigate the dog attack. Amongst those authorities was the case of Williams, in which McTiernan J found that employment had been interrupted by a quarrel between the worker and an assailant who had come to the workplace to “vent his wrath” upon the worker over a relationship with his wife. The assailant produced a rifle and threatened to shoot the worker, who ran from the premises. While running away, he was shot in the back.
In the same case, Stephen J referred to the High Court decision in Kavanagh v The Commonwealth[12] in holding that the expression, “injury in the course of employment” meant an injury sustained while the worker was engaged in the work which she was employed to do or in something incidental to work. There was said to be nothing more in the concept than time measured by an activity of a particular character. Justice Stephen said,
“It is a temporal concept but the relevant timespan during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in work or something incidental to it the time span endures; as soon as he ceases to be so engaged the timespan ends and with it the course of employment.
That which is incidental to a worker’s work depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee' ‘which is a matter of degree, in time, place and circumstance, as well as practice, must be considered together with the conditions of the employment’: Whittingham v Commissioner of Railways (WA) per Dixon J. [1931] HCA 49; (1931) 46 CLR 22 at p.29.”
[12] (1960) 103 CLR 547 at p. 570.
The outcome in Williams may be contrasted with that in Weston v Great Boulder Gold MinesLtd[13]. In that case, the worker was seriously assaulted by another employee, who was off duty at the time. The ill-will was unrelated to employment. The worker did nothing around the time of the assault to provoke it. The High Court applied Kavanagh’s case in concluding the worker was in the course of his employment at the time of the assault.
[13] [1964] HCA 59.
In Blacktown City Council v Smith (Smith)[14], Williams was distinguished in circumstances where a worker left her office to investigate a noise from outside. It turned out to be a man assaulting a woman in a nearby office in the same building, which was not part of the employer’s space. She was injured while assisting the victim. The worker was found to be in the course of her employment. The Court of Appeal dismissed an appeal by the employer. In doing so, Mahoney P observed:
“That relationship, ‘in the course of the employment’ does not require that there be a causal relationship between the employment and the injury. Accordingly, it is ordinarily sufficient to show that the injury arose during the time when the worker was acting in her employment; ordinarily it will be sufficient if it occurred during the times when she was, as required by her employment, at the place of her employment for the purposes of it: see generally Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 at 483 et seq. But this does not state the matter with complete accuracy. The relationship is not a mere time relationship. Some injuries which are outside the legislation may occur within the period of time during which the employment subsists and at the place of employment: see Bill Williams Pty Ltd v Williams (1972) 126 CLR 246. It is possible for the relationship between the injury and the employment which would otherwise subsist to be broken by what the worker does or, as in the Bill Williams case was envisaged, by what another person does to or in respect of the worker while the worker is at the place of the employment and during the period of it.”
[14] (1996) 14 NSWCCR 132.
Mahoney P said, “one may look to the practical necessities and mutual expectation of the parties”;
“It is, I think, relevant though not determinative to consider what, having regard to the nature or characterisation of the employment and of the events which led to the injury, would have been likely to have been the attitude of the employer to what the worker did. I do not mean by this that the matter is to be decided or even formally tested by the use of terms such as ‘allowed’. In Hatzimanolis, the Court pointed out that such terms, though they had been used by the High Court in earlier cases to describe what was and was not within the course of employment, now provide unsatisfactory tests. But if one examines or infers what was apt to be the attitude of the employer to what she did, some assistance can, perhaps, be gained in determining what was the formality or informality of the relationship existing between the worker and her employment and what was the ordinary course of the employment.”
Mahoney P found that it was proper that the worker be held to have been in the course of her employment, “in the absence of the employer and so without being able to seek permission, going to attend to a cry for help a few paces away”.
In Archer v East West Airways Limited,[15] Langsworth J held that the course of employment extends to the reasonable and normal use of the worker’s home while remaining there so as to be available on call under the terms of employment, as and when required by the employer. That case involved an airline flight attendant who was injured at her home while on “reserve duty”. The terms of her employment required her to be available to respond immediately, if called upon, to attend for duty. She tripped and fell while in the course of collecting items of clothing, which were part of her uniform, from a clothes line where they had been hung out to dry.
[15] (1976) WCR 176.
In Carroll v SL Hill and Associates Pty Limited[16], the worker died at home as a result of injuries inflicted during an assault by her professional and personal partner. The Senior Arbitrator at first instance was not satisfied that the worker was in the course of employment at the time of the assault. Keating P held that the Senior Arbitrator ought to have considered the evidence regarding the span of working hours, particularly as she was “on call”. Keating P also noted that the location of the assault occurred across many rooms, and not necessarily only when the worker was in bed, before the workday had commenced.
[16] [2018] NSWCCPD 17.
Applying these authorities, I am satisfied that the applicant was, in the present case, “in the course of employment” at the time of her injury. Although the applicant got up from her desk and walked out her front door when she heard the dog attack, I am satisfied that, unlike the worker in Williams, the applicant had not left the property, which was her workplace, when she was attacked by the cattle dog.
Furthermore, the dog attack commenced while the applicant was in the performance of her actual work duties. Although she ceased performing those duties to investigate and then intervene in the attack, as was the case in Smith, I am satisfied that this was a reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances. I do not accept that the employer would have expected the applicant to disregard the distress of the puppy and continue on with her work. I am not satisfied that this conduct took the applicant outside the ordinary course of her employment.
I am satisfied in all the circumstances, that the applicant sustained an injury “in the course of employment” pursuant to s 4(a) of the 1987 Act.

Substantial contributing factor

In order for compensation to be payable, the applicant must also satisfy s 9A of the 1987 Act, which provides:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)    A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)    This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Subsection (3)(a) makes clear that the fact that injury occurred in the course of a worker’s employment, is insufficient to establish that employment was a substantial contributing factor to the injury.
In Kelly[17] Emmett JA stated at [43]:
“The fact of the injury arising out of or in the course of the employment is relevant, but not determinative of itself, since both s 4 and s 9A must be satisfied. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related, substantial contributing factors. Whilst the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder. Being an evaluative matter involving questions
of impression and degree, a finding as to relative contributing factors is a finding of
[17] [2014] NSWCA 102.
fact (Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [48]).”
The majority judgment (Allsop P, Beazley and McColl JJA) in Badawi is summarised in the headnote to that decision, which states:
“1. The tests for an injury ‘arising out of’ employment under ss 4 and 9 and for employment being a ‘substantial contributing factor’ under s 9A must be considered separately. It is not sufficient to find that injury arose out of employment and to therefore conclude that the employment concerned was a substantial contributing factor to the injury: [85], [91].
2. The meaning of an injury ‘arising out of’ employment for the purpose of ss 4 and 9 is settled. An injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to the injury. The phrase involves a causative element and is to be inferred from the facts as a matter of common sense: [73] - [76].
3. The phrase ‘substantial contributing factor’ in s 9A also involves a causative element. It is a different or added requirement to the ‘arising out of’ employment limb of ss 4 and 9, however the causal connection required for s 9A is not less stringent than that found in s 9. Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed: [80] - [85].
4. For employment to be a ‘substantial contributing factor’ to the injury for the purposes of s 9A the causal connection must be ‘real and of substance’. The language of the section is not to be confused with interpretations such as ‘large’, ‘weighty’ or ‘predominant’. Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed: [82]-[83], [107].
5. ‘Employment’ for the purposes of s 9A is the same ‘employment’ that is under consideration in ss 4 and 9: [91]
6. In determining whether worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent that they are relevant: [89].
7. Section 9A(2)(b) directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury. It is an incorrect approach to consider some other activity other than the employment that had preceded the injury and then seek a linkage with the employment from the standpoint of that preceding activity: [95] – [98], [105].
8. The Presidential Member’s failure to consider s 9A(2)(b) by reference to the work performed and the particular tasks of that work involved a misconstruction of the provision and was an error in point of law: [99]-[100].
9. Once it is accepted that ‘substantial’ in this case means ‘in a manner that is real or of substance’ the only answer when the test is applied to the facts of this case is that the contribution of the appellant’s employment to her injury was real or of substance: [107].”

Applying s 9A of the 1987 Act in the present case, I note that the injury occurred during the applicant’s normal work hours and at her normal place of employment.
As submitted by the respondent, the nature of the applicant’s work and her work tasks had nothing to do with dogs, whether her own or not. The applicant was not required as part of her employment to care for or protect either her dog or that belonging to her daughter. The ownership of the dog or any obligation to care for her daughter’s dog were personal matters.
The applicant was, however, permitted to work from home and there is no suggestion in the evidence that the applicant was not permitted by her employer to have a dog at home while working.
It is relevant to note that the applicant was required as part of her work duties to “constantly” take phone and video calls. I accept that the applicant’s employer expected her to perform these duties in a professional manner and in an environment within the home that was sufficiently quiet and amenable to her being able to concentrate. The applicant’s evidence, both in her statement and in the accounts provided to her treating practitioners and medicolegal experts, is that she placed the puppy outside in order to be able to perform her work duties in this manner.
The reliability of this aspect of the applicant’s evidence was challenged in the respondent’s submissions by reference to the evidence suggesting that the applicant also had a whippet at home and the absence of any evidence as to whether the whippet was also placed outside to facilitate the applicant’s work.
This is a matter on which the applicant’s evidence does not touch. There is simply no evidence before me as to whether the whippet was at home at the time of the attack. There is no evidence as to where on the property the whippet was located, if it was at home at the time of the attack.
The respondent is correct in its submission that it is the applicant who bears the onus of establishing that employment was a substantial contributing to her injury.
I am not, however, satisfied that these omissions in the applicant’s evidence are sufficient to render her evidence that the puppy was placed outside in order to facilitate the performance of her work, unreliable. A puppy, by virtue of its immaturity, is likely to be prone to being noisy or a distraction. The possible presence of a second dog in the home does not render the applicant’s evidence in relation to the puppy implausible or unreliable.
There is no evidence before me to suggest that the puppy would have been tied up outside, and therefore susceptible to the dog attack, if the applicant had not been performing her work duties.
The factual material before me does suggest that the cattle dog which bit the applicant had, both before and after the incident which is the subject of these proceedings, demonstrated aggression. This suggests that there was some possibility that the injury or a similar injury would have happened anyway, had the applicant not been at work or had not worked in that employment. The probability of the injury was substantially or materially increased, however, by the unsupervised presence of the puppy tied up at the front of the applicant’s home. I accept that this circumstance arose due to the applicant being at work and the nature of her employment.
I am not satisfied that consideration of the duration of the applicant’s employment, her state of health, hereditary risks, lifestyle or her activities outside the workplace are of assistance in determining whether employment was a substantial contributing factor to the injury.
Weighing all of the circumstances, I am satisfied that employment was a substantial contributing factor to the injury and the requirements of s 9A are met.
For the reasons given above, I accept that the applicant sustained a compensable injury. The applicant will be entitled to an award of weekly compensation and s 60 expenses as claimed.

[2022] NSWPIC 587

24 October 2022