Laundess v ISS Property Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Laundess v ISS Property Services Pty Ltd [2023] NSWPIC 274
APPLICANT:	Kelly Laundess
RESPONDENT:	ISS Property Services Pty Ltd
Member:	John Wynyard
DATE OF DECISION:	13 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly payments and section 60 expenses denied as injuries not within employment; whether fall when leaving employment premises to switch off interior vehicle light arose out of or in the course of employment; whether authorisation can be inferred regarding section 11; Held – section 11 applicable; applicant independent in her work as school cleaner; supervisor said she would probably have authorised applicant to leave premises to turn car light off; section 11 considered and applied; worker’s injury did not arise out of or in the course of employment pursuant to section 4(a); Davidson v Mould, Humphrey Earl Ltd v Speechley and Bill Williams Pty Ltd v Williams considered and applied, but deemed section 11 injury; award for the applicant.
determinations made:	1. The applicant was injured during an authorised absence from work pursuant to s 11 of the Workers Compensation Act 1987. The Commission orders: 1. The respondent will pay the following weekly payments: (a) $664 ($1,038 - $374) from 5 September 2022 – 5 December 2022, and (b) $500 ($874 - $374) from 6 December 2022 to date and continuing. 2. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or current HIC Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Kelly Laundess, the applicant, brings an action against ISS Property Services Pty Ltd, the respondent, for weekly payments in respect of an injury she suffered on 5 September 2022.
Dispute notices were issued and in due course the Application to Resolve a Dispute (ARD) and Reply were lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) was the subject injury incurred whilst Ms Laundess was within the course of her employment, and
(b) if so, the level of capacity to perform suitable duties.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was heard in the Personal Injury Commission (Commission) on 28 March 2023. The applicant was represented by Mr Ross Stanton of counsel instructed by Ms Rebecca Gibson of Law Partners. The respondent was represented by Mr David Saul instructed by Ms Bianca Azzopardi from Integroe Partners.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 21 March 2023, and
(c)    Reply and attached documents.

Oral evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

The parties agreed the pre-injury average weekly earnings (PIAWE) was $1,092, with the appropriate amount of $1,038 for the s 36 entitlement period, and $874 for the s 37 entitlement period.
The facts may be stated in short compass. The applicant worked as a cleaner at Heckenberg Public School and had worked there for the previous five years at the time of her injury. She worked a 40 hour week, commencing at about 5am. Her duties were varied, as she described at [12] of her statement. One of her duties was to open all the school gates, and to do this she had to walk out onto the public street.
On 5 September 2022, whilst she was on her way to open the other gates and carrying bags of rubbish, she noticed that she had left the interior light of her car on. Her car was a few metres away and Ms Laundess determined to turn the light off. As she crossed an uneven area of grass between the footpath and the curb she slipped, injuring herself.
The respondent declined liability to pay compensation because her injury did not arise out of or in the course of her employment, and thus did not satisfy the terms of s 4(a) of the 1987 Act.
She had a supervisor, Ms Danielle Watts, who gave a statement dated 5 December 2022.[1] Ms Watts said that there was no written description of Ms Laundess’ duties. She described the many duties that Ms Laundess had described in [12] of her statement. Ms Watts said that amongst her “external duties” was “opening and closing School gates in the mornings and evenings respectively”.
[1] Reply page 15.
Ms Watts said that Ms Laundess was not supervised, and “generally” worked independently. Ms Watts would inspect Ms Laundess’ work once per month. Ms Laundess was able “to call me at any time for any reason(a)n at all,” although she had not actually done so. Ms Watts said:[2]
“The claimant has not had to perform any duty outside a normal Cleaner’s duties, except opening and closing the School gates…”
[2] Reply page 18.
Ms Watts confirmed Ms Laundess’ statement regarding the account she received from her. She said:[3]
“Early in the morning on 5 September 2022 the Claimant called me. It was approximately 5:30 AM. She was between laughing and crying. I think she felt a bit stupid. She said that she had just sustained her injury.
The claimant told me that her car was parked on the road outside the School premises and that after parking when she first arrived at the School she entered the School and started work. She told me that she had been working for a while prior to the incident. Given that she starts work at 5 AM, she would have been working 30 minutes.
The claimant told me that as she was taking the rubbish bags from inside the buildings to the skip bin in the car park, she opened the gates of the school, which she normally does around 7 AM, when she noticed the internal lights of her car on. She said that she then walked towards her car to turn the lights off.
She told me that she fell over on the uneven grass between the gutter at the edge of the road and the footpath as she was walking towards her car to turn off the interior light of her car….
….
The grass between the footpath and gutter is uneven where the Claimant stated she fell, based on what the Claimant told me and based on my own observations, it is uneven because the parents drive their car up over the gutter onto the grass to park their car when picking up their children from the School, due to lack of parking. ”
[3] Reply page 21.
Ms Watts said:
“It was not part of the Claimant’s duties to go to her car to turn off her interior lights.
The Claimant is not entitled to a break in the morning shift. She was not entitled to leave the School premises to go to her car to turn the interior light off. However, if she had asked me for permission, I probably would have provided it….
Some time after the incident, I myself fell over in approximately the same area the Claimant did.
None of the Insured’s staff are authorised to leave the site they clean during the duration of the shift, however each day the Claimant blows the driveway just outside the School gates with the leafblower, which is technically just outside the School premises. She does this each day… ”
Ms Laundess made a second statement dated 21 March 2023, noting Ms Watts’ acknowledgement that permission would have been given had Ms Laundess asked.
[4] Applicant ALD 21 March 2023.
Ms Laundess said that her role was “extremely autonomous”. There was no specific time given for breaks, and she could self-direct regarding the work to be completed and her particular breaks. She worked by herself without any managers, hence “permission for breaks was always implied”. It was “inherent in the role”.[4]
Ms Laundess’ injuries have kept her off work, and her general practitioner (GP) has certified that she has no current employment, although there was some dispute about that which will be dealt with in due course.
The main issue raised by this case was whether Ms Laundess’ actions took her outside the course of her employment.

SUBMISSIONS

Mr Saul

Mr Saul submitted that the facts were not in dispute and the main issue was whether at the time Ms Laundess’ injury arose, she had taken herself out of the course of her employment. The act of turning off the light in her motor vehicle, Mr Saul submitted had no connection whatsoever with Ms Laundess’ employment and thus did not arise out of her employment, nor did it arise in the course of her employment.
I was referred in that regard to Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, HCA 75, Davidson v Mould (1944) 69 CLR 69, HCA 10 and Carthew v Badger & Ors [2004] NSWCA 317.
Mr Saul also referred to Boccalatte v Burwood Council [2023] NSWPICPD 52, although he said it was more relevant to assault cases.
In Davidson, Mr Saul said, the facts surrounded an injury when a Coca Cola bottle top misfired and caused injury in the worker’s right eye. That was found to be in the course of employment as he was doing a “reasonable act in taking his midday meal”. Mr Saul referred to dicta which stated that an injury could be seen to arise out of employment when it arose from some incident in which labour was performed. Mr Saul submitted that therefore it was necessary for an applicant to establish that there was a causal relationship with the employment a worker was contracted to do, and that he/she was doing the work or work incidental to it when she suffered her injury.
Mr Saul recounted the facts in Humphrey Earl Ltd. in which a worker was injured when he was involved in an accident whilst returning from a café where he had been having lunch. He cited Dixon J in furtherance of his submissions that Ms Laundess had taken herself outside the course of her employment.
Mr Saul also relied on the facts in Carthew, where the worker was injured when she dived into a shallow swimming pool whilst employed as a receptionist for her employer, who was conducting a swimming school at the pool. It was found that the worker’s injury did not arise out of or in the course of her employment, as she was not authorised to have swimming lessons. It was found that she had left her employment to, as the trial judge put it, “go off on a frolic of her own”.
Applying those examples to the facts of the case before the Commission, Mr Saul submitted that Ms Laundess could not bring herself within the terms of the Act.
He submitted that the employer was not concerned with her mode of transport to the Heckenberg Public School. Mr Saul noted that Ms Laundess drove and parked nearby as close as she could to where she worked at the school, as an incidental fact.
Mr Saul referred to the evidence of Ms Danielle Watts, who delineated the terms of
Ms laundress’s employment, and from whose evidence I would accept that turning off the interior light in Ms Laundess’ car was not within the terms of her employment. Within the authorities cited, Mr Saul submitted, Ms Laundess was therefore not acting in the course of her employment and did not get over the “first hurdle” of s 4.
Mr Saul then addressed the question of s 9A. He referred to Badawi[5] and submitted that the terms of employment did not make her actions a substantial contributing factor to her injury. He referred to the subsections of s 9A in submitting that the nature of Ms Laundess’ employment was not a substantial contributing factor to her injury. What took her to a public street where she had her fall had nothing to do with her employment, Mr Saul said.
[5] Badawil v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324.
Mr Saul acknowledged that the injury happened within the normal hours of employment, but submitted that was not sufficient, without more, to escape the terms of s 9A.
Mr Saul, with reference to the applicant’s second statement that permission was implied for Ms Laundess to return to her car, noted that Ms Watts did not actually give permission. The issue was really a red herring, Mr Saul argued. Even had she asked Ms Watts, and even had Ms Watts agreed, Ms Laundess could not establish pursuant to s 9A that employment was a substantial contributing factor. Mr Saul allowed that it may get the applicant over the line regarding s 4 (although he did not make that concession) but all the authorities spoke against Ms Laundess having established that her employment had been a substantial contributing factor to her injuries.
Mr Saul accepted that Ms Laundess’ complaints were consistent. He noted that she relied on the medico-legal report of Dr Doig. He said that in accordance with the authorities the claim, being pursuant to s 4(a), the applicant had to establish firstly an injurious event, and secondly a pathological change.
With regard to the lower back injury Mr Saul submitted that the applicant had failed to discharge her onus to prove pathological change in her lumbar spine. Similarly, Dr Doig’s opinion was that the soft tissue injuries had settled down.
Mr Saul relied on the report of Dr Wallace, noting that both Dr Wallace and Dr Doig saw
Ms Laundess within a few months of each other. He said that Dr Wallace accepted that there were injuries to the left shoulder and the left wrist that were causing incapacity.
Both medico-legal experts believed that Ms Laundess was not fit to return to her pre-injury duties. He submitted that Dr Wallace was more optimistic and should be preferred as he had seen Ms Laundess more recently than Dr Doig.
Mr Saul submitted that the provisions of s 32A were applicable, as Ms Laundess was fit for a wide variety of light duties, using the Commission’s specialist knowledge, such as light processing work.

Mr Stanton

Mr Stanton referred to photographs of the area, and particularly to photograph 4 in the Factual Investigation Report.[6] It could be seen that the area of the fall was marked by a blue star in Jindabyne Street, and that there were a number of entrances to the school in Jindabyne Street. The grass strip was very narrow and sloping as illustrated by the photos attached to the report.
[6] Reply page 12.
Ms Laundess had been a long term employee for five years, Mr Stanton said. He referred to Ms Laundess’ statement as to her duties, and he emphasised that the duties took her outside the school grounds to open the other school grounds.
Mr Stanton submitted that it was “unrealistic and ridiculous” to expect Ms Laundess to phone her supervisor at 5.30am in the morning to get permission which she would have got anyway. Ms Laundess, he thought, may have been concerned that leaving the interior light on would run the car battery down so that she could not get home. It was a momentary distraction, Mr Stanton argued, from an activity that was clearly in the course of her employment. Had she tripped over on the way to open the gates it would have been in the course of her employment, Mr Stanton contended.
Mr Stanton referred to the statement of Ms Watts and her evidence that she and
Ms Laundess, prior to the injury, would occasionally go to the area where it happened for a cigarette. Had the slip occurred then, clearly Ms Laundess would have had permission to leave the school grounds as her supervisor was with her on an agreed break, Mr Stanton said.
The reality was, Mr Stanton said, that people did have breaks whilst working 9 to 5 for such activities as bathroom breaks, drink breaks, smokos and to collect lunch. Mr Stanton referred also to Sir Owen Dixon’s judgement in Humphrey Earl. The answer to the question whether an accident, occurring in a work interval, was in the course of the employment must depend, Mr Stanton submitted, on whether the worker was reasonably required, expected or authorised to be there in order to carry out his duties.
Mr Stanton said that preserving her transport in a working condition was a requirement of
Ms Laundess’ employment, and if the light was on then she was in the course of her employment in attempting to turn it off. Ms Laundess was required to get to and from her place of work as part of the terms of her contract, Mr Stanton said.
Mr Stanton said that Ms Watt’s concession that she would have given permission had she been asked illustrated why the law recognises in some situations that workers have an implied authority to do certain things.
Mr Stanton then referred to s 11 of the 1987 Act. He submitted that the facts of this case need not disqualify Ms Laundess from invoking its terms. Had she suffered an injury whilst, say, going to the bathroom, s 11 would apply, he argued. She might also have wanted to go to her car to apply her lipstick, Mr Stanton suggested. Ms Laundess, being the only cleaner at the school, necessarily had an implied authority to do many of these things without having to obtain express authority from her superiors, Mr Stanton said.
Mr Stanton referred to Commonwealth v Oliver,[7] which was authority for the proposition that the activities which caused the injury did not have to be actually incidental to employment, as the worker in that case had been injured in a lunch time cricket match.
[7] [1962] HCA 38; (1962) 107 CLR 353.
Mr Stanton also referred to Bill Williams Pty Ltd v Williams[8] where Stephens J stated that time, place and circumstance, as well as practice, must be considered. Mr Stanton said that the time was 5.30am, the place was the footpath, the circumstance was transient to stop the battery running down, and the degree was such that her going to her car for that purpose was incidental to her work.
[8] [1972] HCA 23; (1972) 126 CLR 146.
Mr Stanton returned to the subject of s 11 of the 1987 Act, and Mr Saul then objected, saying that the respondent had had no notice of this allegation. The transcript will show that I indicated that I would hear Mr Stanton’s submissions, and then rule as to the objection.
Mr Stanton said that no express notice had been given regarding s 11, and that it was not necessary to do so, as he was dealing with undisputed facts and the law applicable to them.
Mr Stanton said that it was possible to be in the course of employment and in a recess simultaneously, as they were not mutually exclusive. The required degree of authorisation could arise by implication. He referred to Thompson v Lewisham Hospital[9] in that regard. The effect of s 11, Mr Stanton argued, was that s 9A of the 1987 Act was irrelevant.
[9] (1987) WCR (NSW) 111.
[10] [2011] NSWWCCPD 72.
Mr Stanton cited Parsons Brinckerhoff Australia Pty Ltd v Harrison[10] as authority for that proposition.
Alternatively, Mr Stanton argued, s 9A was satisfied in any event. The subparagraphs of
s 9A(2) were satisfied by the facts. Particularly, he submitted that the nature of the work performed and the particular tasks of that work, as provided by s 9A(2)(b), were satisfied by the fact that she was required to go into the street in order to open the school gates.
Mr Stanton referred to Hook v Roff.[11] Mr Stanton said that was a case where a solicitor was found to be both on a periodic journey and in the course of his employment when he was injured. The potential relevance of these facts was that just because the injury occurred whilst Ms Laundess was securing her mode of transport did not mean that she was outside the course of her employment, I understood Mr Stanton to submit.
[11] (1986) 7 NSWLR 40.
As to her injuries, Mr Stanton submitted that the hospital notes showed them to be quite extensive, involving soft tissue injuries to the cervical spine, left shoulder, left elbow, left hip and left knee.[12] Ms Laundess’ GPs had issued certificates showing no capacity for work until 3 December 2022, and she thus had no capacity for work.
[12] Mr Stanton referred to pages 31 and following of the ARD.

Mr Stanton noted that both Dr Doig and Dr Wallace found that Ms Laundess now had a capacity to work, with lifting restrictions. For someone who had been working as a cleaner, such restrictions, Mr Stanton argued, did not constitute a real job as explained in Wollongong Nursing Home Pty Ltd v Dewar.[13] Alternatively, Mr Stanton submitted that Ms Laundess’ residual capacity was very small. He submitted that a pathological change had been caused by the fall as illustrated in the ultrasound of the shoulder of 24 September 2022.[14]
[13] [2014] NSWWCCPD 55.
[14] ARD page 35.
In reply, Mr Saul pressed his objection to the reliance by the applicant on s 11.
During the following argument, I said to Mr Saul that I would permit the applicant to rely on that section as it seemed relevant. However, I said that I would accommodate Mr Saul to deal with any prejudice that he felt he suffered, including an adjournment so that he could prepare written submissions.
Mr Saul answered that in order to meet s 11 claim, he would need to call further evidence. There was a discussion about that and I was not convinced that any further evidence was needed in view of the fact that a comprehensive statement had been taken from Ms Watts. Mr Saul declined my invitation in any event.
Mr Saul submitted that Ms Watts could not retrospectively authorise something that was not authorised at the time. Section 11 excluded the application of s 9A and therefore s 11 had to be properly adhered to, Mr Saul said. The two non-negotiable aspects of s 11 was that there be either an ordinary recess, or an authorised absence. An ex post facto statement that had a request for authorisation been made, then probably given, did not satisfy the terms of the section.
Mr Saul submitted that the circumstances of the present case did not constitute a recess. He referred to Mr Stanton’s theory that it was necessary for Ms Laundess to turn off her interior light as her battery would go flat, and said that Ms Watts made it clear that
Ms Laundess was employed from 5am until 8am, and 1pm to 6pm each weekday. The question of the battery going flat was not relevant, Mr Saul said.
Mr Stanton’s description of a real job in reliance on Dewar, Mr Saul submitted, was ambiguous, as the terms of s 32A had to be complied with. Dewar spoke of an imaginary job. Ms Laundess had the capacity to be a process worker. The GP certificates were simply ipse dixits, he said, and both experts gave reasoned explanations as to why Ms Laundess had some capacity to work.

DISCUSSION

Section 4 provides relevantly:
"‘injury -
(a) means personal injury arising out of or in the course of employment,
(b)
(c) …”
Section 9A of the 1987 Act 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.”
Section 11 of the 1987 Act provides:
“11 Recess Claims
(cf former s 7 (1) (e))
If a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service or training contract--
(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c) receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”
The main issue for determination is as to whether Ms Laundess is entitled to compensation for the injuries she suffered when she left the school premises to turn off the interior light in her motor vehicle. In order to be so entitled, Ms Laundess had to bring herself within the terms of either s 4(a) or s 11 of the 1987 Act. Mr Stanton submitted that she brought herself within the definitions of both.
With regard to s 11, Mr Saul declined to seek the adjournment which I offered him, as he had received no notice that s 11 would be relied on. I had reservations as to whether notice was needed in any event, as Mr Stanton had simply applied the provisions of the Act to the facts.
Mr Saul submitted that there was no recess, and therefore the section did not apply. Whilst it is correct that the heading to the section is entitled “Recess Claims” it is clear that the terms of s 11 apply to a wider field than mere recess claims. It can be seen that if a worker suffered an injury whilst temporarily absent from his/her place of employment during either an ordinary recess or an authorised absence then in effect, the injury was deemed by s 11 to be an injury arising out of or in the course of employment. Moreover, the terms of s 9A(4) excluded the application of s 9A to s 11.
There was, as Mr Saul quite properly acknowledged, no attack on Ms Laundess’ credit. Her statements were supported by Ms Watts who agreed that Ms Laundess had a wide number of duties to perform during her day, and that she was not supervised in her performance of them. Ms Watts said that Ms Laundess generally worked independently, and I accept
Ms Laundess’ description of her position as being autonomous.
I accept that the working relationship between Ms Laundess and Ms Watts was harmonious, and that Ms Watts found Ms Laundess to be competent and reliable in the performance of her duties. Ms Watts inspected Ms Laundess’ work once per month, but it appears that they also had a degree of familiarity as evidenced by their occasionally sharing cigarette breaks, as stated by Ms Laundess.[15]
[15] Ms Laundess’ statement dated 21 March 2023 at [10] - ALD page 1.
It is also noteworthy that Ms Watts stated that, although Ms Laundess was able to call her at any time, Ms Laundess had never done so.
These matters enable me to find that Ms Laundess was indeed able to choose when and where she completed her duties, and when she could take her breaks from them. The system of work operated on her assumption that she was permitted to self-direct her movements – including when she had a break for any reason. I am satisfied that permission for all these matters was implied, and indeed inherent in her role.
Mr Saul submitted that as the evidence stood, Ms Watts had not given permission for
Ms Laundess to go to her car to turn her lights off. Ms Watts had stated that Ms Laundess was not entitled to leave the school premises for that purpose. The effect of that submission however was somewhat reduced by Ms Watts statement that, had Ms Laundess asked, she probably would have given permission. In view of the evidence I have just referred to, I have little difficulty in inferring that Ms Laundess’ temporary absence was an authorised absence, and that consequently she is entitled to the benefit of s 11, which deems her injury “for the purposes of this Act,” to have arisen out of or in the course of her employment.
In passing, whilst it follows that the reason for the temporary absence becomes of less moment accordingly, I note Mr Stanton’s speculation that Ms Laundess wanted to prevent her car battery from running down. There was no evidence to that effect. Indeed,
Ms Laundess did not explain why she went to turn the car light off. It may be that she thought no explanation was necessary, as her action was one that any motorist would have taken. That would appear to have been Ms Watts’ attitude as well, as she probably would have given permission, whatever the actual reason for Ms Laundess wishing to turn the interior light off. It is within the area of judicial (or perhaps quasi-judicial) knowledge that a motorist on seeing that he/she had left a light on in the car, would then return to the car to remedy the problem. I readily accept that a motor car driver, on seeing that the interior light of his/her vehicle had been left on, would take steps to turn it off.
The deeming effect of s 11 negates any requirement to consider the expression “arising out of or in the course of employment” in s 4(a) of the 1987 Act. However, as both counsel have addressed on it, it is appropriate to consider those submissions.
In the 1944 case of Davidson, Mr Saul relied on the dicta by Latham CJ. This was the coca cola bottle top case referred to in his submissions. His Honour reviewed the earlier forms of the legislation, and was considering the 1926 Act as amended by Act No 13 of 1942, which introduced into the definition of injury the present definition, “arising out of or in the course of employment..” His Honour discussed the two disjunctive phrases:
“An injury arises out of the employment when it arises from some risk incident to the duties of the service which the worker was engaged to perform. The injury in this case did not arise out of any risk incident to the work which the worker was employed to do, and it was not argued before us that the injury arose out of his employment.
The question is whether the injury arose in the course of his employment. In his judgment in the Full Court Jordan C.J. said: "In the phrase arising out of or in the course of employment, out of denotes a causal relation between the employment and the injury, and in the course of a temporal relation. The first arm of the phrase is satisfied by proof that the fact of his being employed in the particular work caused, or to some material extent contributed to, the injury; the second, by proof that the injury was sustained whilst he was doing the work which he was employed to do or something incidental to it.” [Authority omitted.]
Both counsel relied on dicta from Dixon J in Humphrey Earl Ltd. Mr Saul cited paragraph 4 of the judgement:
“4. No one denies that when the duties of the present respondent took him to the shop of one of the appellants' customers and kept him there over a meal time any course which he adopted for the purpose of obtaining lunch, provided that it was reasonably related to the exigency occasioned by his duties, might be considered to be in the course of his employment. But to make what he did in connection with obtaining lunch part of the course of his employment it is necessary that it should be reasonably connected with the particular situation which the performance of his duty to his employer had created. In other words, when he ceased work for lunch and left the scene of his labours, what he did could not fall within the course of his employment unless it was a reasonable consequence of the circumstances in which he was placed through the performance of his duties. … But the conditions of the employment may be such as to make the obtaining and consumption of a meal something reasonably incidental to the performance of the actual duties. The point in such a case as this is not whether it is reasonable to eat lunch or reasonable to want fish for lunch. The question is whether the course adopted by the employee was reasonably incidental to the performance on that occasion of his duties. This cannot be stretched to make everything he chooses to do during the interval he takes for lunch incidental to his employment. If he so far deviates from what is reasonably incident to the execution of his duties as to proceed on a purpose of his own not fairly resulting from the nature or incidents of the employment, that purpose cannot be considered in the course of the employment. There is a great difference between, on the one hand, the worker's taking advantage of an allowable interval for lunch in order to make it the occasion of an excursion for his own purposes and on the other hand his acting in a way which is reasonably calculated to fulfil the purposes of his employment and at the same time provide for his own reasonable wants. Such questions must involve matters of degree, but it does not follow that their decision is always a question of fact open in point of law to a finding either way….”
Mr Stanton cited from paragraph 3 of the judgement:
“….When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties: ….” [Authorities omitted].
Mr Stanton also cited Stephens J in Bill Williams Pty Ltd:
“4. Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work : Kavanagh v. The Commonwealth per Fullagar J. (1960) 103 CLR, at p 559 . It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, "there is nothing more in the concept than time measured by activity of a particular character" : Kavanagh v. The Commonwealth per Menzies J. (1960) 103 CLR, at p 570 . It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker ; so long as he is engaged in his work or something incidental to it the time span endures ; as soon as he ceases to be so engaged the time span ends and with it the course of employment (At p159).
5. That which is incidental to a worker's work depends upon ‘the sufficiency of the connexion between the employment and the thing done by the employee’ which is ‘a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment’ : (Whittingham v. Commissioner of Railways (W.A.) per Dixon J. [1931] HCA 49; (1931) 46 CLR 22, at p 29 . It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he ‘was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties’ : Humphrey Earl Ltd. v. Speechley per Dixon J. [1951] HCA 75; [1951] HCA 75;)”
It can thus be seen that the phrase “arising out of or in the course of employment” are fact sensitive requirements with the broadest legal guidelines as to their application.
That Ms Laundess’ injuries did not arise out of her employment is clear from Latham CJ’s definition in Davidson. Her injuries did not arise from any risk incident to her duties.
Whether they arose in the course of employment is however another matter. The time span was fleeting, and as I have found, the applicant was authorised to go to her vehicle to turn off the interior light. However, it could not be said that what she was authorised to do was in order to carry out her duties. I would accordingly not be satisfied that Ms Laundess’ injuries arose in the course of her employment.
It follows that the respondent’s liability follows from the application of s 11.
The injuries claimed in the ARD were to:
(a)    lumbar spine;
(b)    stomach;
(c)    cervical spine;
(d)    left shoulder;
(e)    left wrist;
(f)    left knee, and
(g)    left hip.
Mr Stanton relied on the medical certificates, but Mr Saul submitted they were no more than a series of ipse dixits. I agree with Mr Saul.
There were four certificates lodged dated 6 September 2022,[16] 20 September 2022,[17]
3 November 2022[18] and 19 January 2023.[19] The injuries were described respectively as:
(a)    neck pain – MSK. Left shoulder ?rotator cuff tear/subacromial bursitis;
(b)    neck pain – MSK. Left shoulder ?rotator cuff tear/subacromial bursitis;
(c)    the applicant failed to lodge the first page of the 3 November 2022 certificate, and
(d)    soft tissue injury of left shoulder/back.
[16] ARD pages 56 – 58.
[17] ARD pages 59 – 62.
[18] ARD pages 63 – 65.
[19] ARD pages 52 – 55.
Each certificate certified that Ms Laundess had no current work capacity, but without more this evidence is of very little weight.
The opinions of the medico-legal experts I found to be more persuasive. Dr Graeme Doig, general orthopaedics and trauma, for the applicant said in his report of 24 October 2022 that the lower back complaint was soft tissue, and no investigations had been undertaken. He said further that a soft tissue injury to the neck had settled, and that the left wrist condition was settling. There was a possible rotator cuff tear in the left shoulder, with soft tissue injury.
Dr Doig thought that Ms Laundess was not fit to return to her pre-injury work, but was able “currently” to do light duties with a 10kg lifting restriction and limited bending and twisting work through the spine. She would need breaks from prolonged sitting and driving. She had a 5kg lifting restriction regarding her left arm, with no overhead work.
For the respondent, Dr Raymond Wallace, orthopaedic surgeon, reported on 3 January 2023 that Ms Laundess had suffered a rotator cuff strain in the left shoulder with aggravation of a pre-existing degenerative rotator cuff tendinopathy. He found a ligamentous left wrist strain and a resolved left knee soft tissue injury.
Like Dr Doig, he thought Ms Laundess was unable to return to her pre-injury work, and was restricted from doing repetitive overhead use of the left arm, repetitive bending and twisting at the left shoulder and left wrist, with a 5kg lifting limit on the left arm. Dr Wallace thought Ms Laundess was fit to return to work fulltime on light duties, bearing those limitations in mind. He thought she would be able to return to full duties within six weeks.
There is accordingly some agreement that Ms Laundess is able to do suitable duties. It is to be hoped that Dr Wallace’s optimistic prognosis eventually proves correct, but it has not proved to be so at present.
Bearing in mind the provisions of s 32A of the 1987 Act I am satisfied that Ms Laundess has an ability to perform suitable duties of some sort, although I think her capacity after this time will be somewhat limited. She could do some work as a light process worker, or a shop attendant, but only for limited hours. Her capacity I find to be limited to 15 hours per week, and the sort of work she could obtain would return about $25 per hour - a weekly amount of say $374.
Accordingly, bearing in mind the agreement between the parties recorded at the outset of these reasons, the respondent will pay the following weekly payments:
(a) $664 ($1,038 - $374) from 5 September 2022 – 5 December 2022, and
(b) $500 ($874 - $374) from 6 December 2022 to date and continuing.

The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or current HIC Notice of Charge.

[2023] NSWPIC 274

13 June 2023