McGrath v PM Electric Pty Ltd
[2022] NSWPICPD 8
•4 March 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | McGrath v PM Electric Pty Ltd [2022] NSWPICPD 8 |
FIRST APPELLANT: | Nicole McGrath |
SECOND APPELLANT: | Taleya McGrath |
THIRD APPELLANT: | Kayden McGrath |
RESPONDENT: | PM Electric Pty Ltd |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBERS: | A1-380/21 A2-380/21 A3-380/21 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 4 March 2022 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 8 June 2021 is revoked. |
| 2. The matter is remitted to another non-presidential member for re-determination of the issues as to whether: (a) the injury arose out of or in the course of the deceased’s employment in accordance with s 4 of the Workers Compensation Act 1987; (b) the deceased’s employment was a substantial contributing factor to the injury, in accordance with s 9A of the Workers Compensation Act 1987, and (c) any remaining issues, including any issue in respect of the apportionment of any amount of compensation payable pursuant to s 25(1) of the Workers Compensation Act 1987 and in respect of payment of interest on the arrears of compensation payable. | |
CATCHWORDS: | WORKERS COMPENSATION – Section 9A of the Workers Compensation Act 1987 – Badawi v Nexon Australia Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 considered and applied |
HEARING: | On the papers |
REPRESENTATION: | First Appellant: |
| Mr J Hallion, counsel | |
| Owen Hodge Lawyers | |
| Second Appellant: | |
| Mr L Morgan, counsel | |
| Beilby Poulden Costello | |
| Third Appellant: | |
| Mr J Gaitanis, counsel | |
| M.A.C Calf Lawyers & Associates | |
| Respondent: | |
| Ms L Goodman, counsel | |
| Gair Legal | |
DECISION UNDER APPEAL | |
MEMBER: | Ms Catherine McDonald |
DATE OF MEMBER’S DECISION: | 8 June 2021 |
INTRODUCTION AND BACKGROUND
This appeal concerns a claim for compensation made by the dependants of Nicholas Charles McGrath pursuant to ss 25 and 26 of the Workers Compensation Act 1987 (the 1987 Act). Mr McGrath died in the early hours of the morning on 21 September 2019 while on a trip with a group of co-workers to the Grand Prix car races in Singapore, the costs of which had been paid for by his employer, PM Electric Pty Ltd (PM Electric).
PM Electric denied liability for the claim. It asserted that it was not liable to pay compensation as, in its view, the injury causing death did not occur in the course of, or arising out of, Mr McGrath’s employment in accordance with s 4 of the 1987 Act and Mr McGrath’s employment was not a substantial contributing factor to that injury, as required by s 9A of the 1987 Act. There was no dispute that Mr McGrath’s wife, Ms Nicole McGrath, and Mr McGrath’s children, Taleya McGrath and Kayden McGrath, were dependent upon the deceased at the relevant time. Ms McGrath commenced proceedings in the Workers Compensation Commission on behalf of herself and the two children, who were joined as respondents in those proceedings.
On 1 March 2021, prior to the matter being listed for arbitration, the Workers Compensation Commission was abolished by operation of cl 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became one within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date.[1] The matter was listed for arbitration and allocated to a Member of the Commission. At the arbitration on 16 April 2021, Ms McGrath’s legal representative made oral submissions, and, because of time constraints, the remaining parties filed written submissions.
[1] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
The Member issued a Certificate of Determination dated 8 June 2021. She determined that Mr McGrath was in the course of his employment when the injury causing death occurred, but that his employment was not a substantial contributing factor to the injury. Ms McGrath appealed the decision and the two dependent children also each lodged separate appeals. On 6 July 2021, a delegate of the President directed that, in order to minimise the requirement for a multiplicity of documentation, all three appeals were to be heard together.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Each of the parties have indicated that the matter can be dealt with on the basis of the documents and their written submissions. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The decision of the Member was final and binding on the parties and is therefore not interlocutory in nature, so that leave to appeal is not required (s 352(3A) of the 1998 Act).
THE EVIDENCE
The statement evidence
Mr Peter Murray
Mr Murray is the principal of PM Electric. He provided a statement signed on 16 December 2019.[2] He said that, at the time of his death, Mr McGrath was employed by PM Electric as a construction manager, managing the project management teams, and was essentially his “right-hand man.”
[2] Application to Resolve a Dispute (ARD), pp 12–18.
Mr Murray stated that the trip to Singapore was arranged for the benefit of some of the employees, including Mr McGrath, who had been unable to attend an earlier trip to the South Coast. He said:
“The trip was an all-expenses paid excursion for the guys to go to the Formula One in Singapore and included airfares, accommodation, a $240 per day meal allowance, a 3-day pass for the race track and travel insurance. All of these items were fully paid for by the company.”[3]
[3] Mr Murray’s statement, [20].
He added that the meal allowance was to be used by the employees as they wished. He said the only actual planned activity was attending the Grand Prix, at which they had designated seating and otherwise the men were free to do whatever they chose. Mr Murray said that the trip commenced on 20 September 2019.
Mr Murray described their activities on the first day. He said they walked to collect their tickets then proceeded to Raffles Hotel, where he had two beers and some of the men had Singapore slings. He said they then attended some food markets from midday until 2.30pm, before returning to the hotel, where they spent some time at the pool from about 3pm. Mr Murray said that Mr McGrath left at 4.30pm, saying that he wanted to go to the race track and did not want to miss anything.
Mr Murray stated that he and the group left the hotel at about 6.30pm and walked to the race track. Mr McGrath was not at their designated seating. He said that they had called Mr McGrath several times and eventually he answered and told them that he was catching up with friends. Mr Murray advised that this was not an issue, as Mr McGrath was free to do whatever he wanted to do.
Mr Murray explained that they had no cause to be concerned about Mr McGrath’s whereabouts because he had been sending photographs and text messages of where he was during the evening, some of the men had caught up with him at the race track for a while and he was not intoxicated.
Mr Murray recalled that by early the following morning Mr McGrath had still not returned to his hotel room and he and Mr Deuchar were unable to contact him. He said the police arrived at the hotel at about 10.30am. Mr Murray then surmised as to what had occurred and advised that he had provided the police with screen shots of the text messages Mr McGrath had sent during the evening.
Mr Murray reiterated that the trip was sponsored and paid for by PM Electric and said that Mr McGrath would not have been on the trip except for his employment with PM Electric.
Mr Murray also reported in an email dated 23 October 2019 that the purpose of the trip was to thank the employees for their hard work and performance and for the staff to experience Singapore and the Formula 1 Grand Prix. He said that PM Electric paid for the air tickets, travel insurance, accommodation and three-day passes to attend the event. He added that the group were paid a meal allowance of $240 per day and no annual leave was deducted.[4]
[4] ARD, p 6.
Mr Scott Allen
Mr Allen was employed by PM Electric as a service foreman. He provided a statement signed on 4 February 2021.[5] Mr Allen said that Mr Murray arranged for a few of the employees at PM Electric, including himself and Mr McGrath, to go on a trip to Singapore to see the Formula 1 Grand Prix. Mr Allen thought that the trip was to reward the employees and possibly also a team building exercise.
[5] First respondent’s Reply to Application to Resolve a Dispute (reply), pp 31–36.
Mr Allen recalled that, prior to leaving for Singapore, PM Electric gave each of them a travel allowance of $240 per day which they could use on the trip as they pleased, together with their regular pay. Mr Allen advised that PM Electric also paid for their airfares and accommodation but did not pay for their food, drinks or transport.
Mr Allen said that on the day after they arrived in Singapore, they walked to the ticket outlet to collect their tickets, which was the only set activity for them to do. He said that, otherwise, they were free to do what they wished, although they tended to stay together. He recalled that some of the group had breakfast at the hotel and some ate elsewhere, before they met to go and collect the tickets. He said they collected the tickets and went to Raffles hotel for a short while, where they had a beer or a Singapore sling each and then went to the food markets. He said that Mr Murray invited them, rather than directed them, to go to these places and everyone agreed.
Mr Allen said that most of them shouted a round of beers at the markets, and then they returned to the hotel and spent some time at the pool, where they had one or two beers and planned what they were going to do that night. He recalled that Mr McGrath left the hotel early, indicating that he was going to the Grand Prix to meet up with some friends. Mr Allen said that the group left for the race track a little later, arriving at about 7pm or 8pm. He said that Mr Murray then left them to meet up with a relative or friend.
He advised that the group were communicating through WhatsApp messaging and were trying to make contact with Mr McGrath, who eventually met them at their seats at around 9pm or 10pm. Mr Allen was of the view that Mr McGrath appeared slightly intoxicated, was in a good mood and joking with the group. He estimated that they were together at their seats for about twenty minutes, before one of the group went to the toilets, followed shortly after by the rest of the group. Mr Allen said that they were then going to the area where there was food, drinks and entertainment but it was crowded and hot and he decided to walk back to the hotel. He said that, after that, he did not hear from or see Mr McGrath, who was not at the hotel the next morning. He advised that the police came to the hotel making enquiries at about 9am and they were eventually told that Mr McGrath had passed away.
Mr Allen said that at the time of his death, Mr McGrath was “doing his own thing.” He said that Mr McGrath was not required or directed to stay with the group or to be in any particular place or with anyone.
Mr Andrew Fitzgerald
Mr Andrew Fitzgerald, a service foreman employed by PM Electric, provided a statement signed by him on 4 February 2021.[6] He advised that Mr Murray took him, Mr McGrath and four other employees to the Formula 1 Grand Prix in Singapore as a reward for their hard work and for the purpose of team bonding. He said the trip was purely a leisure trip. He said that they arrived in Singapore on 19 September 2019 and met up the next morning, when some of the group had breakfast at the hotel and others went to cafes. He confirmed that the group then went together to collect the Grand Prix tickets, following which they went to a bar for drinks and then the food markets. He said they returned to the hotel at about 2pm, then shortly afterwards met at the hotel pool where they swam and had a couple of beers each.
[6] Reply, pp 25–30.
Mr Fitzgerald said that, at about 3pm or 4pm, Mr McGrath advised that he wanted to go to the race track but as nobody else wanted to go, he left on his own. Mr Fitzgerald advised that there was no set itinerary for the trip, so everyone was free to do what they pleased.
Mr Fitzgerald said the group later walked to the race track, where they found their designated seats. He said Mr Murray left them at their seats. At this time Mr McGrath was not there but had advised one of the group by telephone that he was meeting friends from Sydney. Mr Fitzgerald described how he and the group went to get something to eat and also went to the bar for a couple of beers. He said that they texted and spoke to Mr McGrath a few times, as they were trying to locate him and meet up with him. Mr Fitzgerald advised that Mr McGrath sounded fine and did not appear to be intoxicated. He advised that they met up with Mr McGrath at their seats at about 8.30 or 9pm and Mr Fitzgerald spent some time conversing with him, during which time Mr McGrath did not appear intoxicated or affected by drugs and was in good spirits.
Mr Fitzgerald stated that, at about 10pm, he went by himself to the toilet, and when he returned the group had gone. He managed to catch up with Mr Allen and they walked back to the hotel together. He said that, in the morning, the others told him that they could not contact Mr McGrath and then at about 10am the police arrived.
Mr Fitzgerald asserted that, while they were in Singapore, they were not under the direction of Mr Murray, were not on a strict itinerary, and not told where to go or what to do. He said the trip was very relaxed and the only set thing they were required to do was to pick up the tickets to the Grand Prix. He added that at the beginning of the trip they were provided with a food allowance, which they could spend as they pleased, and they were each responsible for payment of their own food, entertainment and drinks during the trip.
Mr Matthew Pogue
Mr Pogue, who was employed by PM Electric as a senior estimator, provided a statement dated 8 February 2021.[7] He advised that in September 2019, Mr Murray took him and four others, including Mr McGrath, to Singapore for a trip to the Formula 1 Grand Prix. He described the trip as a leisure trip which was intended to be a reward everyone for their hard work and a team bonding experience. He said there was no set itinerary, other than that Mr Murray had bought the tickets to the Formula 1 racing, which took place at night.
[7] Reply, pp 43–48.
Mr Pogue stated that on the first morning after they arrived, some of the group ate breakfast in the hotel while some others went to a café. He confirmed that afterwards, they all walked to collect their tickets and then went to a bar for about an hour where they had a couple of drinks. Following that, they went to the markets for lunch and then returned to the hotel at about 2pm. He recalled that they then regrouped at the hotel swimming pool, where they swam, chatted and had what he recalled was about two beers each. He said that everything they had done was by discussion and agreement and they were not directed or told to do anything.
Mr Pogue said that Mr McGrath left the group at about 5pm, as he wanted to go to the race track. He observed that no one was drinking excessively and Mr McGrath appeared to be quite sober and in good spirits at the time. Mr Pogue said that about an hour later, the group left for the race track and arrived at about 7pm or 8pm, where they ate some food and had a couple of beers before taking their seats. Mr Pogue said that at one stage, he joined Mr Deuchar and watched some disc jockeys. He could not recall whether Mr McGrath was with them at the race track initially, but eventually he caught up with them at about 10pm. Mr Pogue said that the last time he saw Mr McGrath was when the group went to the toilets.
Mr Pogue advised that he and Mr Deuchar stayed at the race track for a while and then returned to the hotel, arriving at about midnight. He said he missed a call from Mr McGrath at 12.22 am and tried to return the call but could not reach him. He said that the next morning he went out for breakfast and then went to the pool with some of the group, when he received a message from Mr Murray to return to the hotel, where the police were making enquiries. Mr Pogue advised that when he last saw Mr McGrath, he appeared to be agitated, in that Mr McGrath wanted to “go and party.” Mr Pogue said he had obviously been drinking but was not out of control.
Mr Matthew Deuchar
Mr Deuchar provided a statement dated 4 February 2021.[8] He was employed by PM Electric as an estimator. In the Singapore trip, Mr McGrath and Mr Deuchar shared a hotel room.
[8] Reply, pp 37–42.
Mr Deuchar stated that in September 2019, Mr Murray took him and a group of four other employees (including Mr McGrath) to Singapore for the Formula 1 Grand Prix as a reward for their hard work and as a team bonding experience. He said it was intended to be a leisure trip.
Mr Deuchar said that Mr Murray bought them all a three-day pass for the racing, but there was no set itinerary, and they were free to do whatever they chose. He said that they mainly did things together and had all walked together to the ticket outlet to pick up their passes late in the morning of the first day. He confirmed that they then visited Raffles Hotel, where they had a beer or a Singapore sling, following which they ate lunch at the food markets, returning to the hotel at about 3pm. Mr Deuchar observed that Mr Murray did not direct them where to go or what to do and it was left to the group to discuss and plan their activities
Mr Deuchar recalled that Mr McGrath left the pool at about 4.30pm, saying that he wanted to go to the Grand Prix and catch up with friends. He said that, while they were at the pool, they had a few beers at the pool but he could not recall whether Mr McGrath had any alcohol while he was there.
Mr Deuchar advised that the group later went to the race track, had a look around and went to their seats, where they were joined a little while later by Mr McGrath, who looked very happy and appeared to be having a good time. He observed that Mr McGrath did not seem to be intoxicated or under the influence of drugs.
Mr Deuchar said that at about 10pm he left the group to go and watch the disc jockey, where he was subsequently joined by Mr Pogue and did not see Mr McGrath again. He and Mr Pogue spent about an hour watching bands and then returned to the hotel. Mr Deuchar said he joined Mr Murray for a beer at the hotel bar and then went to bed at about midnight. He noticed that he had a missed call from Mr McGrath, so sent a text message that he was back at the hotel.
Mr Deuchar advised that Mr McGrath had still not returned to the room by the next morning and was not responding to his texts or telephone calls, which caused him and Mr Murray concern. He said that the police arrived at about 10.30am.
Mr Deuchar said that during the trip, none of the group were required to attend any event or place, although it was expected that they attend the Grand Prix together. He added that they were not directed what to do and were free to go their own way, which they did at various times. He said that when Mr McGrath was injured, he was “doing his own thing.” He recalled that they had been paid a meal allowance by PM Electric, which was about $240 or $250 per day, but that they were responsible for paying for their own food, drink and entertainment and they followed the usual practice of each buying rounds of drinks.
Ms Nicole McGrath
Ms McGrath made a statement dated 20 January 2021.[9] She advised that she and Mr McGrath were married in 2008 and that they had two children, a son Kayden who was born in 2016 and a daughter Taleya, who was born in 2017. She gave details of the financial matters relevant to her dependency and the dependency of the children.
[9] ARD, pp 1–5.
Ms McGrath referred to the trip to Singapore provided by PM Electric. She said the purpose of the trip was to reward staff for their hard work and it was all expenses paid. She said that PM Electric would often provide rewards to the employees for their hard work and performance. Ms McGrath indicated that Mr McGrath would not have gone on the trip if it had adversely affected his leave entitlements or salary as they always used his leave to spend time together as a family. She added that Mr McGrath was not a heavy drinker.
Ms McGrath said that PM Electric paid for the employees to attend the Grand Prix, meeting the costs for the airfares, accommodation and three-day passes to the race track with designated seating. She said they also received meal allowances. She described what she understood to be the activities undertaken on the night of 20 September 2019.
Ms McGrath stated that she was contacted on 21 September 2019 by a friend and subsequently by the police, who advised her that her husband had passed away. She said she flew to Singapore with her brother-in-law and two friends. She advised that Mr McGrath had left messages on friends’ telephones in which he sounded as though he was in distress.
The autopsy report
An autopsy report was completed by Dr Chen Xiu Fen, medical officer for Singapore’s Health Sciences Authority.[10] Dr Chen recorded the history provided to him, which was that Mr McGrath was seen on closed circuit television footage entering a building, believed to be a dance studio, at 2.47am on 21 September 2019. It was believed that Mr McGrath had been drinking at a bar adjoining the building. Dr Chen noted that Mr McGrath’s body was discovered at 8am that morning and that multiple glass fragments from a window which was broken from the inside lay on the outside of the building. The multiple injuries to the body were noted, and Dr Chen said that it was unlikely that the cuts and bruises found were defensive wounds.
[10] ARD, pp 19–26.
The cause of death was found to be an acute haemorrhage from a deep wound of the right wrist. No other cause of death could be identified.
The toxicology report
A toxicology report was also issued by the Health Sciences Authority.[11] It recorded a blood sample analysis showing an ethanol reading of 249mg/100ml.
[11] Reply, p 1.
The Coroner’s inquiry
Singapore’s State Coroner issued a report on 30 March 2020.[12] The Coroner gave details of the investigations of the scene where Mr McGrath died. She recorded that Mr McGrath‘s body was found in the hallway on Level 3 of the Substation building near a window that overlooked the rooftop of an adjoining building. The window had been smashed from the inside, with fragments found on the roof top of the adjacent building. Blood stains were found on fragments and glass fragments were embedded in the skin of Mr McGrath’s hands.
[12] Reply, pp 7–17.
The Coroner listed the articles found in Mr McGrath’s possession, which included a wallet, cash, credit and other cards and a pass to the Formula 1 Grand Prix. She noted there were also tax invoices from Raffles Hotel dated 20 September 2019 at 1.04pm, from Cool Cats Club on 21 September 2019 at 12.19am and from Timbre bar on 21 September 2019 at 1.35am. Mr McGrath’s mobile telephone was found under a sofa.
The Coroner referred to the findings from the autopsy report compiled by Dr Chen and the findings from the toxicological analysis which showed that Mr McGrath was likely to have been intoxicated at the time of his death. The Coroner summarised the background facts, describing the Substation as a three level contemporary arts recreational centre. There were two entry doors, one of which was to the dance studio on level two and which provided entry from the courtyard between the Substation and Timbre bar. It was also an emergency exit. The Coroner also described the Timbre bar, which had two levels, with the bar and toilets on the first floor and offices on the second level, which had a door leading to the courtyard that adjoined the Substation. The Coroner noted that the caretaker of the Substation stated that she never locked the door on level two leading to the courtyard.
The Coroner reviewed the evidence provided by Timbre employees, Mr Lim Shyan, the operations manager, Mr Enrico Doming, the outlet manager, and Mr Christopher Daquil, the bar supervisor.
The Coroner reported that Mr Lim stated that he first noticed Mr McGrath at about 1.40am, who appeared to be walking out the entrance to the bar with his glass of beer. He brought Mr McGrath back into the bar and thereafter they conversed until Mr Lim left at about 2.35am. Mr Lim observed that Mr McGrath was tipsy but not drunk.
The Coroner said that Mr Doming, who was working in the upstairs office, noticed Mr McGrath walking very quickly towards the door leading to the courtyard, then walking out the door, into the courtyard and through the door to the Substation. Mr Doming said that at 3am he latched the door to the courtyard and did not hear anything unusual.
The Coroner referred to Mr Daquil’s evidence, which was that at about 2.30am, Mr Doming called out to him and at the same time he heard the door connecting to the courtyard opening. Mr Daquil went to the doorway and saw a man with his hand on the doorhandle of the entry to the Substation and then the man entered the Substation. It was dark, and Mr Daquil assumed that the man was an employee of the Substation. Mr Daquil also did not hear any unusual noises that night.
The Coroner said that messages retrieved from Mr McGrath’s mobile telephone and other mobile telephones indicated that Mr McGrath was in distress, shouting for the door to be opened and sounded frustrated about not being able to exit the building. The Coroner also reviewed the CCTV footage from the Timbre bar, which was consistent with the evidence of Mr Lim and Mr Doming and confirmed that the man seen by Mr Doming and Mr Daquil was Mr McGrath, and Mr McGrath was alone.
The Coroner concluded that there was no basis upon which it could be considered that Mr McGrath had been the subject of foul play and his intoxicated state probably added to his panic and confused mind. The Coroner found that Mr McGrath’s death was an unfortunate misadventure.
THE MEMBER’S REASONS
The Member noted the issues in dispute. She also noted that the dependants had reached an agreement in respect of the apportionment of the lump sum benefit payable pursuant to s 25(1)(a) of the 1987 Act, should the claim succeed.
The Member summarised the autopsy report and the Coroner’s findings, noting that the Coroner took into account the evidence provided in the statements from Mr McGrath’s work colleagues and the evidence of the staff from Timbre bar. The Member noted that the Coroner’s findings as to the description of injury and death were relied upon by all of the parties and observed that the parties accepted the facts found by the Coroner. She said this included the fact that Mr McGrath’s blood alcohol content was high, and that he had left the Timbre bar in an inebriated state, entering the Substation where he became disorientated and confused.
The Member reviewed the evidence of Ms McGrath, Mr Murray, and Mr McGrath’s co-workers and summarised the submissions made by the parties.
The Member noted that PM Electric’s defence was that, after leaving the Grand Prix practice session, the group of co-workers split up and went about independent activities. Further, PM Electric submitted that it did not encourage or induce Mr McGrath to enter the Substation, so that, at the time of his death, Mr McGrath was not in the course of his employment and his death did not arise out of his employment.
The Member proceeded to consider the question of whether Mr McGrath was in the course of his employment when he suffered the injury causing death. She referred to the authorities of Hatzimanolis v ANI Corporation Ltd[13] and Comcare v PVYW,[14] which she said were not relevant because they were cases involving injury during an interval or interlude. The Member discussed the factual circumstances in various authorities, including Hatzimanolis and PVYW. She quoted from the majority judgment of French CJ, Hayne, Crennan and Kiefel JJ in PVYW. She concluded that there was no basis upon which to find that Mr McGrath suffered his injury during an interval or interlude between two periods of employment and that the concepts of “inducement” or “encouragement” discussed in those cases was irrelevant, quoting from Basten JA’s remarks in Pioneer Studios Pty Ltd v Hills.[15]
[13] [1992] HCA 21, (Hatzimanolis).
[14] [2013] HCA 41, (PVYW).
[15] [2015] NSWCA 222 (Hills (No 2)).
The Member also referred to Cunningham v Tobin, Bolt and Rawlings t/as Stingray Cafe,[16] a decision of Neilson CCJ, upon which PM Electric relied. She concluded that that case supported the assertion that Mr McGrath was in the course of his employment the whole of the time that he was in Singapore. She said that the trip to Singapore was intended to reward staff for their hard work, build the team and boost morale, and observed that PM Electric had fully funded the trip. She concluded that she was satisfied that during the trip to Singapore, Mr McGrath was in the course of his employment.
[16] [2001] NSWCC 90.
The Member turned to the question of whether Mr McGrath’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act, which she noted must be considered separately to the question of whether injury occurred in the course of employment. She said that, in this case, the employment must be a substantial contributing factor to the injury suffered as a result of breaking the window and not to the “general circumstances of Mr McGrath being in Singapore.”[17]
[17] McGrath v PM Electric Pty Ltd [2021] NSWPIC 174 (reasons), [90].
The Member noted that Ms McGrath’s legal representative submitted that the work performed on the day leading up to the injury was socialising, and consumption of alcohol was incidental to that activity, so that the employment was a substantial contributing factor. The Member considered that the preferred view was that the trip was a team building exercise involving a fixed attendance at the Grand Prix, the tickets for which were paid for by PM Electric, and otherwise the group were free to pursue any activity they wished. She noted that Mr Deuchar stated that they were expected to go to the Grand Prix.
The Member quoted from the judgment of Basten JA in Pioneer Studios v Hills,[18] wherein Basten JA discussed the High Court authority of Roncevich v Repatriation Commission,[19] in which the High Court observed that there was a requirement and an expectation that the injured person was to attend a function and consume a quantity of alcohol, which satisfied the causal connection. She noted that Basten JA observed that, in relation to s 9A of the 1987 Act, “No lesser connection should be accepted where the employment must be a ‘substantial contributing factor.’” The Member said that she did not accept that alcohol was central to the activities undertaken in Singapore and it was not the purpose of the trip, although it might have been expected that alcohol would be consumed. She surmised that, if drinking alcohol had been the purpose of the team building exercise, it could have been held in Sydney.
[18] [2012] NSWCA 324 (Hills (No 1)).
[19] [2005] HCA 40 (Roncevich).
The Member further observed that the circumstances in this case were different to those in Roncevich. She referred to the judgment of Allsop P, Beazley JA and McColl JA in Badawi v Nexon Australia Pty Ltd t/as Commander Australia Pty Ltd,[20] wherein their Honours said:
“… Section 9A(1) requires a determination as to whether the employment is a substantial contributing factor to the injury. The determination so called for is not performed in a case such as this by looking at the recreational activity and then seeing whether any aspect of the employment concerned might have strengthened the linkage with that employment. Rather, a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account.
However, to approach the question in s 9A from the perspective of the non-employment activity undertaken during an interval in the employment, rather than from the perspective of the employment concerned, was to misunderstand the statutory test.”
[20] [2009] NSWCA 324, (Badawi), [101]–[102].
The Member noted that Mr McGrath:
(a) was a project manager in an electrical company;
(b) was injured on a team building activity in Singapore;
(c) was alone at the time, and
(d) had consumed a large amount of alcohol.
The Member referred to the evidence of Mr Pogue that Mr McGrath “wanted to go and party”, Mr Murray’s evidence that the men were free to do as they chose, and Mr Deuchar’s evidence that the purpose of the trip was to attend the Grand Prix together. The Member remarked that, for a substantial period of the time, Mr McGrath did not take part in the purpose of the trip.
The Member concluded that neither Mr McGrath’s employment nor the circumstances surrounding the trip required him to consume alcohol. Further, she was not satisfied that there was an expectation that large quantities of alcohol would be consumed. The Member observed that the circumstances were quite different to those in Roncevich, so that the authority did not assist her. The Member said that the parties had accepted the findings of the Coroner, which said that alcohol consumption was causative of the injury. She concluded that she was not satisfied that Mr McGrath’s employment was a substantial contributing factor to the injury.
The Member added that the test for determining whether an injury arose out of employment involves a causative element and it is not sufficient that the injury would not have occurred “but for” the fact that Mr McGrath had been in Singapore. The Member said that, in any event, s 9A of the 1987 Act was not satisfied, and as a consequence, she entered an award in favour of PM Electric.
The Certificate of Determination issued on 8 June 2021 records:
“The Commission determines:
1. Award for the first respondent.”
GROUNDS OF APPEAL
Each of the dependants filed separate appeals, nominating various grounds and making independent submissions.
Ms McGrath’s grounds of appeal
Ms McGrath relies upon the following grounds of appeal:
(a) Ground; One: error of law in the Member misdirecting herself in determining the question of fact to be answered as to whether the team building activity engaged in, including the consumption of alcohol, was required or expected (in the sense of compulsory) rather than whether the practical reality of the circumstances was that Mr McGrath found himself reasonably required or expected to participate, so that the cause of the injury arose out of or in the course of employment;
(b) Ground Two: error of law in the finding of fact that the incidental team building in Singapore, including the consumption of alcohol, was not activity arising out of or in the course of employment which contributed to the deceased’s injury;
(c) Ground Three: error of law in drawing the inference that the activity of the consumption of alcohol was not required or expected or authorised in the absence of evidence, and
(d) Ground Four: error of law in finding that Mr McGrath’s employment was not a substantial contributing factor to his injury.
Taleya’s grounds of appeal
Taleya asserts three grounds upon which the Member erred, namely:
(a) Ground One: the Member fell into error of mixed fact and law in discounting evidence in relation to the issue of the “employment concerned” in s 9A of the 1987 Act;
(b) Ground Two: the Member misdirected herself and failed to properly engage with the employment activity concerned, in particular the evidence of the employer and the co-workers, before considering s 9A of the 1987 Act, and
(c) Ground Three: the Member misdirected herself in engaging in an analysis as to whether the breaking of the window by Mr McGrath was disentitling conduct rather than an accident or misadventure.
Kayden’s grounds of appeal
Kayden brings seven grounds of appeal as follows:
(a) Ground One: error of mixed fact and law in failing to give proper and adequate regard to, and ignoring evidence in relation to, the issue of the “employment concerned” as required by section 9A. That is, that Mr McGrath in fact was not fettered by his employer in terms of the activities in Singapore including that of the consumption of alcohol and attending the Substation and Timbre venues by himself;
(b) Ground Two: error of mixed fact and law in failing to take into account that the employer’s workers were not limited to any degree by the employer in the activities that they chose to embark upon in Singapore;
(c) Ground Three: error in misdirecting herself by not fully and adequately engaging with the nature of the employment concerned before considering the causative and disentitling provisions of s 9A of the 1987 Act;
(d) Ground Four: error of mixed fact and law in not giving proper and adequate weight to the evidence of employment in Singapore (particularly evidence from the employer and the co-workers);
(e) Ground Five: error of law in determining that the findings of the Coroner were accepted by the parties;
(f) Ground Six: error of mixed fact and law in failing to adequately and fully consider the third appellant’s submissions in relation to whether there was disentitling conduct in terms of s 9A of the 1987 Act, and
(g) Ground Seven: an error of mixed fact and law in failing to properly or fully assess the evidence leading to the plausible conclusion that the employment concerned – that is, that the breaking of the window causing haemorrhage, was an accident and not a misadventure or disentitling activity.
LEGISLATION
Section 9A of the 1987 Act provides:
“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.”
SUBMISSIONS
Each of the appellants filed separate appeals asserting various errors in the Member’s reasons and findings, which creates a difficulty in circumstances where it might be that not all appeals succeed. It is preferable that, where the interests of the dependants are the same, those parties indicate whether they intend to rely upon the grounds of appeal brought, and the submissions made by another dependant. Otherwise, the difficulty can only be cured by finding an element of commonality among the allegations of error and ascertaining whether the common allegations establish that the Member erred.
For the reasons set out below, it is not necessary to discuss all of the grounds relied upon by each of the appellants. It is sufficient to consider Grounds One, Two and Four of Ms McGrath’s appeal, Grounds One and Two of Taleya’s appeal, and Grounds One and Three of Kayden’s appeal, in order to determine whether the Member erred in her conclusion that Mr McGrath’s employment was not a substantial contributing factor to the injury.
Ms McGrath’s submissions
Grounds One and Two and Four
At first blush, the first two grounds of appeal relied upon by Ms McGrath appear to assert error on the part of the Member in respect of the Member’s conclusions that the injury occurred in the course of the Mr McGrath’s employment. Given that the Member found in favour of the appellants, any complaint about the correctness of the reasons would properly have been made by way of a notice of contention in opposition to an appeal brought against the ultimate finding of the Member.
Reading the submissions made by Ms McGrath as a whole, however, it is apparent that she challenges the rejection by the Member of her submission that the consumption of alcohol was an activity that was required or expected to be undertaken and was incidental to Mr McGrath’s employment.
Ground One
Ms McGrath refers to the High Court decisions in Roncevich and Humphrey Earl Ltd v Speechley[21] and submits that those cases are authority for the proposition that, in this case, the consumption of alcohol by Mr McGrath was reasonably required, expected or authorised when considering the “practical realities” of the trip to Singapore. Ms McGrath refers to the Member’s finding that the purpose of the trip was team building by attending the Grand Prix and that Mr McGrath spent a good deal of the time alone and not participating in that purpose. Ms McGrath further refers to the Member’s consideration that neither Mr McGrath’s employment nor the purpose of the trip required him to consume large amounts of alcohol or that that was what was expected of him. Ms McGrath submits that the proper enquiry should have been whether the practical reality of the circumstances required or expected Mr McGrath to participate in the activities, including the consumption of alcohol. Ms McGrath asserts that the Member misdirected herself by asking whether it was mandatory to consume alcohol or Mr McGrath was directed to do so. Ms McGrath refers to Kirby J’s observation in Roncevich and submits that the “practical reality of the circumstances included consideration of the social, cultural and environmental norms” involved in such an event.
[21] [1951] HCA 75 (Speechley).
Ms McGrath submits that the Member’s acknowledgment that alcohol might be consumed, whether it be at the Grand Prix, Raffles Hotel or the hotel pool, was an acknowledgment that it was at least reasonably expected or authorised. She says that, in order for the consumption of alcohol to fall outside of the course of Mr McGrath’s employment, it would have had to have occurred when the worker’s employment was abandoned or it occurred during an interruption, which notion was specifically rejected by the Member. Ms McGrath again refers to Kirby J’s observations in Roncevich and submits that there is “scope, and need, for individual initiatives that go beyond the performance of what is ‘compulsory,’ ‘obligatory’ or ‘required.’”
Ground Two
Ms McGrath submits that Mr McGrath’s absence from the team building exercise of attending the Grand Prix together was no different to the absence of Mr Murray. Further, the Member’s consideration that Mr McGrath’s absence meant he was not participating in the purpose of the trip was contrary to Mr Murray’s evidence that Mr McGrath was free to do what he pleased.
Ms McGrath submits that the Member’s reliance on Mr Deuchar’s evidence that there was an expectation that they would attend the Grand Prix was reliant upon a subjective impression, rather than an objective assessment, which was not consistent with Allsop P’s observations in Hills (No 1). She says that, in any event, the evidence indicates that the only person who appeared genuinely interested in the racing was Mr McGrath, who left the others at the pool early in order to attend the Grand Prix.
Ms McGrath provides an exhaustive summary of the statement evidence about the arrangements for the trip and makes extensive submissions as to what constitutes “in the course of employment.” It is not necessary to refer to those submissions.
Ground Four
Under this ground, Ms McGrath specifically asserts error on the part of the Member in respect of the Member’s finding that Mr McGrath’s employment was not a substantial contributing factor to his injury. She points to the Member’s rejection of the submission that the consumption of alcohol was an activity incidental to and within the general circumstances and scope of Mr McGrath’s employment.
Ms McGrath submits that the Member erred by attributing the injury to Mr McGrath putting his fist through the window when she should have considered the employment circumstances that led to Mr McGrath’s disorientation. Ms McGrath relies on Roncevich, the observations of Basten JA in Hills (No 1), and his Honour’s observations in relation to Roncevich as to what as a minimum is required to be satisfied that the employment was a substantial contributing factor.
Ms McGrath further relies on Simpson JA’s observations in Hills (No 2), in which her Honour applied the principles set out in Badawi, in particular that s 9A(2)(b) of the 1987 Act directs attention to the nature of the work performed, the particular tasks of the work and not what the employee was doing at the time of the injury.
PM Electric’s submissions in response
Ground One
PM Electric submits that the Member was responding to Ms McGrath’s submission that the employment concerned on the relevant day was socialising, to which the consumption of alcohol was incidental, a submission that the Member rejected. PM Electric says that it was in this context that the Member concluded that the purpose of the trip was team building involving attendance at the Grand Prix. PM Electric points to the Member’s consideration of the evidence from Mr Murray and Mr Deuchar and her discussion of the majority judgment in Roncevich, as well as the observations of Basten JA in Hills (No 1). PM Electric submits that it was not an error for the Member to prefer one view of the facts over another in circumstances where that conclusion was not outweighed by other probabilities, as discussed in Raulston v Toll Pty Ltd.[22]
[22] [2011] NSWWCCPD 25 (Raulston).
PM Electric asserts that the Member did not completely ignore the fact that the parties were allowed to do as they wish. It submits that the Member carefully reviewed that evidence. PM Electric remarks that Mr Deuchar’s evidence that there was no requirement to stay together was a statement made after the event and in fact, on the first day, the group (apart from Mr Murray and Mr McGrath) did stay together. PM Electric submits that the Member did take into account all of the evidence and concluded that alcohol was not incidental to the trip, which was a conclusion available to her. PM Electric asserts that the Member did not err as alleged.
Ground Two
PM Electric submits that Ms McGrath’s analysis of the Member’s determination in Ground Two is wrong. It says that the Member had already determined that Mr McGrath was in the course of his employment and proceeded to determine the question of whether Mr McGrath’s employment was a substantial contributing factor to his injury. PM Electric submits that the Member rejected the submissions that consumption of alcohol was the purpose of the day and that the nature of the work was socialising, which included consumption of alcohol. It submits that the Member found that, although the consumption of alcohol might have been expected, the purpose of the trip was to attend the Grand Prix. PM Electric says that the conclusion was open to the Member, and it was “entirely up to” the Member to determine what weight to place on the evidence.
Ground Four
PM Electric reiterates that the Member reviewed the evidence and the submissions about alcohol consumption. It submits that it was a matter for the Member to conclude that, while it might have been expected that alcohol would be consumed, she was not satisfied that the employment required Mr McGrath to consume alcohol or expected him to consume large quantities of alcohol. PM Electric asserts that Ms McGrath has failed to establish error on the part of the Member as alleged.
Taleya’s submissions
Ground One
In Ground One of Taleya’s appeal, she asserts error on the part of the Member by drawing a distinction between the trip to Singapore being for the purpose of team building and that it was intended as a reward for performance at work. Taleya refers to the reason given by the Member, that is, that:
“The preferable view is that the motivation for the trip was team building based around the Grand Prix. Mr Murray had purchased three day passes. His evidence was that [it] was the only planned activity and that outside of that, the group were free to spend time as they wished. The members of the group said that the only fixed commitment was to collect the tickets for the Grand Prix. All other decisions about what to do were made as a group.”[23]
[23] Reasons, [93].
Taleya submits that the Member misstated the evidence when she determined that each person in the group was only permitted to do group activities, so that an injury occurring outside of the group was not compensable. She points to the Member’s acknowledgment of the evidence that the purpose of the trip was to thank the employees for their hard work and performance and to experience Singapore and the Grand Prix.[24]
[24] Reasons, [63]
Taleya further submits that, in coming to the conclusion that the motivation for the trip was team building based around the Grand Prix, the Member ignored or failed to adequately engage with the evidence provided by Mr Murray and the other members of the group.
Ground Two
In her second ground of appeal, Taleya asserts that the Member erred when considering the issue of the “employment concerned” within s 9A(1) of the 1987 Act.
Taleya submits that the trip was clearly defined, and Mr McGrath was engaging in the very activity that was condoned, contemplated and funded by PM Electric. That is, being in a bar and drinking alcohol. She points to the fact that Mr Murray, as well as the other workers, went in and out of group activities as they pleased. Taleya says that the Member misdirected herself by looking for an interlude or interval in which the injury occurred. She says that at the time of the injury, Mr McGrath was in a distressed state and had locked himself in a dark room in an unfamiliar place and the injury was an accident.
PM Electric’s submissions in response
Ground One
In respect of Ground One of Taleya’s submissions, PM Electric repeats its submissions made at [87] above and reiterates that there was evidence before the Member that she was entitled to accept, particularly that of Mr Murray and Mr Deuchar.
PM Electric disputes that the Member made a finding that Mr McGrath was only permitted to pursue activities as part of the group. It submits that the Member reviewed the evidence of each person in the group and observed that the group spent most of the time together on the first day and that Mr McGrath left the group in the early afternoon. PM Electric says that the Member took into account Mr Murray’s statement that there was no issue with Mr McGrath leaving the group. PM Electric disputes that the Member ignored or failed to engage with that evidence and asserts that Taleya has failed to show error on the part of the Member.
Ground Two
In response to Ground Two of Taleya’s submissions, PM Electric submits that the Member was “entirely correct” to deal with whether Mr McGrath was in the course of his employment or whether the injury occurred during an interval or interlude, before proceeding to consider s 9A of the 1987 Act. PM Electric says that the path followed by the Member was that required by the legislation and submits that Taleya has failed to show why or how the Member erred.
Kayden’s submissions
Ground One
In Ground One of his appeal, Kayden raises the same allegation of error as Taleya raises in Ground Two of her appeal, and on the same basis. Kayden points to the Member’s finding in relation to the motivation for the trip and submits that it is erroneous and against the weight of the evidence, in particular Mr Murray’s evidence that it was Mr McGrath’s time to do whatever he wanted to do. Kayden refers to the Member’s acknowledgment that Mr Murray indicated that the purpose of the trip was to thank the employees for their performance, to experience Singapore and to experience the Grand Prix.
Kayden reiterates that the Member found that Mr McGrath was in the course of his employment during the whole time that he was in Singapore and that the injury was not suffered in any interlude or interval in that employment. He says that the Member then erroneously found that the nature of the employment did not include the consumption of alcohol or the breaking of a window.
Kayden also submits that Mr McGrath was not fettered by PM Electric in relation to consumption of alcohol and attending venues such as the Timbre bar by himself. He asserts that the Member erred by failing to take into account the fact that the workers were free to do as they chose, without limitation, and by misconceiving the evidence in rejecting the equally probable view that the fact was that the trip was about rewarding each of the workers for their work performance. Kayden submits that the Member completely ignored that the practical reality allowed for each worker to do whatever they wished.
Kayden asserts further error on the part of the Member by concluding that the only permitted activity was to take part in group activity, effectively finding that an injury occurring outside of a group activity was not compensable. He submits that the means of communicating by way of the WhatsApp application within the group did not extend to preventing a member of the group from venturing to a bar to drink by himself. Kayden adds that the expectation that, because PM Electric had paid for the tickets, everyone would attend the Grand Prix was “by no means exclusive of other attractions and activities.”[25]
[25] Kayden’s submissions, [5].
Kayden submits that the Member’s reasoning that the injury occurred while Mr McGrath was outside of the “purpose” of the trip because of the Grand Prix and because of his alcohol consumption was erroneous in the context of the uncontradicted evidence that the group was there to “experience Singapore.”
Ground Three
Kayden alleges further error on the part of the Member by failing to engage with the nature of the employment concerned. Kayden submits that there was no basis upon which to find that the injury suffered by Mr McGrath occurred during an interval or interlude between periods of employment. Kayden points out that the Member had determined that Mr McGrath was in the course of his employment for the whole trip.
PM Electric’s response to Kayden’s submissions
Ground One
In respect of Ground One of Kayden’s appeal, PM Electric asserts that the submissions are misconceived. PM Electric submits that, when the Member expressed her “preferred” view, it was in response to the submission that the work performed on the relevant day was socialising, and that alcohol was incidental to that activity. PM Electric reiterates that the Member took into account the evidence and there was evidence before the Member that she was entitled to accept. PM Electric says that the Member preferred one view of the facts over another as being more probable and such a finding cannot be disturbed unless other probabilities so outweigh the Member’s decision that it shows the Member was wrong. PM Electric submits that the Member was not in error in the manner she dealt with s 9A of the 1987 Act, and Kayden has failed to show error.
Ground Three
In respect of Ground Three of Kayden’s appeal, PM Electric submits that the Member approached the question of whether employment was a substantial contributing factor by considering that Mr McGrath was a project manager employed by an electrical company. PM Electric submits that it does not matter whether Mr McGrath was on a team building trip or whether the trip was a reward for work done, because the Member had found that Mr McGrath was in the course of his employment. PM Electric points to the factors that led to Mr McGrath’s injury which were taken into account by the Member in her consideration of whether s 9A of the 1987 Act was satisfied. PM Electric gives as examples that Mr McGrath was alone, had consumed a large amount of alcohol which the Coroner considered contributed to Mr McGrath’s panic and confusion, and the building was in darkness. PM Electric submits that the onus rested with the appellants to prove that Mr McGrath’s employment was a substantial contributing factor to his injury, an onus which they failed to discharge. PM Electric asserts that there was no error in the way the Member approached the question required to be addressed by s 9A of the 1987 Act.
THE RELIEF SOUGHT
Ms McGrath asks for the Member’s Certificate of Determination to be revoked and an award entered in her favour. Alternatively, Ms McGrath says that the matter should be remitted to another member for re-determination.
Taleya seeks to have the Certificate of Determination revoked and that there be an award entered in favour of each of the appellants. She also asks that the matter be remitted to another member for determination of the issues of apportionment.
Kayden also seeks a revocation of the Certificate of Determination and the matter to be remitted to another member for re-determination.
PM Electric seeks to have the Member’s decision confirmed.
CONSIDERATION
The Member found in the appellants’ favour in respect of the issue of whether Mr McGrath’s injury occurred in the course of his employment in accordance with s 4 of the 1987 Act. She was not satisfied that the injury was suffered during an interval or interlude between two periods of employment. She determined that Mr McGrath “was in the course of his employment during the whole of the trip to Singapore.”[26] She then proceeded to determine the issue of whether Mr McGrath’s employment was a substantial contributing factor to the injury, that is, the haemorrhage causing his death. Such a finding involves an evaluation of the nature of the causal connection and usually constitutes a finding of fact.[27] A conclusion on causation is “a fact-laden conclusion which the courts have been told must be based on common sense.”[28]
[26] Reasons, [87].
[27] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, per Basten JA, [114].
[28] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, per Allsop P, Beazley JA and McColl JA. [81].
In order to make such a determination, the Member was required to give consideration to all of the evidence before her and the inferences that could be drawn from those facts. Such findings of fact will not normally be disturbed if they have rational support in the evidence.[29]
[29] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
The principles applicable to disturbing a Commission member’s factual determination have been frequently considered in appeals to a Presidential member and were summarised by Roche DP in Raulston.[30] It is not necessary to recite that summary here.
[30] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [19]–[20].
A useful overview of the principles to be applied in relation to an appeal from a primary decision maker’s findings of fact was provided in the judgment of Basten JA (with Allsop P agreeing) in Najdovski v Crnojilovic[31] as follows (citations omitted):
[31] [2008] NSWCA 175 (Najdovski), [22].
“Once primary facts have been found and relevant inferences drawn, the ultimate conclusion may depend upon an evaluative judgment which may not be amenable to precise justification. The constraints which apply to a review of such a judgment recognise that views may reasonably differ as to the appropriate result and that error will not be found if the result is within the appropriate range. It may be that error is demonstrated in failing to reveal a process of reasoning where, although relevant and material facts have been found, the basis for the final conclusion remains impenetrable. There may be occasions in which such a result will demonstrate a failure to fulfil that part of the judicial function which requires revelation of the reasoning process, but more commonly such a case will be resolvable on the basis that the findings of fact are not as they appear or that there is otherwise an unrevealed error of principle.”
Thus, in order for the appellants to succeed on this appeal, they must establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong. Or, as Basten JA observed, the basis for the final conclusion remains impenetrable.
There is no challenge to the Member’s determination that Mr McGrath was in the course of his employment for the entire period that he was in Singapore. It must follow that, in the absence of an interlude or an interval in that employment, the injury occurred in the course of Mr McGrath’s employment. There was no dispute that the injury suffered by Mr McGrath was a wound to the artery in his right wrist that was caused by Mr McGrath breaking through the window in the Substation building, resulting in haemorrhaging that caused his death. While the fact of the injury occurring in the course of employment is not of itself determinative, it is relevant.[32]
[32] Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344, per Santow JA (Beazley and Ipp JJA agreeing), [36].
The Member’s conclusion that Mr McGrath was in fact in the course of his employment for the whole period of the trip and that there was no interruption or interlude in that period is of particular relevance in the circumstances of this case.
In order to satisfy s 9A of the 1987 Act, a person claiming compensation must establish that there was a causal connection which is “real and of substance” between the “injury” and the “employment concerned”.[33] The reference in s 9A(1) to “the employment concerned” being a substantial contributing factor to the injury is not a reference to the fact of being employed, but to what the worker in fact does in the employment.[34] Thus, in the circumstances of this case, the fact that Mr McGrath was a construction manager employed by PM Electric was not pertinent to the identification of the “employment concerned” in the context of s 9A.
[33] Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260, per McColl JA (with MacFarlan JA and Payne JA agreeing), [332].
[34] Mercer v ANZ Banking Group [2000] NSWCA 138 (Mercer), [13].
Each of the appellants challenge the Member’s conclusions reached in respect of the “employment concerned.” Ms McGrath relies on Roncevich as authority to say that the practical reality of the circumstances surrounding the injury included consideration of the social, cultural and environmental norms involved in such an event. She says that those factors indicated that Mr McGrath was required or expected to participate in the activities, including the consumption of alcohol.
Taleya submits that the Member misstated the evidence when she determined that each person in the group was only permitted to do group activities, so that an injury occurring outside of the group was not compensable. Taleya further submits that, in coming to the conclusion that the motivation for the trip was team building based around the Grand Prix, the Member ignored or failed to adequately engage with the evidence provided by Mr Murray and the other members of the group.
Kayden submits that the Member found that Mr McGrath was in the course of his employment during the whole time that he was in Singapore and that the injury was not suffered in any interlude or interval in that employment. He says that the Member then erroneously found that the nature of the employment did not include the consumption of alcohol or the breaking of a window, effectively finding that an injury occurring outside of a group activity was not compensable.
In response, PM Electric submits that the Member took into account the evidence, applied the relevant authorities, and arrived at a finding that was open to her, namely that the purpose of the trip was to attend the Grand Prix. Thus, there was no error. PM Electric refers to the Member’s conclusion that, while it might have been expected that alcohol would be consumed, she was not satisfied that the employment required or expected Mr McGrath to consume large quantities of alcohol.
The difficulty with PM Electric’s submissions and the Member’s conclusion is that there was a large body of uncontradicted evidence leading to the fact that the purpose of the trip went beyond attending the Grand Prix as a group.
Mr Murray advised in the email dated 23 October 2019 that the purpose of the trip was to reward the group for their hard work, give the group the opportunity to experience Singapore, and to attend the Grand Prix. Mr Allen considered that the trip was to reward the employees and perhaps was a team building exercise. Mr Fitzgerald stated that the trip was a reward for hard work and for the purpose of team bonding, as did Mr Pogue and Mr Deuchar. Ms McGrath remarked that PM Electric would often provide rewards for good performance.
While the Member referred to that evidence, she did not explain why she preferred the view that the purpose of the trip was a team building event involving attendance at the Grand Prix as a group, other than to say it was the only activity within the scope of the trip that the group had an obligation to attend. The evidence from Mr Murray and confirmed by Mr Allen and Mr Fitzgerald was that the men were entitled to do as they pleased, and Mr Murray indicated that they were to “enjoy Singapore.” When read together, the evidence provided by all of the men confirms that members of the group came and went during the evening at the Grand Prix, left at different stages of the evening and separated into smaller groups during the evening and again for breakfast. Such conduct was performed with the express approval of Mr Murray. Further, the activities throughout the day and in the evening invariably involved the consumption of alcohol, including by Mr Murray, to the extent that at some venues, the men would shout the rest of the group by buying rounds of beers.
The Member appeared to discount those activities because they were not undertaken in accordance with a set plan but gave no reason why those activities did not fall within the ambit of the purpose of the trip, in circumstances where she had already determined that Mr McGrath was in the course of his employment for the entire trip.
The Member proceeded to observe that:
“For the substantial part of the evening, Mr McGrath was away from the other members of the group and not participating in the activity which was the purpose of the trip.”[35]
[35] Reasons, [102].
This observation is reflective of the very error identified in Badawi, in particular as observed by Basten JA, who, after considering the rationale of Hatzimanolis, said:
‘The critical factor which led the Commission to a different view was the conclusion that the claimant was ‘not performing any work activity at the time that she received the injury, but was skiing with her partner because they had ‘time on [their] hands’ … This is, however, to answer the wrong question. It focuses not on the connection between the employment and the injury, but on the closeness of the connection between the activity of the claimant giving rise to the injury and her duties as an employee, a question potentially relevant to the conceded issue, namely that the injury had arisen in the course of her employment.”[36]
[36] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, per Basten JA, [123].
And:
“… The concept of ‘the employment concerned’ is not to be restricted to the activities in carrying out the actual duties required of the employee, nor is it to be constrained by an assessment of the benefits which might be obtained by the employer from the activity in question.”[37]
[37] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, per Basten JA, [126].
And, referring to Mercer:
“… one is not required, in applying s 9A(1), to identify some ‘inherent features or essential incidents of’ the employment and reject as not part of the employment, factors which are merely incidental to those features or incidents.”[38]
[38] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, per Basten JA, [127].
Applying those principles, I am of the view that the Member failed to adequately deal with the substantial body of evidence that, when properly considered, might have indicated that the employment concerned went beyond any expectation to attend the Grand Prix.
In accordance with the observations of Basten JA in Badawi extracted at [128] above, and in the context of having determined that Mr McGrath was in the course of his employment for the entire trip, the Member asked herself the wrong question when she determined that employment was not a substantial contributing factor because Mr McGrath was performing what she considered to be a non-work activity when he was injured. Further, by identifying the attendance at the Grand Prix as a group as the “essential incident” (as referred to by Basten JA) of the trip, she failed to take into account the factors which may have been incidental to the essence of the “employment concerned.”
It follows that the Member erred in respect of her consideration of the “employment concerned,” by disregarding material evidence and asking herself the wrong question when considering whether s 9A(1) of the 1987 Act was satisfied. Those errors have infected the Member’s reasoning in respect of whether the employment concerned was a substantial contributing factor to Mr McGrath’s injury, as required by s 9A(1) of the 1987 Act.
The grounds of appeal relied upon by Ms McGrath (Grounds One, Two and Four), Taleya (Grounds One and Two) and Kayden (Grounds One and Three) succeed in establishing error on the part of the Member in respect of her determination in relation to the “employment concerned” for the purpose of s 9A(1) of the 1987 Act.
CONCLUSION
The appellants have established error on the part of the Member in her determination that she was not satisfied that Mr McGrath’s employment was a substantial contributing factor to his injury leading to death.
Subsection 352(6A) of the 1998 Act provides that, on appeal, the Member’s decision may be confirmed or may be revoked, and a new decision made in its place. Subsection 352(7) provides that, in the alternative, the matter can be remitted to a non-presidential member for re-determination.
The submissions of the parties made to the Member substantially addressed the questions going to whether Mr McGrath’s injury occurred in the course of his employment or arose out of his employment and the various authorities that apply to those concepts. The Member was not assisted by the absence of submissions in relation to the specific requirements of s 9A, in particular the matters which the Member was required to take into account in accordance with subs 9A(2).[39]
[39] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, per Allsop P, Beazley and McColl JJA, [100].
The absence of relevant submissions hinders a re-determination by a Presidential member of the issue as to whether Mr McGrath’s employment was a substantial contributing factor.
Subsection 352(5) of the 1998 Act provides that:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Thus, my power to re-determine a matter is limited to the correction of any error identified in the appeal.[40]
[40] Ballina Shire Council v Knapp [2019] NSWCA 146.
The Member’s reasons for her finding that Mr McGrath was in the course of his employment while on the trip to Singapore, or what constituted his “employment” in those circumstances, are not explicit. The difficulty with a determination as to whether s 9A is satisfied is that it involves a consideration of the “employment concerned.” In Badawi, Allsop P, Beazley JA and McColl JA reviewed the earlier Court of Appeal decision in Mercer in respect of s 9A and accepted a number of propositions that could be distilled from that decision. Relevantly, their Honours accepted that the phrase “employment concerned” ins 9A(1) has the same meaning as “employment” in the phrase “arising out of or in the course of employment.”[41] That is, what constitutes Mr McGrath’s employment for both s 4 and s 9A of the 1987 Act requires identification, which falls outside the ambit in this case of the correction of error referred to in s 352(5) of the 1998 Act.
[41] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, [48].
It is therefore necessary and appropriate to revoke the entirety of the Member’s Certificate of Determination and remit the matter to another non-presidential member for re-determination. I note that, in the event this appeal is successful, Taleya seeks to have the matter remitted for determination of the apportionment of the compensation payable, although the Member recorded that the parties had reached agreement in relation to apportionment. I note also that, at arbitration, Taleya sought orders as to the payment of interest on the compensation payable, the entitlement to which is yet to be determined.
DECISION
The Member’s Certificate of Determination dated 8 June 2021 is revoked.
The matter is remitted to another non-presidential member for re-determination of the issues as to whether:
(a) the injury arose out of or in the course of employment in accordance with s 4 of the Workers Compensation Act 1987;
(b) the employment was a substantial contributing factor to the injury, in accordance with s 9A of the Workers Compensation Act 1987, and
(c) any remaining issues, including any issue in respect of the apportionment of any amount of compensation payable pursuant to s 25(1) of the Workers Compensation Act 1987 and in respect of payment of interest on the arrears of compensation payable.
Elizabeth Wood
DEPUTY PRESIDENT
4 March 2022
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