Mills v Return to Work Corporation of South Australia

Supreme Court of South Australia
(Full Court)
MILLS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASCFC 36
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Auxiliary Justice Tilmouth)
12 May 2020
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - JOURNEY INJURIES - JOURNEY BETWEEN PLACE OF RESIDENCE AND PLACE OF EMPLOYMENT ETC
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR - OTHER MATTERS
Appeal from a decision of the Full Bench of the South Australian Employment Tribunal dismissing an appeal from a single presidential member of the Tribunal who had dismissed the appellant’s claim.
The appellant suffered serious head injuries in a motor vehicle accident which occurred in the early hours of the morning on Saturday, 7 February 2015. The appellant was driving from a vineyard in the Barossa Valley, on which he was working, to his accommodation, when his car veered off the road and into a tree.
The trial Judge was not satisfied, pursuant to s 30 of the Workers Rehabilitation and Compensation Act 1986 (SA), that there was a ‘real and substantial connection’ between the appellant’s employment and the accident out of which the injury arose. At issue on appeal is whether the Full Bench misconstrued or misapprehended the reasons for the decision of the trial Judge, and whether the reasons of the trial Judge were adequate at law.
Held per Kourakis CJ (Parker J and Tilmouth AJ agreeing), allowing the appeal:
1. That the decision of the Full Bench and the trial Judge be set aside.
2. The injuries suffered by the appellant arose out of, or in the course of, his journey between his place of employment and his residence.
3. On a proper construction of s 30(5) of the Workers Rehabilitation and Compensation Act 1986 (SA), it is not necessary to establish a causal connection. It is sufficient if the employment itself increased the risk of accidents of the kind in which the worker was injured.
4. The parties are to be heard as to any particular order for the payment of compensation which should be made.
Workers Rehabilitation and Compensation Act 1986 (SA) ss 30, 30A; Workmen’s Compensation Act Amendment Act 1953 (SA) s 3, referred to.
Chappel v Hart (1998) 195 CLR 232; Mills v Return to Work SA [2018] SAET 215; Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106; Simpson v London, Midland and Scottish Railway Company [1931] AC 351; Wheeler v State of South Australia [2012] SASCFC 111, discussed.
Birkholtz v RJ Gilbertson Proprietary Limited (1985) 38 SASR 121; Caswell v Powell Duffryn Associated Collieries Limited [1940] AC 152; Coco v The Queen (1994) 179 CLR 427; CTM v The Queen (2008) 236 CLR 440; Ousley v The Queen (1997) 192 CLR 69; Rosen v Owners of Steamship Quercus [1933] AC 494, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"a real and substantial connection"

MILLS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2020] SASCFC 36
FULL COURT: Kourakis CJ, Parker J and Tilmouth AJ

KOURAKIS CJ: The appellant, Mr Mills, suffered serious head injuries in a motor vehicle accident which occurred sometime between 2.30 am and 3.30 am on Saturday, 7 February 2015, when Mr Mills’ car veered off a country road and into a tree. Mr Mills was employed by Stirling Vineyard Services Pty Ltd (Stirling) to work as a general hand in the Barossa Valley. He had secured accommodation, through Stirling, in a house situated on the ‘sale-yard’ vineyard, some two kilometres from Angaston and about a 25-minute drive from the vineyard on which he was then working. Mr Mills and Stirling negotiated reduced rental for the accommodation on the basis that Mr Mills would manage the irrigation of the vineyard.
The then applicable legislation, s 30 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRCA), provided that an injury suffered in the course of a journey between work and home is compensable, only if there is ‘a real and substantial connection between the employment and the accident out of which the injury arises’.
Mr Mills claimed compensation on the ground that his accident was caused by fatigue, and because he was driving home at a time, referred to in the evidence as a circadian low, when he would ordinarily have been asleep. Mr Mills’ case was that:
·his long hours of work on night shift preceding the accident;
·the time of night at which the accident happened; and
·the way in which his car came to drift off the road and hit the tree,
circumstantially established, on the balance of probabilities, that he had fallen asleep for reasons connected with his employment.
The Deputy President of the South Australian Employment Tribunal (SAET) who heard Mr Mills’ claim (the trial Judge), dismissed the claim because he was not satisfied that there was ‘a real and substantial connection between [Mr Mills’] employment and the accident out of which the injury arises’.[1]
[1] WRCA s 30.
Mr Mills appealed against the dismissal of his claim to the Full Bench of the SAET (the Full Bench) on the ground that the trial Judge’s reasons were inadequate. The Full Bench found that it was ‘open for the [trial Judge] to reach [his] conclusion’, and dismissed Mr Mills’ appeal. It is against that order which Mr Mills appeals to this Court.
There was a difference of opinion in the Full Bench over precisely what findings the trial Judge made about the cause, or causes, of the accident. Lieschke DP understood the trial Judge to have found that Mr Mills did not fall asleep, and that the accident must have been caused in some other way. Gilchrist and Kelly DPJJ (the plurality) understood the trial Judge’s reason for dismissing the appeal to be that the paucity of the evidence, which was due in a large part to the loss of memory from which Mr Mills suffered consequent upon his head injury, left him unable to determine any cause for the accident. Counsel for Return to Work Corporation (RTW) supported the approach of the plurality. I will proceed on the same understanding of the trial Judge’s reasons.
The trial Judge did not explain why he did not accept Mr Mills’ case even though, as we shall see, the objective evidence of the circumstances of the accident strongly supported the conclusion that Mr Mills fell asleep. The trial Judge’s failure to be persuaded by that evidence was not, in itself, an error of law. However, the rejection of the combined strength of the circumstantial evidence required some explanation. None was given by the trial Judge. The trial Judge’s reasons were, therefore, inadequate in law. I elaborate on my reasons for so holding below.
In any event, neither the trial Judge, nor the plurality articulated the construction of s 30(5) of the WRCA on which they proceeded. As best as can be ascertained, they proceeded on a construction which equated ‘a real and substantial connection’ with a real and substantial cause. However, the two concepts are not the same. True it is, that if employment is a substantial cause of an injury, there will necessarily be a real and substantial connection between the two. Cause is a subset of connection. However, the legislative choice of the word ‘connection’, which eschewed the word ‘cause’ used elsewhere in the WRCA, is significant. I would hold that on a proper construction of the subsection, it is not necessary to establish a causal connection. It is sufficient if the employment itself increased the risk of accidents of the kind in which the worker was injured. I explicate my reasons for so construing the subsection below.
The evidence
By a process of reconstruction based on Mr Mills’ time sheets, the following appears to have been the case. In the week before the accident, Mr Mills worked from about 7.00 am to 3.00 pm. He did not work on the weekend of Saturday, 31 January and Sunday, 1 February 2015. On Monday, 2 February 2015, Mr Mills worked from 7.00 am to 1.30 pm. On Tuesday, 3 February 2015, he commenced work at 2.00 am and worked through to 10.00 am. On Wednesday, 4 February 2015, he commenced work at 4.00 pm and worked until 11.30 am on Thursday, 5 February 2015. Mr Mills returned to work at 7.30 pm on Thursday and worked until 3.30 am on the morning of Friday, 6 February 2015. He then commenced work again at 8.00 pm Friday evening and finished work at 2.30 am on Saturday, 7 February 2015. It was common ground, because the scene of the accident was about a five-minute drive from the sale‑yard vineyard, that the accident occurred very shortly before 3.00 am.
Due to his head injury, Mr Mills could not recall which shifts he worked in the days before the accident. Mr Mills’ only direct recollection about the length of his shifts was a conversation with another worker who mentioned working an 18-hour shift, to which Mr Mills responded that he had worked a 21‑hour shift. However, the time sheets did not disclose that Mr Mills worked a shift that long.
Mr Mills testified that when he was working night shift he attempted, as best he could, to sleep during the day. His sleep in that week was occasionally interrupted by phone calls giving him irrigation instructions or directions about other work he had to do on the sale‑yard vineyard. Mr Mills also described how difficult he found it to sleep on a sunny afternoon. He described lying in his bed ‘trying as hard as you can’ to shut his eyes.
Mr Mills elaborated, explaining:
Well, it’s sunlight. Your body clock’s not going to shut down. So it’s pretty hard just to go home and just – you know, you’ve got to get up. It’s still daylight. You’re only going to sleep for a couple of hours in the sunlight. You’re still going to get up in daylight on the same day and go back to work again. It’s pretty hard to do, to shut yourself down and sleep for a few hours, get straight back and go back to work on the same day after you’ve done 20 hours. It’s pretty hard.
Mr Mills gave evidence that his work was particularly tiring:
I was really – really tired because it was – you couldn’t sleep because you were only getting – through the day; it’s very hard to sleep through the day, and you’ve got to remember when you’re driving these tractors down the rows, the bin’s behind you – the harvester is alongside you behind you; the boom is behind you. Everything is behind you so you’re driving a tractor like this – [indicating turning his head to the rear].
Mr Mills testified that he did not suffer any injury or health condition before commencing employment with Stirling. He denied drinking alcohol whilst at work or taking illicit drugs. There is no evidence to the contrary.
Each of the parties called an expert on sleep patterns. Mr Mills called Professor Vakulin. In his report dated 29 April 2016, Professor Vakulin explained:
…The human sleep wake cycle is under the control of circadian and homeostatic factors, and sleep pressure (the need for sleep) varies according to the time of day and the duration of prior wakefulness (8). Independent of the amount of prior sleep, there are two distinct peaks of heightened sleepiness, reduced performance and increased accident risk in the

24-hour day, with one in the early morning (1:00-6:00 am) and the other in the mid‑afternoon (2:00-6:00 pm) (9-13) …
Professor Vakulin continued:
It is difficult to estimate the degree or sleep deprivation endured by an individual due to the incomplete information on sleep/wake pattern leading up to the accident and highly variable nature of individual vulnerability to sleep deprivation. On average it is clear that sleep deprivation as a result of variable shifts, challenging the circadian system, and operating during the most vulnerable time of the night/early morning (1-6am) would have put most individuals at risk of an accident. Furthermore the circumstances of the accident itself (single vehicle vs tree) is consistent with a sleepiness/fatigue related accident.
Professor Vakulin accepted in cross-examination that his opinion that the accident was consistent with fatigue, or a microsleep, reflected a general proposition from which there may be exceptions.
It should immediately be observed that Professor Vakulin’s evidence, if accepted, discloses two connections between Mr Mills’ employment and the accident: sleep restrictions because of his shift work, and driving home during a circadian low.
RTW called Associate Professor Thomas. Professor Thomas made estimates of Mr Mills’ sleep in between his shifts based on academic literature. He estimated that Mr Mills slept for nearly two hours in the afternoon of Tuesday, 3 February 2015. He estimated that Mr Mills slept for about five hours in the afternoon of Thursday, 5 February 2015, but that assumes that Mr Mills slept for all but two of the available hours between shifts (excluding travelling time). Professor Thomas estimated that Mr Mills slept from about 4.30 am to 8.30 am on the morning of Friday, 6 February 2015, and for another two hours in the afternoon before working the night shift which preceded the accident. Professor Thomas did not expressly advert to Mr Mills’ evidence about his difficulties in getting to sleep in the afternoon.
In a report dated 7 July 2016, Professor Thomas set out some general propositions concerning sleep deprivation:
19.Recent scientific evidence has focussed specifically on the critical role of sleep restriction with respect to the increased likelihood of fatigue-related impairment.
20.A typical human requires on average approximately 8 hours of sleep per 24-hour period. We refer to the situation where less than this amount of sleep is obtained as sleep restriction.
21.There is still uncertainty in the scientific literature as to the thresholds beyond which sleep restriction poses a significant risk for everyday tasks such as driving.
22.Sleep-restriction experiments in the laboratory setting show that a person’s tendency to fall asleep during normal waking hours increases if he or she has slept less than six hours and also increases with successive days of restricted sleep. This is likely to be exacerbated during periods of wakefulness during the window of circadian low.
23.However, other studies have identified lower threshold values. For instance, one of the most cited sleep dose-response studies found that significant performance impairment is only observed after two days of sleep restriction below three hours sleep or after three days of sleep restriction to below five hours sleep.
24.In field studies, evidence suggests that no performance impairment is evident until sleep falls below a threshold of 6 hours in the prior 24-hour period.
(Footnotes omitted)
Two comments may immediately be made on those paragraphs. First, it follows from [19] and [20] that Mr Mills’ sleep was restricted, at least to some extent, in the 24 hours preceding the accident. Despite the uncertainty referred to in [21], even on Professor Thomas’ estimates, Mr Mills fell into a class of persons with an increased tendency to fall asleep unintentionally because he had successive periods of restricted sleep and was driving during a circadian low.
Professor Thomas concluded that Mr Mills suffered ‘only minor sleep restriction’:
42.In short, at the time of the accident, based on the work schedule and estimated sleep, Mr Mills would most likely have experienced only minor sleep restriction, with a total of 6 hours sleep in the 24 hours prior to the accident and 11 hours sleep in the 48 hours prior to the accident and a total wake time of only 10 hours at the time of the accident.
Professor Thomas then discussed possible non‑work related causes of the accident:
43.The analysis of the work schedule presented above focussed on the inherent fatigue-related risk embodied in the hours of work and time free of work. While this analysis suggests the work schedule most likely only resulted in minor sleep restriction, there may have been a range of other factors that could have led to an increased level of fatigue-related risk.
44.This first of these factors relates to whether Mr Mills was actually able to convert the sleep opportunity provided, into actual sleep obtained. If this was not the case, it is likely that Mr Mills would have been experiencing extreme levels of sleep‑restriction and therefore a high degree of fatigue-related risk. Any number of non-work related variables could have led to Mr Mills not obtaining sufficient sleep. There appears to be no information available to make a determination of the likelihood of these factors coming into play in the days immediately prior to the accident.
45.Similarly, a range of common sleep disorders, many often undiagnosed, have been shown to significantly increase fatigue-related risk. Again, there appears to be no information available to make a determination of the likelihood of a sleep disorder being present or not at the time of the accident.
…
49.In this instance, it would appear that Stirling Vineyard Services recognised that during high intensity periods of work during vintage, there may be elevated levels of fatigue‑related risk. As part of the mitigation of this risk, they provided employees access to suitable sleeping accommodation in close proximity to the vineyards.
50.The fact that Mr Mills did not avail himself of this specific fatigue‑risk mitigation provided by the company is in my opinion significant. In not availing himself of the sleeping accommodation provided on site, he made a personal decision to carry the burden of risk as an individual.
[CONCLUSIONS]
51.It is my opinion that there is insufficient evidence to determine that the accident was definitively caused by fatigue.
52.Moreover, it is my opinion that based on the analysis of Mr Mills work schedule he would have been experiencing only minor sleep restriction as a direct consequence of that work schedule. Whilst certainly onerous and involving night work, the work schedule overall provided adequate sleep opportunity in the days before the accident.
(Footnotes omitted)
From the perspective of proof of Mr Mills’ workers compensation claim, the following should be noted about that discussion and Professor Thomas’ conclusions. First, as to [43], it does not matter much that Mr Mills’ sleep restriction was relatively minor if he nonetheless fell asleep because his shift work had restricted his sleep and required him to drive a significant distance on country roads in the early hours of the morning, being in a period of a circadian low.
Secondly, in [44], Professor Thomas recognised that Mr Mills’ capacity to convert sleep opportunity into actual sleep might have left him even more sleep deprived and fatigued. However, as I have already observed, Professor Thomas was not taken to Mr Mills’ evidence about how difficult he found it to fall asleep in the afternoon.
Thirdly, as to [45], there was no evidence of any other physiological cause of sleep restriction. The possibility of a non-work cause, on the evidence before the trial Judge, was speculative. Professor Thomas’ focus on personal fault or responsibility in [49] and [50] is irrelevant on a worker’s compensation claim. I intend no criticism of Professor Thomas by that observation. His report undoubtedly reflects his area of medical expertise and a focus on occupational health responsibilities and workplace safeguards. However, Professor Thomas’s focus is reflected in some of the analysis of the trial Judge to which I will shorty turn.

Finally, Professor Thomas’ conclusion that there was insufficient evidence for him to ‘definitely’ determine that fatigue caused the accident was, naturally enough, based on his expertise as an expert on sleep. The duty of the trial Judge, however, was different. It was to determine the cause and connection issues judicially according to all of the evidence.
Having had the benefit of reading Professor Thomas’ report, Professor Vakulin, in a supplementary report, expressed the opinion that ‘sleeping outside the normal circadian phase is more difficult, sleep quality is impaired, sleep is usually shorter and is not as efficient and restorative as well timed sleep in phase with individual’s circadian phase’. Professor Vakulin nonetheless accepted that Mr Mills suffered from, as Professor Thomas had assessed, ‘at least mild sleep restriction’. Professor Vakulin continued:
8.However, I agree with Prof Thomas’s comments in paragraphs 43-45, that there is not enough information on the circumstances of Mr Mills rest/wake/sleep schedules and there is a significant number of other factors, unknowns and assumptions regarding how much sleep was actually obtained during the rest periods and how Mr Mills watering taps and yard maintenance responsibilities impacted on the amount/quality of sleep during rest periods. Furthermore a number of pre-existing sleep disorders such as obstructive sleep apnoea and/or insomnia could not be ruled out, which could have made Mr Mills more vulnerable to experiencing higher levels of sleep restriction and thus higher risk of sleepiness/fatigue related accident.
9.In response to paragraphs 51-53, I agree that the work schedules in the preceding week would have resulted in at least mild sleep restriction. I believe given the circumstances of the motor vehicle accident (sing vehicle into a tree) suggests that fatigue/sleepiness was at least in part responsible. I do agree however that the work place provisions for rest/sleep were in place and that Mr Mills did not utilise these facilities, but there is simply not enough evidence to accurately gauge the magnitude of the sleepiness/fatigue risk and the amount of work/rest/wake/sleep obtained by Mr Mill’s given his watering tap and yard maintenance responsibilities.
Mr Mills also adduced evidence from an accident reconstruction expert, Professor Robert Anderson. From Professor Anderson’s report, it was shown that the distance from the property on which Mr Mills was working to the sale-yard vineyard was about 25 kilometres. The route was along the Sturt Highway past Greenock, through Nuriootpa and out along Penrice Road.
Professor Anderson examined the damage to the Subaru which Mr Mills was driving. He perused video of the crash scene taken by the police. Professor Anderson concluded that the angle of departure of the vehicle from the roadway was shallow, and consistent with a drift off the roadway. Importantly, he noted that it was a common finding that vehicles involved in accidents caused by fatigue tend to drift out the of lane, or fail to follow deviations in the road alignment.
Professor Anderson excluded speed and alcohol-induced impairment as contributors to the accident.
Professor Anderson expressed the opinion that Mr Mills’ accident had ‘many of the attributes associated with a fatigue crash’. He referred to academic studies which showed that ‘driving home from the night shift was associated with an increased number of incidents [of drifting out of the lane]’. Yet another academic study concluded that ‘[n]ight-shift work increases driver drowsiness, degrading driving performance and increasing the risk of near-crash drive events’. Professor Anderson relied also on studies which reported increased rates of near misses and falling asleep at the wheel after working a night shift.
Professor Anderson concluded:
7.8Consideration of Mr Mills’ reports of his work and sleep patterns in the days prior to the crash would be likely to constitute the basis of fatigue, and would be consistent with the conditions of drivers studies by Barger et al. (2005) (see footnotes on previous page for references). The period of Mr Mills’ driving was approximately 30 minutes; driver errors related to fatigue have been seen in experimental studies reported by Knipling and Wang (1994) were rising after this period of driving.
7.9In summary, the factors in the this crash comprising his reported lack of sleep, physical exhaustion, the apparent shallow angle of departure of the vehicle may all be considered to be highly consistent with a crash caused by Mr Mills falling asleep at the wheel, and with assessments mentioned in Dr Jalbert’s report, whose conclusions were along the same lines.
Professor Anderson testified that the drifting, although also common to distraction accidents, was more common in fatigue. Nonetheless, he conceded that he could not absolutely exclude the accident being caused by inattention or distraction. In his evidence-in-chief, Professor Anderson said that the research literature suggests that a ‘drift off road is highly correlated with falling asleep at the wheel, to the extent that when there is a drift off road that is the suspicion of all the first hypothesis, I suppose, for a crash investigation’. As to distraction, he said:
Distraction crashes – certainly there is an element of distraction crashes in the, I suppose, population of drift – both drift out of lane crashes, but they are outnumbered by falling asleep at the wheel by what seems to be about four to one, so that they do occur and we have to remember too that these drift out of lanes can also occur on curved sections of road as well as straight. Unfortunately, I don’t think the data is good enough to sort or differentiate or quite disentangle that, what I’ve seen, as so my suspicion is that a drift out of road on a straight, when it comes to distraction, is not the typical scenario. It’s more drifting out of lane on a bend that’s not seen by the driver.
Professor Anderson testified that the accident occurred when the car was travelling at about 25 to 35 kilometres per hour. He explained that there was no evidence available to him on which he could form an opinion as to whether or not Mr Mills applied the brakes before the collision. He observed that the video was not of sufficient quality to show any track marks through the shoulder and he would have preferred a proper examination of the shoulder to have been part of the video.
The trial Judge’s reasons
The trial Judge recounted the evidence of Mr Mills, other lay witnesses and the expert witnesses at some length.
The trial Judge then set out the worker’s submissions from [128] to [149], followed by RTW’s submissions from [150] to [181] of his reasons.
The trial Judge’s ‘consideration’ of the issues commenced at [182] and concluded at [194]. The trial Judge did not accept Mr Mills on matters of detail about his work such as the number of the rows of grapes he had to water at the sale‑yard vineyard. The trial Judge stated:[2]
[190]The submission was made that there is sufficient evidence to be satisfied that the worker was tired at the end of his shift. The features of his employment contributing to this included the nature of the work. The worker was driving a tractor (air-conditioned) pulling a bin. Due to the operation of the harvester grapes were delivered into the bin. The worker made much of looking behind and turning his head whilst towing the bin. He agreed in cross-examination that the tractor he was driving was fitted with large rear vision mirrors which enabled him to see the bin. He denied taking any breaks. On each occasion the bin was full he had to drive the tractor to a point where the bin was offloaded and an empty bin was installed. I accept the evidence of Mr Goldsmith and Mr Reilly that when the bins were exchanged there was an opportunity for a break. There was also an opportunity for a break when returning to the vineyard if the other bin in circulation had not been filled. In addition I accept the evidence of Mr Reilly that there was a ‘floater’ who was able to relieve bin drivers and harvester drivers in order that they might take a break.
[2] Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106 at [190].
The trial Judge also rejected Mr Mills’ evidence on whether a floater driver was available to take on the tractor work when he needed a break, his account of a heated conversation with his employer, and of a conversation with another worker to the effect that he had worked a 21-hour shift.
The trial Judge gave little weight to Mr Mills’ assertion that he did not get much sleep between shifts because of his admitted memory loss.
The trial Judge’s conclusion on the contribution of work and fatigue to the accident are found exclusively in the following four paragraphs:[3]
[191]The length and variability of the shifts caused the worker to be tired. Reference has been made above to the fact that this was the first week of harvest and only four shifts were involved. Whilst there was one long shift there was still significant breaks between shifts. Dr Vakulin and A/Prof. Thomas agreed that the shifts could only have resulted in ‘minor sleep deprivation’ or ‘mild sleep deprivation’ which were one in the same thing. I accept what A/Prof. Thomas said about the work schedule:
‘It is my opinion that the work schedule itself should not be seen to have resulted in higher levels of sleep restriction which in turn would lead to high levels of fatigue related risk’.
[192]The worker had time between the shifts for sleep opportunity. There is no information about non-work-related matters that could have caused him to not obtain sufficient sleep. There is also no information available as regards a range of common sleep disorders.
[193]It is my view that there is not sufficient evidence for me to be satisfied that the worker was suffering from fatigue at the end of his shift and that he was fatigued because of his employment.
[194]Professor Anderson considered the accident had all the hallmarks of a drift off the road rather than loss of control. It was not loss of control but falling asleep. However he made mention that he was not satisfied with the information gathered by the investigating police officer. The DVD was not of sufficient quality to show any track marks through the shoulder of the road. He agreed that it could not be absolutely excluded that this accident occurred due to inattention or distraction. Even if the accident was a result of the worker falling asleep at the wheel I do not consider that there is a sufficient connection to his employment. The work schedule did not cause high levels of sleep restriction which in turn lead to high levels of fatigue. The legislation states that there must be ‘a real and substantial connection between the employment and the accident out of which the injury arises’.
(Footnotes omitted)
[3] Mills v WorkCover Corporation (Stirling Vineyard Services P/L) [2017] SAET 106 at [191]-[194].
It is important to pay close attention to the metes and bounds of the trial Judge’s findings.
In [191], the trial Judge accepted the expert evidence that the night shifts could have resulted in mild sleep deprivation. With respect, that conclusion was open even without the assistance of the expert evidence. Moreover, it can readily be accepted that Mr Mills would have had some difficulty in getting to sleep the first week he worked night shifts. Accordingly, the evidence supported a finding that the shifts were not only capable of causing mild sleep deprivation, but that they did in fact cause, at least, mild sleep deprivation. The trial Judge gave no explanation for why he did not so find.
The finding in [192] that Mr Mills had an opportunity to sleep between shifts is obvious, but, as Professor Thomas accepted, the question is whether Mr Mills effectively converted the opportunity to sleep into actual sleep. Moreover, even if he did, Professor Thomas accepted that Mr Mills may have been suffering mild sleep deprivation. Indeed, the conclusion of the experts factored in the opportunity for sleep without discounting it for Mr Mills’ subjective difficulties. The possibility of a ‘common sleep disorder’ was speculative, and, in any event, could neither advance nor hinder Mr Mills’ case, unless the evidence showed that the sleep disorder was not exacerbated at all by his shifts.
The trial Judge did not explain the sense in which he used the expression ‘fatigue’ in [193]. The trial Judge’s meaning is hinted at in the last sentences of [194]. His Honour appears to have meant high levels of fatigue caused by high levels of sleep restriction. However, as I have already observed, if Mr Mills fell asleep because his employment had only mildly restricted his sleep, and had caused only minor fatigue, his employment would nonetheless still be a contributory cause. There would, therefore, necessarily be a real and substantial connection between his employment and the accident. True it is, that the milder the sleep restriction, the weaker is the inference that a driver fell asleep. That was precisely the analysis which was required of the trial Judge. Moreover, that analysis would necessarily require a consideration of the significance of the circadian low.
It is, as I earlier observed, common ground on this appeal that the trial Judge did not make a finding about the cause of the accident. Indeed, nor did the trial Judge expressly state that he was left in the unusual position of being unable, on the evidence, to make a finding. I describe the position as an unusual one, because cases in which a Judge is not persuaded by either of the competing factual cases of the parties, leaving the result to be decided by the onus of proof, are relatively rare. The trial Judge’s reasons do not explain why he did not find, or was unable on the evidence to find, that Mr Mills fell asleep.
The failure of the trial Judge to explain his finding or lack of finding, is emphasised by his failure to refer, in his concluding consideration of the evidence, to the period of circadian low in which the accident occurred. The failure is also exacerbated by the absence of any explanation for rejecting the circumstantial evidence, and the inferences drawn from it by Professor Anderson, of the way in which the accident happened.
The reasons of the plurality, with whom Lieschke DP agreed, on the adequacy of the Judge’s reasons were:[4]
[4] Mills v Return to Work SA [2018] SAET 215 at [43]-[47].
[43]Mr Mills’ case was by necessity circumstantial. And, it must be said that it has an attractive simplicity about it. A hard working man working long hours into the early hours of the morning crashes his car in circumstances where speed or some medical cause have been excluded. It seems a small step to conclude that work related fatigue featured and that accordingly there was a real and substantial connection between the employment and the accident. But there is a danger in a circumstantial case for the trier of fact to be unduly attracted to what is often no more than conjecture, not actually supported by hard facts. In Seltsam v McGuiness, Spigelman CJ issued the following cautionary warning in connection with such cases:
A circumstantial case can involve drawing a conclusion on the balance of probabilities, or indeed beyond reasonable doubt, on the basis of facts which are expressed only in terms of possibility. Whether or not the inference is open or should be drawn, depends on the quality of the underlying facts, particularly in terms of the degree of ‘possibility’ which is involved.
[44]That is not to say that each individual piece of circumstantial evidence has to be established on the balance of probabilities. As Spigelman CJ observed in Seltsam v McGuiness ‘inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility.’ But what it does mean is that ‘The ‘strands in the cable’ must be capable of bearing the weight of the ultimate inference’ and that the trier of fact must feel an actual persuasion to draw that inference.
[45]In this case, it is apparent from the cross examination of Dr Vakulin and Associate Professor Anderson, as discussed above, that many of the ‘facts’ that they based their opinions on, were no more than possibilities. Although it was unfortunate that the Deputy President spoke in terms of it ‘not being open for the Tribunal to find that the worker has established that he actually fell asleep’, when read as a whole, it is plain enough from his reasons as to what the Deputy President was actually saying. He had reservations about the quality of the ‘facts’ underlying of Dr Vakulin’s and Associate Professor Anderson’s conclusions. And, in the end, he did not feel an actual persuasion as to what caused the accident. He was not satisfied to the requisite degree that it occurred because Mr Mills fell asleep. On the state of the evidence, it was open for the Deputy President to reach that conclusion.
[46]With respect, the Deputy President’s statement regarding the issue of compensability, if indeed the accident was a result of the worker falling asleep at the wheel, was unhelpful. If he was unable to determine the cause of the accident, he was not in a position to make any findings about the connection between Mr Mills’ employment and that accident. That said, his remarks about this were obiter. We do not find it necessary to decide whether his remarks reflected a misunderstanding of the expression ‘a real and substantial connection’, because even if they did, that would not have affected his primary conclusion.
[47]In light of his inability to find what caused the accident, it was inevitable that the Deputy President would conclude that Mr Mills had not established that there was a real and substantial connection between his employment and the accident out of which the injury arose. No error of law was involved in reaching that conclusion.
(Footnotes omitted)
With respect to the Full Bench, it can be accepted, as I earlier observed, that it was open, in the sense that it was not an error of law, for the trial Judge not to be persuaded that the evidence proved that Mr Mills fell asleep because of his work conditions. Having said that, it is an understatement to describe Mr Mills’ case as having an ‘attractive simplicity’. It was a very strong circumstantial case. But that is by the by. The error of law of which Mr Mills complained was that the reasons did not explain why that case was not accepted.
The accepted facts of the mechanics of the accident strongly indicated that Mr Mills had fallen asleep. It was accepted that the accident happened during a period of a circadian low after Mr Mills had worked a week of night shifts.
The trial Judge’s finding that Mr Mills could not have been more than mildly sleep restricted does not explain why the trial Judge did not accept Mr Mills’ case. Mr Mills’ case was that his work caused sleep restriction, whether mild or severe, which contributed to him falling asleep during the period of a circadian low when he had to drive home.
Nor does the observation that Professor Anderson could not ‘absolutely exclude’ distraction, explain the trial Judge’s failure to be persuaded. There are many cases proved on the balance of possibilities in which alternative cases cannot be ‘absolutely’ excluded.
The trial Judge was required to consider the combined strength of the strands of Mr Mills’ circumstantial case. The trial Judge’s reasons did no more than consider the weight of those strands in isolation. The failure to explain why his Honour was not persuaded by the circumstantial evidence as whole was an error of law. When a judge fails to explain a finding or, as in this case, why the evidence has failed to satisfy the burden of proof, in a case in which the credibility or reliability of witnesses is strongly in issue, the usual order will be for a retrial.

However, in this case, Mr Mills’ case is a circumstantial one, based on elements which are not substantially disputed. I have already commented on the strength of Mr Mills’ case. The only alternative explanation, which has any basis in the evidence, is the possibility of distraction. However, the mechanics of the accident are more consistent with falling asleep. Moreover, identifying a distraction requires a good deal of speculation. It is unlikely anything on the side of this country road caught his eye and distracted him at that time of night. Nor was there any evidence, for example, that it was common to encounter kangaroos or other wildlife on that particular stretch of road.
I would, therefore, find that Mr Mills fell asleep because of work related causes, and make orders accordingly. I acknowledge that a driver’s attention to the road might sometimes be distracted by his or her own internal thoughts, however, in this case, that possibility cannot realistically be separated from the employment-related circumstances of Mr Mills’ sleep restriction and circadian low.
A real and substantial connection?
For the reasons which follow, I would find that even if the evidence did not prove that Mr Mills fell asleep at the wheel because he was driving during his circadian low whilst suffering some mild sleep restriction, there was, nonetheless, a real and substantial connection between his employment and the accident.
Section 30 of the WRCA relevantly provides:
(1)     Subject to this Act, an injury is compensable if it arises from employment.
(2)     Subject to this section, an injury arises from employment if—
(a)in the case of an injury that is not a secondary injury or a disease—it arises out of or in the course of employment; or
(b)     in the case of an injury that is a secondary injury or a disease—
(i)    the injury arises out of employment; or
(ii)the injury arises in the course of employment and the employment    contributed to the injury.
…
(5)An injury that arises out of, or in the course of, a journey arises from employment only if—
(a)the journey is undertaken in the course of carrying out duties of employment; or
(b)     the journey is between—
(i)    the worker’s place of residence and place of employment; or
(ii)     the worker’s place of residence or place of employment and—
(A)an educational institution the worker attends under the terms of an apprenticeship or other legal obligation, or at the employer’s request or with the employer’s approval; or
(B)a place the worker attends to receive a medical service, to obtain a medical report or certificate (or to be examined for that purpose), to participate in a rehabilitation program, or to apply for, or receive, compensation for a compensable injury,
and there is a real and substantial connection between the employment and the accident out of which the injury arises.
(6)However, the fact that a worker has an accident in the course of a journey to or from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).
…
Journeys between a worker’s place of residence and a place of employment have long been integrated with the worker’s employment itself for the purposes of workers compensation liability. Accordingly, the traditional formula for liability, that is, that the injury arose ‘out of, or in the course, of employment’, has been applied in the same way both to the worker’s actual employment and to travel to and from a worker’s residence and that employment. Accordingly, until relatively recent times in the history of workers compensation regimes it has been sufficient for an injury to have occurred whilst, that is in the course of, a worker being at his or her place of employment or in the course of the journey, or that there was a causal connection between the employment or the journey, arising out of, the employment or the journey.
The complete integration of the home journey with employment necessarily increased the expense of workers compensation regimes by imposing a liability for injuries which were the manifestation of risks which had no connection with the worker’s employment. The risks of the road encountered on work journeys are also faced by persons travelling on the same roads, and, generally, at the same times, for a wide range of social or recreational purposes. Moreover, compulsory third party personal injury schemes have long been available to compensate travellers injured in motor vehicle accidents. However, there is necessarily a tension between the fault‑based compensatory regimes mandated for motor vehicle accidents and the no-fault liability and protection offered by workers compensations regimes. The overlapping regimes resulted in often complex litigation involving workers compensation insurers, motor vehicle personal injury insurers, and the injured worker.
The above considerations explain the enactment of the requirement found in s 30(5) of the WRCA, that there be ‘real and substantial connection between the employment and the accident out of which the injury arises’. However, the problematic extension of workers compensation liability to journey accidents can be accommodated by defining a connection between the accident and employment to encompass relationships beyond causal ones.
Moreover, there are strong textual reasons for construing the connection required by s 30(5) of the WRCA to include something less than a causal connection. First, if the legislature had intended to limit the connection required by s 30(5)(b) of the WRCA to a causal connection, it need not have enacted any extension for the journeys therein prescribed. An injury suffered by a worker, in a journey accident which was caused by his or her employment, is necessarily an injury arising out of employment. Section 30(5)(b) would, therefore, be otiose because all such injuries would fall within s 30(1) of the WRCA.
I acknowledge that this Court has held that s 30(5) of the WRCA is a code, and that injuries suffered in the course of a prescribed journey are only compensable if they satisfy the conditions of s 30(5).[5] So much can be accepted. However, the significance of that codification of the compensability of injuries suffered in the course of prescribed journeys arises only when a worker claims that the journey itself was made in the course of employment, and that proof of causation required by the ‘arising out of’ limb is accordingly unnecessary. In Wheeler v State of South Australia (Wheeler),[6] for example, a South Australian police officer was assigned to work as an instructor in a week long counter terrorism course in Queensland. At the end of each day of the working week, he travelled by bus from his place of employment to his motel accommodation which had been arranged for him. On the Friday night, he participated in a compulsory debriefing session that concluded at 5.30 pm. He then socialised with students and other instructors at the Police Social Club. That social gathering was not compulsory. Mr Wheeler did not leave the club, where he had been drinking alcohol, until 11 pm. On the way back to his motel, he took a slight deviation to buy pizza. While waiting for the pizza, an argument occurred, and just as Mr Wheeler was about to leave he was struck on the head and lost consciousness. His workers compensation claim was upheld by the trial court on the ground that, given the nature of his interstate assignment, the worker still remained in the course of his employment at the time of the assault. On appeal to this Court, it was held that s 30(5) of the WRCA was a code, with the effect that because the worker was in a journey between his place of residence and employment, whether or not the journey might otherwise have been found to be in the course of his employment, the worker was required to show a real and substantial connection between his employment and the injury. That, on the evidence in Wheeler, he could not do. However, White J did tacitly accept that the attendance at the Police Social Club for an hour or so, followed immediately by a journey directly back to his motel, might have been sufficiently connected to his employment to satisfy s 30(5) of the WRCA, even though, plainly enough, the assault would not be causally connected to that employment.[7]
[5] Wheeler v State of South Australia [2012] SASCFC 111 at [15]-[17], [20] (White J).
[6] [2012] SASCFC 111.
[7] Wheelerv State of South Australia [2012] SASCFC 111 at [68].
The point I make about s 30(5)(b) of the WRCA being otiose on the construction proffered by RTW does not deny the principle stated, or the result reached, in Wheeler’s case. The point is that if a real and substantial connection requires a causal relationship, then the journey accidents which fall within s 30(5)(b) must also fall within s 30(1) of the WRCA. Section 30(5) of the WRCA itself provides that, for the prescribed journeys, an injury is compensable if it ‘arises out of, or in the course of, a journey’. If a causal connection were required between the employment and the accident by the words ‘real and substantial connection’, it would have been quite unnecessary, and indeed superfluous, to include the ‘in the course of’ extension for the journeys prescribed by subparagraph (b).
Finally, it will have been seen that s 30(2) of the WRCA requires that the employment ‘contributed’ to an injury which is a secondary injury or a disease. Section 30A of the WRCA, which regulates the compensability of psychiatric injuries, requires that the employment be ‘a substantial cause’ of the injury.[8] The use of the phrase ‘real and substantial connection’ in s 30(5) of the WRCA stands in contrast to those expressions which plainly do require a causal link.
[8] 30A—Psychiatric injuries
An injury consisting of an illness or disorder of the mind is compensable if and only if—
(a) the employment was a substantial cause of the injury; and
(b) the injury did not arise wholly or predominantly from—
(i)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, counsel, retrench or dismiss the worker; or
(ii)a decision of the employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit in connection with the worker's employment; or
(iii)reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment; or
(iv)reasonable action taken in a reasonable manner under this Act affecting the worker.
On a proper construction of s 30(5) of the WRCA, the phrase ‘a real and substantial connection’ cannot be limited to a causal one. What lesser connection, falling short of causation, might satisfy the requirement?
Most obviously, there may be a real and substantial connection between employment and an accident if the employment has substantially increased the risk of an accident of a kind in which the worker was involved, even if the evidence falls short of satisfying the tribunal of fact that the employment contributed to the occurrence of the accident. The debate over whether an increased risk of the contraction of an injury or disease is sufficient to support a finding of a causal relationship, is a familiar one in personal injury litigation.[9]
[9] Birkholtz v RJ Gilbertson Proprietary Limited (1985) 38 SASR 121 at 130-132 (King CJ).
In Chappel v Hart, McHugh J explained: [10]
[27] Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring. If, however, the defendant’s conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff. That being so, whether the claim is in contract or tort, the fact that the risk eventuated at a particular time or place by reason of the conduct of the defendant does not itself materially contribute to the plaintiff's injury unless the fact of that particular time or place increased the risk of the injury occurring.
(Footnotes omitted)
[10] (1998) 195 CLR 232 at 244-245, [27].
For reasons which I have explained, the inference that the accident was a manifestation of the very risks posed by Mr Mills’ shift work should be drawn in this case. However, even if that conclusion were not reached, that is, even if a trial judge were not persuaded of that causal connection, the circumstance that Mr Mills’ employment exposed him to a greater risk of a motor vehicle accident of the very kind in which he was involved, because of the shifts he worked and its coincidence with a circadian low, is sufficient to establish a real and substantial connection. Mr Mills’ accident was not a manifestation of the general risks of the road negotiated by drivers on a daily basis. Mr Mills’ employment increased the risk that he would fall asleep and his car would veer off the road in the way in which it did. The accident was consistent with that increased risk. A real and substantial connection between Mr Mills’ employment and the accident was, therefore, established.
It is convenient here to illustrate a necessary limit on the ‘increased risk’ connection between an accident and employment. If the trial Judge had found, as Lieschke DP understood his Honour to have found, that the accident was not caused by Mr Mills falling asleep, there could be no connection with the employment because the accident would not have been of a kind to which he was at greater risk because of his employment. For example, if the accident were found to have been caused by Mr Mills driving at a dangerous speed or talking on his mobile phone, there could be no connection between the accident and Mr Mills’ work-caused sleep restriction.
I observe here that there may be yet another, non‑causal, way in which a journey accident might be connected to employment. Shift workers or emergency services officers, because of the nature of their work, may be required to leave their places of employment on foot, or in vehicular transport, at times, and in places of increased risk, when the general public, on the other hand, can avoid taking journeys at those times or places. The employment of shift workers or emergency services officers might, in such cases, increase the risk, but not be the cause, of an accident they suffer in the course of the journey. I do not express a concluded view on whether that increased risk is a sufficient connection with employment, but I observe that to so find would also be consistent with the observation of White J in Wheeler.
Conclusion
I would allow the appeal. I would set aside the decision of the Full Bench and the trial Judge. I would find instead that the injuries suffered by Mr Mills arose out of, or in the course of, his journey between his place of employment and his residence. I would hear the parties as to any particular order for the payment of compensation which should be made.
PARKER J: I agree with the reasons of the Chief Justice and with the order that he proposes. I also agree with the additional observations made by Tilmouth AJ.
TILMOUTH AJ: If the phrase ‘real and substantial connection’ in s 30(5)(b) of the WRCA is interpreted to require a causal relationship between the employment and the work journey accident, it would serve to all but eliminate compensable claims for injuries arising during the course of work journeys. The necessary clear and unambiguous intention to reduce or curtail those rights are not present, so as to justify that construction: Coco v The Queen,[11] Ousley v The Queen,[12] and CTM v The Queen.[13] As the Chief Justice points out in his judgment with which I concur, worker’s compensation for work journey accidents has existed on the statute books for a very long time, almost three generations in fact. Such claims were first introduced in this State by s 3 of the Workmen’s Compensation Act Amendment Act 1953 (SA).
[11] (1994) 179 CLR 427 at 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
[12] (1997) 192 CLR 69 at 112 (McHugh J), 118 (Gummow J) and 142 (Kirby J).
[13] (2008) 236 CLR 440 at 456 [35] (Kirby J) and 497 – 498 [201] (Heydon J).
As his Honour further demonstrates, the circumstantial case favouring the inference of falling asleep at the wheel was a strong one. The proven facts were sufficient to enable that inference to be safely drawn and it was not for Mr Mills ‘to eliminate and disprove all conjectural possibilities’: Caswell v Powell Duffryn Associated Collieries Ltd.[14] That conclusion is sustained by application of orthodox inferential reasoning. To quote Lord Tomlin in Simpson v London, Midland and Scottish Railway Company:[15]
[14] [1940] AC 152, 169 (Lord Macmillan).
[15] [1931] AC 351, 369. Refer also to Rosen v Owners of Steamship Quercus [1933] AC 494, 497-500 (Lord Buckmaster).
…
I think this rule may be deduced for application to that class of case which may be called unexplained accident cases – namely, that where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment.

[2020] SASCFC 36

12 May 2020

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Statutory Construction