Mission Australia v Eves - [2020] NSWWCCPD 49

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Mission Australia v Eves [2020] NSWWCCPD 49
APPELLANT:	Mission Australia
RESPONDENT:	Alexandria Kate Eves
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-3209/19
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	30 January 2020, amended on 3 March 2020
DATE OF APPEAL DECISION:	31 July 2020
SUBJECT MATTER OF DECISION:	Whether error on the part of the Arbitrator in determining that the respondent was on a journey to which s 10 of the Workers Compensation Act 1987 (the 1987 Act) applied – Vetter v Lake Macquarie CityCouncil [2001] HCA 12; 202 CLR 439, Hook v Rolfe (1996) 2 NSWCCR 81 discussed; s 10(3A) of the 1987 Act – whether error on the part of the Arbitrator in determining that there was a real and substantial connection between the respondent’s employment and the injury – Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72, Australia and New Zealand Banking Group Limited v Khullar [2020] NSWWCCPD 3 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers

REPRESENTATION:	Appellant:
Ms K Hogan, counsel
Barker Henley
Respondent:
Mr B McManamey, counsel
Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s amended Certificate of Determination dated 3 March 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Ms Alexandria Kate Eves (the respondent) was employed by Mission Australia (the appellant) as a community support worker in Bourke, New South Wales. The respondent commenced that employment on 2 March 2015.
During the course of her employment, the respondent experienced a number of stressors. As a result of those workplace stressors, the respondent consulted a general practitioner, Dr Heather Dalgety, who certified that the respondent had no capacity for work from 11 February 2016 as a result of a psychological condition.[1] On 18 February 2016, Dr Chris Gora, general practitioner, certified the respondent as fit for normal duties from 19 February 2016, with the proviso that the work environment was conducive and free from workplace bullying.[2]
[1] WorkCover certificate of capacity, Application to Resolve a Dispute (ARD), pp 1229–1231.
[2] Certificate of capacity, ARD, pp 1238–1239.
The respondent returned to work on 19 February 2016. The return to work arrangements included a requirement that the respondent have no face to face interaction with a superior, Ms Karen Howarth. Unfortunately, Ms Howarth spoke directly to the respondent. As a result, Mr Richard Jobson, the appellant’s injury management adviser, directed the respondent to cease work for two weeks from 19 February 2016 to 4 March 2016, so that the appellant could put in place a return to work plan.
The respondent left work in a distressed and shocked state at approximately 10 am or 10.30 am on 19 February 2016.[3] The respondent formed the intention that she would travel to Cobar that day to stay at her mother’s home. She spent the day attending to various matters, including packing her bags, arranging her medications and attempting to pay her rent to cover her accommodation for the following two weeks.
[3] Respondent’s statement dated 14 June 2019, ARD, p 3, [22]–[23].
The respondent left to travel to Cobar at about 6.30 pm to 6.45 pm.[4] At approximately 8.30 pm, the respondent was severely injured when her motor vehicle veered off the road and hit a tree.[5]
[4] Respondent’s statement, ARD, p 5, [40].
[5] Police report, ARD, pp 418–423.
The respondent lodged a worker’s compensation claim, alleging that she was injured while on a journey from her employment to her place of abode in accordance with s 10 of the Workers Compensation Act 1987 (the 1987 Act). The respondent alleged that, as result of the accident, she suffered psychological injury and numerous significant physical injuries.[6] On 17 June 2016, the appellant gave notice that it declined liability in accordance with the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), which was in force at that time.[7] In that notice, the appellant disputed liability on the basis that:
(a) the respondent did not suffer an injury arising out of the course of employment within the meaning of s 4 of the 1987 Act;
(b) the respondent’s employment was not a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act;
(c) the respondent was not on a “periodic journey in accordance with s 10 of the 1987 Act when she suffered the injury, or, in the alternative,
(d) there was not a real and substantial connection between the respondent’s employment and the alleged motor vehicle accident as required by s 10(3A) of the 1987 Act.
[6] Worker’s Injury Claim Form dated 23 May 2016, ARD, pp 44–47.
[7] ARD, pp 67–71.
The appellant also issued dispute notices pursuant to s 74 dated 6 April 2016[8] and 30 December 2016[9] in respect of the psychological injury alleged to have occurred on 10 February 2016. The appellant disputed liability for that injury on the basis that:
(a)    the respondent had not suffered an injury;
(b)    the respondent’s employment was not a substantial contributing factor, and/or
(c)    any injury was wholly or predominantly caused by the appellant’s reasonable action in respect of matters identified in s 11A of the 1987 Act.
[8] ARD, pp 61–63.
[9] ARD, pp 53–58.
The appellant issued a further s 74 notice dated 1 March 2018 in relation to both the injuries on 10 February 2016 and on 19 February 2016.[10] The reasons given for disputing those claims were essentially the same as in the earlier notices.
[10] ARD, pp 403–409.
The respondent commenced proceedings in the Commission, claiming weekly payments and treatment expenses in respect of both injuries. The matter proceeded to arbitration. The Arbitrator issued a Certificate of Determination (COD) on 30 January 2020, in which he found in favour of the respondent in respect of both the psychological injury on 10 February 2016 and the injuries sustained in the motor vehicle accident on 19 February 2016. That COD was subsequently amended in respect of the amount of the respondent’s weekly entitlements and the amended COD was issued on 3 March 2020.
The appellant lodged this appeal. The appellant did not challenge the Arbitrator’s decision in respect of the finding that the respondent suffered a psychological injury on 10 February 2016 which was not wholly or predominantly caused by reasonable action taken by the appellant in respect of matters within the parameters of s 11A of the 1987 Act. The challenge to the Arbitrator’s decision was limited to the findings in favour of the respondent that the respondent was on a journey within the meaning of s 10 of the 1987 Act and that there was a real and substantial connection between the respondent’s employment and the motor vehicle accident.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the written submissions by the parties indicating that the appeal can 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 1998 Act have been met.

THE EVIDENCE

The substantial evidence in this matter relates predominantly to the issues in relation to the respondent’s psychological injury deemed to have occurred on 10 February 2016, which is not the subject of this appeal. The only evidence relevant to the issues on appeal and referred to by the parties in their submissions is the respondent’s statement evidence and the police report of the motor vehicle accident. This summary of the evidence includes only that relevant evidence.

The respondent’s statement

The respondent provided a statement dated 14 June 2019.[11] She indicated that she commenced employment with the appellant as a community support worker on 2 March 2015. The respondent described the onset of her psychological condition, for which she was certified as having no current work capacity from 11 February 2016 to 18 February 2016. The respondent further described her attempt to return to work on 19 February 2016 but one of the employees (Ms Howarth) with whom the respondent had difficulties, was present and communicating with the respondent in person rather than by email. This was contrary to the respondent’s return to work conditions and consequently, Mr Jobson, the injury management adviser, told the respondent that she was to take time off on full pay from 19 February 2016 to 4 March 2016, while the Appellant prepared a return to work plan in accordance with the restrictions on the respondent’s Workcover certificates of capacity.
[11] ARD, pp 1–18.
The respondent indicated that she then left the office at about 10 or 10.30 am. The respondent said:
“23. Upon leaving work I was in a state of distress, very stressed, upset and shock[ed] as I had expected to return to work and be supported.
24.    I was sitting in my car and I tried to call my Mum, but she was not available.
25.    I then spoke over the phone to a family friend, Louise Tier, for support. She urged me to go back to Cobar.
26.    Normally I can do things in order and get organized fairly quickly, but I remember that I was feeling hyper and could not seem to focus on what I should be doing.
27.    I eventually was able to speak to my Mum and she told me that I need[ed] to return home to my family in Cobar where I could be supported and seek further medical help. I said to my Mum: “I am not sick, but I will go home.” I could tell that my Mum was very worried about my welfare.
…
28.    I drove my car back to my residence, which at the time was [in Bourke].
29.    At the time my emotional state was high, I was feeling:
a)Overwhelmed;
b)Distressed;
c)Blank;
d)Teary;
e)I had no control of my surroundings;
f)Somewhat in a hyper state;
g)My body shaking;
h)My body was in shock;
i)Alone.
30.    I then had Lisa, a work colleague, come to my house about half an hour after I got home, and she stayed 30 minutes. She appeared stressed and was crying. I felt like I was in danger and feared for my safety because I felt like Karen Howarth knew so much about me. I needed to leave and go home to where I felt safe. I knew I needed medical help and needed to see my local GP in Cobar.
31.    I was trying to pack my bag. I had received an email from Gowri, QBE earlier trying to arrange an IME appointment in Sydney. I was speaking to Gowri, to let her know I had to leave work again and I wasn’t there for long. I got told to take 10 days away at Mission Australia’s cost. I had to tell QBE that I tried to go back to work. In this conversation, Gowri, from the best of my recollection, mentioned the IME appointment to be attended. This phone call took some time to complete. I was trying to do the right thing to let QBE know, who were helping me with my workers compensation claim.
32.    During the time of the QBE call, my emotional state was high, I was feeling:
a)Stressed;
b)Anxious;
c)Unable to concentrate.
33.    I got my Mum on the phone again and she directed me on what to do, step-by-step. She was in Dubbo, which is a four-hour drive from Bourke, and was trying to support me over the phone.
34.    I was making a lot of frantic phone calls.
35.    My mum called again around 2:00pm and she reminded me that before leaving town I would need to fill my medication scripts and they were held by the local Bourke Pharmacy, which I recall was Towers Pharmacy.
36.    I recall I telephoned the pharmacy to ask if I could come and collect some medications and whether they could prepare filling my scripts for my arrival. I spoke to an employee of the chemist who suggested that these would be ready for collection in one to two hours. (I spoke to Jake who I understand is the Pharmacist).
37.    At the time I was boarding in a granny fiat which was located at the back of [a house in] Bourke. My landlords required that I pay rent in cash on a fortnightly basis. I already paid in advance $200.00 (one week's rent). Given I was leaving for two weeks unexpectedly I was required to give them notice that I was leaving and to pay the extra $200.00 to cover the rent until I returned [to] pay my rent. I wanted to provide them with my rent in person as I was concerned if I left it at the front door for example with a note, that it could be stolen as theft was common in Bourke. Further, I wanted the opportunity to explain to them why I was leaving suddenly for two weeks as I didn’t want them to worry or be concerned of my wellbeing. I also wanted to notify them, so they could look out for the flat while I was away.
38.    I was then waiting at my residence ready to leave at 5.00 p.m. expecting my landlords to return from their day of work as I didn’t want to bother them during work hours.
39.    I waited until approximately 6.00 to 6.30 p.m. for them to return home, however they did not come home. It was still light at this point. As such I didn’t want to delay my departure any further as it was getting late.
40.    I recall departing from Bourke at around 6.30 pm to 6.45 p.m. to travel to Cobar. The trip between Bourke and Cobar is approximately an hour and a half and 160 kilometre one-way trip.
41.    At the time I commenced my travel to Cobar my emotional state remained high, I was feeling:
a)Still in a state of shock;
b)My body still shaking;
c)Despair;
d)My body and mind were going to shut down;
e)I was on auto pilot;
f)I had no recollection of my surroundings;
g)Overwhelmed;
h)Hyper state;
i)Distressed.
42.    I cannot remember exactly what happened, but I have been told that I hit an animal on the road, (unknown) and then hit a tree. I was found within 10 to 15 minutes of the accident and was taken to hospital at 10.30 p.m.”[12]
[12] ARD, pp 3–5.
The respondent then described the significant injuries and comprehensive treatment she received.

The police report

The police report was annexed to the ARD.[13] The report indicated that between 8.20 pm and 8.30 pm on Friday 19 February 2016, the respondent’s car veered left to avoid colliding with wildlife and eventually collided with a tree. The document recorded that it was dark when the incident occurred.
[13] ARD, pp 418–423.

The injury claim form

The injury claim form completed by the respondent dated 23 May 2016 was in evidence.[14] In response to the question “What happened and how were you injured?,” the respondent wrote:
“Under direction of my employer, I left my work place early due to my psychological injury sustained on 10 February 2016. I was travelling home by car when I was involved in a motor vehicle accident. I would not have been travelling home but for the direction/instruction received from my employer.”
[14] ARD, pp 44–47.

THE ARBITRATOR’S REASONS

This appeal is limited to an appeal from the Arbitrator’s findings that the injury on 19 February 2016 occurred on a journey in accordance with s 10 of the 1987 Act and that there was a real and substantial connection between the respondent’s employment and the motor vehicle accident on that date, in accordance with s 10(3A) of the 1987 Act. It is only necessary therefore to summarise the Arbitrator’s statement of reasons in respect of those findings.
The Arbitrator summarised the respondent’s evidence in respect of the circumstances leading up to 19 February 2016 and her actions on 19 February 2016. He further summarised the submissions of the parties in respect of whether the respondent was on a journey in accordance with s 10 of the 1987 Act and whether there was a real and substantial connection between the respondent’s employment and the motor vehicle accident.
The Arbitrator considered the definition of “place of abode” as it appears in s 10 of the 1987 Act and acknowledged the respondent’s reliance on the High Court decision in Vetter v Lake Macquarie City Council[15] in relation to the meaning of the term “journey.” The Arbitrator noted that the Court said that the relevant meaning in the context of that case was “a spell of going or travelling, viewed as a distinct whole.”[16] The Arbitrator quoted further from the same paragraph of that decision, where Gleeson CJ, Gummow and Callinan JJ added:
“There is no obligation upon a worker to take the shortest and most direct route from the worker’s place of work to the worker’s abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker’s residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption. That is what the Act requires. Any question whether that requirement has been satisfied is not to be answered by posing and answering a different question altogether and of the kind posed by the Court of Appeal, was the appellant engaged in one or more journeys.”
[15] [2001] HCA 12; 202 CLR 439 (Vetter).
[16] Vetter, [29].
The Arbitrator also noted the respondent’s reliance on the observations of Glass JA in Hook v Rolfe[17] in relation to the meaning of “place of abode” for the purposes of s 7(1)(f) of the Workers’ Compensation Act 1926, which was identical to the definition contained in the current 1987 Act. Glass JA observed:
“The purpose of section 7(1)(f) is to stamp the place where the worker intended to spend the night with the character of his [or her] place of abode even though he [or she] may travel to that particular place on one occasion only.”[18]
[17] (1996) 2 NSWCCR 81 (Hook).
[18] Hook, 89D.
The Arbitrator concluded that the respondent was on a journey within the meaning of s 10 of the 1987 Act when she left the appellant’s premises 19 February 2016 with the intention of going to her mother’s house in Cobar that night. The Arbitrator noted that there was no issue in this case of any material increase of risk. The Arbitrator said that the fact that there were several hours of delay between when the respondent left the appellant’s premises and when she set out to drive to Cobar does not alter the fact that, from the time the respondent left the appellant’s premises until the respondent was involved in the motor vehicle accident, the respondent was on a journey to which s 10 of the 1987 Act applies.
The Arbitrator noted that the appellant had not responded to the respondent’s submissions that:
(a)    there does not need to be a causal connection between the employment and the accident;
(b)    the connection is less than that of arising out of employment;
(c) the respondent left work on 19 February 2016 in a state of distress, but it was not necessary for the purposes of s 10(3A) to establish that the state of distress amounted to an injury, or that the accident was as a consequence of an injury;
(d)    even if the appellant could make a defence under s 11A of the 1987 Act, it would be irrelevant to the question of the real and substantial connection between the employment and the journey;
(e)    the respondent would not have been on the journey but for the incidents at work which caused her stress, and she may not have been in a fit state to drive at all, and
(f) the matters outlined that establish the real and substantial connection would also be the basis for a finding that the accident arose out of the respondent’s employment, which is a higher test and such a finding would negate the need for a finding that the respondent was on a journey within the meaning of s 10.

The Arbitrator referred to the respondent’s reliance on several Presidential decisions in relation to journey claims,[19] as well as the decision of Keating P in Bina v ISS Property Services Pty Ltd.[20] The Arbitrator accepted the respondent’s submission that Bina was authority for the proposition that the question of a real and substantial connection was a lesser test than that of “arising out of” the employment. The Arbitrator quoted the following passages from Bina:
“It is not a question of whether the journey has arisen out of the employment, but whether there is a real and substantial connection between the employment and the accident out of which the injury arises. If the injury arose out of the employment (in the sense that as a matter of common sense it was caused by the employment) the worker may well have satisfied the ‘arising out of’ test in s 4 without the need to rely on s 10. However, if the injury did not satisfy the arising out of test, it is possible, depending on the facts, that it may satisfy the s 10(3A) test.
It is therefore clear that s 10(3A) has work to do. Its purpose is found in the words used in the subsection, read in the context of the 1987 Act as a whole. In my view, the purpose of the provision is to ensure that injuries received in the circumstances provided for are injuries that are deemed to arise out of or in the course of employment and compensation is payable accordingly. The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.”[21] (emphasis in original)
[19] Singh and Singh v Wickenden [2014] NSWWCCPD 13 (Wickenden); Field v Department of Education and Communities [2014] NSWWCCPD 16 (Field); State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26 (McCoy).
[20] [2013] NSWWCCPD 72 (Bina).
[21] Bina, [116]–[117].
The Arbitrator reasoned that in the present case, the respondent was authorised to be absent from her employment from 10 February 2016 to 19 February 2016. The Arbitrator referred to his finding that the respondent had suffered a work related injury on 10 February 2016 and said that the respondent was directed to take time off because of her work injury in circumstances where the appellant had been unable to put in place the return to work arrangements. The Arbitrator said that he had found that the appellant had not made out its defence pursuant to s 11A in respect of the injury on 10 February, but even if the appellant had, it was not relevant to the question of whether there was a real and substantial connection between the respondent’s employment and the accident on 19 February 2016.
The Arbitrator concluded that the respondent was on a journey to which s 10 applied when she was injured in the motor vehicle accident. The Arbitrator noted the respondent’s evidence that she would not have been on that journey had it not been for the distress she was in when she left the appellant’s premises on 19 February 2016. The Arbitrator said that even if that state of distress did not constitute an “injury” within the meaning of s 4 of the 1987 Act, it did not matter.
The Arbitrator further concluded that the respondent had established that there was a real and substantial connection between her employment and the motor accident on 19 February 2016. The Arbitrator noted that it was not necessary to consider the more stringent test of whether the injury resulting from the motor vehicle accident arose out of the respondent’s employment.
The Amended COD issued on 3 March 2020 records:
“The Commission determines:
1.      The applicant sustained psychological injury arising out of or in the course of her employment with the respondent deemed to have occurred on 10 February 2106 [sic 2016].
2.      The applicant’s employment with the respondent was the main contributing factor to injury.
3.      The psychological injury sustained by the applicant on 10 February 2016 was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline.
4.      The applicant had no current work capacity for any employment from 10 February 2016 to 19 February 2016 as a result of injury on 10 February 2016.
5. The applicant sustained injury on 19 February 2016 on a journey to which s 10 of the Workers Compensation Act 1987 applies.
6.      There was a real and substantial connection between the applicant’s employment with the respondent and the motor vehicle accident in which the applicant was involved on 19 February 2016.
7.      The applicant had no current work capacity for any employment from 19 February 2016 to 1 August 2017 as a result of injury on 19 February 2016.
8.      The applicant had current work capacity for suitable employment of approximately 8-10 hours per week from 2 August 2017 as a result of injury on 19 February 2016.
9.      The applicant’s pre-injury average weekly earnings are $1,123.40.
10.    The respondent is to pay the applicant $1,067.23 per week pursuant to s 36(1) of the Workers Compensation Act 1987 from 10 February 2016 to 19 February 2016 as a result of injury on 10 February 2016.
11. The respondent is to pay the applicant weekly benefits pursuant to ss 36 and 37 of the Workers Compensation Act 1987 as a result of injury on 19 February 2016 as follows:
(a) $1,067.23 per week from 19 February 2016 to 20 May 2016 pursuant to s 36(1);
(b) $898.72 per week from 21 May 2016 to 1 August 2017 pursuant to s 37(1), and
(c) $823.72 per week from 2 August 2017 to 17 August 2018 pursuant to s 37(3).
A brief statement is attached setting out the Commission’s reasons for the determination.” (emphasis in the original).

GROUNDS OF APPEAL

The appellant brings two grounds of appeal as follows:
(a) Ground One: the Arbitrator erred in finding that the respondent was on a journey within the meaning of s 10 of the 1987 Act, or, in the alternative,
(b) Ground Two: if the respondent was on a journey, the Arbitrator erred in finding that there was a real and substantial connection between the respondent’s employment and the motor vehicle accident.

LEGISLATION

Section 10 of the 1987 Act provides:
“10    Journey claims (cf former s 7 (1) (b)–(d), (f), (g))
(1)     A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.
(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport Act 2013), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.
(1C) (Repealed)
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.
(2)     Subsection (1) does not apply if—
(a) the injury was received during or after any interruption of, or deviation from, any such journey, and
(b) the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey,
unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(3)     The journeys to which this section applies are as follows—
(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,
(b) the daily or other periodic journeys between the worker’s place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to attend,
(c) a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation,
(d) a journey between the worker’s place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3),
(e) a journey between any camp or place—
(i) where the worker is required by the terms of the worker’s employment, or is expected by the worker’s employer, to reside temporarily, or
(ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker’s employment,
and the worker’s place of abode when not so residing,
(f) a journey between the worker’s place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act,
(g) a journey between the worker’s place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money—
(i) due to the worker under the terms of his or her employment, and
(ii) which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment.
(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
(4)     For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.
(5)     For the purposes of this section, if the worker is journeying from the worker’s place of employment with one employer to the worker’s place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer.
(5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.
(6)     In this section—
educational institution means—
(a) a trade, technical or other training school, or
(b) a university or other college or school providing secondary or tertiary education.
night, in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker’s employment.
place of abode includes—
(a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and
(b) the place to which the worker is journeying with the intention of there spending the night following a journey.”

SUBMISSIONS

Ground One: the Arbitrator erred in finding that the respondent was on a journey within the meaning of s 10 of the 1987 Act

The appellant’s submissions

The appellant submits that there was no evidentiary basis for the Arbitrator’s finding that the respondent was on a journey pursuant to s 10 of the 1987 Act and the inference drawn by the Arbitrator was not properly available to him on the facts. The appellant refers to the decision of Roche DP in Raulston v Toll Pty Ltd,[22] and accepts that, in order to disturb the Arbitrator’s decision, it must establish that the factual finding was wrong.
[22] [2011] NSWWCCP 25; 10 DDCR 156.
The appellant refers to the following finding made by the Arbitrator (emphasis added by the appellant):
“In my view the [worker] was on a journey to which s 10 of the 1987 Act applies when she left the [appellant’s] premises in her car on the morning of 19 February 2016 with the intention of travelling to her mother’s house in Cobar that night.”[23]
[23] Eves v Mission Australia [2020] NSWWCC 28 (reasons), [99].
The appellant submits that there is no evidence that the respondent’s car was parked on the appellant’s premises and no evidence that she remained on those premises while on a telephone call with her mother. The appellant submits that the Arbitrator accepted that the respondent formed the intention before she left work that she would travel to Cobar, about which there was no evidence. The appellant says that there was no evidence to support that finding, which was a finding critical to the ultimate finding that the respondent was on a journey.
The appellant points out that the evidence was that the respondent was “eventually” able to talk to her mother, and returned to her own residence in Bourke, where she was attended to by a colleague. The appellant refers to the respondent’s further evidence that suggested she felt unsafe and decided to return to Cobar. The appellant maintains that there was no evidence that the respondent remained on the appellant’s premises where she spoke with her mother and nor was there any evidence to suggest where the vehicle was parked when the respondent spoke to her mother.
The appellant submits that the Arbitrator’s finding was not open to him and the inference was not available, so that an error on the part of the Arbitrator is established. The appellant further maintains that the findings were critical to the conclusion that the respondent was on a journey. The appellant repeats that it was not open to find that the respondent had the intention to travel to Cobar before she left the appellant’s premises, and there was evidence to show that the intention was formed after she had returned to her own residence and completed the journey. The appellant concludes that the finding was erroneous. The appellant asserts the Arbitrator failed to determine what type of journey the journey was.

The appellant’s submissions upon receipt of the transcript

The appellant notes that a perusal of the transcript of the arbitration proceedings discloses that the respondent argued that the journey was a periodic journey. The appellant says that in those circumstances, Vetter can be distinguished. The appellant says that in Vetter, the worker had adopted a practice of calling on her grandmother on a fortnightly basis, after leaving work and before travelling to her place of residence (an “other period journey”). The appellant says that in the present matter, there was no evidence that the respondent made any periodic journeys to her mother’s place in Cobar. Further, the appellant submits that in Vetter, the worker’s real destination was her own residence. The appellant contends that on the basis upon which the respondent ran her case, it was not open on the facts to find in her favour.
The appellant refers to the judgment of Kirby J in Vetter, in which his Honour observed that the “the journey must commence as a journey between the place of abode and the place of employment.”[24] The appellant maintains that it was not open on the evidence to make a finding in the present case that the journey was between the place of employment and the place of abode. The appellant further refers to Kirby J’s judgment in Vetter, where his Honour observed that:
“In appropriate cases, the trier of fact will be entitled to reach a conclusion that the worker, even if setting out on a compensable journey, abandoned that journey and began the pursuit of a purely private purpose.”[25]
[24] Vetter, [81].
[25] Vetter, [86].
The appellant submits that such a proposition may be applicable in the present case. The appellant concludes that Vetter can be distinguished on its facts, the journey in the present case was not a periodic journey as in Vetter, and the respondent had finished her journey when she had arrived at her own residence in Bourke.

The respondent’s submissions

The respondent refers to her statement, in which she said that she was sitting in her car when she tried to telephone her mother, and then spoke to her friend, who advised her to return to Cobar. The respondent stated that she then spoke to her mother who also recommended she return to Cobar for support and urgent medical assistance. The respondent said that she advised her mother that she would return to Cobar and then drove to her residence.
The respondent submits that the appellant is bound by the way in which it conducted its case at arbitration, relying on Chanaa v Zarour[26] and Wood v Woolworths Ltd[27] as authorities for that proposition. The respondent indicated that at arbitration, she made clear submissions about the evidence referred to in [42] above and submitted that, before the respondent left work and commenced her journey, her intention was to travel to Cobar where she would spend the night. The respondent says that she further submitted that it was immaterial that she first went to her residence in Bourke before setting out for Cobar. The respondent refers to Vetter, and submits that those principles apply, so that the periodic journey on that occasion was to her parent’s home in Cobar, and the Arbitrator recognised that to be the case.
[26] [2011] NSWCA 199.
[27] [2020] NSWWCCPD 8.
The respondent asserts, however, that the appellant’s submissions at arbitration were limited to the submission that the period journey had ended when the respondent had reached her residence in Bourke. The respondent says that the appellant did not challenge in any way the respondent’s evidence or submissions that she had the intention, before leaving work, that she would travel to Cobar. The respondent contends that the appellant’s submission was that Vetter could be distinguished because the worker periodically went to her grandmother’s house for dinner before going home and, in the present case, the respondent did not go directly to Cobar. The respondent quoted from the submissions made by the appellant at arbitration, which were:
“Now, the other aspect of Vetter was that the applicant periodically went and had dinner with her grandmother before going home on particular days. Now, that is not the situation here. The applicant did not from work go directly to Cobar. Had she done that things might’ve been very different. She didn’t do that, she spent quite a bit of time from about 10.30 onwards – 10.30 to about 6, 6.30 – in fact, I suspect it should be a little bit later but be that as it may, assuming she left for Cobar at about 6.30 she spent about 12 hours after leaving work and much of that time is at home in her usual residence, what is described as a primary residence in Bourke.”[28]
[28] Transcript of Proceedings of 11 December 2019 (T1), T1 35.22–34.
The respondent refers to the appellant’s further submissions to the Arbitrator in respect of the delay before the respondent left for Cobar but asserts that those submissions were abandoned when it became apparent that the dispute notice issued pursuant to s 78 of the 1998 Act did not raise any issue in relation to an interruption to or deviation from the journey.
The respondent submits that when the appellant’s submissions to the Arbitrator are read in their entirety, it is apparent that the appellant did not challenge the respondent’s submission that, at the time she drove away from work, she intended to spend the night at her mother’s house in Cobar. The respondent says that, having failed to challenge that submission, it is not open to the appellant to bring that challenge on appeal.

The respondent submits that the Arbitrator dealt with that submission and accepted it, noting that there was no evidence to suggest otherwise. The respondent says that the inference arrived at by the Arbitrator was open to him.
The respondent submits that in any event, it was immaterial whether the respondent was on the appellant’s premises when she formed the intention to spend the night in Cobar. The respondent states that she had formed the intention before she drove away from the appellant’s premises and before she arrived at her residence in Bourke. She submits that, once she had that intention, she did not reach her abode until she arrived at Cobar because before she arrived at her residence in Bourke, it had ceased to be the place where she intended to spend the night. The respondent asserts that it is also immaterial that she had not made the journey from her place of employment to her mother’s place on previous occasions. The respondent cites Hook as authority to say that a journey can be a periodic journey even if it is carried out on only one occasion.
The respondent says that the evidence was unequivocal that the respondent’s journey had commenced at her place of employment. The respondent adds that it was also uncontroverted (and accepted by the Arbitrator) that, at the time of her accident, she was on the road to Cobar where she intended to spend the night. The respondent maintains that the journey commenced from a place of work, going to a place of abode, and maintained that character until the motor vehicle accident occurred, making it a periodic journey.
The respondent submits that this construction is consistent with the definition of “place of abode” found in subs 10(6) of the 1987 Act.
The respondent concludes that, in respect of this ground, the appellant has not established error of fact or law on the part of the Arbitrator.

The appellant’s submission in reply

The appellant submits that a perusal of the respondent’s written submissions to the Arbitrator discloses that the respondent put additional arguments in relation to the issue of whether the journey fell within the provisions of s 10 of the 1987 Act. The appellant concedes that the respondent was not cross examined and certain submissions were not challenged, but asserts that the onus to prove her case lies with the respondent. The appellant says that it is therefore not an acceptance by it that the respondent formed the intention to travel to Cobar before leaving the appellant’s premises.
The appellant contends that it is curious that the respondent considered it immaterial whether the respondent formed the intention to travel to Cobar while still on the appellant’s premises. The appellant also referred to the respondent’s submission that the definition of “place of abode” defined the intention as one formed while in the process of the journey and did not require the intention to be formed before the respondent left the appellant’s premises. The appellant also described that submission as “curious,” because this submission was directly contrary to the submission made at arbitration that it was significant that the respondent’s intention was formed before she commenced her journey and therefore the “place of abode” was Cobar. The appellant says that the same argument was repeated in the respondent’s submission in reply to the Arbitrator and the Arbitrator’s finding in favour of the respondent on this issue is the subject of the appellant’s challenge on the appeal. The appellant disputes that the respondent’s evidence was “unequivocal.”

Ground Two: if the respondent was on a journey, the Arbitrator erred in finding that there was a real and substantial connection between the respondent’s employment and the motor vehicle accident

The appellant’s submissions

The appellant submits that if Ground One of the appeal fails, the Arbitrator erred in any event by finding that there was a “real and substantial” connection between the respondent’s employment and the motor vehicle accident.
The appellant says that the respondent relied on the Presidential authorities of Wickenden, Field and McCoy. The appellant acknowledges that each case turns upon its own facts, but submits that the Arbitrator’s reasons for his conclusion in favour of the respondent on this point were very brief and did not involve a consideration of the caselaw, or the wording of s 10 of the 1987 Act. The appellant refers to the Arbitrator’s reasoning at [104]–[105], where the Arbitrator said that the respondent:
“… submits that she would not have been on that journey but for the state of distress in which she left the [appellant’s] premises …
In my view the [respondent] has established that there was a real and substantial connection between her employment and the accident in which she was involved on 19 February 2016.”
The appellant submits that in the authorities cited, there was discussion about how a real and substantial connection between the employment and the accident is to be established and what needs to be considered to determine that issue. The appellant asserts that the Arbitrator did not go down that path, but merely said that the respondent would not have been on that journey had it not been for her distress. The appellant submits that this does not address the question of whether there was a real and substantial connection between the respondent’s employment and the accident.
The appellant says that all of the cases cited turn on a consideration of what the worker was required, expected or encouraged to do by the employer. The appellant observes that:
(a)    in Wickenden, the worker was required to work longer hours for training purposes which led to her having to travel home in the dark;
(b)    in Field, the worker was given short notice that he was required to work and, believing he needed to commence at a certain time, tripped because he was rushing;
(c)    in McCoy, the worker, who was in a tired state and in a hurry, tripped on the way to the employer’s Christmas party, which she had been encouraged to attend.
The appellant submits that in this case, while the appellant directed the respondent to take paid leave, the appellant did not encourage, require or expect the respondent to ultimately make the journey to her mother’s house in Cobar. The appellant adds that the fact that the respondent was directed to take leave was not sufficient to establish that there was a real and substantial connection between the respondent’s employment and the motor vehicle accident.
The appellant asserts that there was no evidence put forward by the respondent as to the cause of the accident.
The appellant submits that there were very few, if any, reasons given by the Arbitrator for the conclusion he reached and he made no findings in relation to the connection between the respondent’s employment and the motor vehicle accident.
The appellant refers to Roche DP’s observations in Field, where the Deputy President said (citations omitted):
“Each case depends on its own facts.
Section 10(3A) only requires a real and substantial connection between the employment and the accident or incident out of which the injury arose … [I]n what circumstances, s 10(3A) will be satisfied will be a question of fact, applying the words of the provision in a commonsense and practical manner in each case.”[29]
[29] Field, [47]–[48].
The appellant concludes that the Arbitrator misapplied the law by not addressing the connection between the respondent’s employment and the motor vehicle accident. Further, the Arbitrator did not apply the words of s 10(3A) to the specific facts of this case.
The appellant made no further submissions on this ground following receipt of the transcript.

The respondent’s submissions

The respondent submits that she made extensive submissions to the Arbitrator in respect of the application of s 10(3A) and referred the Arbitrator to the authorities, including Bina. The respondent says that she also made extensive submissions about the principles derived from those cases, which establish that the connection does not have to be causal and is a lesser connection than what is required to establish that the injury arose out of the employment. The respondent submits that the facts in each authority to which the Arbitrator was referred were sufficient to satisfy the test of a real and substantial connection. The respondent contends that the common principle abstracted from these authorities is that it is only because of the employment that a person was in a particular place at the time the worker was carrying out the activity that contributed to the injury.
The respondent maintains that at the time of leaving work, she was in a state of distress, which was causally related to her employment. The respondent submits that it was only because of her work injury that she decided to make the journey to Cobar. The respondent says that there were various matters she needed to attend to before she could depart on her journey. The respondent says the circumstances are similar to those in Wickenden in that the journey placed her on a dark country road and similar to McCoy, because the incident occurred when the respondent was in a distressed state and upset because of her work injury.
The respondent asserts that the appellant made no submissions in response to her submissions in relation to the application of s 10(3A) of the 1987 Act and made no submission about whether the injury arose out of the respondent’s employment (which is a stricter test).
The respondent contends that the complete absence of any submission in relation to s 10(3A) and the matters relevant to that section amounts to an acceptance on the part of the appellant that the circumstances of the motor vehicle accident were sufficient to satisfy the provisions of that section, once it is accepted the respondent was on a periodic journey.
The respondent submits that in any event, the Arbitrator’s conclusion was correct in that it was the respondent’s employment that caused her compensable psychological condition and caused her incapacity from 10 February 2016 until 19 February 2016, upon which date the motor vehicle accident occurred. The respondent says that the respondent’s employment caused her to be on the road, driving in a distressed state, which would have affected her ability to drive, just as in McCoy, where tiredness affected the worker’s ability to walk from her hotel room to the Christmas party.
The respondent cites the further Presidential authority of Australia and New Zealand Banking Group Limited v Khullar,[30] a decision by Snell DP, which the respondent says was decided after the submissions were made to the Arbitrator in the present case. The respondent refers to the facts of that case, in which the worker was involved in a motor vehicle accident while travelling home from a medical appointment in respect of a work-related injury. In that case, the Arbitrator found that there was a real and substantial connection because the worker would not have been on the road at the time of the accident except for her work-related injury. The Deputy President dismissed the appeal on the basis that the work injury put the worker on the road at a time and place where she would otherwise not have been.
[30] [2020] NSWWCCPD 3 (Khullar).
The respondent quotes from Snell DP’s observations that:
“Whether the test in s 10(3A) is satisfied involves ‘a question of fact, applying the words of the provision, in a commonsense and practical manner in each case.’ Satisfaction of the test does not necessarily involve proof that the accident was caused by the employment. The test in s 10(3A) is satisfied, there was a real and substantial connection between the employment and the accident.”[31] (citations omitted)
[31] Khullar, [66].
The respondent further refers to the appellant’s submission that what is required is to show that the appellant required, expected or encouraged the respondent to undertake the journey in which the motor vehicle accident occurred. The respondent contends that the words of the section do not have that requirement and none of the authorities identify that to be a requirement.
The respondent quotes the complete passage from the Arbitrator’s reasons referred to by the appellant, in which the Arbitrator observed that:
“The [respondent] was on a journey to which s 10 of the 1987 Act applies when injured in the accident on 19 February 2016. She submits that she would not have been on that journey but for the state of distress in which she left the [appellant’s] premises on 19 February 2016 (even if that state did not amount to an injury). The [respondent] also submits that even if the [appellant] had made out its s 11A defence (which is not the case), that would be irrelevant to the question of real and substantial connection between employment and the accident. I accept these submissions.”[32]
[32] Reasons, [104].
The respondent maintains that the Arbitrator’s finding, which she says the Arbitrator did not suggest was a finding of fact, discloses no error. The respondent submits that, in any event, the finding that the respondent was only travelling to Cobar because of the work injury was clearly available to the Arbitrator on the facts of the case. The respondent says that her evidence was clear and was not challenged in any way. Her evidence that she was in a distressed state when she commenced her journey was uncontroversial.
The respondent concedes that the true cause of the motor vehicle accident was unknown, but the police report discloses that it occurred in darkness on a straight and level road. The conclusion reached by the police was that the respondent veered to the side of the road to avoid wildlife, which was a likely and reasonable conclusion. The respondent asserts that the facts are on all fours with the facts in Wickenden. The respondent offers the only alternative conclusion would be that the respondent, who was in a distressed and agitated state, simply veered off the road, which facts would be similar to those in McCoy.
The respondent concludes that the Arbitrator’s conclusion was correct, and this ground of appeal is not made out.

The appellant’s submissions in reply

The appellant asserts that the transcript reveals that the appellant clearly puts s 10(3A) of the 1987 Act in issue.[33] The appellant submits that the respondent is otherwise seeking to re-run her case. The appellant refers to the decision in Khullar and submits that that decision does not give rise to the need for further submissions other than those already made. The appellant observes that, in any event, that case involved a journey pursuant to s 10(3)(c) of the 1987 Act and should be considered in that context.
[33] Transcript of Proceedings of 16 October 2019 (T2), T2 5.10–12.

THE RELIEF SOUGHT

The appellant asks that the Arbitrator’s determination and orders are set aside and an award is entered in its favour. Alternatively, the appellant seeks to have the matter remitted to another arbitrator for re-determination.
The respondent seeks to have the appeal dismissed.

CONSIDERATION

Ground One: the Arbitrator erred in finding that the respondent was on a journey within the meaning of s 10 of the 1987 Act

The appellant submits that there was no evidentiary basis for the Arbitrator’s finding that the respondent was on a journey pursuant to s 10 of the 1987 Act. The error is said to have been occasioned when the Arbitrator:
(a) observed that the respondent left the appellant’s premises in her car with the intention of travelling to her mother’s house in Cobar that night, and
(b) concluded that the respondent formed the intention before she left work that she would travel to Cobar.
The appellant submits that there is no evidence that the respondent’s car was parked on the appellant’s premises and no evidence that she remained on those premises while on a telephone call with her mother.
It is not overtly apparent from the Arbitrator’s reasons that he drew an inference from the evidence that the respondent’s car was parked on the appellant’s premises. Even if he did, an erroneous inference drawn does not necessarily constitute an appealable error. The error must have resulted in some substantial wrong.[34] It is immaterial whether the respondent’s car was parked on the appellant’s premises, or whether the respondent left the premises before reaching her car. The respondent may have left her place of work but had yet to reach her place of abode when, as the Arbitrator correctly concluded, she formed the intention to drive to Cobar.
[34] Walshe v Prest [2005] NSWCA 333 (per Basten JA, Giles JA and Campbell AJA agreeing), [27].
In her statement, the respondent described the events as follows:
“Upon leaving work I was in a state of distress, very stressed, upset and shock[ed] as I had expected to return to work and be supported.
I was sitting in my car and I tried to call my Mum, but she was not available.
I then spoke over the phone to a family friend, Louise Tier, for support. She urged me to go back to Cobar.
Normally I can do things in order and get organized fairly quickly, but I remember that I was feeling hyper and could not seem to focus on what I should be doing.
I eventually was able to speak to my Mum and she told me that I need[ed] to return home to my family in Cobar where I could be supported and seek further medical help. I said to my Mum: “I am not sick, but I will go home.” I could tell that my Mum was very worried about my welfare.
…
I drove my car back to my residence, which at the time was [in] Bourke.”
The Arbitrator summarised that evidence, observing that:
“The applicant left the respondent’s office in Bourke at around 10.00–10.30 am. She says that upon leaving work she was ‘… in a state of distress, very stressed, upset and shock as I had expected to return to work and be supported.’
The applicant was sitting in her car and tried to call her Mum, but she was not available She then spoke to a family friend on the phone and was urged by her to go back to Cobar. She says she was ‘feeling hyper’ and having trouble focussing on what she should be doing. When Ms Eves was eventually able to speak to her mother on the phone, she was again urged to return to Cobar where she could be supported and seek further medical help. She said to her Mum ‘I am not sick, but I will go home.’ (emphasis in original)
The applicant then drove her car back to her residence in Bourke. She says that she was in a state of shock and distress.”[35]
[35] Reasons, [88]–[90].
The Arbitrator’s summary and observations were consistent with the evidence given by the respondent. The Arbitrator concluded from that evidence that:
“The [respondent] submits that the she formed the intention to travel to her parent’s home in Cobar whilst sitting in her car before she left work. It appears from what Ms Eves says at [27]–[28] of her statement that she agreed with her mother to ‘go home’ (emphasis in original) before she drove back to her residence in Bourke. I accept this evidence, and that the [respondent] formed the intention to travel to Cobar at this time. There is no other evidence to suggest otherwise.”[36]
[36] Reasons, [94].
It is evident from the respondent’s statement that the respondent left the appellant’s office and proceeded to her car, where she attempted to call her mother, spoke to her family friend and then was able to speak to her mother. In the paragraph that followed, the respondent stated that she drove to her residence in Bourke. The respondent gave evidence that she then twice spoke to her mother again, when her mother gave instructions on what the respondent needed to do and reminded her to collect her medications. The sequence as reported by the respondent in her statement is uncontested that the first telephone conversation the respondent had with her mother occurred before the respondent set out to drive anywhere. Further, the respondent expressed her intention at that stage to “go home.”

The respondent’s uncontested evidence was that she formed the intention to spend the night in Cobar before she commenced driving to her Bourke residence. That may have been after the respondent left the appellant’s premises, at the direction of the appellant, but in the circumstances of this case, whether the intention to travel to Cobar was formed on the appellant’s premises or in the car before the respondent began driving on her journey, is immaterial. It was open to the Arbitrator to conclude that the respondent formed that intention while sitting in her car.
The appellant further asserts that the respondent formed the intention to travel to Cobar when she was at her residence in Bourke and felt “unsafe.” The respondent described what occurred at the Bourke residence as follows:
“I then had Lisa, a work colleague, come to my house about half an hour after I got home, and she stayed 30 minutes. She appeared stressed and was crying. I felt like I was in danger and feared for my safety because I felt like Karen Howarth knew so much about me. I needed to leave and go home to where I felt safe. I knew I needed medical help and needed to see my local GP in Cobar.
I was trying to pack my bag …”.[37]
[37] Respondent’s statement, ARD, pp 3–5, [30]–[31].
On a plain reading of that evidence, it cannot be accepted that the above passage is evidence that it was at this time that the respondent formed her intention to travel to her family home in Cobar.
The appellant submits that Vetter can be distinguished from the present case because in Vetter, the worker periodically travelled to her grandmother’s house and always had the ultimate intention of arriving at her own residence. I do not accept that submission. While the facts in Vetter were different to the facts in this case, the factual difference does not impact upon the application of the High Court’s observations about the effect of the journey not being a direct route between the place of employment and the place of abode.
The Arbitrator quoted the observations of the High Court in Vetter, which established that:
(a) there is no obligation upon a worker to take the shortest and most direct route, provided that the journey can be said to be a journey between the worker’s place of abode and place of employment, and
(b) there is no reason why a worker could not choose a longer and more indirect route to achieve a purpose in addition to the purpose of reaching the worker’s residence, again provided that the journey is a journey between his or her place of work and place of abode, and provided there is no material increase in risk.[38]
[38] Vetter, [29].
If it is accepted that the respondent intended her destination to be Cobar, then, applying the High Court’s observations, the fact that the respondent first went to her Bourke residence does not detract from the character of the journey as a whole. As the Arbitrator pointed out, the High Court in Vetter adopted the reasoning of Mahoney JA in Minchinton v Homfray[39] that:
“Having regard to the statutory reference to ‘interruption or duration’, the relevant meaning for present purposes is, I think: ‘a spell of going or travelling, viewed as a distinct whole’.”
[39] (1994) 10 NSWCCR 778, 785.
The appellant further challenges the Arbitrator’s finding on the basis that the journey could not be a “periodic journey” because there was no evidence that the respondent had taken that journey on any other occasion. The Arbitrator considered that submission made by the appellant. He concluded that, in accordance with Glass JA’s observations in Hook, the place of abode is the place where the worker intended to spend the night having the character of his or her place of abode, even though he or she may travel to that particular place on one occasion only. There is no error in the Arbitrator’s reasons in respect of accepting that the journey was a periodic journey, despite the fact that it may have been undertaken on one occasion only.
The Arbitrator proceeded to further consider the meaning of “place of abode.” The Arbitrator referred to the statutory definition contained in s 10(6)(b) of the 1987 Act that the place of abode is the place the worker intended to spend the night following the journey.
The Arbitrator noted that there was no issue in the present case in respect of whether there had been a deviation or interruption that materially increased the risk of injury. The Arbitrator concluded (in this case, correctly) that it was immaterial that there had been a delay of some hours before the respondent set out for Cobar and that when the respondent left her place of employment in her car, she was on a journey to which s 10 of the 1987 Act applied.
The evidence establishes that:
(a)    both the respondent’s friend and the respondent’s mother encouraged her to return to Cobar;
(b)    the respondent expressed that her intention was to “go home,” and
(c)    the respondent’s activities during the day included:
(i)packing her bags;
(ii)arranging her medications, and
(iii)attempting to pay her rent for two weeks.
Those facts are indicative that the respondent, before arriving at her Bourke residence, had formed her intention of returning that evening to her family home in Cobar in order to spend the night (and indeed several nights thereafter).
In accordance with the legislation and authorities relied on by the Arbitrator and discussed above:
(a) the fact that the respondent did not take a direct route to her intended destination did not detract from the character of the travel being a journey within the meaning of s 10 of the 1987 Act;
(b) the travel, when viewed as a distinct whole, had the intended destination of the respondent’s family residence in Cobar, and
(c) the destination was a place to which the worker was journeying with the intention of spending the night.
Accordingly, the Arbitrator’s conclusion that the respondent was injured while on a journey within the meaning of s 10 of the 1987 Act was founded on the evidence, consistent with the relevant authorities and open to him. The appellant has not established error on the part of the Arbitrator and this ground of appeal fails.

The appellant submits that in respect of this issue, the Arbitrator’s reasons were very brief and did not involve a consideration of the caselaw or the wording of s 10 of the 1987 Act. The appellant cites the passage in the Arbitrator’s reasoning at [104]–[105], where the Arbitrator said that the respondent would not have been on that journey but for the state of distress in which she left the appellant’s premises, so that there was a real and substantial connection between her employment and the accident.
The appellant asserts that the Arbitrator did not apply the relevant authorities, but merely said that the respondent would not have been on that journey had it not been for her distress. The appellant submits that this does not address the question of whether there was a real and substantial connection between the respondent’s employment and the accident. The appellant says that the relevant authorities indicate that what is required is evidence that the appellant encouraged, required or expected the respondent to ultimately make the journey to her mother’s house in Cobar.
The respondent contends that the appellant made no submissions about s 10(3A) of the 1987 Act which amounts to an acceptance that there was a real and substantial connection between the respondent’s employment and the injury. I note the matter was identified as an issue in the proceedings when the matter first came before the Arbitrator on 16 October 2019. Having identified that issue as being a dispute before him, after hearing from the parties the Arbitrator proceeded to determine the issue, without the assistance of submissions from the appellant. The obligation to give reasons is dependent upon the submissions presented to the judicial officer and there is no duty to give reasons for failing to accept submissions never put.[40]
[40] Djuric v Kia Ceilings Pty Ltd [2011] NSWCA 34, [15].
It is difficult, in those circumstances, to understand why even the briefest of reasons would not be sufficient to support a finding in favour of the respondent.
Nonetheless, I do not accept that the Arbitrator’s reasons were insufficient. The Arbitrator’s reasons must be considered as a whole.[41]
[41] Beale v Government Insurance Office (NSW)(1997) 48 NSWLR 430, 443.
In his reasons, the Arbitrator discussed the following principles from the decision of Keating P in Bina:
(a) the test in respect of s 10(3A) of the 1987 Act is a lesser test than that of “arising out of employment;”
(b) it is possible to establish the necessary connection between the employment and the injury without satisfying the test of causation, and
(c) depending on the facts, the subsection will usually be satisfied if there is a real and substantial connection between the injury and what the worker was required, authorised or expected to do in his or her employment.[42]
[42] Bina, [116]–[117].
The Arbitrator considered the facts in the present case, which were that:
(a)    the respondent was authorised and directed to absent herself from the workplace;
(b)    the reason for the direction was because of her compensable psychological condition and the inability of the appellant to put in place a return to work plan, and
(c)    even if the psychological condition was not compensable, that would not have prevented a real and substantial connection between the employment and the motor vehicle accident.[43]
[43] Reasons, [103].
The Arbitrator accepted the respondent’s submissions that the respondent would not have been on that journey but for the state of distress she was in and it was irrelevant as to whether the respondent’s distressed state was a compensable injury or appellant’s defence under s 11A of the 1987 Act was made out.[44]
[44] Reasons, [104].
The Arbitrator concluded that there was a real and substantial connection.
The Arbitrator’s reasoning process included a consideration of the principles in Bina. Bina was discussed and applied in Wickenden, McCoy and Field. To say that the Arbitrator failed to “go down the path” of considering the relevant authorities ignores the Arbitrator’s whole reasoning process which included consideration and application of the principles in Bina, which principles were discussed in the subsequent cases.
As the respondent submits, the authorities do not establish that in every case, the activity being undertaken was one which the worker was required, authorised or expected to do. At its highest, Keating P observed in Bina, that this would “usually” be the case.[45] In fact, it was not the circumstance in Khullar, in which Snell DP found a real and substantial connection, not because the worker was required, authorised or expected to have done a particular thing, but because:
“the real and substantial connection between the employment and the injury caused by the motor vehicle accident was because treatment for her injured eye required Ms Khullar to travel from her home to the rooms of Dr Ogane on a journey that she would not otherwise have made, at an hour when she would not otherwise have been at the intersection where the collision occurred.”[46]
[45] Bina, [117].
[46] Khullar, [56].
In any event, I see little difference between the real and substantial connection in McCoy, where the worker, who was in a tired state and in a hurry, tripped on the way to the employer’s Christmas party, which she had been encouraged to attend. The respondent in this case was directed to leave her employment for two weeks because of her work injury, was in a distressed and emotional state because of her work injury and veered from the road. In addition, the respondent stated in the claim form that:
“Under direction of my employer, I left my work place early due to my psychological injury sustained on 10 February 2016. I was travelling home by car when I was involved in a motor vehicle accident. I would not have been travelling home but for the direction/instruction received from my employer.”[47]
[47] ARD, p 45.
At the end of the day, the Arbitrator reached a conclusion by applying the principles established in Bina to the facts of this case without the benefit of any submissions that were contrary to the conclusions he reached. In the circumstances, considering the facts of this case, the evidence, and reading the Arbitrator’s reasons as a whole, his reasons were sufficient.
Consequently, the appellant has not identified error on the part of the Arbitrator and this ground of appeal also fails.

CONCLUSION

An appeal to a Presidential member is brought pursuant to s 352 of the 1998 Act and is limited to the identification of error of fact, law or discretion and to the correction of such error. The appellant has not established error on the part of the Arbitrator and the appeal fails. The Arbitrator’s amended COD issued on 3 March 2020 is confirmed.

DECISION

The Arbitrator’s amended Certificate of Determination dated 3 March 2020 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

31 July 2020