Mitchell v Newcastle Permanent Building Society Ltd - [2013] NSWWCCPD 55

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55
APPELLANT:	Kellie Ann Mitchell
RESPONDENT:	Newcastle Permanent Building Society Ltd
INSURER:	Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:	A1-12823/12
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	19 July 2013
DATE OF APPEAL DECISION:	22 October 2013
SUBJECT MATTER OF DECISION:	Section 4(a) of the Workers Compensation Act 1987; arising out of employment; s 9A of the Workers Compensation Act 1987; substantial contributing factor to injury; s 10(3A) of the Workers Compensation Act 1987; real and substantial connection between the employment and the accident or incident out of which the injury arose; procedural fairness; obligation upon Arbitrator to afford a reasonable opportunity to present or meet a case
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	MRM Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s findings and the orders as found in the Certificate of Determination dated 19 July 2013 are confirmed. 2. No order as to costs.

BACKGROUND

Ms Kellie Ann Mitchell (the appellant) was employed by Newcastle Permanent Building Society Ltd (the respondent) as a business loans processing officer at the respondent’s office premises in Newcastle West. Her usual working hours were between 8.30 am and 5.00 pm. Her duties were clerical in nature.
On 20 June 2012 Ms Mitchell, at the request of her employer, remained at work after normal working hours to conduct what was described as “a clean desk inspection”. That additional work was completed and Ms Mitchell left the premises shortly after 5.50 pm. It was her intention to walk from the work premises, at the corner of King and Union Streets, to her car, which she had earlier parked in Bull Street, to drive home. As she walked to the car, in the darkness, she tripped on the exposed roots of one of a number of fig trees located to the side of the roadway near the corner of Bull and Corlette Streets, causing her to fall.
Ms Mitchell received injuries to her left wrist, back, neck and left shoulder in that fall. A claim made by her for compensation benefits was declined by the respondent’s insurer. Notice of the insurer’s decision to decline liability was given to Ms Mitchell, in accordance with the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by letter dated 17 July 2012. The reasons for that decision are there stated as follows:
“•    Your injury on 20 June 2012 was sustained whilst you were travelling from work.
·        Apart from the fact you were travelling from work, your journey and the incident out of which your injury arose, was not work-related.
·        In the absence of a real and substantial connection between your employment and the incident out of which your injury arose, no compensation is payable for your injury: section 10(3A) of the Workers Compensation Act 1987.”
The respondent, at the hearing before the Arbitrator, was granted leave to rely upon further grounds in defence of the claim.

ISSUES IN DISPUTE

A proper understanding of the issues raised on this appeal requires an appreciation of the manner in which Ms Mitchell presented her argument before the Arbitrator concerning her entitlement to compensation. The injury had been received whilst Ms Mitchell was on a journey between her place of employment and place of abode in terms of s 10(3) of the Workers Compensation Act 1987 (the 1987 Act) and reliance had been placed upon the provisions of that section as founding an entitlement to compensation. However, the principal argument advanced concerning such entitlement was that, given the facts and circumstances, Ms Mitchell’s injury had arisen out of her employment within the meaning of s 4 of the 1987 Act. It was further argued that Ms Mitchell’s employment was a substantial contributing factor to the injury within the meaning of s 9A of that Act.
There are five “grounds of appeal” set out at [2.8] of the Application filed by Ms Mitchell in respect of this appeal. Each “ground” is expressed in very broad terms. There has been a failure to comply with the requirements of Practice Direction No 6 in that there has been no identification of “the respects in which error of law, fact or discretion is alleged to have occurred”. Nor has there been, with the exception of grounds 2 and 5, any identification of the material findings it is said the Arbitrator should or should not have made.
The written submissions provided in support of the appeal, which occupy nine pages, appear to address each ground of appeal separately. However those submissions advanced, in many instances, raise arguments which challenge the Arbitrator’s decision in a manner well outside the ambit of the ground which is said to be addressed. This may be illustrated by an examination of the first ground which is expressed as:
“The Arbitrator erred in failing to draw appropriate inferences from the evidence about the circumstances in which the Appellant’s injuries were received.”
Argument in support of this non-specific suggestion of error includes an assertion that certain matters found by the Arbitrator which defeated Ms Mitchell’s claim had not been the subject of submissions and had not been raised by the Arbitrator at the hearing as being relevant to his deliberation of the dispute. That submission clearly raises a suggestion that Ms Mitchell had been denied procedural fairness and has little, if any, relevance to the “ground” in question.
In the circumstances, it is necessary to examine those submissions to determine the issues raised. It appears that Ms Mitchell suggests that the Arbitrator has erred in the following respects:
(a)     determining that there was no evidence concerning relevant distances nor as to the time taken to walk from the respondent’s premises to the point at which Ms Mitchell tripped and fell, in circumstances where no submission as to the relevance of such matters had been put by either party and that the subject matters of distance and time had not been raised by the Arbitrator with counsel during the hearing;
(b)     failing to inform himself in respect of certain factual matters concerning distance, in accordance with s 354(2) of the 1998 Act;
(c)     failing to meet the requirements of s 354(3) of the 1998 Act;
(d)     finding that there was no evidence concerning “how luminous or dark Bull Street would have been [at the time the appellant] would have travelled to her car [on the date of injury] if she had not been required to work back”;
(e)     failing to find that Ms Mitchell would have reached the scene of the fall, had she ceased work at 5.00 pm, “most probably during the first half of twilight and at a time where her vision [of] the tree roots would not have been obscured by darkness”;
(f)      failing to determine that the appellant’s injury arose out of her employment;
(g)     finding that the appellant’s employment was not a substantial contributing factor to the injuries;
(h)     finding that, given the absence of a real and substantial connection between the employment and the accident or incident out of which the personal injury arose, the journey was not one to which s 10(1) of the 1987 Act applies, and
(i)      failing to find that attendance by the appellant at the respondent’s work premises was an essential element of the appellant’s employment.

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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of 1998 Act have been met.

FRESH EVIDENCE

Ms Mitchell seeks to adduce “new evidence” on this appeal. As is noted by the respondent, no express application seeking leave to have that evidence admitted is made, as is required by s 352(6) of the 1998 Act. However it is clear, given the manner in which Ms Mitchell has completed paragraph [2.5] of the Application made in respect of this appeal, that such leave is sought.
There are two documents which are the subject of the application to seek leave to have additional evidence admitted on appeal. The first is a statement by Ms Mitchell, dated 14 August 2013, which addresses matters of time and distance concerning her normal departure time from employment and retrieval of her parked car. The second document is a copy of an extract of the Enterprise Agreement 2010 relevant to Ms Mitchell’s employment. That document deals with hours of work of employees and the requirement of employees to attend the respondent’s premises to perform duties.
Section 352(6) of the 1998 Act provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The respondent opposes the admission of the “new evidence”. It is correctly argued that Ms Mitchell has not established that the evidence could not reasonably have been obtained before the hearing before the Arbitrator. Such evidence, plainly, was available at that time. It is further argued that the evidence does not “provide any greater guidance to that already before the Arbitrator”.
The extract from the agreement does not, in my view, address any issue in dispute and should not, for that reason alone, be admitted as additional evidence on this appeal. Leave to tender that document is refused.
So far as the further statement of Ms Mitchell is concerned, I am of the view that the demands of justice require that leave be granted to adduce that evidence, and I so order. I reach this conclusion having regard to my views, stated below, concerning the approach taken by the Arbitrator to the state of the evidence, or lack thereof, concerning time and distance associated with the subject journey.
In that further statement Ms Mitchell states that her normal procedure was to leave her work premises at 5.00 pm. The distance from her workplace to the corner of Bull and Corlette Streets, where her fall occurred, “is about 300 metres”. Her car was parked at a point 50 metres from that location. The walk between work premises and the point at which she fell was one of three minutes duration. A map of the locality is annexed to that statement.

THE ARBITRAL PROCEEDINGS

The parties were each represented before the Arbitrator by counsel. The proceedings were recorded and a transcript (T) has been produced and made available to the parties.
The evidence established, and there was no dispute, that Ms Mitchell tripped on the exposed tree root by reason of darkness whilst walking after work to her parked car. It was accepted that Ms Mitchell usually performed her clerical duties between 8.30 am and 5.00 pm and further, that on the day of injury she had worked back at the respondent’s request to 5.50 pm.
A document in evidence relating to Newcastle Sunrise/Sunset Times, which had been obtained by the Arbitrator from the website WillyWeather.com.au, established that on 20 June 2012 the sun in Newcastle, NSW, set at 4.53 pm and last light occurred at 5.21 pm.
A document which had been obtained from Wikipedia, free encyclopaedia, webpage relating generally to sunset, twilight and dusk is in evidence.
As noted earlier, Ms Mitchell presented her case upon alternative grounds. Her primary argument was that the injury arose out of her employment in terms of s 4(a) of the 1987 Act and, further, that her employment was a substantial contributing factor to the injury in terms of s 9A of that Act.
It was argued, in the alternative, that the injury had been received whilst Ms Mitchell was on a journey within the meaning of s 10 of the 1987 Act, given that she was, at the relevant time, on a periodic journey between her place of employment and place of abode within the meaning of s 10(3). It was further put that her right to receive compensation benefits arose because there was a real and substantial connection between her employment and the accident or incident out of which the personal injury arose: s 10(3A) of the 1987 Act.
The respondent argued that the injury did not arise out of employment; that the employment was not a substantial contributing factor to the injury and that, whilst accepting that Ms Mitchell was on a journey between her work and home, the requirements of s 10(3A) had not been met.

Relevant legislation

Before attempting an outline of the Arbitrator’s findings it is convenient to note the terms of the relevant legislation.
Section 4 of the 1987 Act provides, relevantly:
“4 Definition of ‘injury’
(cf former s 6 (1))
In this Act:
‘injury’:
(a) means personal injury arising out of or in the course of employment,
...”
Section 9 of the 1987 Act provides:
“9      Liability of employers for injuries received by workers—general
(cf former s 7 (1) (a))
(a)     A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(b)     Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”
Section 9A of the 1987 Act provides:
“9A   No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note: In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)  the nature of the work performed and the particular tasks of that work,
(c)  the duration of the employment,
(d)  the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)  the worker’s state of health before the injury and the existence of any hereditary risks,
(f)  the worker’s lifestyle and his or her activities outside the workplace.
(3)    A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)  the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)    This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 10 of the 1987 Act provides, relevantly,:
“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.
…
(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,
…
(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.
…
(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.
…”

The Arbitrator’s decision

The Arbitrator identified the issues for determination and noted the documentary evidence before him. Following a summary of relevant evidence, the Arbitrator proceeded to consider the question as to whether the injury received arose out of Ms Mitchell’s employment in terms of s 4 of the 1987 Act. Reference was made to relevant authority and it was observed that the terms of the section require “that there be a causal connection between the injury a worker suffers and the worker’s employment” (at [19] of Reasons). Following a consideration of the facts the Arbitrator concluded that the injury “cannot be held to have arisen out of employment” (at [23] of Reasons).
The Arbitrator proceeded to elaborate his reasons for so concluding at [25] of Reasons as follows:
“both the fact that she had to travel home from her place of employment and the fact that her journey was done at a time when it was dark are circumstances related merely to the fact of her being employed and not to her being employed in her particular job. Her journey being done in the dark on that day related not to the work she had to do, but the time at which she concluded her work. Given that, to my mind, her employment only provided the occasion or the setting for her injury to occur. There was nothing within or about or intrinsic to her employment in her particular job at the Building Society that, on a common sense analysis, contributed to her injury.”
The Arbitrator found (at [26] of Reasons) that the evidence did not establish that Ms Mitchell “was exposed to any increased peril in her journey by working until 5.50 pm on 20 June 2012 rather than 5.00 pm”. That finding was elaborated at [27] of Reasons where it was stated:
“The evidence establishes that Ms Mitchell would have finished work at 5.00pm on 20 June 2012 had she not been required to work back. That was 7 minutes after the sun had set, and 21 minutes before there would be no light at all illuminating the sky. Assumedly, it would have taken her some time to collect her belongings and depart from the building. That would have taken at least a couple or few minutes. Whatever the time, she would have left the building around one quarter to one third of the time into twilight. As indicated above, there is no evidence before me that demonstrates the extent of luminance or darkness at that time, and indeed there is no evidence to reveal the extent of darkness or luminance at the time she would have walked past the tree root had she finished work at 5.00pm. Necessarily it took Ms Mitchell some time to walk from the building to the point at which she tripped, but there is simply no evidence that enables me to make any findings or draw any inferences as to how long exactly it took her. The only certain thing is that the light would have been fading if she commenced her journey on 20 June 2012 shortly after 5.00pm, but the rate at which it would have been fading is unknown. It is simply unknown from the evidence to what extent the tree root would have been visible to Ms Mitchell or darkened to her view had she left her place of employment at the normal time. It cannot be known because the evidence does not enable any finding to be made, firstly, on the extent to which light was fading on that day after sunset and, secondly, the time at which Ms Mitchell would have walked past the tree roots had she ceased work at 5.00pm on the day.”

Having regard to his findings, the Arbitrator observed that matters raised by s 9A of the 1987 Act did not arise for determination. However he did proceed to find that, given his earlier stated conclusions, Ms Mitchell’s employment was:
“not a factor that was real or of substance in terms of the occurrence of her injury. Therefore, I would not have been satisfied that Ms Mitchell’s employment was a substantial contributing factor to her injury.”
The Arbitrator proceeded to consider the application of s 10 to the facts as found and determined that the “journey… on 20 June 2012 in which [Ms Mitchell] suffered injury is not therefore a journey to which s 10(1) of the 1987 Act applies” (at [41] of Reasons). His reasoning when so concluding is stated between [31] and [40] of Reasons. The words used in the relevant section, “substantial” and “employment”, were to bear the same meaning throughout the legislation. The words “substantial connection” were construed by the Arbitrator to mean “a connection that is real and of substance” and the word employment was “not a reference merely to the fact of a worker being employed but to the employment of a worker in the worker’s particular job”. With respect to the words “real” and “connection” which appear in the subsection, the Arbitrator made reference to dictionary definitions and concluded that “real” meant “actual” and “connection” meant “association” or “relationship” or “link”.
The Arbitrator expressed his view that:
“As with s 9A, [s 10(3A)] involves a causative element between the employment of a worker in the particular job and the incident or accident out of which the injury arose. Given this, whether there is a real and substantial connection between employment and an accident or incident out of which an injury arises is a matter to be inferred from the facts based on common sense.” (at [38] of Reasons)
The Arbitrator accepted that there was a “link between the fact that Ms Mitchell was employed and her tripping” in that, but for her being employed she would not have been making that journey, but that there was “no link between the employment of Ms Mitchell in her particular job as a loans processing officer and her tripping over the tree roots”.
Before stating his ultimate conclusion the Arbitrator again considered the concept, as expressed by him, of a journey becoming “more perilous due to a change in the time [work finished]” as follows:
“Further, and for the sake of argument only, it [sic, if it] were open to hold that the connection between a worker's employment and an incident causing injury on a worker's journey home from work is real and substantial if the worker's journey became more perilous due to a change in the time the worker finished work, then such is not this case. The evidence in this case does not establish that there was something about Ms Mitchell working back on the particular day to complete a particular task that exposed her to a journey that was more perilous than it would otherwise have been had she ceased work at her normal time.”
The Arbitrator proceeded to make the findings noted above.

SUBMISSIONS, DISCUSSION AND FINDINGS

The transcript reveals that there was considerable debate between the Arbitrator and counsel appearing on behalf of Ms Mitchell concerning her allegation that the injury was one which arose out of her employment. Her case was that she had been exposed to the risk of tripping in darkness, and that it was dark because she had finished work later than normal. It was put in argument that, had she left at her usual time being 5.00 pm, it would have been twilight, but that she would not have been required to walk in darkness. Counsel had made reference to Ms Mitchell’s exposure to a “special danger” (T11). That concept was expanded when it was put:
“…[i]t’s not the standard risk on a journey, it’s a particular risk that is an increased super added risk because of the requirement of the worker to stay back and work until 5.50 pm on that particular day. And to leave the premises in darkness instead of in light sufficient for her to walk and perceive dangers on that short walk from the place of employment to the vehicle.” (at T17)
It was made clear later in submissions when counsel was addressing the application of s 9A to the facts that, having worked to 5.50 pm, it was of fundamental relevance that Ms Mitchell had “left in darkness instead of the beginning of twilight, and had to make her journey in the complete darkness as distinct from in twilight, and tripped over the tree roots that she didn’t see and sustained the injury” (at T30-31).
Nothing put in submissions by counsel appearing for the respondent challenged the proposition put by Ms Mitchell that light conditions, twilight as distinct from darkness, were different at the relevant time of year when contrasting a departure from work at 5.00 pm and one at 5.50 pm.
As I have attempted to outline above (at [33]), the Arbitrator’s reasoning included a finding by him that the evidence did not establish relevant timing nor a difference concerning the state of light at relevant times as put by counsel. That conclusion was not one in support of which argument was advanced by the respondent. Nor was it in issue. Further, the question as to the state of the evidence on that subject and the question of timing was not raised by the Arbitrator during the extensive exchanges between him and Ms Mitchell’s counsel as is recorded in the transcript.
Whilst not explicitly stated by Ms Mitchell in submissions in support of this appeal, it is clear, as earlier noted, that the complaint made concerns a suggested denial of procedural fairness in that she had been denied an opportunity “to address any asserted deficiency” in the evidence. It was stated by Mason P in Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1 (at [4]) (Seltsam):
“[a]s to procedural fairness, this judicial obligation is relevantly concerned with affording a reasonable opportunity to present or meet a case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611[40]). That opportunity is vital both to the reality and the appearance of justice. Just outcomes are grounded upon the court or tribunal addressing the issues presented, particularly where litigation proceeds according to the adversary principle.”
The reasons for the decision of Ipp JA in Seltsam (with whom Mason P agreed) make clear the general principle that, “although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining a case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise” (at [78]).
The Arbitrator’s finding at [26] of Reasons (noted at [33] above), although expressed as an incidental finding which reinforced his finding as to injury not arising out of employment, defeated the very foundation of Ms Mitchell’s argument, without there being an opportunity afforded to her to deal with the state of the evidence as to time and distance. I am of the opinion that Ms Mitchell had been denied procedural fairness, namely a fair trial, and that the Arbitrator has erred in law. Such conclusion may entitle Ms Mitchell to a determination of her application on this appeal or it may be appropriate to remit the matter to an arbitrator for determination afresh: s 352(6) of the 1998 Act. However such relief is not to be granted if such would be futile: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (at [145]).
I conclude that the appropriate course is to examine the evidence and arguments raised with a view to determining whether the Arbitrator’s conclusions concerning Ms Mitchell’s entitlement to compensation as claimed had been relevantly affected by error. It is proposed to address the findings made by the Arbitrator concerning “course of employment” and the application of s 10(3A). Such consideration will necessarily address the other issues which I have attempted to identify at [8] above.

Did the Arbitrator err in concluding that the injury did not arise out of employment (s 4(a))?

The argument put by Ms Mitchell as noted at [43] above was rejected by the Arbitrator following a consideration of relevant authority including the decision of the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi). The Arbitrator correctly noted that the plurality in Badawi (Allsop P, Beazley JA, as Her Honour then was, and McColl JA) had observed that the meaning of “arising out of … employment” is settled. Their Honours had made reference to the early authoritative decision of the Full Court in Nunan v Cockatoo Docks &Engineering Co Ltd (1941) 41 SR (NSW) 119 in which matter the Court “adopted a common sense approach to the application of the phrase, noting that it involved a causal element” (Badawi at [73]).
The Arbitrator’s reasoning concerning the issue of “arising out of employment” is recorded between [31] and [33] above. It is argued by Ms Mitchell that the Arbitrator’s approach to the concept of “employment” as it appears in the phrase was too narrow (submissions ground 2.2). It is put correctly in my view, that the term employment encompasses matters incidental to the features or incidents of the employment. However, I am not persuaded that the Arbitrator’s conclusion that the injury had not been proven to have arisen out of the employment had been reached in error.
The Arbitrator when dealing with Ms Mitchell’s argument, appears to have adopted the concept put by counsel of “increased peril”. That adoption tends to confuse, given that past use of the term “added peril” in the context of compensation law denoted that, as stated by the late Professor Mills (Workers Compensation (NSW) Second Edition Butterworths, Sydney 1979 at 79):
“In very general terms, the principle [added peril] was that if the worker, by his own independent act, added a new risk to the employment, any injury resulting from that risk did not arise out of the employment.”
It was observed by Neilson J in Meeson v Placer Pacific Management Ltd (2002) 24 NSWCCR 297 (at 354) that there was a doctrine converse to that of “added peril” being that of “special exposure”. That principle was, again, discussed by Professor Mills in his text at 87 where it was stated:
“The need to demonstrate that the injury had arisen out of the employment gave rise to the principle that it was necessary to show that the injured worker had been especially exposed to the risk of the injury which in fact had befallen him: either that this was a risk of a different kind from that encountered by mankind in general or that the employment exposed the worker to a community risk to a degree greater than that experienced by those of the community who were not engaged in that employment.”
It was not disputed that Ms Mitchell was required to carry out her duties at the respondent’s premises in Newcastle. That fact, considered with the employer’s requirement that Ms Mitchell worked 50 minutes overtime, does not, as is argued, render the necessary journey to her home after work something that is relevantly “incidental” to her employment. Leaving aside the relevant journey provisions which have evolved in the legislation in years past, it is the position, as stated by Professor Mills (at 60) that once a worker:
“[leaves] his employment in the evening or at any other hour, from that time till he arrives next morning at the place his field of employment is, he is in the same position as any other member of the public. He carries into his period of leisure no insurance from his employers.”
The risk, and the fact of, tripping by reason of darkness cannot, in my opinion, be taken as being a consequence of “special exposure”. The fall and consequent injury may not be taken as having arisen out of Ms Mitchell’s employment, merely because the fall happened after leaving work 50 minutes later than the usual hour. Such a proposition involves the “but for” test. What is asserted in submissions is that but for working late and leaving in the dark, the fall would not have happened. The “but for” test is not the correct test as to causation: see discussion by Roche DP in Qantas Airways v Watson (No 2) [2010] NSWWCCPD 38 at [85] and [86].
It cannot be said that the subject injury occurred when Ms Mitchell’s employment brought her to a particular locality where the danger arose as discussed by Murphy J in Telstra Corporation Limited v Bowden [2012] FCA 576 between [44] and [48].
I have formed the view that the question of causation may not be resolved by simply contrasting prevailing conditions at normal knock off time and those 50 minutes later. The common sense evaluation of the facts requires consideration of the following matters:
(a)     the day’s duties had been completed. It is not controversial that the course of employment had ceased;
(b)     Ms Mitchell had left the respondent’s premises;
(c)     Ms Mitchell was walking to retrieve her vehicle, an activity unrelated in any relevant sense to her employment;
(d)     Ms Mitchell tripped whilst on public land;
(e)     it was dark;
(f)      the condition of darkness was in no sense related to employment other than that her shift had been extended by 50 minutes;
(g)     the danger was encountered by reason of the presence of the tree root, which was in no way associated with employment;
(h)     the employment did not bring Ms Mitchell to that point at which she fell in Bull Street, and
(i)      the danger was one to which all members of the public in the vicinity were exposed, both in light and dark conditions, and nothing employment related, except the finishing time (being at a time of darkness), was in any relevant manner causally related to the occurrence of injury.
The Arbitrator was, in my opinion, correct to conclude that such causal relationship as may be argued was “tenuous” and not sufficient a circumstance to establish that the injury arose out of the employment. No relevant error concerning that conclusion has been established.

Section 9A of the 1987 Act

Having regard to the conclusion reached immediately above, it is unnecessary to consider questions raised by s 9A of the 1987 Act. However, having regard to argument advanced on appeal, it is appropriate that the section be addressed.
The matters relied upon by Ms Mitchell in support of her contention that error had been committed by the Arbitrator in his consideration and application of s 9A are the same as those matters relied upon in her challenge to the Arbitrator’s finding as to “arising out of employment”. Particular attention is given in argument to the terms of s 9A(2), and it is there that earlier argument is revived. Appropriate reference is made to the decision in Badawi and to observations made by Basten JA in Da Ros v Qantas Airways Ltd [2010] NSWCA 89; 8 DDCR 103 (Da Ros).
The difficulty which arises by reason of reliance upon those arguments is that they had been found by the Arbitrator, and on this appeal, not to establish the relevant causal requirement in s 4(a). It was held in Badawi (per the plurality, Handley AJA agreeing, and by Basten JA) that it was not correct, as stated by Mason P in Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740; 20 NSWCCR 70 “that the causal requirement in 9A is less stringent than in s 9 (read with s 4)”.
The legislature’s intent when enacting s 9A, as found by the plurality in Badawi, was to remedy “the lack of causal connection with employment”. That was accomplished by the requirement found in s 9A that “the connection of the employment with the injury under either limb [of s 4(a)] was ‘substantial’”: Badawi at [83].
The requirements of s 4(a) have, as found, not been satisfied on the present facts and it thus follows that the submissions raised in support of suggested error concerning the application of s 9A must be rejected.

Did the Arbitrator err in his application of s 10(3A)?

The terms of s 10(3A) are recited at [30] above. It provides that injury received on a journey such as Ms Mitchell’s journey to her place of abode on 20 June 2012 may be taken to be an injury arising out of or in the course of employment (s 10(1)) only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose. I note that s 10 in its present terms applies to injuries received on or after 19 June 2012, one day before Ms Mitchell’s injury, but not to injuries received before that date (Sch 6 Pt 19H cl 18 to the 1987 Act).
The Arbitrator’s finding that the requirements of s 10(3A) had not been met is challenged on this appeal. The reasoning which led the Arbitrator to that conclusion followed his consideration of the proper construction of s 10(3A). He noted that the term “real and substantial connection” is not defined in the Acts. He had regard to relevant authority and determined that the terms “employment” and “substantial” are to have the same meaning “throughout the legislation”. The term “employment”, it was found, should bear the same meaning as when used in ss 4 and 9A. That being so, the Arbitrator found that:
“… ‘employment’ in s 10(3A) is not a reference merely to the fact of a worker being employed but to the employment of a worker in the worker’s particular job.”
The Arbitrator made general reference to the decision in Badawi and that of the Court in Pioneer Studios Ltd v Hills [2012] NSWCA 324.
The word “substantial” had been considered by the Court in Badawi where it was taken to mean “real and of substance”. The Arbitrator, relying upon dictionary entries, determined that “real”, in the context of s 10(3A), should be taken to mean “actual” and that the word “connection” should be taken to mean “association” or “relationship” or “link”. The Arbitrator then stated (at [37] to [41] of Reasons):
“In short, it seems to me that the requirements of s 10(3A) that there be a ‘real and substantial connection’ between the employment and the accident or incident out of which a worker’s injury arises requires that the relationship or association or link between the worker’s employment in the particular job and the accident or incident is actual and of substance. The link must be more than remote and tenuous.
As with s 9A, this involves a causative element between the employment of a worker in the particular job and the incident or accident out of which the injury arose. Given this, whether there is a real and substantial connection between employment and an accident or incident out of which an injury arises is a matter to be inferred from the facts based on common sense.
To my mind, and as I have indicated above, whilst there is a link between the fact that Ms Mitchell was employed and her tripping over the tree roots on 20 June 2012, in the sense that but for her being employed she should not have been making that journey, there is no link between the employment of Ms Mitchell in her particular job as loans processing officer and her tripping over tree roots. The link between her being employed in her particular job and her tripping over the tree roots is in my view too remote and it cannot be held that there is a real and substantial connection between the two. To say that another way, there is nothing about the employment of Ms Mitchell as a loan processing officer that necessitated she make a journey from work to home. The journey was done merely as a consequence of her being employed.
Further, and for the sake of argument only, it [sic, if it] were open to hold that the connection between a worker’s employment and an incident causing injury on a worker’s journey home from work is real and substantial if the worker’s journey became more perilous due to a change in the time the worker finished work, then such is not the case. The evidence in this case does not establish that there was something about Ms Mitchell working back on the particular day to complete a particular task that exposed her to a journey that was more perilous than it would otherwise have been had she ceased work at her normal time.
The journey Ms Mitchell made on 20 June 2012 in which she suffered injury is not therefore a journey to which section 10(1) of the 1987 Act applies.”

Ms Mitchell submits on this appeal that “the nature of the causal link is effectively the same for s 9A and s 10(3A)”. It is further put concerning s 9A that “substantial contributing factor” means a connection that is ‘real and of substance’. That submission clearly adopts the use of the word “connection” as appears in the reasoning of the plurality in Badawi, noted at [60] above.
The argument proceeds to assert that s 9A and s 10(3A) may be distinguished given that “there is a difference between what has to be linked for the purposes of s 10(3A) compared to s 9A” in that s 10(3A) concerns employment and the subject accident or incident, whereas s 9A concerns employment and injury.
The substance of Ms Mitchell’s complaint is to be found at submissions (ground 4 at [5] and [6]) where it is put:
“At paragraph 33 of his statement of reasons, the Arbitrator considered the question of the meaning of ‘employment’ in Section 10(3A) and stated that ‘it is not a reference merely to the fact of a worker being employed but to the employment of a worker in the worker’s particular job’. He identified that the Appellant’s employment consisted of particular work tasks but improperly focused on those work tasks instead of examining the evidence as to the worker’s ‘employment’, that being the statutory touch stone. The arbitrator failed to find that it was an essential requirement of her employment that she attend and perform her duties at the employer’s workplace. The Court of Appeal noted in Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 at [37], that: ‘The core element of a worker’s course of employment will be attendance at a workplace or carrying out work functions ……’. Attendance at a workplace is clearly part of the ‘employment concerned’ within the meaning of Section 9A and of ‘employment’ within the meaning of 10(3A). There is a direct causative link between the Appellant’s employment and her tripping over the tree roots on her journey home from work. The link arises firstly because of the employer’s requirement that the Appellant perform her work at its workplace, and secondly because of the requirement on the day of injury that she complete the additional tasks which required her to remain at the employer’s premises until after dark. The journey to and from work was for the sole purpose of discharging the worker’s employment duties, and the journey from work was made in darkness because of the employer’s requirement on the day of injury that she perform the additional work duties. The causative connection between the employment in its broader sense (as compared to the narrow sense used by the arbitrator) is both obvious and substantial as a matter of common sense.
For the reasons set out previously (Ground 2) the Arbitrator erred by looking at the Appellant’s duties as a loan processing officer rather than the requirement of her employment as a whole, including the fact that the worker was required to attend the employer’s place of business as her workplace to perform those duties, and by failing properly to consider that the employment required her to perform the additional duties and leave the employer’s premises in darkness.”
Before dealing with these and later submissions raised by Ms Mitchell, it is convenient to consider the Arbitrator’s approach to the construction of s 10(3A). The Arbitrator, in my view, was correct when determining that the words “employment” and “substantial” are to be construed as stated by him (as noted at [63] and [64] above).
The Arbitrator’s opinion was, in my view, correctly, founded upon that which had been stated by Beazley JA (as her Honour then was) in Commissioner of Police v Industrial Relations Commission of NSW [2012] NSWCA 439 (at [98]) that:
“usually in accordance with the principles of statutory construction, a word has the same meaning throughout the statute.”
As noted by the Arbitrator, neither the word “real” nor “connection” is defined in the Acts. In such circumstances the Arbitrator was correct to place some reliance upon a dictionary to determine the meaning of those words. As stated by Lord Coleridge in R v Peters (1886) 16 QBD 636 (at 641):
“I am quite aware that dictionaries are not to be taken as authoritative exponents of meanings of words used in Acts of Parliament, but it is a well known rule of courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books.”
The word “real” is one of common usage and its meaning, or more correctly, meanings are plain. The guidance gained by the Arbitrator by reference to a dictionary caused him to construe the term, in its context, as meaning “actual”. As was noted by the full Federal Court of Australia in Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198, the term “real” may be used in either a qualitative sense or a quantitative sense. The Court was there considering the term “real risk of recidivism”. In the course of discussion, the Court identified that “real” may convey “the notion of existence as an actuality”, which construes the term in its qualitative sense. It is in this sense, in my view, that the term “real” should be construed in the context of s 10(3A). In my view, the Arbitrator’s adoption of the dictionary meaning, being “actual”, was correct.
When considering the term “connection” as it appears in the subsection, the Arbitrator concluded that, in context, the word should, again, be construed by reference to the dictionary, as meaning “association” or “relationship” or “link”. Connection is a word of common usage and each of those three concepts are equally open when construing the term. As the Arbitrator, with whom I agree, has opined, the most apt meaning would involve the concept of “link”.
Whilst there is a clear distinction between the statutory terms “substantial contributing factor to injury” (s 9A) and “real and substantial connection between employment and the incident etc” (s 10(3A)), both involve, as was accepted by the parties and as found by the Arbitrator, a causal element. In the case of s 10(3A) the causal nexus is the connection between the employment and the incident. The term “connection” as appears in s 10(3A) may also encompass some other association with the employment. That issue has not been argued and, given the parties’ approach to the particular facts, it is unnecessary to determine that question. Whilst the requirement is that the connection must be “real and substantial” that concept may imply a lesser threshold than “substantial contributing factor” as appears in s 9A. That question has not been fully agitated on this appeal, and I make no finding regarding that question. However it is clear that, as with s 9A, the requirement of there being a “real and substantial connection” involves a test that goes to causation at least as stringent as that found in s 4(a) (arising out of employment).
Returning to the arguments advanced, it seems that Ms Mitchell asserts that the Arbitrator has construed the term “employment” incorrectly. It is put that the term encompasses “attendance at a workplace”. That proposition is plainly correct. The argument is developed to suggest that the “link” between employment and the incident (tripping) arises firstly because of the requirement to work at the premises, and secondly because of the 50 minute extension of the shift during which time darkness descended. Given the reasons which I have stated concerning the application of s 4(a) of the 1987 Act (at [54] and [55] above), and given that the term “employment” has the same meaning in both s 4(a) and s 10(3A), this argument must be rejected. In my view any “link” that may arguably exist between employment and the incident is far too tenuous to meet the causal requirement that the subsection, properly construed, requires.
Ms Mitchell further argues that one may leave aside the question of 50 minutes of additional duties, and consider only that the injury was received on the way home from work. It is put that that fact alone establishes the relevant “real and substantial connection”. In support of that argument it is put that legislation similar to the present s 10 as found in the South Australian legislation, the Workers Compensation Rehabilitation and Compensation Act 1986 (South Australia), expressly makes provision which excludes liability arising from injuries received on a relevant journey. Whilst that legislation requires that there be a “substantial connection between the employment and the accident out of which the injury arises” (s 30(5)) it is significant, it is argued, that s 30(6) provides:
“However, the fact that a worker has an incident in the course of a journey to or form work does not in itself establish a sufficient connection between the accident and the employment for the purpose of subsection (5)(b).”
Ms Mitchell argues that the absence of a provision in the 1987 Act similar to that found in s 30(6) of the South Australian legislation supports the proposition that “the fact the injury occurred on a journey that involved travel between work and home is of itself sufficient to satisfy the requirement of s 10(3A)” (submissions ground 4.8).
Ms Mitchell’s argument must be rejected. During the course of argument before the Arbitrator reference was made to the Minister’s second reading speech concerning the proposed legislation incorporating the amendment of s 10, being the Workers Compensation Legislation Amendment Bill 2012. The relevant Bill, as originally drafted, was intended to effect amendment of the 1987 Act to, as then stated in the second reading speech made by the Minister, have the effect:
“…[t]hat journey claims will no longer be covered by the New South Wales workers compensation scheme consistent with the position in many other Australian jurisdictions. While workers who travel for work will still be covered by the scheme, employees [sic, employers] will no longer be liable for a journey between a worker’s home and his or her place of work where the risk of injury is outside the control of the employer” (Hansard Legislative Council, 20 June 2012).
As was observed by the Arbitrator during exchanges with counsel, amendments of the relevant provision to its present form was foreshadowed during proceedings in the Legislative Council, later on 21 June 2012. That amendment made provision for entitlement in respect of journey injuries where there is a real and substantial connection between a worker’s employment and accident or incident causing the injury.
The legislative intent was, in my opinion, to abolish entitlement in respect of journey injuries except in those circumstances addressed by s 10(3A) and, so far as may be relevant, s 10(5A).
A proper reading of s 10, in my view, demonstrates that there is entitlement in cases of injury received on relevant journeys if, and only if, the requirements of s 10(3A) are met or if s 10(5A) has application.
Ms Mitchell’s reliance upon the observations of Basten JA in Da Ros, noted in submissions under the heading “Concluding Submission”, fails to acknowledge the relevance of the undisputed fact that the worker in Da Ros was in the course of his employment at the time of injury. His Honour was considering, not “course of employment”, but the proper application of s 9A to the facts of that case. I have earlier rejected argument that the injury “arose out of employment”. It follows that this submission must be rejected.
The arguments advanced suggesting relevant error have been rejected and the Arbitrator’s findings and orders must be confirmed. Appropriate orders appear below.

DECISION

The Arbitrator’s findings and the orders as found in the Certificate of Determination dated 19 July 2013 are confirmed.

COSTS

No order as to costs.

Kevin O'Grady
Deputy President

22 October 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE