Mooney v White - [2022] NSWPICPD 13

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Mooney v White [2022] NSWPICPD 13
APPELLANT:	Brian Henry Mooney
RESPONDENT:	Robert J White
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-W2019/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	7 April 2022
ORDERS MADE ON APPEAL:	1. Paragraph 1 of the Certificate of Determination dated 17 August 2020 [sic, 2021] is confirmed. 2. The balance of the decision dated 17 August 2020 [sic, 2021] is revoked and the matter is to be remitted to a different Member for re-determination consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – Injury in the course of or arising out of employment – failure to respond to a substantial, clearly articulated argument relying upon established facts – application of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Bechelli, solicitor
Whitelaw McDonald
Respondent:
Mr L Morgan, counsel
Moray & Agnew
DECISION UNDER APPEAL
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	17 August 2021

INTRODUCTION AND BACKGROUND

Brian Mooney (the appellant) was in receipt of a service pension from the Department of Veterans Affairs from 1995. The appellant was not permitted, due to the nature of his pension entitlements, to earn monetary income.[1] As at January 2007 he was involved in, and resided at, the Great Lakes Vietnam Veterans Centre at Forster. He had no fixed abode at the time.[2] Through Colin Freeman, a mutual friend, the appellant was introduced to Robert White (the respondent). The respondent lived in Bourke, where he had an agricultural business, and he also had an investment property at Rainbow Flat.[3] The Rainbow Flat property was about 100 to 150 acres (there are varying estimates) with a house, a free-standing shed and an old piggery. Cattle grazed on the property. It was about 13 kilometres from Forster and “some considerable distance from the main road”.[4]
[1] Dr Hopcroft’s report 2/11/20, Application to Resolve a Dispute (ARD), p 7.
[2] Appellant’s statement 5/5/10, ARD, p 46.
[3] Respondent’s statement 22/4/10, [8]–[10], Reply, pp 18–19.
[4] Mr Freeman’s statement 7/4/10, [18], Reply, pp, 23–24; appellant’s statement 5/5/10, ARD, p 47.
The respondent asked Mr Freeman whether he “knew anyone who may be interested in free accommodation, in return for a caretaking role on the [Rainbow Flat] property”. The appellant and the respondent were introduced and entered into an agreement whereby the appellant would live rent-free on the property and carry out certain duties. The appellant described his role as that of a live-in caretaker. He nominated multiple other duties he was also expected to carry out, including house and land maintenance. The date from which this arrangement commenced is unclear. The appellant stated that he only lived and worked at the property for a few days before 10 January 2007.[5] The respondent stated the appellant lived at the Rainbow Flat property for about 10 months before 10 January 2007.[6] The appellant suffered injury in an incident, the occurrence of which is undisputed, on the night of 10 January 2007.
[5] Mr Freeman’s statement, [36]–[37], appellant’s statement 5/5/10, ARD, pp 47, 50–52.
[6] Respondent’s statement, [13], ARD, p 37.
The appellant was visited by his brother, John Mooney, and two other friends. They had dinner at a local bowling club and returned to the Rainbow Flat property at about 10.30pm. It is not suggested that the appellant consumed alcohol. The others went to bed. The appellant had no recollection of what happened to him. He had no recollection of going to his bedroom. His next recollection was of waking in Manning Base Hospital at Taree on 13 January 2007. He was told by hospital staff that he was admitted to the hospital on 11 January 2007 at about 2.25am. He had multiple injuries including a fractured left femur, fractured ribs and a fractured eye socket. There were difficulties with non-union of the leg fracture. The appellant eventually moved from the Rainbow Flat property in October 2008.[7]
[7] ARD, p 53.
The appellant’s brother, John (a retired policeman) and the others visiting deduced that the appellant was injured when an upper railing on the first-floor veranda of the house collapsed, causing the appellant to fall to the ground and sustain injury.[8] The section of railing that broke was on the veranda outside the appellant’s bedroom. The appellant surmised that the reason he would have been on the balcony was to check on the cattle if they were disturbed.[9]
[8] ARD, pp 56–57.
[9] ARD, p 70.
The appellant was assessed at his solicitors’ request by Dr Hopcroft, a surgeon, who reported on 2 November 2020, assessing whole person impairment at 45%.[10] A claim for lump sum compensation based on this assessment was rejected by the relevant insurer in a notice dated 10 March 2021.[11] The notice denied that the appellant was a ‘worker’, denied the occurrence of ‘injury’ within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act), denied that s 9A of the 1987 Act was satisfied, denied that the ‘notice’ provisions in ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) were satisfied, denied that the appellant was on an ‘authorised break’ within the meaning of s 11 of the 1987 Act when injured, and put quantum in issue.
[10] ARD, pp 6–14.
[11] ARD, pp 28–32.
The current proceedings were listed for hearing before Member Batchelor on 9 August 2021. Mr Hallion appeared for the appellant and Mr Harris for the respondent. Mr Harris identified the issues without objection:
“… there are two issues. Firstly, whether the [appellant] was a worker within the meaning of the legislation employed by the respondent and secondly, if the [appellant] was a worker, whether the injury occurred in compensable circumstances and, more particularly, whether the injury arose out of and in the course of employment and, if so, whether the employment was a substantial contributing factor in accordance with section 9A.”[12]
[12] Transcript of arbitration hearing, 9/8/21, (T), T 9.7–9.15.
There were no applications to adduce oral evidence. The legal representatives made submissions and the Member reserved his decision. The Commission issued a Certificate of Determination dated 17 August [2021] accompanied by the Member’s reasons.[13] The following award was entered:
“The Commission determines:
1.      The [appellant] entered into a contract of service with the respondent prior to 10 January 2007.
2.     The [appellant] did not suffer injury arising out of or in the course of his employment with the respondent on 10 January 2007.
3.      Award for the respondent.”
[13] Mooney v White [2021] NSWPIC 423 (reasons).

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

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

THE MEMBER’S REASONS

The Member briefly summarised the issues as involving whether the appellant was a ‘worker’ within the meaning of the definition in s 4 of the 1987 Act, and whether he suffered injury in the course of or arising out of his employment.[14] The Member dealt with a contested application by the respondent to tender late material, comprising ambulance reports relating to attendances on the appellant on 10 to 11 January 2007. The tender was ultimately rejected.[15] The Member summarised the essence of the cases brought by each of the parties. He summarised the parties’ submissions.
[14] Reasons, [5].
[15] Reasons, [9]–[11].
The Member said the appellant submitted that he was employed as an onsite, live-in caretaker, 24 hours per day. He had extensive duties and the property was of a business nature. The respondent had a policy of workers compensation insurance. The Member referred to the decision of Neilson CCJ, in Harris v Cudgegong Soaring Pty Ltd at first instance.[16] That case involved a live-in caretaker who was allegedly in the course of his employment 24 hours a day. The appellant submitted that even if he was smoking a cigarette on his veranda when he fell, he remained in the course of his employment. The Member noted the appellant relied on a number of High Court decisions dealing with whether a worker was in the course of employment, on the basis that he was doing something reasonably required, expected or authorised.[17] It was submitted these cases could apply to the appellant using the veranda to smoke.[18]
[16] [1995] NSWCC 18; 11 NSWCCR 678 (Harris).
[17] Henderson v Commissioner for Railways (WA) [1937] HCA 67; 58 CLR 281; Humphrey Earl Ltd v Speechley [1951] HCA 75; 84 CLR 126 (Speechley); Roncevic v Repatriation Commission [2005] HCA 40; 222 CLR 115 (Roncevic).
[18] Reasons, [37]–[44].
The Member noted the appellant’s submission that s 9A of the 1987 Act was satisfied. The condition of the premises put the appellant in a position of danger when he was carrying out his duties, such as keeping an eye on the cattle, from the balcony. The Member noted a submission by the appellant that his evidence should be accepted as reliable.[19]
[19] Reasons, [45]–[46].
The Member summarised the respondent’s submissions. The respondent referred to Dietrich v Dare,[20] Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson[21] and Teen Ranch Pty Ltd v Brown,[22] submitting the arrangement was informal and fell short of a contract. The respondent submitted that, on 10 January 2007, the appellant went out for dinner with his brother and his friends, then afterwards had a chat and went to bed. There is no suggestion that he worked on that day. The appellant’s stated view that he must have been on the veranda to perform some duties involving cattle should not be accepted. The claim form asked what tasks the appellant was performing immediately prior to the fall, to which he responded “n/a” (not applicable). The appellant had no recollection of why he was on the veranda. The respondent submitted the version, that the appellant was on the veranda because of the cattle, was speculation. The respondent relied on r 73 of the Personal Injury Commission Rules 2021 (the Rules). The respondent submitted that Speechley and Roncevic did not assist the appellant. The respondent submitted that there was no finding in Harris that the worker was a 24 hours per day caretaker.[23]
[20] (1980) 30 ALR 407 (Dietrich).
[21] [2013] NSWWCCPD 49 (Thompson), [31]–[39].
[22] (1995) 11 NSWCCR 197.
[23] Reasons, [47]–[56].
The Member said that in both Dietrich and Thompson, on which the respondent relied, there was a finding that there was not mutuality of obligation. In Thompson the payment to the putative worker was an honorarium, a gift rather than consideration that would support a contract. In the current matter there was mutuality of obligation, the appellant was offered a place to live in exchange for work and chores. The arrangement came to an end in about September 2008, when the respondent considered the appellant was “incapable of performing any chores around the property and could no longer abide by the terms of our informal agreement.” The Member rejected the appellant’s evidence that he commenced carrying out the duties only from a few days prior to 10 January 2010. The Member said if the period had been so short the appellant could not have performed all of the tasks of which he gave evidence. The Member inferred it was to the respondent’s advantage “to have someone residing permanently on the property to keep an eye on it, look after the stock and maintain the grounds and fences thereon”. He found there was a contract of service.[24]
[24] Reasons, [60]–[64].
The Member turned to the allegation of injury in the course of or arising out of employment. The appellant’s evidence was that he was on the property for a few days prior to 10 January 2007. The respondent’s evidence was that the appellant lived on the property for 10 months before sustaining injury. The Member said it may be that the respondent’s evidence on this point was more reliable, “without making a finding thereon”. If the appellant’s evidence on the point were accepted, the appellant would have had “a few days” at the property before his fall, for example to observe cattle. The respondent referred to a conversation with the appellant, in which the appellant said that the respondent was “probably right” when he said the appellant probably “just tripped on [his] way out to have a cigarette”. The appellant did not deny this conversation and the Member accepted that it occurred. The Member said this was “consistent with the respondent’s submission that the [appellant’s] theory as to why he was on the balcony just before he fell is no more than speculation”.[25]
[25] Reasons, [67]–[69].
The Member referred to the appellant’s submission that, even if he was not checking cattle at the time he fell, he was nevertheless in the course of his employment. He was engaged 24 hours per day, 7 days per week, as a caretaker. The Member said there was no evidence that the appellant was reasonably required, expected or authorised to have a cigarette on the balcony. He said the appellant did not know why he went out onto the balcony in the period immediately before he fell. The Member said that he was “not required to make a finding as to why [the appellant] was on the balcony at the time, but I do not accept that the [appellant] has discharged the onus of proof on him to show that it was to do with cattle on the property”.[26]
[26] Reasons, [70]–[72].
The Member quoted the following from Onassis and Calogeropoulos v Vergottis:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”[27]
[27] [1968] 2 Lloyd’s Rep 403, 431.
The Member said that what the appellant could recall contemporaneously after the fall was of the utmost importance. When visited at Manning Base Hospital following the fall the appellant said that he did not know what happened. The Member noted that, as a decision maker in the Commission, r 73 of the Rules required that he “have regard to evidence that is logical and probative and not accept evidence based on speculation or unsubstantiated assumptions”. He said the appellant’s evidence about what he was doing, and about cattle attempting to enter the area around the dwelling, was speculation and based on unsubstantiated assumption. He found the injury sustained on 10 January 2007 was “not an injury arising out of or in the course of his employment with the respondent”. He said it was unnecessary to make findings in respect of s 9A. There was an award for the respondent.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)    The Commission erred in law in determining the issue of whether the injury arose out of or in the course of employment without firstly determining the cause of the injury and secondly determining the scope of the employment contract. (Ground No. 1)
(b)    The Commission erred in law by failing to determine that as a live-in caretaker the appellant was in the course of his employment while ever he was present on the property. (Ground No. 2)
(c)    The Commission erred in law in finding that at the time of sustaining the injury the appellant was not engaged in an activity incidental to the course of his employment. (Ground No. 3)
(d)    The Commission erred in law by failing to draw an inference in accordance with Jones v Dunkel and also by drawing an impermissible inference. (Ground No. 4)

THE NATURE OF THE APPEAL

The appeal is one brought pursuant to s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Northern NSW Local Health Network v Heggie,Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[28]
[28] [2013] NSWCA 255, [72].
In Workers Compensation Nominal Insurer v Hill[29] the Court of Appeal said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[30] In Raulston v Toll Pty Ltd[31] Roche DP described the nature of such an appeal, applying Whiteley Muir to the appeal process pursuant to s 352 of the 1998 Act (since 1 March 2021[32] applying to a ‘Member’ rather than an ‘Arbitrator’):
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[33]
[29] [2020] NSWCA 54, [20]–[21] (Hill).
[30] (1966) 39 ALJR 505 (Whiteley Muir).
[31] [2011] NSWWCCPD 25 (Raulston).
[32] The date of relevant commencement of the 2020 Act.
[33] Raulston, [19].

RESPONDENT’S SUBMISSIONS ON THE APPEAL GENERALLY

The respondent makes submissions in a general sense regarding the nature of appeals pursuant to s 353 of the 1998 Act. It refers to passages from Hill, Raulston and Norbis that are referred to in [22] and [23] above. The respondent submits the Member adopted “an available course with respect to the evidence”. It submits the nature of the appeal is that the appellant submits the Member should have preferred an alternative argument based on a different perspective of the same set of proved facts. It submits this “is not an available appeal”.[34]
[34] Respondent’s submissions, [11]–[17].

The respondent refers to decisions of the High Court in Bradshaw v McEwans Pty Ltd[35] and Fuller-Lyons v New South Wales,[36] which deal with the drawing of inferences. The respondent submits acceptance of the appellant’s case involved “acceptance that there was sufficient evidence available for the Member to be satisfied that the worker had left his room in the middle of night to check on cattle that had invaded the environs of the home and in the process of so doing fell to the ground through a defective balcony”. The respondent submits there was acceptance of injury in a fall, but the remainder was “entirely speculation”, and the appellant “had no recollection of the event”. The respondent submits that “any drawing of an inference as advanced by the appellant was stretched well beyond permissible bounds”.[37]

GROUND NO. 1

The Commission erred in law in determining the issue of whether the injury arose out of or in the course of employment without firstly determining the cause of the injury and secondly determining the scope of the employment contract.

[35] [1951] HCA 480; 217 ALR 1 (Bradshaw).

[36] [2015] HCA 31 (Fuller-Lyons).

[37] Respondent’s submissions, [18]–[23].

Appellant’s submissions

The appellant states that he submitted, at first instance, that the cause of the injury was the defective railing on the balcony which broke.[38] He submits the Member did not make a finding on this argument. He submits that if this argument was accepted, this would support the proposition that injury occurred in the course of or arising out of the employment. It submits that occupation of the house represented the consideration flowing from the respondent to the appellant under the contract. The appellant refers to the following passage from the commentary in Mills, Workers Compensation New South Wales (Mills):
“Attendance by the worker at the place of employment quite outside his or her ordinary hours of work, .... may be within the course of employment if there is sufficient association between the purpose of attendance and the employment. An example is if the worker has called to collect his or her wages and is engaged in obtaining goods which are part of the consideration: Ward v Jackson [1949] WCR NSW 17 and Smith v GE Crane & Sons Pty Ltd [1952] WCR (NSW) 96.”[39]
[38] Reference is made to the reasons at [42].
[39] Mills, p 987.
Based on the above, the appellant submits that his presence on the balcony was pursuant to his right to occupy the house, part of the consideration under the contract, and that there was sufficient association with his employment that the injury arose out of the employment.[40]
[40] Appellant’s submissions, [1]–[5].
The appellant makes a separate but related argument that he was employed as a live-in caretaker, “necessarily 24/7”, so the injury was in the course of or arising out of the employment. He refers to the Member’s finding at [63]:
“Notwithstanding these differences in the evidence between the [appellant] and the respondent, there was a mutuality of obligation between them. There was an offer by the respondent to the [appellant] of accommodation without monetary payment of rent, accepted by the [appellant] in return for his agreement to live on the property and carry out the tasks allotted to him. The requirement was to live full time on the property and carry out those allotted tasks. The property was part of an agricultural business conducted by Mr White, and there were cattle on the property. I infer that it was to his advantage to have someone residing permanently on the property to keep an eye on it, look after the stock and maintain the grounds and fences thereon.”
The appellant refers to the Member’s finding at [72] of the reasons:
“In reality, the [appellant] does not know why he went out onto the balcony in the period immediately before he fell therefrom. He speculates as to the reason he was there. [The appellant] was a heavy smoker and I suspect that the reason he was there is that put forward by the respondent, that is that he went out to have a cigarette. I have found that the conversation between [the respondent] and [the appellant], in which the suggestion was made that the reason the [appellant] was on the balcony was that he went out to have a cigarette, took place. I am not required to make a finding as to why [the appellant] was on the balcony at the time, but I do not accept that the [appellant] has discharged the onus of proof on him to show that it was to do with cattle on the property.”
The appellant submits that the finding at [72] limited the appellant’s duties to “chores pertaining to cattle”. He submits this failed to address the issue of the duties overall of a live-in caretaker. This included the issue of whether he was employed “24/7”. If not, what was the scope of the employment? Did the injury occur during an interval between periods of employment?[41]
[41] Appellant’s submissions, [6]–[12].
The appellant submits that, if he was found not to be employed “24/7”, “the periods during which he was required to work were not identifiable”, and periods when he was not working should be considered to be intervals between periods of employment. He refers to Speechley. He submits that he was reasonably required, expected or authorised to occupy the house; this was an integral part of his function as a live-in caretaker. He submits it was error to find the injury was not one in the course of or arising out of the employment, in the absence of a finding as to the scope of the employment contract.[42] The appellant quotes the following passage from Hatzimanolis v ANI Corporation Ltd:
“Moreover, [Commonwealth v Oliver [1962] HCA 38] and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’ …”.[43]
[42] Appellant’s submissions, [13]–[19].
[43] [1992] HCA 21; 173 CLR 473 (Hatzimanolis), [16].
Relying on the above, the appellant submits that if the appellant was not otherwise in the course of his employment when injured, then the injury “occurred during an interlude in an overall period of work which was part of the course of employment on the basis that the employer had expressly or impliedly induced the appellant to spend time on the balcony by virtue of providing the dwelling to the appellant as his accommodation”.[44]
[44] Appellant’s submissions, [20]–[21].

Respondent’s submissions

The respondent refers to the reasons at [72] (quoted at [29] above). He refers to the reasons at [74] which include the following:
“… what the [appellant] recalled, or was not able to recall, contemporaneously after the fall on 10 January 2007 as to why he was on the balcony, is of the utmost importance. [The appellant] said to Colin Freeman, when he visited him in Taree (which is where Manning Base Hospital is situated) with Robert Allport, that he did not know what happened about the circumstances of the fall. The [appellant] freely acknowledges this. What he thereafter postulates as the reason for him being on the balcony is no more than speculation.”
The respondent submits the Member correctly observed that there was no positive obligation on him to make a finding with respect to what had occurred. The onus rested on the appellant to establish the facts and circumstances that give rise to an entitlement. It submits there was no evidence from other people at the property going to cattle milling around the property, the appellant calling his cattle dog or the gates being unsecured, to permit a legitimate inference regarding what happened before the fall.[45]
[45] Respondent’s submissions, [25]–[31].

Appellant’s submissions in reply

The appellant refers to the respondent’s submissions at [29], where the respondent says that it was not up to the Member to conduct an investigation with a view to determining facts that would establish an entitlement. The appellant submits this submission by the respondent is relevant only to Ground No. 4.
The appellant submits it was undisputed that the appellant’s injury occurred as a result of a fall from the balcony. It submits that why the appellant was on the balcony is not relevant to Ground No. 1.

Consideration

The cause of the fall

I note that ‘worker’ was in issue before the Member, in addition to the issue of ‘injury in the course of or arising out of employment’. The Member found in the appellant’s favour on the ‘worker’ issue and that finding is not challenged on this appeal.
The matters raised in Ground No. 1 relate to an alleged failure by the Member to make findings regarding the cause of the accident and scope of the contract of employment. The submissions on the ground go beyond this, dealing with the findings on whether the injury occurred in the course of or arising out of employment, and how these findings would be changed depending on the factual findings it is argued should have been made.
The initial matter raised in Ground No. 1 is an alleged failure by the Member to make a finding of the cause of the fall. The appellant submits he argued before the Member that the defective state of the balcony was the cause of his injury. He submits the Member did not make any finding regarding this argument. He submits that if this argument were accepted, it would have supported a finding that the injury was suffered either in the course of, or arising out of, the employment (see [26]–[27] above).
The appellant’s counsel, before the Member, referred to competing versions of why the appellant was on the veranda before he fell, and submitted:
“We say even if you accept that you could treat going out onto the balcony and having the cigarette as incidental to his course of employment and also arising out of his employment and you do that by – well, you know what the precise duties are and we say going out onto the balcony to check the cattle fall into that so it makes it both in the course of and the fact he’s looking over the balustrade arising out of because there’s no issue that what caused the [appellant] to suffer these fractures was the defective state of the premises.
That’s in the evidence of [the appellant’s] brother, former police officer, and the statement he provides is, as you would expect from a former police officer, very clear upon the basis upon which he draws his conclusions. His conclusion is he looks at the balustrade, the consistency of the colour, he looks at the bracket, he sees the rust so he concludes that it was through the rust the balustrade failed.
Now, you can be satisfied, in my submission, Member, that that is the cause of [the appellant] going over that balcony. So that’s the cause, the dangerous state of the premises and in my submission, that would be sufficient of itself to be in the course of, arising out of and satisfy section 9A …”.[46]
[46] T 18.28–19.19.
The respondent’s solicitor, addressing the Member, put the following:
“The real issue in this case is the purpose for which the [appellant] was present on the balcony. Clearly there’s no evidence to refute the [appellant’s] assertion that he fell off the balcony, whether he fell through the balustrade or not doesn’t matter, the simple fact is he clearly fell because he was found on the ground by his brother and others. The issue is the purpose of him being on the balcony.”[47]
[47] T 42.6–13.
It was common ground that the appellant fell. It was not common ground that the cause of this was the failure of the railing. The respondent’s solicitor made no such concession. The reasons at [42] noted the submission by the appellant’s counsel that the “cause of the [appellant’s] injury was the defective state of the railing which broke and allowed him to fall to the ground”. The appellant’s counsel submitted at the arbitration hearing that this factual background gave rise to a causal connection between employment and injury that was sufficient to lead to a finding that the injury arose out of the employment.[48]
[48] See generally Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, [73]–[77].
The appellant postulated two possible reasons for his presence on the veranda before his fall. The first of these was to observe cattle on the property, the second was to smoke (he was described as a heavy smoker).[49] The Member rejected the proposition that smoking (if that was the relevant activity) would place the appellant in the course of his employment. The Member said that smoking was not an activity that was “reasonably required, expected or authorised” in order for the appellant to carry out his duties.[50]
[49] See reasons, [66]–[70].
[50] Reasons, [71].
The Member made a finding going to what the appellant was doing before he fell, in the reasons at [72] (see [29] above). He said he suspected the appellant was on the veranda to smoke. He did not make a positive finding of this but did accept the appellant was party to a conversation with the respondent, in which it was said that the reason the appellant was on the veranda was to have a cigarette. The Member made a finding that he did not accept the appellant had discharged his onus to prove the reason he was on the veranda “was to do with cattle on the property”. Thus, the Member rejected the proposition that smoking, if that was the activity being performed prior to the fall, would place the appellant in the course of his employment on the veranda. He rejected the argument that the appellant’s activities were “to do with cattle”.
The Member’s findings regarding what the appellant was doing before the fall were restricted given the appellant’s lack of recall. The appellant had no recollection from the time when his brother and his friends retired to their rooms, until he regained consciousness in Manning Base Hospital on 13 January 2007. He did not know why he was on the balcony prior to his fall[51] (see the reasons at [72]). There was no direct evidence on this topic.
[51] Appellant’s statement 5/5/10, ARD, p 47.
The appellant’s brother John, a retired police officer, gave a statement dated 3 October 2009.[52] He said that the “railings on the balcony were intact” when the appellant showed him and his friends around on a “tour of the house”. He said at that time he paid no particular attention to the condition of the railings or how they were attached. He stated that one of his friends woke him during the night of 10 January 2007 to say that the appellant was gone. The sliding door to the balcony, in the appellant’s room, was open. The top railing was missing from the balcony. The appellant was lying on his back on the ground. John Mooney thought that the appellant had fallen off the top floor of the veranda.
[52] John Mooney statement, 3/10/09, ARD, pp 55–57.
John Mooney stated that on the following morning he and his friends re-examined the accident scene. He stated that there were pieces of railing, consistent with that from the upper balcony, on the ground. He said the posts, from the balcony adjacent to the room where the appellant had been sleeping, were missing their top rail. He could see remnants of brackets on the posts, in “an advanced state of disrepair as they were rusted”. The piece of railing lying on the ground had fractured.
In the absence of direct evidence of the circumstances of the fall, a finding on the cause of that event would likely involve the drawing of inferences, for example, from evidence such as the damaged woodwork at the scene and the appellant’s location on the ground following his fall.[53] An event can, of course, have multiple causes.[54]
[53] See generally, Bradshaw, Fuller-Lyons.
[54] March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506, [5], ACQ Pty Ltd v Cook [2009] HCA 28, [27].
The Member’s reasons did not deal with the submission quoted at [40] above. In Dranichnikov v Minister for Immigration and Multicultural Affairs the plurality said that “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice”. [55] In Wang v State of New South Wales it was said of the decision in Dranichnikov:
“The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings.”[56]
[55] [2003] HCA 26 (Dranichnikov), [24].
[56] [2019] NSWCA 263 (per McCallum JA, Macfarlan and Meagher JJA agreeing), [63].
The relevant submission went to the fundamental issue of whether the appellant could establish injury in the course of or arising out of employment. This was in circumstances where proof of such matters was made more than usually difficult by the appellant’s lack of recollection and the lack of direct evidence dealing with how the appellant came to fall. The submission had the capacity, if accepted, to change the result. The principles in Dranichnikov are engaged. There was error in the Member’s failure to deal with the submission quoted at [40] above. Such a failure raises principles of natural justice and should be corrected unless it could not have affected the result: Stead v State Government Insurance Commission,[57] Toll Pty Limited v Morrissey.[58] The identified failure had the capacity to affect the result. It follows that this is appealable error.
[57] [1986] HCA 54, [16].
[58] [2008] NSWCA 197, [10].
I should, for the sake of completeness, note that the Member made findings about the contract of service and its terms, in the reasons at [60] to [64]. He did not deal with the appellant’s argument that, in the overall circumstances, the appellant was employed “24/7”, such that he was effectively in the course of his employment whenever he was present at the property.

OTHER GROUNDS OF APPEAL

The above is sufficient that the appeal is upheld. The appellant additionally pursued an argument that his contract of employment placed him in the course of employment “24/7”. This was raised in Grounds Nos. 1 and 2. The alleged consequence of this argument was that whatever the appellant was doing at the time of his fall, he was in the course of his employment and the fall was compensable. The appellant makes a further argument that he was injured during an interval between periods of employment.[59] He submits that occupying the house was something the appellant was reasonably required, authorised or expected to do. It was something he needed to do to perform his duties. This was raised in Ground No. 3.
[59] T 16.18–16.21.
The “24/7” argument relies on the decision of Neilson CCJ in Harris at first instance. That case involved a worker who was engaged as a “live-in caretaker” at a gliding club. Pursuant to the contract of employment he was allowed to live without charge in premises on the club’s land. His Honour, dealing with the scope of employment as a live-in caretaker, said:
“However, there is one further consideration which is extremely relevant to this case. A caretaker's job is to live on site and keep an eye on things. His mere presence is a deterrent to the thief and to the vandal. His job is to keep his eyes and his ears open - to respond to an unusual activity, any suspicious noise, to act in an emergency.
Whilst ever he is on site, he can so act. It appears to me that, absent misconduct or a frolic of his own, he would be in the course of his employment whenever he was on site.”

The matter went to the Court of Appeal, where the decision of Neilson CCJ was upheld on a different basis.[60]
[60] Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 (per Sheller JA, Cole JA agreeing) (Harris on appeal).
There can be circumstances where a worker’s employment can place him or her in the course of employment on a ‘round the clock’ basis (see for example Favelle Mort Ltd v Murray[61]). It was arguable that the appellant fell into that category.
[61] [1976] HCA 13; 133 CLR 580, see McTiernan J, [4], Jacobs J, [1].
The appellant submits that, as a live-in caretaker, his duties involved residing on the property and keeping an eye on it, he was effectively in the course of his employment “24/7”. It was to the respondent’s advantage to have the appellant living on the property full-time. The finding at [72] of the reasons was that the appellant could not discharge his onus, to show that his presence on the veranda when he fell was “to do with cattle on the property”. It is submitted this failed to address the appellant’s duties as a live-in caretaker.
The appellant’s statement dated 5 May 2010 indicated a broad range of tasks that he was obliged to attend to.[62] This included the respondent suggesting to the appellant that he should occupy a specific bedroom, as the respondent “and his family would also be there from time to time”. The Member found that the contract permitted the appellant to live on the property rent free. The Member inferred that it was to the respondent’s advantage “to have someone residing permanently on the property to keep an eye on it, look after the stock and maintain the grounds and fences thereon.” The Member made a finding that the contract required the appellant “to live full time on the property and to carry out those allotted tasks”. [63] The appellant addressed the Member on the basis that his employment:
“… started from the time he was there and it continues on. There’s no break, he’s in the course of his employment throughout that period of time.”[64]
“… he’s resident at the property as part of his job, he’s there 24 hours a day and that’s the course of employment. Now, he doesn’t clock on, he doesn’t clock off, he has no other employment, he’s just working there on the site.”[65]
[62] See ARD, p 46.
[63] Reasons, [63]–[64].
[64] T 16.11–16.13.
[65] T 16.18–16.21.
The appellant submits the finding at [72] of the reasons dealt with the scope of his duties on the basis they were limited to “chores pertaining to cattle”. He submits the Member failed to address the scope of the appellant’s duties as a live-in caretaker. I accept that the Member failed to address the submission that the course of the appellant’s employment, while he was present on the relevant property, potentially ran over 24 hours per day, and included the time when the appellant fell from the veranda. The submission is referred to in the reasons at [41], but the reasons do not give reasons for its rejection or otherwise deal with its substance. This also constitutes error on the basis of the decision in Dranichnikov. It is unnecessary to deal with Ground No. 4.

DISPOSITION OF THE APPEAL

The Member decided the issue regarding ‘worker’. The correctness of that finding has not been challenged on this appeal. It should be allowed to stand. There is identified error in how the issue of ‘injury’, in the course of or arising out of employment, was dealt with. That issue was run on various alternative bases. It is appropriate that the matter be remitted for re-determination by a different Member.

DECISION

Paragraph 1 of the Certificate of Determination dated 17 August 2020 [sic, 2021] is confirmed.
The balance of the decision dated 17 August 2020 [sic, 2021] is revoked and the matter is to be remitted to a different Member for re-determination consistent with these reasons.

Michael Snell
DEPUTY PRESIDENT

7 April 2022