Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) - [2015] NSWWCCPD 29

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29
APPELLANT:	Namoi Cotton Co-Operative Ltd
RESPONDENT:	Stephen Easterman (as administrator of the estate of Zara Lee Easterman)
INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-1433/14
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION:	4 December 2014
DATE OF APPEAL DECISION:	4 May 2015
SUBJECT MATTER OF DECISION:	Death claim; fatal injuries sustained in a motor vehicle collision while on a journey between worker’s place of employment and place of abode; whether open to infer that the collision was caused by fatigue due to long hours of work on night shift; whether there was a real and substantial connection between employment and the accident that caused the death; s 10(3A) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Moray & Agnew
Respondent:	RJ O’Halloran & Co
ORDERS MADE ON APPEAL:	1. The pleadings are amended to describe the respondent to the appeal as “Stephen Easterman (as administrator of the estate of Zara Lee Easterman)”. 2. The Arbitrator’s Certificate of Determination of 4 December 2014 is confirmed.

INTRODUCTION

This appeal concerns a claim for the lump sum death benefit under s 25 of the Workers Compensation Act 1987 (the 1987 Act). The deceased was on a journey between her place of employment and her place of abode within the meaning of s 10(3) of the 1987 Act when she was involved in a fatal motor vehicle accident. Specifically, the appeal concerns whether there was a real and substantial connection between the deceased’s employment and the accident (s 10(3A)).
The legal representative of the deceased’s estate, who brings the proceedings, alleges that the death occurred in compensable circumstances because the accident was due to the deceased falling asleep at the wheel of her car due to fatigue. It is alleged that the deceased was fatigued because she was relatively new to working night shift and had worked 60 hours, all on night shifts, in the five days preceding the accident. Therefore, so it was argued, and the Arbitrator found, there was a real and substantial connection between the deceased’s employment and the accident.
The appellant claims that the accident happened after the regular 12 hour shift was terminated, after only two and a half hours of work, due to a mechanical breakdown and the premature closure of the plant. Lay evidence from the deceased’s co-workers indicates that the deceased was not displaying signs of fatigue when she completed her final shift and there was therefore no connection between the employment and the accident.
The issues on appeal concern first, whether there was sufficient evidence to support the Arbitrator’s finding that the deceased was suffering from fatigue at the relevant time and that fatigue was the probable cause of the accident. Second, whether there was a real and substantial connection, pursuant to s 10(3A) of the 1987 Act, between the employment and the accident that led to the deceased’s death.

BACKGROUND

The worker, Zara Lee Easterman (the deceased), commenced work for the appellant employer, Namoi Cotton Co-Operative Ltd (the appellant), on 23 April 2013. She worked 12 hour shifts, from 7.00 pm to 7.00 am, working six days on and then two days off, at the appellant’s Boggabri site.
The deceased worked primarily as a cotton ginner in the appellant’s “books and bags” area, which involved taking samples of the bales, tagging the samples and then bagging the samples. She also worked in the weighbridge undertaking clerical work.
On 22 May 2013, the deceased was involved in a fatal motor vehicle accident on the Kamilaroi Highway, approximately seven kilometres south of her place of employment, while driving towards her home at Gunnedah.
On the day of the accident, the deceased had commenced her sixth straight shift, having worked 60 hours (in five 12 hour night shifts) in the immediately preceding five days. On that day she started work at 7.00 pm, but was sent home at around 9.30 pm due to a mechanical breakdown at the site. The accident occurred at around 9.44 pm, when (it is agreed) the deceased was driving from her place of employment to her residence at Gunnedah approximately 30–40 minutes away.
The only witness to the accident is Mr Keith Hallam, the driver of the other vehicle involved in the accident. Mr Hallam was driving a B-double truck in a northerly direction on the Kamilaroi Highway. The deceased was driving in a southerly direction. At a point about 7 kilometres south of Boggabri the deceased’s vehicle turned 90 degrees into Mr Hallam’s lane. There was no time for him to avoid the collision. The deceased’s vehicle was struck on the passenger’s side by the front of the truck and was pushed along the road a considerable distance. Mr Hallam’s evidence is discussed in more detail below.
The deceased had no persons dependent upon her at the time of her death. The deceased’s father Stephen Easterman (the respondent) is the administrator of the deceased’s estate.
On 9 January 2014, the respondent as the legal representative of the estate made a claim pursuant to s 25(1)(a) of the 1987 Act. The respondent specifically claimed that the “long hours of employment being 12 hour shifts resulted in fatigue and, as a consequence the hours of employment played a material and substantial role in the deceased falling asleep and losing control of her motor vehicle” resulting in her death.
On 21 February 2014, the appellant’s insurer, CGU Workers Compensation (NSW) Ltd, issued a s 74 notice declining the claim on the basis that there was no real and substantial connection between the employment and the accident or incident out of which the personal injury arose, as required by s 10(3A) of the 1987 Act. In particular, the insurer stated that “the suggestion that the accident resulted from work-related fatigue is inconsistent with the evidence of the employees of the employer”.
In an Application to Resolve a Dispute (the Application) filed in the Commission on 25 March 2014, the respondent claimed the lump sum death benefit provided for by s 25(1)(a) of the 1987 Act.
On 28 March 2014, the appellant filed a Reply to the Application. It confirmed that the matters in dispute were those identified in the s 74 notice.
On 5 August 2014, the matter was listed for an arbitration hearing before a Commission Arbitrator. After hearing submissions from the parties, the Arbitrator reserved his decision.
On 4 December 2014, the Arbitrator found in favour of the respondent, finding that fatigue was the probable cause of the accident and that fatigue had been caused by long hours of work over the previous five days. The Arbitrator issued a Certificate of Determination in the following terms:
“The Commission determines:
1. [The deceased] suffered personal injury on 22 May 20213 [sic, 2013] arising out of or on a journey deemed to arise out of or in the course of her employment with the respondent being a daily or other periodic journey between the place of employment and her place of abode which journey is one within section 10(3) of the Workers Compensation Act 1987 applies as there is a real and substantial connection between the [deceased’s] employment and the accident or incident out of which the personal injury arose.
2. As a result of the said injuries [the deceased] died and no persons were wholly or partly dependent for support upon her.
3. Stephen Easterman is the administrator of the Estate of the said [deceased], Letters of Administration being granted to the [respondent] by the Supreme Court of New South Wales on 30 September 2013 (case number 2013/00258609).
4. Order that the sum of $498,950 be paid pursuant to section 25 of the Workers Compensation Act 1987 to the applicant Stephen Easterman in his capacity as legal and personal representative of the said [the deceased].

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

The appellant employer appeals the Arbitrator’s decision.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
The Arbitrator ordered (at [10] of Reasons) that the description of the applicant to the application before him be amended to read “Stephen Easterman (as administrator of the estate of Zara Lee Easterman)”. As Mr Easterman is the sole administrator of the deceased’s estate the reference to Leanne Ethel Easterman was deleted from the pleadings. I have sighted Letters of Administration issued by the Supreme Court on 30 September 2013, which confirm Mr Easterman is the sole administrator of the deceased’s estate. For reasons which have not been explained the amendment did not carry over to the appeal proceedings. The Certificate of Determination issued on 4 December 2014 also incorrectly describes the applicant. In the circumstances, I order that the pleadings be amended accordingly.

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.

EVIDENCE

Mr Keith Hallam

Mr Hallam provided a statement to police dated 23 May 2013, which is in evidence. Mr Hallam stated that just prior to the accident he would have been travelling 100 kilometres per hour. He stated that:
“I was travelling north on the Kamilaroi Highway towards Boggabri. There were 2 vehicles going south towards Gunnedah in the opposite direction. The first vehicle (don’t know what kind of vehicle) was on a straight stretch of road heading south towards me and passed me.
The second vehicle a small blue four wheel drive turned 90 degrees and into my lane. I don’t know what kind of vehicle it was. The vehicle was approximately 25 metres in front of me at the time. The other vehicle didn’t appear to spin or skid. The car appeared to be travelling at normal speed. The passenger side of the vehicle was facing me. It happened so quick that I don’t know if it braked or not. There was no reaction time to avoid the collision; my truck collided with the vehicle. I thought that my truck went over the vehicle.”
Mr Hallam stated that his vehicle veered off into the southern lane and into a paddock. He said that the driver’s side of his vehicle took most of the impact.

Constable Rodney Fenner

Constable Rodney Fenner is the police officer who attended at the scene and investigated the circumstances of the accident on 22 May 2013. He also prepared a detailed brief of evidence for the Coroner which is in evidence in these proceedings. Constable Fenner prepared a statement dated 26 May 2013. He said:
“I believe that [the deceased] suddenly crossed to the incorrect side of the road into the path of the oncoming B-Double driven by Keith Hallum [sic, Hallam]. At this time it is unclear exactly what caused [the deceased] to cross onto the incorrect side of the road. However I would note that fatigue would be the most likely cause given that [the deceased] was working six (6) night shifts in a row with only two days to recover between blocks, and at the time of her accident she was returning home from her sixth shift [sic] night shift of that roster block.”
In the brief of evidence submitted to the Coroner, Constable Fenner stated that in his opinion the most likely cause of the deceased’s vehicle veering onto the incorrect side of the road was fatigue caused by her working hours.

Senior Constable Ben Wilson

Senior Constable Wilson is a forensic examiner with qualifications in engineering and motor mechanics. He examined the deceased’s vehicle and determined that there were no mechanical defects or component failure in the deceased’s vehicle which may have contributed to the cause of the accident.

New South Wales Police Force “Preliminary Examination Report – Deceased Person”

In evidence is a New South Wales Police Force “Preliminary Examination Report – Deceased Person” dated 28 June 2013. The report concludes that whilst travelling south along the Kamilaroi Highway the deceased “crossed to the incorrect side of the road” resulting in the collision with Mr Hallam’s B-double travelling in the opposite direction. The report noted that “[n]one of the vehicles have breaked [sic] prior to the collision”. The report stated that the deceased “appears to have been at fault”.

Mr Stephen Easterman

Mr Easterman is the deceased’s father. He provided a signed statement to the NSW Police Force on 6 June 2013. In that statement Mr Easterman stated that the deceased was working six nights from 7.00 pm to 7.00 am and then would have two days off.
Mr Easterman stated that in the first couple of weeks of employment with the appellant, the deceased was a bit tired, but she was handling it and getting used to night shifts. After a couple of weeks the deceased “seemed good and she said she was enjoying the job and coping well with the night shifts”.
Mr Easterman provided a further signed statement dated 13 November 2013. In that statement Mr Easterman recalls driving the deceased to a medical appointment in Tamworth on 6 May 2013. Mr Easterman had picked up the deceased at Gunnedah after she had finished a shift, and when he drove her home after the appointment in Tamworth, she fell asleep in the car. He stated, from his “observations she was very tired”.
The last time Mr Easterman saw the deceased was on 15 May 2013, after she had finished work and had travelled to Manilla, where Mr and Mrs Easterman live, to visit him. He observed that “she looked very tired” and recalled that the deceased said words to the effect of: “I’m trying to get used to the shift work and hours. I don’t mind the job but the hours make me feel tired, I’m trying to get used to it. I’ve never done this sort of work before.”

Mrs Leanne Easterman

Mrs Easterman is the deceased’s mother. She provided a signed statement dated 13 November 2013. Mrs Easterman stated that she recalled seeing the deceased on 27 April 2013, after the deceased had left work at 7.00 am to visit her in Manilla. Mrs Easterman drove with the deceased to see her brother and sister-in-law also in Manilla. She observed the deceased to be “very tired” and that she seemed to be driving slower and slower when she was in control of the car. When they arrived at her brother’s place the deceased was “yawning and leaning against the couch”.
On 6 May 2013, Mr and Mrs Easterman drove the deceased to a doctor’s appointment in Tamworth. Mrs Easterman stated that the deceased “again appeared to be very tired and sleepy. She fell asleep in the vehicle [her father was driving] on the way back from Tamworth”.
The last time that Mrs Easterman saw the deceased was on 15 May 2013. Mrs Easterman observed that the deceased “was very tired”. Mrs Easterman stated that the deceased said words to the effect of:
“I’m going alright, I like the job but its [sic] not easy. The shift work makes me feel tired but I’m handling it. I’m trying to get used to the hours.”
Mrs Easterman noted that the deceased had worked consecutive shifts from 17 May to 22 May 2013.

Mr Adam Kirton

Adam Kirton provided a signed statement dated 4 February 2014, at the request of the appellant. The deceased and Mr Kirton were friends. The deceased had stayed at Mr Kirton’s home since she started working at the appellant, because it was closer to her work than her parents’ place in Manilla, where she usually lived. The deceased would go to her parents’ place in Manilla on the weekends or on her days off.
The deceased only lived with Mr Kirton for a short time before commencing work for the appellant. He worked rostered shifts at a mine site and did not see the deceased every day. Mr Kirton only saw the deceased for approximately an hour or so every few days, depending on his shifts. He said that he might not see her for five days at a time. He also said that he tended to leave the house during the day, when they were both at home.
Mr Kirton stated that the deceased was usually asleep during the day, as she worked night shifts. It took the deceased “a while for her body to get used to doing night shifts, but she was used to the night shifts after a while”.
Mr Kirton stated:
“I believe that around 22 May 2013 the [deceased] had acclimatised to working night shifts about as much as you can. Though I note that I know from working night shifts myself that after working nights you are just stuffed.
At the start of the [deceased] working for [the appellant] she would appear to be tired sometimes, but she got better at sleeping more during the day and she told me that her body was getting more used to sleeping during the day…
I did not see the [deceased] on the day of her accident.
On the day of the [deceased’s] accident I went to visit my dad during the day so that she could sleep during the day.”
Mr Kirton did not see the deceased on 22 May 2013. He stated that he believed the deceased was already home when he left to visit his father that day. He thought that she “may have been asleep or getting ready to go to sleep”. Her car was there so he thought that the deceased was at home. He assumed that if her door was shut then she was asleep. He did not know how long the deceased slept for prior to her shift on 22 May 2013.
The deceased seemed to be enjoying her work and the people that she worked with. Mr Kirton stated that when the deceased would get back from working night shifts she would seem tired but she would be winding down before going to bed.
In the days before 22 May 2013 the deceased “just worked and slept, or if it was her days off then she went to her mum and dad’s place” in Manilla. She did not go out in Gunnedah, “she did not have friends in Gunnedah” other than Mr Kirton.
Mr Kirton stated that he received a text message from the deceased on 22 May 2013. His initial recollection was that that occurred at about 6.00 pm however he conceded that the police report indicating that a text message had been received at around midday was probably correct.
Mr Kirton stated that the deceased “may have been getting a cold and may have been a bit run down or a bit fluey on 22 May 2013” but he could not remember how long it was before her accident that he noticed this. He said that she was “just feeling a bit snuffy”.

Barbara Traynor

Barbara Traynor provided a signed statement dated 5 February 2014, at the request of the appellant. Ms Traynor is a night shift cleaner at the appellant. She saw the deceased most days that they were rostered on together. They travelled together to and from work around two out of every six days.
Ms Traynor socialised with the deceased. She would chat and have coffee with the deceased before going to work together and would often talk with the deceased during work breaks.
Ms Traynor stated that the deceased appeared to be happy. She never noticed the deceased to appear tired or fatigued during shifts when she saw her at work, nor did the deceased complain that she was tired or fatigued during work. She added that the deceased never told her that “she was not coping with night shift…she told [her] that if she had the option she preferred to work night shift rather than day shift”. The deceased told her that she was “a night owl and liked to sleep during the day”.

Ms Traynor was not rostered on to work on 22 May 2013 and did not see the deceased that day. Ms Traynor stated that the “last couple of times [she] saw the [deceased] at work, she did not appear to [her] to be tired or fatigued at all”.
With respect to the times that Ms Traynor and the deceased drove to work together, Ms Traynor claimed that the deceased never appeared to be tired. She appeared “to be well rested”. With respect to the times that they drove home from work together, Ms Traynor stated that: “[s]he did not seem to be tired or fatigued at those times. She would talk my ear off the whole way home in the mornings”.
Ms Traynor stated that she noticed that the deceased “had a bit of a sniffle in the days prior to her accident. It seemed like a common cold”.

Peter Traynor

Peter Traynor provided a signed statement dated 5 February 2014, at the request of the appellant. Mr Traynor is a ginner at the appellant and one of the deceased’s shift supervisors. Mr Traynor was the deceased’s direct supervisor when they were on shift together.
Mr Traynor stated that he “did not notice the [deceased] to ever be tired or fatigued when [he] saw her at work”. He added that the deceased never mentioned to him that she was feeling fatigued at work.
Mr Traynor worked with the deceased on 22 May 2013 and he would have seen the deceased around three times during the course of her shift on that day. He stated that she did not appear fatigued or tired when he saw her on that day. He stated that the deceased was sent home at around 9.30 pm, due to a breakdown in the machinery.
Mr Traynor stated that he spoke to the deceased at 9.25 pm, just before she left the site. She seemed “the happy smiley person that she was”. He stated that as far as he could tell the deceased did not appear to be tired, fatigued or ill on 22 May 2013. As far as he could tell, the deceased never appeared to be tired or fatigued when he saw her at work.

Hannah Golding

Hannah Golding provided a signed statement dated 5 February 2014, at the request of the appellant. Ms Golding worked at the appellant as a casual worker doing “books and bags” from 20 April to 15 July 2013. She worked with the deceased for two days out of every six days.
Ms Golding stated that on those two days she was “basically working with the [deceased] the whole time”. She worked across from the deceased and they talked throughout their shift together.
Ms Golding stated that generally the deceased was well rested. She said that on “odd nights at work the [deceased] would tell [her] that she was tired or fatigued”. On those occasions the deceased told Ms Golding that she did not have a good night’s sleep. It was “very rare” that the deceased told Ms Golding that she was tired or fatigued and it only occurred on “a couple of occasions”.
On 22 May 2013 Ms Golding and the deceased worked together. She worked across from the deceased during that shift. They talked and played music during the shift and sang along to some of the songs. Ms Golding stated that the deceased “seemed well rested” and did not seem “tired or fatigued”. They talked the way they usually would, saying some jokes. At the end of the shift they cleaned up like they usually would.
Ms Golding stated that the deceased left work, on 22 May 2013, just as she was leaving. She spoke to the deceased just before they left and she claims that the deceased did not appear to be “tired or fatigued at that point”. The deceased followed Ms Golding’s car out of town. Ms Golding turned off the road to go home and the deceased kept going towards Gunnedah. That would have been around 9.30 pm or between 9.30 pm and 10.00 pm.
Ms Golding stated that about a week before 22 May 2013 the deceased had a bit of a cold, however on 22 May 2013 she seemed fine.

Mark Humphries

Mark Humphries provided a statement dated 5 February 2014, at the request of the appellant. Mr Humphries is the appellant’s site manager at the Boggabri site and would see the deceased at change of shift time.
Mr Humphries did not see the deceased during her shift on 22 May 2013. However, he did not notice the deceased to appear fatigued when he saw her at work.
Mr Humphries described the process at work that the deceased was engaged in. He stated that the process involves people working in pairs. When a bale of cotton comes through it comes out on a conveyor belt and they take a small sample from the bale. The samples weigh about 200 grams. The samples are then put in a tray ready to be dispatched. The bale continues down the conveyor belt and is put into a cotton sack. The sack weighs about one kilogram. Mr Humphries did not state the number of times that this process is repeated however I infer that it is a repetitive process.

Robert Price

Robert Price provided a statement dated 5 February 2014, at the request of the appellant. Mr Price worked for the appellant as a trainee ginner. He supervised the deceased on the shifts that he worked with her, which were approximately four days per week.
Mr Price saw the deceased during the shifts when she signed in and once or twice throughout the shifts that he worked with her. He never noticed the deceased to be tired or fatigued when he saw her during her shifts. He stated that the deceased never spoke to him about working on night shift or how she was coping with working night shifts. He also stated that the deceased never made any complaints to him about her employment, or about working night shift, or about feeling fatigued.
Mr Price saw the deceased on 22 May 2013. He did not notice her to be “tired or fatigued” or “ill or sick in any way”. He spoke to the deceased, as part of a group, when the site was shut down for the night on 22 May 2013. He did not speak to the deceased individually.
Mr Price stated that, on 22 May 2013, the deceased’s shift ended before the first break was scheduled. He stated that the deceased did not appear to be tired or fatigued in the days prior to 22 May 2013.

Legislation

Section 10 of the 1987 Act relevantly provides:
“(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.”

THE ARBITRATOR’S REASONS

The Arbitrator referred in some detail to the evidence of the deceased’s colleagues, family and friends. The Arbitrator’s conclusion was based on the deceased’s hours of work leading up to the motor vehicle accident of 22 May 2013. He concluded that because the deceased’s accident occurred after her sixth shift, having already worked 60 hours in the immediately preceding five days over five shifts, “it was more probable than not that [the deceased] was tired”.

The Arbitrator stated (at [49]):
“In the five shifts prior to the day in question [the deceased] had already worked 60 hours and had commenced her last 12 hour shift on the night in question before commencing two days off the next morning. I am more impressed with this fact in the context of the way the vehicle drove without interruption, veering or braking. I consider the hours she worked is a more reliable guide than co-workers’ impressions as to the degree of tiredness.”
An autopsy was conducted on the deceased’s body which did not reveal any medical condition to account for the sudden turning of her vehicle.
The Arbitrator added (at [59]):
“Given the absence of any braking on the roadway, the absence of any hesitation in the way the vehicle moved, the absence of any jerking which could arise from any kind of sneezing fit or temporary interference, as submitted by the respondent, as well as the absence of any corrective measure taken with the imminent presence of a large vehicle coming in the opposite direction, these circumstances all point to me as it being more probable than not that [the deceased] fell asleep, particularly in a context of having worked such long hours over the previous 5 days of 12 hours each shift and the absence of evidence of the alternative possible explanations.”
The Arbitrator further added (at [61]):
“I am comfortably satisfied that the fatigue caused by the long hours required in her employment was a real and substantial connection with the circumstances of the accident or incident in which [the deceased] suffered her injuries and which resulted in her death and if fatigue was involved, which I so find, there is a real and substantial connection within the meaning of s 10(3A).”
Therefore, the Arbitrator concluded (at [62]) that the deceased’s employment had a real and substantial connection with the accident “by reason of her tiredness from her employment activities and the duration of them.”

ISSUES ON APPEAL

The appellant submits that the Arbitrator erred:
(a)     by finding without a proper evidentiary foundation and contrary to the evidence of a number of witnesses that the deceased was tired and fatigued at the material time;
(b)     by finding without a proper evidentiary foundation that the reason the deceased’s vehicle crossed to the incorrect side of the roadway was because she fell asleep;
(c)     as a matter of law by making positive findings as to (a) and (b) above in the absence of probative evidence (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1);
(d) by making an assumption as to the deceased’s cause of death, the Arbitrator disregarded evidence of the deceased’s co-workers as to whether she was suffering from fatigue in breach of rule 15.2 of the Workers Compensation Commission Rules 2011 in that the evidence was based on an unsubstantiated assumption and not based on logical and probative evidence;
(e)     by failing to determine the matter with reference to the onus of proof and by making findings (as to the deceased’s fatigue and as to the cause of the accident) which were not consistent with the balance of probabilities and which were not open to him on the evidence;
(f)      by determining the matter on the basis of one of a number of speculative possibilities, and in rejecting the argument that the collision could have resulted from one of a number of other possible causes, and
(g)     by elevating a possible cause of the collision, being that the deceased fell asleep, to the level of conclusive probability.

SUBMISSIONS

The appellant’s submissions

Mr Tanner of counsel, who appears for the appellant on the appeal, submits that the Arbitrator’s finding that the deceased was tired immediately before the accident is founded entirely upon an assumption that she was tired and fatigued because she had worked five consecutive twelve hour shifts that week.
The Arbitrator failed to acknowledge that the deceased:
(a)     had the opportunity for rest and sleep in the 12 hour period between each shift and there is no evidence that she did not have adequate sleep between those shifts;
(b)     had the opportunity for rest and sleep in the 12 hour period prior to her final shift and there is no evidence that she did not have adequate sleep before that shift;
(c)     slept during the day;
(d)     had become accustomed to working night shifts, and
(e)     had only worked for two and a half hours of the final shift due to a breakdown at the plant she was working at, resulting in her being sent home early.
The Arbitrator’s finding that the deceased was tired when leaving work at 9.30 pm on 22 May 2013, is not supported from either the testimony of witnesses or from circumstantial evidence probative of that fact.
The Arbitrator’s finding was inconsistent with the unchallenged evidence of fellow workers regarding her behaviour on night shift generally and on 22 May 2013 in particular. The evidence established that the deceased appeared well rested and was showing no signs of being tired or fatigued prior to the fatal accident.
Mr Tanner further submits that, in the circumstances, the inference drawn by the Arbitrator from all of the available evidence was an unfounded assumption. Further, the Arbitrator’s ultimate finding that the deceased’s vehicle turned across the path of an oncoming vehicle proceeds from the unfounded assumption that she was tired and fatigued when she left the workplace at 9.30 pm. That assumption is based upon speculation as to the cause of the accident and involves a preference of one possibility (which cannot meet the threshold of probability) over other equally conceivable possibilities.
It is submitted that this is not a matter in which the Arbitrator, in considering whether an applicant has discharged the onus of proof, has preferred the evidence of one witness over another. The Arbitrator based his determination on an assumption in preference to the evidence of the witnesses as to the deceased’s condition at the material time.
It is submitted that the Arbitrator erred in failing to evaluate the evidence of the witnesses and in rejecting that evidence in deference to an assumption (regarding the effect of the respondent’s shift system), which was not based on any probative evidence. Indeed it was contrary to probative evidence before the Arbitrator.

The respondent’s submissions

Ms Balendra of counsel, who appears for the respondent, submits that an error of fact will be made out in the circumstances addressed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 where he said where:
“… 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 trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
Ms Balendra submits that the Arbitrator’s finding neither overlooked material facts nor gave undue or too little weight in deciding the inferences to be drawn. She points to the Arbitrator’s decision from [11]–[52] where the Arbitrator carefully summarised the evidence before him. The Arbitrator had appropriately given greater weight to the objective facts, namely the deceased’s hours of work and the manner in which the vehicle was driven prior to the collision, rather than the subjective impressions as provided by statements of the various co-workers of the deceased.
There was no preponderant inference available in the opposite sense to that chosen by the Arbitrator, that is, there was no other inference that was reasonably available on the evidence that was before him. It was open to the Arbitrator to find that one theory, based on his reading of the evidence, was more likely than any other theory.
Given that there has been no challenge to the Arbitrator’s articulation of the onus of proof, Ms Balendra submits that the Arbitrator made no error of law in making a positive finding that the deceased was tired and fatigued and that the reason for the collision was that she fell asleep.
Contrary to the appellant’s submissions, the Arbitrator did not disregard the evidence of the deceased’s co-workers. This was demonstrated by the fact that he summarised their evidence in some detail.
The respondent further submits that the Arbitrator expressed misgivings as to the manner in which those statements were obtained, however, apart from making that observation, this submission was not further developed.
Based on the Arbitrator’s statement at [49] of the decision, namely that he considered “the hours she worked a more reliable guide than co-workers’ impressions as to the degree of tiredness”, Ms Balendra submits that “the Arbitrator’s conclusions as to the critical witnesses, and therefore the evidentiary weight of witness statements are factual findings and do not give rise to error of law”.
Ms Balendra submits that the Arbitrator did not rely exclusively on the deceased’s hours of work, but also considered the manner in which the vehicle was being driven immediately before the accident and the driving conditions before reaching his conclusion (see Reasons at [59]).
The Arbitrator’s determination was based on logical and probative evidence and not speculation or unsubstantiated assumptions.

DISCUSSION

The central issue in this appeal is whether the Arbitrator erred in inferring that the relevant accident occurred because of fatigue due to working long night shifts. It is appropriate to note the following general principles.
The drawing of an inference is “an exercise of the ordinary powers of human reason in the light of human experience” (G v H [1994] HCA 48; 181 CLR 387 at 390). An inference may be drawn because of common knowledge and ordinary human experience (Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465).
Moreover, in evaluating questions of causation, the Commission is entitled to rely upon commonsense (Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; 64 CLR 538 at 563–4, 569; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 per Mason J at 725). Nevertheless, as Ipp JA pointed out in Flounders v Millar [2007] NSWCA 238 at [35], a claimant who relies on circumstantial evidence to prove causation must show “that the circumstances raise the more probable inference in favour of what is alleged”.
More recently Beazley P (Macfarlan and Emmett JJA agreeing) made the following observations about the drawing of inferences in Marshall v Prescott [2015] NSWCA 110. Her Honour said (at [83]–[84]);
“83. However, an inference cannot be drawn in the absence of evidence. In Luxton v Vines [1952] HCA 19; 85 CLR 352, the plurality, Dixon, Fullagar and Kitto JJ, at 358, approved the explanation of the principle of the High Court in the then unreported decision of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 as follows:
‘… where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.’ (emphasis added) (citations omitted)
84. In Holloway v McFeeters [1956] HCA 25; 94 CLR 470, the plurality, Williams, Webb and Taylor JJ, observed, at 480, that:
‘Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause ‘you need only circumstances raising a more probable inference in favour of what is alleged … where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference …’ (emphasis added)
Their Honours, referring to Bradshaw v McEwans Pty Ltd, emphasised that an inference could be drawn ‘from the circumstances that sufficiently appear by evidence or admission’ provided that the circumstances were left unexplained (emphasis added).”
Applying the above principles, I do not accept Mr Tanner’s submission that the Arbitrator’s finding concerning the deceased’s state of fatigue was made without a proper evidentiary foundation. There was a solid evidentiary foundation for the inference drawn by the Arbitrator.
The evidence that the deceased was tired and fatigued by her work on night shift with the respondent is found in several sources:
(a)     on 27 April 2013, Mrs Easterman observed her daughter to be “very tired”, driving “slower and slower” and “yawning and leaning against the couch”;
(b)     on 6 May 2013, the deceased fell asleep while being driven home by her father from a medical appointment;
(c)     also on 6 May 2013, both Mr and Mrs Easterman observed their daughter to be “very tired”, and
(d)     on 15 May 2013, just one week before the accident, Mr and Mrs Easterman again observed that their daughter looked “very tired”. Mr Easterman recalled that she said she was “trying to get used to the shift work and hours” but they made her “feel tired”, adding that she had never done this sort of work before. Mrs Easterman recalled that her daughter was “going alright” that she liked the job, but it was “not easy”. The shift work made her “feel tired” but she was handling it and “trying to get used to the hours”.

Mr Tanner went to considerable lengths to distinguish the circumstances which prevailed on 22 May 2013 and the observations made by Mr and Mrs Easterman on three occasions when they observed the deceased to be showing objective signs of fatigue (yawning, leaning on the couch, falling asleep in the car, and complaining of tiredness) after work. I accept that the circumstances on each of those occasions were not identical to those that pertained on 22 May 2013. However, the fact remains that within a week of the accident the deceased had been complaining to her parents that the work was making her feel tired and that she was still trying to acclimatise to it.
After that complaint, the deceased worked five consecutive 12 hour night shifts. This fact, combined with the evidence from Mr and Mrs Easterman, provided a sound basis for the Arbitrator to conclude that, notwithstanding observations made by co-workers to the contrary, the deceased was tired on the night of the accident.
Mr Kirton’s evidence also supports the Arbitrator’s finding. Mr Kirton who lived with the deceased and knew her well said that after completing work she would seem tired. His evidence that he felt that the deceased had by 22 May 2013 become acclimatised to working night shifts was heavily qualified. What he actually said was that he believed that the deceased had acclimatised to working night shifts “about as much as you can”. He added from his own experience of working night shifts that “after working night shifts you are just stuffed”.
It is consistent with every day human experience that a worker who has worked 60 hours in five consecutive night shifts will be tired or suffering from some measure of fatigue. No evidence was led as to the average number of working hours for females in New South Wales, however, I take judicial notice of the fact that a 35 hour working week is commonplace. Therefore, at the time of this accident the deceased had worked for a number of hours approaching double a common working week. Furthermore, the work had been completed during night shifts which on the deceased’s own evidence she had struggled to acclimatise to and which, prior to starting work with the appellant, she had not previously worked.
Further, there is no evidence that the deceased was able to achieve adequate sleep during the day prior to commencing her shift on 22 May 2013. Mr Kirton assumed that the deceased was at home and was sleeping during the course of the day on 22 May. That assumption was based on the fact that her bedroom door was closed and that her car was parked outside his home. The assumption is however inconsistent with his concession that he received a text message from the deceased at about midday. That would indicate that whatever opportunity the deceased had to sleep during the day prior to commencing her shift on 22 May 2013 was broken because she was awake and sufficiently alert to send a text message during the middle of the day.
Mr Tanner relied heavily on the fact that evidence from the deceased’s co-workers indicated that the deceased did not generally appear to be tired or fatigued at work or just before leaving the workplace on 22 May 2013. Subjective assessments of the deceased’s physical state based on her appearance during working hours are not determinative of whether the deceased was in fact fatigued due to her long hours of work on night shift. During working hours the deceased was engaged in her usual work activities. Music was played whilst the work was undertaken. The deceased engaged in conversation with co-workers and at times sang along to the music being played. In other words, those observations were made when the deceased was in a stimulated environment and they offer little assistance in determining whether the deceased was likely to be feeling tired to the point of falling asleep when driving alone on a country road at night after completing what was albeit a truncated shift, having previously completed five consecutive 12 hour night shifts.
The evidence of the deceased’s co-workers reveals that only two of them, namely Mr Traynor and Ms Golding, actually spoke to the deceased before she left work on 22 May 2013. Their subjective assessment of the deceased, namely that she did not appear tired or fatigued at that time, was not evidence the Arbitrator was bound to accept. Mr Price said that he saw the deceased on 22 May 2013. He did not explain the circumstances. He said that he spoke to a group which included the deceased when the plant was shut down on the night of 22 May 2013. He also made an observation assessment that the deceased did not appear tired or fatigued.
Mr Tanner submitted that the Arbitrator’s finding ignored and was inconsistent with the evidence that the deceased had become accustomed to working night shift. That is not an accurate assessment of the evidence. As I have indicated, within the week prior to the accident the deceased was complaining to her parents that the work did make her tired and that she was still trying to become accustomed to it. I am also cognisant of the fact that prior to commencing work with the appellant the deceased had never worked night shift before and had only been working for the appellant for about one month before the accident.
Mr Tanner argued that the Arbitrator failed to evaluate and accept the evidence of the deceased’s co-workers on the issue of fatigue and on that basis his inference as to fatigue was unfounded. I reject that submission. The Arbitrator did evaluate the evidence of the co-workers, however he concluded that the objective facts were a more reliable guide to whether the deceased suffered from fatigue and fell asleep at the wheel of her vehicle. The objective facts relied on by the Arbitrator were:
(a)     that the deceased had worked for 60 hours (on night shift) in the five days immediately preceding the accident over five shifts and commenced her last 12 hour shift on the night of the accident, which he assessed in he context of;
(b)     the absence of any braking on the roadway;
(c)     the absence of any attempt to take “any corrective measure” when a collision with a large vehicle travelling in the opposite direction was imminent;
(d)     the absence of any hesitation in the way the vehicle moved before the collision, and
(e)     the absence of any jerking movement of the vehicle, which could be consistent with a sneezing fit or temporary interference with the deceased’s control of the vehicle.
The Arbitrator was entitled to rely on these matters in his assessment of the evidence. Even if it could be argued that points (d) and (e) are equivocal, the remaining three points provide clear and objective evidence in support of the inference the Arbitrator drew.
The second ground of appeal is that the Arbitrator found, without a proper evidentiary foundation, that the reason the deceased’s vehicle crossed to the incorrect side of the roadway was because she fell asleep.
Mr Tanner postulated that there were a number of alternate “meritorious possibilities” placed before the Arbitrator to demonstrate that the accident may have been caused by circumstances other than work related fatigue.
Mr Tanner submitted that work related fatigue is possibly an explanation for the accident but is a remote one given that the shift ended prematurely and that the accident occurred within a short time of the deceased completing her shift that evening. For the reasons explained above I do not accept that submission.
Given the Arbitrator’s finding that the deceased was tired, which I have held was open to him, it was further open to the Arbitrator to conclude that it was more probable than not that the vehicle crossed to the incorrect side of the roadway because the deceased had fallen asleep due to work related fatigue. There may have been other “possibilities” to explain why the deceased’s vehicle veered on to the incorrect side of the roadway, as Mr Tanner submitted. However, given the finding of tiredness and fatigue, which was consistent with the evidence from Mr and Mrs Easterman, and consistent with ordinary human experience, the more probable inference was that drawn by the Arbitrator, namely, that the accident was due to the deceased falling asleep.
This is not a case of conflicting inferences of equal degree of probability. There is no evidence to support any of Mr Tanner’s alternative causes of the accident. His “meritorious possibilities” are no more than mere conjecture unsupported by any evidence. On the other hand, the circumstances in the present case give rise, as the Arbitrator found, to a reasonable and definite inference that, because of tiredness caused by long hours on consecutive night shifts, the accident resulted from the deceased falling asleep. There are no conflicting inferences of equal degree of probability.
Mr Tanner submitted that the Arbitrator erred by reversing the onus of proof. He submitted this was demonstrated by the Arbitrator’s use of the words “an absence of evidence of alternative explanations” (at [59] of Reasons), which he submitted casts an onus on the appellant to disprove “the necessary causal nexus required under s 10(3A)”. I reject that submission.
The Arbitrator’s reasoning process was to conclude, first, that the deceased suffered from fatigue due to the hours worked in the immediately preceding five days. Second, the Arbitrator took into account the manner in which the vehicle was being driven immediately prior to the impact. Third, he concluded, by reason of the above, the deceased more probably than not fell asleep while driving her vehicle. Last, he noted the absence of evidence of alternative possible explanations. That reasoning process did not reverse the onus of proof by placing an onus on the appellant to disprove the requirements of s 10(3A). By noting an absence of alternative explanations for the accident the Arbitrator did no more than to articulate that that was one of his reasons (although not a decisive one) for drawing the inference he did from the available evidence. (On the issue of alternative explanations, it is appropriate to note that the police found no mechanical defect in the deceased’s car that may have contributed to the accident and the autopsy did not reveal any medical condition to account for the deceased’s car turning into the path of an oncoming vehicle.)
Reading the Arbitrator’s decision as a whole it is clear that he approached a determination of the issues on the basis that the appellant bore the onus of establishing that there was a real and substantial connection between the employment and the accident as required by s 10(3A). The Arbitrator’s reference to DewanSingh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (at [60] of Reasons) and the discussion that followed concerning what must be established to demonstrate such a connection can only be consistent with the respondent’s legal representatives bearing the onus.
I also reject the submission that the Arbitrator determined the matter on the basis of one of a number of speculative possibilities. The Arbitrator’s conclusion was based on an inference he drew from objective evidence, which the Arbitrator accepted. That evidence established that the deceased was new to working night shift work. She had worked very long hours in the immediately preceding five days. In addition there was evidence that the deceased had complained to her parents that she was struggling with acclimatising to working night shift. That evidence, coupled with the otherwise unexplained veering of her vehicle to the incorrect side of the roadway and into the path of an oncoming truck, was more than sufficient to support the Arbitrator’s conclusion that it was more probable than not that the accident was caused by the deceased falling asleep at the wheel of her car due to work related fatigue. Those findings were open on the evidence and do not involve error.
The submission that the Arbitrator erred by elevating a possible cause of the collision, being that the deceased fell asleep, to a level of “conclusive probability” must also be rejected. The Arbitrator concluded that it was more probable than not that the deceased fell asleep. For the reasons explained above, that finding was available on the evidence. It did not involve, or require, a finding of “conclusive probability”. It involved the correct application of the civil standard of proof, namely on the balance of probability.

DECISION

The Arbitrator did not err in finding that it was more probable than not that the deceased fell asleep at the wheel of her vehicle whilst driving between her place of employment and her home on 22 May 2013 due to work related fatigue.
It was open to the Arbitrator to conclude on the balance of probabilities that by reason of the deceased falling asleep, the vehicle being driven by her crossed to the incorrect side of the roadway and collided with an oncoming vehicle resulting in fatal injuries.
The Arbitrator was correct to find that the work related fatigue suffered by the deceased was a real and substantial connection between her employment and the accident, therefore the requirements of s 10(3A) of the 1987 Act were satisfied.
For these reasons the Arbitrator’s Certificate of Determination of 4 December 2014 is confirmed.

ORDERS

The following orders are made:
(1) the pleadings are amended to describe the respondent to the appeal as “Stephen Easterman (as administrator of the estate of Zara Lee Easterman)”, and
(2) the Arbitrator’s Certificate of Determination of 4 December 2014 is confirmed.

Judge Keating
President

4 May 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE