Narse v ANZ Roofing Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Narse v ANZ Roofing Pty Ltd [2023] NSWPIC 119
APPLICANT:	Rami Narse
RESPONDENT:	ANZ Roofing Pty Limited
Member:	John Isaksen
DATE OF DECISION:	24 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum payment for permanent impairment of the lumbar spine, cervical spine, right knee and right shoulder; worker sustains injury in a motor vehicle accident after leaving his place of employment; workers compensation benefits paid for about 15 months after accident; whether injury arose out of or in the course of the worker’s employment; reference to Comcare v PVWY; or in the alternative, whether the worker sustained injury on a journey with a real and substantial connection between the worker’s employment and the incident out of which the injury arose; reference to Bina v ISS Property Services P/L; Held – worker did not sustain an injury arising out of or in the course of his employment; no real and substantial connection between the worker’s employment and the incident out of which the injury arose; award for the respondent.
determinations made:	The Commission determines: 1. The applicant did not sustain an injury arising out of or in the course of his employment with the respondent on 1 May 2020. 2. There was no real and substantial connection between the applicant’s employment and the incident out of which the applicant’s injury arose in the journey undertaken by the applicant from his place of employment to his place of abode on 1 May 2020. The Commission orders: 1. An award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Rami Narse, the applicant in these proceedings, makes a claim for a lump sum payment for 41% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury he claims to have sustained in a motor vehicle accident at Hornsby on 1 May 2020 while in the course of his employment with the respondent, ANZ Roofing Pty Ltd.
Mr Narse claims that an officer of the respondent gave approval for him to drive from the respondent’s warehouse in Hornsby to the Thornleigh store of Bunnings to obtain some materials for a forthcoming job, and while undertaking that trip he was involved in a motor vehicle accident.
The respondent initially accepted liability for the claim made by Mr Narse but a dispute notice was issued by icare, on behalf of the respondent, on 14 October 2021 whereby liability was denied on the grounds that Mr Narse was on a journey from his place of employment to his home at Rosehill and that the injury occurred during an interruption or deviation from that journey that was unconnected to his employment, and that there was no real and substantial connection between his employment and the injury he sustained.
The respondent also denied liability on the grounds that the injury sustained by
Mr Narse did not arise out of or in the course of his employment because the respondent had not approved the trip being undertaken by Mr Narse.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained injury arising out of or in the course of his employment with the respondent (s 4 of the 1987 Act);
(b)    whether the applicant’s employment was a substantial contributing factor to the injury sustained by the applicant (s 9A of the 1987 Act), and
(c)    whether the applicant was on a journey from his place of employment to his place of abode and there was a real and substantial connection between his employment and the accident out of which the injury arose
(s 10(3A) of the 1987 Act).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The parties attended a conference and hearing on 9 March 2023. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr McEnaney appeared for the applicant. Mr Andrew Parker appeared for the respondent.
The respondent consented to the applicant amending the Application to Resolve a Dispute (ARD) to add an alternative claim that the injury sustained by the applicant was on a journey from his place of employment to his place of abode and there was a real and substantial connection between his employment and the accident out of which the injury arose.
The parties agreed that the applicant would discontinue claims of injury to body parts other than those which formed the basis for the claim for whole person impairment (being to the cervical spine, lumbar spine, right shoulder and right knee) and that the respondent would not contend in any future proceedings that the applicant was estopped from claiming injury to any other body parts because of the discontinuance of such claims in this application.
The respondent objected to the admission into evidence of a report from
Sarah Hamidi, psychologist, dated 14 November 2022, which was contained in an Application to Admit Late Documents filed by the applicant on 3 March 2023. I provided short reasons as to why that report could be admitted into evidence, and those reasons were recorded.
The parties agreed that neither party would rely upon the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) in not requiring the cross examination of the applicant or any other witnesses who have provided evidence in this dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents filed by the respondent on
7 February 2023, and
(d)    Application to Admit Late Documents filed by the applicant on
3 March 2023.

The applicant’s evidence

Mr Narse has provided statements dated 14 September 2021, 17 October 2022 and
3 March 2023.
The first statement made by Mr Narse and dated 14 September 2021 was provided to an investigator retained on behalf of the respondent. Mr Narse states that he commenced employment as a truck driver with the respondent in 2017. He states that his usual place of work was at a warehouse at Hornsby. He states that he worked an eight hour day and sometimes undertook overtime.
Mr Narse states that his usual duties for the respondent were to deliver materials to various building sites and collect rubbish from those sites, as well as installing handrails at job sites, and undertaking general labouring duties at the Hornsby warehouse.
Mr Narse states that part of his duties w to purchase materials from Bunnings stores and to deliver those materials to the warehouse and various worksites. He states that a schedule of jobs is provided to him each day, and sometimes that schedule includes a trip to a Bunnings store, but there are other occasions when a trip to a Bunnings store is not listed on his schedule because urgent jobs come up.
Mr Narse states that he cannot recall the specific duties which he performed on
1 May 2020 because of the lapse in time from the motor vehicle accident to the time he made his statement. He states that he was at the Hornsby warehouse on the afternoon of 1 May 2020 and loaded safety handrails into his truck for a job the following day. Mr Narse then states:
“Once I had loaded my truck with the safety rails, I telephoned ANZ Roofing's current operations manager, Michael ... to get approval from Michael to buy some materials from Bunnings for my delivery to the jobsite the following day. I cannot remember what materials I needed to buy from Bunnings that afternoon. Michael approved me going to Bunnings to buy the materials. I then locked up the warehouse because I was the last person at the warehouse. At approximately 3.50-3.55pm I drove out of the ANZ Roofing warehouse to drive to the nearest Bunnings that was on the most direct route to my house, which was the Bunnings located in Thornleigh."
Mr Narse states that he was driving through an intersection with a green light in his favour when the truck that he was driving was struck by another motor vehicle. He states that he believes the impact caused him to become unconscious because he cannot recall anything immediately after the impact of the collision. He states that he was transferred to Hornsby Hospital with pain down the entire left side of his body.
Mr Narse states that he cannot remember completing an incident report for the respondent or providing a statement to the police.
In his second statement dated 17 October 2022, Mr Narse states:
“To the extent of any inconsistencies between my previous statements and this statement, the veracity of this claims made in this statement is preferred.”
Mr Narse states that it was “Michael” who specifically asked him to go to Bunnings to get more supplies. He states that he dropped off the safety handrails at the Hornsby warehouse on 1 May 2020. Mr Narse states:
“These handrails were going to be used for a job on Monday morning, however, I noticed that something was missing for the job on Monday. As a result, Michael asked me to go to Bunnings that afternoon as the handrails were going to have to be installed early on Monday morning. This was because the roofing would only be able to begin once the handrails were installed further highlighting the need for me to buy the supplies on Friday afternoon.”
Mr Narse states that the schedule provided to him by the respondent each day was not “a good indicator” of the day ahead, and “95% of the time employees would have to attend to jobs outside of the schedule and respond to issues that arose throughout the day". He states that he would regularly get calls throughout his shift stating that a work site required some material or equipment and as a consequence the schedule had to meet those demands.
Mr Narse points out that his schedule of work for 1 May 2020 (which is included in the Application to Admit Late Documents filed by the respondent on 7 February 2023) did not include any requirement to attend a Bunnings store, but a text message received on the morning of 1 May 2020 contained several directions for work including: “go to Bunnings get evening haze paint for #11249” and “Check to see if we need anything else from Bunnings”.
Mr Narse has included other text messages received by him before the motor vehicle accident on 1 May 2020 which confirms requests made by the respondent during a work day for him to attend Bunnings or elsewhere to obtain materials which are required for jobs being undertaken by the respondent.
Mr Narse states that the schedule for 1 May 2020 records no further work to be undertaken after 1.30pm, but he continued to work at the Hornsby warehouse on that day until he left to drive to the Bunnings store at Thornleigh, and this is confirmed by the GPS records of the truck for that day.
Mr Narse disputes a claim made by officers of the respondent that he was attempting to manipulate his shifts so that he could work additional overtime. He states that the motor vehicle accident occurred during Ramadan, and he was keen to get home to break his fast.
Mr Narse states that on the day after the motor vehicle accident he spoke to
Mark Burtenshaw. He states that Mr Burtenshaw told him to lodge a workers compensation claim “as he knew that my attendance to the Bunnings at Thornleigh had been directed by work”.
Mr Narse states that in July 2021 he received a phone call from Nathan Houston, a director of the respondent, who asked Mr Narse to drop his workers compensation claim because it was causing the respondent’s premiums to increase. Mr Narse states that he was concerned about this and informed his psychologist, Sarah Hamidi, and his solicitor, Clemence Semaan.
In his third statement dated 3 March 2023, Mr Narse states: “I never stated that I was dropping off the handrails to the warehouse that Friday afternoon. Instead, I was picking up the handrails.”
Mr Narse states that the materials needed from Bunnings that afternoon were not related to the handrails but for other materials needed for the job on Monday. Mr Narse states that he has “provided a photo of the truck from the accident which shows the materials and handrails that were needed for the job on Monday”.
Mr Narse also states:
“I maintain that the schedule was changing via the app, messages and phone calls as per the evidence I have provided in my application to show such consistent changes to the schedule.”
Mr Narse states that in the telephone call made by Mr Houston in July 2021 that
Mr Houston said to him that it would be better if Mr Narse stated that he was going home rather than going to Bunnings when the motor vehicle accident occurred.

Other evidence relied upon by the applicant

Clemance Semaan has provided a statement dated 24 October 2022. Ms Semaan is a lawyer and acts for Mr Narse. Ms Semaan states that in July 2021 she received a telephone call from Mr Narse and he told Ms Semaan that his manager had asked him to pursue a CTP claim rather than a workers compensation claim.
Ms Semaan states that she told Mr Narse to tell the truth. She states that she was informed by Mr Narse that the motor vehicle accident occurred while Mr Narse was driving to Bunnings before his shift had ended.
Sarah Hamidi, registered psychologist, has provided a report dated
14 November 2022. She states that she commenced to provide treatment for Mr Narse on 8 August 2020.
Ms Hamidi states that during a telehealth session on 27 July 2021 Mr Narse informed her that a supervisor named “Nathan” had advised Mr Narse that the respondent’s insurance premiums would rise, and that Mr Narse was to change his claim to a CTP claim. Ms Hamidi writes that Mr Narse was reportedly advised by Nathan to change his story and say that he was driving home when the accident occurred and that he was not travelling to Bunnings.
Ms Hamidi writes that she recalls that Mr Narse described feelings of distress and a sense of betrayal and said: “why do they want me to lie?” Ms Hamidi also writes that Mr Narse reportedly told Nathan that he did not feel comfortable to lie and would need to consult his lawyer.

The respondent’s evidence

Michael Summers has provided statements dated 16 August 2021 and
6 January 2023. Mr Summers states that he has been employed as an Operations Manager for the respondent since March 2020 and his usual place of work is at the Hornsby warehouse.
In his statement dated 16 August 2021, Mr Summers states that Mr Narse is provided with a small tipper truck by the respondent and that he is allowed to drive this truck to and from his home each shift and keep the vehicle with him on weekends.
Mr Summers states that Mr Narse reports to him. He states that Mr Narse is required to check his schedule each morning before he leaves home. He states that if Mr Narse completes a job on his schedule near the end of his shift, then Mr Narse clocks off work once he has completed the allocated job at the scheduled location.
Mr Summers states that on 1 May 2020 he was working from home when he received a telephone call at about 4.00pm from Mr Narse at the warehouse. He states that
Mr Narse said that he wanted to pick up materials from Bunnings before driving home. He states: “I said to Rami not to worry about going to Bunnings and he could go to Bunnings next week”. Mr Summers states that he said this was because it was a Friday and there was no scheduled work for the following day.
Mr Summers states that he gave the directive to Mr Narse because the directors of the respondent had asked Mr Summers to “keep an eye” on the practice of employees trying to accrue overtime by manipulating the schedule. Mr Summers states that he has checked Mr Narse’s schedule for 1 May 2020 and Mr Narse was not scheduled to go to Bunnings any time that day.
Mr Summers also states that after he had become Operations Manager there were a few occasions when Mr Narse had rung him to try and manipulate his schedule to finish at a location that was as close to his home as possible. He states that he had been asked by the directors of the respondent to “keep an eye” on this and ensure that Mr Narse did not manipulate his own schedule.
Mr Summers states that he missed a later call from Mr Narse and that sometime over the weekend he was informed by the accounts manager, Vajira, that Mr Narse had been involved in a motor vehicle accident.
Mr Summers states that Vajira asked him about a week after the motor vehicle accident what Mr Narse had been doing when the accident occurred as Mr Narse had told Vajira that he was going to Bunnings. Mr Summers states that he said to Vajira that this was not correct because he had told Mr Narse not to go to Bunnings during a phone call that afternoon and that job was not on Mr Narse’s schedule.
In his statement dated 6 January 2023, Mr Summers refers to the text message sent to Mr Narse on the morning of 1 May 2020. He states that the job which the paint was required for was not due to commence for another month and this task was not urgent. He states that at around midday on 1 May 2020 he called Mr Narse to advise him that this task was not required. Mr Summers states that this task would have been added to his work schedule for that day if it was required on that day.
Mr Summers states that it was a common practice to ask employees to attend Bunnings or other jobs outside of their daily schedule. He states that an employee would be informed of those extra jobs via text message, and that the employee would respond by text to confirm receipt of that message. However, those extra jobs were always then listed on the daily schedule for that employee.
Mr Summers states that parts for the handrails could not be purchased at Bunnings, as claimed by Mr Narse, because the handrails are imported from New Zealand. He also states that there were no jobs scheduled on the following Monday where handrails were to be fitted.
Mr Summers states that when he took over the role of Operations Manager he observed that Mr Narse would request that he attend a particular Bunnings store that was close to his home so that he could be paid from wherever his last job was that day. He states that he would decline such a request but would update his schedule to include such a task when he thought it was appropriate to the needs of the business.
Mark Burtenshaw has provided statements dated 16 August 2021 and 5 January 2023. Mr Burtenshaw states that he is a director of the respondent.
In his statement dated 16 August 2021, Mr Burtenshaw states that the respondent did not conduct any internal investigation of the motor vehicle accident that Mr Narse was involved in because it was assumed that the accident would fall under a motor vehicle insurance policy. He states that in July 2021 the respondent began to engage a company to have oversight of the respondent’s insurance claims and it had been found that Mr Narse was being paid workers compensation payments each fortnight and reimbursement was then being made by the CTP insurer. However, he states that these payments were affecting the respondent’s workers compensation premium.
In his statement dated 5 January 2023, Mr Burtenshaw states that if a worker is directed to go to a Bunnings outlet for supplies, then that job would be listed on the work schedule. He states: “Every Bunnings in Sydney is effectively a job on our work schedule”. Mr Burtenshaw states that if Mr Narse was expected to go to Bunnings, then the work schedule would show the list of products to collect from Bunnings when Mr Narse clicked on his phone. He states that drivers have a Bunnings account card to use.
Mr Burtenshaw states that in regard to the text message sent on the morning of
1 May 2020, Mr Narse would have been required to attend the Bunnings outlet shown on the work schedule when Mr Narse had opened up the app on his phone.

Mr Burtenshaw states that it is a common practice for the respondent to ask employees to attend Bunnings or other jobs outside of the jobs listed on their daily schedule because work demands can change throughout a working day. He states that those tasks would never be allocated to an employee without the work schedule being updated. He states that no Bunnings outlet appears on the calendar schedule for Mr Narse on 1 May 2020 because Mr Narse was informed during that day that he was not required to attend any Bunnings outlet.
Mr Burtenshaw states that the handrails system which is used by the respondent is a specialist system imported from New Zealand and items for that system cannot be bought from Bunnings.
Mr Burtenshaw states that it is the policy of the respondent that no pickups are made after 4.00pm on any work day as the employee would then be on overtime rates and those pickups should be allocated within normal work day hours.
Mr Burtenshaw states that he cannot recall a telephone conversation with Mr Narse on the day after the motor vehicle accident as claimed by Mr Narse. He states that he sent a text to Mr Narse at 7.30pm on 1 May 2020 to let Mr Narse know that he had heard about the accident and that he hoped Mr Narse was okay.
Nathan Houston has provided a statement dated 5 January 2023. Mr Houston states that he is a director of the respondent.
Mr Houston states that he is not involved in the allocation of work to Mr Narse.
Mr Houston states that he had a conversation with Mr Narse around the end of 2021. He states that he did not ask Mr Narse to withdraw his workers compensation claim. He states that he did tell Mr Narse that he did not see the point of claiming that this was a work accident when Mr Summers had said that Mr Narse was not going to Bunnings for work.
Mr Houston states that he did say to Mr Narse that it was going to cost the respondent money, and that he made this comment because the respondent’s premium had increased when claims had been made on the respondent in the past. He states that Mr Narse said he would not withdraw the workers compensation claim because that claim had already been made and he was concerned that it could look like he was lying. Mr Houston states that he did not ask Mr Narse to withdraw his workers compensation claim or that the claim was going to cost the respondent huge amounts of money, but only that such a claim raises the respondent’s premium.

A summary of submissions

Mr McEnaney for Mr Narse submits that his client’s evidence is more closely aligned to the objective evidence. He points out that the work schedule for 1 May 2020 records that Mr Narse was to finish his last job that day at 1.00pm at the Hornsby warehouse. However, the evidence indicates that Mr Narse worked on at the warehouse on that day until 4.00pm, notwithstanding the concerns that the respondent had regarding overtime being worked by their employees. Mr McEnaney submits that the respondent’s evidence must be discounted because that concern regarding overtime is not matched by the evidence which confirms that Mr Narse did undertake overtime that day.
Mr McEnaney submits that the text message received by Mr Narse on the morning of
1 May 2020 is consistent with a job requirement that day to attend a Bunnings store to obtain certain materials for the respondent. He submits that the tribunal of fact would need to make a finding that this message was countermanded during the day, and the only evidence that can support this is the phone call which Mr Summers claims he made to Mr Narse at around midday on 1 May 2020. However, there is no written confirmation of this which is provided by the respondent.
Mr McEnaney submits that for some 15 months following the motor vehicle accident there was no suggestion from any of the available material which would raise a suspicion regarding Mr Narse’s account of what occurred on 1 May 2020. It is therefore understandable that Mr Narse cannot recall specific details of his work duties on that day when he is asked about this by an investigator. Mr McEnaney submits that it is his client who now has to defend himself, despite there being no doubt raised about this claim for well over a year after the motor vehicle accident.
Mr McEnaney submits that even if Mr Narse misunderstood certain directions regarding his work duties which were given to him on 1 May 2020, his client was nonetheless undertaking a task which was incidental to his employment, namely going to a Bunnings store to collect some materials which were required by the respondent. Mr McEnaney submits that there remained a temporal and causative connection to
Mr Narse’s employment and that Mr Narse was in the course of his employment when the motor vehicle accident occurred.
Mr Parker for the respondent submits that Mr Narse was on a journey from his place of work to his place of abode when he sustained injury, and he can only succeed if he can satisfy s 10(3A) of the 1987 Act, which provides:
“(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.”
Mr Parker submits that Mr Narse was on his way home on 1 May 2020, so that even if there was a direction or an implicit allowance given to Mr Narse to go to Bunnings, that still does not bring the claim within s 4 of the 1987 Act. Mr Narse must meet the requirements set out by s 10(3A), and the test set out for s 10(3A) by Keating P in Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 (Bina) at [117]:
“… The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, any accident or incident out of which the personal injury arose.”
Mr Parker submits that a determination of this dispute requires Mr Narse to meet the standard of proof as set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw), wherein Dixon J said at [68]:
“…seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”
Mr Parker submits that Mr Narse can only succeed if he can satisfy that the Commission that he was specifically directed to go to Bunnings on the afternoon to obtain materials for the handrails for a job on the following Monday, and not merely that he was going to obtain materials as referred to in the text message from earlier that day. That in turn means that Mr Narse can only succeed if it can be found on the evidence that the witnesses relied upon by the respondent were lying. However, he submits that there is nothing to suggest from that evidence that those witnesses are mistaken in their recollection of events. This contrasts with inconsistencies in the evidence from Mr Narse, who recalls being directed to go to Bunnings but then cannot recall what he was to obtain.
Mr Parker submits that it is probable that Mr Narse has innocently reconstructed events on 1 May 2020 to assist his claim. However, he submits that the evidence supports a finding that there was a phone call between Mr Narse and Mr Summers on that afternoon wherein Mr Narse was specifically told not to go to Bunnings.

DETERMINATION

Whether the applicant sustained injury arising out of or in the course of his employment with the respondent

Mr Narse bears the onus of proof in establishing that he sustained injury arising out of or in the course of his employment on 1 May 2020.
In Field v Department of Education and Communities [2014] NSWWCCPD 16 (Field), DP Roche said at [38]:
“It is for the tribunal of fact to assess the reliability of the evidence against the ‘contemporary materials, objectively established facts and the apparent logic of events’ (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]).”
However, there is very little by way of contemporaneous material or known facts to assist in the determination of this dispute.
There is no incident report completed by Mr Narse which is in evidence which might provide details of where he was travelling to when the collision occurred. There is no report of injury completed by the respondent which is in evidence which might provide details to its insurer of what the respondent understood was the purpose of the trip
Mr Narse was undertaking that afternoon.
The “Worker’s injury claim form” approved by the State Insurance Regulatory Authority (SIRA) requires a worker to identify circumstances including: “A motor vehicle accident while you are working” and “Travelling to and from work”. There is also another form approved by SIRA: “Other injury claim form”, which is to be completed if a worker is injured during a “work journey”. However, no such completed forms are in evidence.
I consider that the respondent would need to provide convincing evidence as to why it disputed liability for this claim some 18 months after the motor vehicle accident occurred if there are any such forms in existence and it is recorded that Mr Narse was travelling to a Bunnings store to obtain materials for the respondent.
A known fact and a piece of contemporaneous material is that on the morning of
1 May 2020 Mr Narse received a text message setting out several tasks for the day, including: “go to Bunnings get evening haze paint for #11249” and “Check to see if we need anything else from Bunnings”. However, Mr Narse does not deny or dispute the evidence from Mr Summers that Mr Summers rang him around midday to tell him that the task of going to Bunnings was not required that day. This is despite Mr Narse having the opportunity to address this in his final statement dated 3 March 2023.
The response from Mr Narse to this particular evidence is: “I maintain that the schedule was changing via the app, messages and phone calls as per the evidence I have provided”. In the absence of any denial or dispute by Mr Narse that this direction was given by Mr Summers, I find that I prefer the evidence from Mr Summers on this issue. I find that as of midday on 1 May 2020 there was no direction given by or on behalf of the respondent for Mr Narse to attend Bunnings that day.
Both Mr Summers and Mr Burtenshaw concede that the work demands of the business mean that additional jobs can arise during the day. However, Mr Narse does not state that there was any change “via the app, messages and phone calls” on
1 May 2020, with the exception of the phone call between himself and Mr Summers on the afternoon of 1 May 2020.
Mr Narse initially states that he rang Mr Summers to get approval to buy some materials from Bunnings. However, in his second statement Mr Narse states that it was Mr Summers who specifically asked Mr Narse to go to Bunnings. This is despite the evidence of both Mr Narse and Mr Summers that it was Mr Narse who made the phone call to Mr Summers. That would indicate, and I conclude from this evidence, that it was Mr Narse who was the person who was motivated to obtain these materials. Yet despite being the instigator of this additional task on that Friday afternoon,
Mr Narse cannot provide any details of what those materials might be.
I acknowledge that Mr Narse might have difficulty some 15 months later in recalling the specific materials he claims he needed to obtain that day, especially when he has quite reasonably assumed for a period of almost 18 months that the respondent and its insurer has accepted his claim.
However, while Mr Narse has sufficient recollection of events on that day to state that the materials were needed for a job on Monday and “not related specifically to the handrails” and that the provision of those materials were needed because “the roofing would only be able to begin once the handrails were installed” on the following Monday, he cannot provide even the most general description of what that job on Monday might be or what was “missing” for that job.
Mr Narse states in his third statement: “I have provided a photo of the truck from the accident which shows the materials and handrails that were needed for the job on Monday”, but despite this visual aid Mr Narse cannot provide any details of what that job on Monday might be or the materials which were missing for that job.
Mr Summers initially states that there was no scheduled work for the following day. When Mr Narse changes his evidence to state that the materials were needed for a job on the following Monday, Mr Summers states that there were no jobs scheduled on the following Monday where handrails were to be fitted.
Despite bearing the onus of proof, there has been no discovery or interrogation made by Mr Narse of the schedule of work planned by the respondent for the following Monday to support his claim that there were materials which were essential for such a job, and which had to be obtained that afternoon.
There are other inconsistencies and deficiencies in the evidence provided by Mr Narse which causes me to doubt that Mr Narse has provided sufficient evidence for him to meet the requisite standard of proof for success in this dispute.
Mr Narse initially states that on the afternoon of 1 May 2020 he loaded safety handrails into his truck for a job the following day. In his next statement, which Mr Narse asks the tribunal of fact to prefer, he states that he dropped off the safety handrails at the Hornsby warehouse that afternoon.
Mr Narse reverts back in his third statement to his evidence that he was picking up the handrails that afternoon and refers to a photo in the ARD of the truck after the accident which he states shows the materials and handrails that were needed for the job on Monday.
Mr Narse initially states that the handrails were loaded into his truck for a job for the following day, which was a Saturday. However, in his second and third statements he states that the job was to be on the following Monday.
I acknowledge that there are also deficiencies in the evidence relied upon by the respondent. Both Mr Burtenshaw and Mr Summers express their concern regarding employees manipulating their schedule to accrue overtime. However, while the respondent’s own record for the work schedule for Mr Narse on 1 May 2020 records that he was to finish his last job that day at 1.00pm at the Hornsby warehouse, the evidence from Mr Narse, which is not contested by the respondent, is that Mr Narse worked on at the warehouse on that day until 4.00pm, thereby accruing some overtime.
Both Mr Burtenshaw and Mr Summers also express their concern regarding employees manipulating their schedule so that they can finish as close to their home as possible. However, if that was Mr Narse’s intention on the afternoon of 1 May 2020, then it is more likely that Mr Narse would have chosen a Bunnings closer to his home to maximise that particular benefit.
I also acknowledge that caution needs to be exercised when relying on the recollection of witnesses at least 15 months after the accident, and when there had been, for whatever reason, an acceptance of Mr Narse’s workers compensation claim over that period of time.
However, Mr Narse bears the onus of proof. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall J (with McColl JA and Bell JA agreeing) said at [55]:
“(1)    A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2)     Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3)     Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4)     A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
In the absence of Mr Narse being able to identify with some precision the materials which were so essential for a job on the following Monday, or even what that particular job might have been, when the respondent contends that Mr Summers told Mr Narse not to worry about going to Bunnings that afternoon and that there were no jobs scheduled for the following Monday in which handrails were to be fitted, I cannot be satisfied that Mr Narse had the requisite authority or permission to go to Bunnings that afternoon.
In Comcare v PVYW [2013] HCA 41; 88 ALJR 1 (PVYW), French CJ, Hayne, Crennan and Kiefel JJ said at [38] in regard to whether an injury was sustained in the course of employment:
“The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.”
I have provided my reasons as to why I am not satisfied that Mr Narse had the requisite authority or permission to go to Bunnings that afternoon. It follows from that finding that I am also not satisfied that Mr Narse was induced or encouraged by the respondent to drive to Bunnings at Thornleigh. Mr Narse fails the test set in PVYW and I therefore do not accept that Mr Narse was in the course of his employment when he sustained injury in the motor vehicle collision on 1 May 2020.
There is no evidence that Mr Narse had been given some general discretion to attend Bunnings stores when he determined that certain materials and supplies were needed for the respondent’s business. The evidence from Mr Summers and Mr Burtenshaw is that Mr Narse would attend a Bunning store at the direction of the respondent. The text messages which have been included in the ARD confirm that Mr Narse would respond to requests made by other officers of the respondent.
I therefore do not accept the submission made by Mr McEnaney that even if Mr Narse misunderstood certain directions regarding his work duties which were given to him on 1 May 2020, his client was undertaking a task that was incidental to his employment when he was involved in the motor vehicle collision. This is because I cannot be satisfied that Mr Narse had the authority or was given a direction or had some general discretion to go to a Bunnings store that afternoon.
I do not consider that the report provided by Ms Hamidi or the evidence provided by Ms Semaan assists Mr Narse in this dispute.
The details provided by Ms Hamidi regarding what she was told by Mr Narse during a consultation on 27 July 2021 is based upon her recollection and is prompted by details provided to her by Mr Narse’s lawyers. Greater weight would be accorded to what is contained in that report if it is recited by Ms Hamidi confirmed by her notes from that consultation.
The evidence provided by Ms Semaan that Mr Narse was told by his manager to pursue a CTP claim is not inconsistent with the evidence provided by Mr Houston.
Mr Houston concedes that he told Mr Narse that the respondent’s premiums had increased and that he did not see the point in Mr Narse claiming workers compensation benefits when Mr Summers had said Mr Narse was not going to Bunnings for work. Ms Semaan does not state that Mr Narse told her that he had been asked by Mr Houston to change the details of how the motor vehicle accident occurred.

Whether there was a real and substantial connection between the applicant’s employment and the accident or incident out of which the personal injury arose on the journey from the applicant’s place of employment to his place of abode

Reference has already been made to the test required of s 10(3A) of the 1987 Act as set out by Keating P in Bina at [117]:
“… The subsection will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker is reasonably required, expected or authorised to do, by reason of his or her employment, any accident or incident out of which the personal injury arose.”
I have already provided my reasons as to why I cannot be satisfied that Mr Narse had the requisite authority or permission to go to Bunnings that afternoon, and that the respondent did not induce or encourage Mr Narse to undertake this task. It follows from those reasons that Mr Narse was not required, expected or authorised to go to Bunnings that afternoon to obtain materials or supplies, and Mr Narse therefore does not meet the provisions of s 10(3A) of the 1987 Act.
There will therefore be a determination that there was no real and substantial connection between the applicant’s employment and the incident out of which the applicant’s injury arose in the journey undertaken by the applicant from his place of employment to his place of abode on 1 May 2020.

Conclusion

The following determinations will be made in this dispute:
(a) The applicant did not sustain an injury arising out of or in the course of his employment with the respondent on 1 May 2020.
(b) There was no real and substantial connection between the applicant’s employment and the incident out of which the applicant’s injury arose in the journey undertaken by the applicant from his place of employment to his place of abode on 1 May 2020.
There will therefore be an award for the respondent.

[2023] NSWPIC 119

24 March 2023