Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi
[2008] NSWWCCPD 72
•14 July 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Decision set aside on appeal: Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 | ||||||
| CITATION: | Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi [2008] NSWWCCPD 72 | |||||
| APPELLANT: | Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd | |||||
| RESPONDENT: | Nevien Badawi | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC9382-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 26 February 2008 | |||||
| DATE OF APPEAL DECISION: | 14 July 2008 | |||||
| SUBJECT MATTER OF DECISION: | Section 9A of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sparke Helmore | ||||
| Respondent: | Firths | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 26 February 2008 is revoked and the following decision made in its place: “1. An award for the Respondent employer. 2. No order as to costs.” | |||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 26 July 2007, Ms Badawi, the client services, sales and marketing manager with Nexon Asia Pacific Pty Ltd trading as Commander Australia Ltd (‘Commander’), an IT and telecommunications company, attended at Perisher Valley in NSW with her supervisor, Mr Russell, for the purpose of persuing a business opportunity with Perisher Blue, the owner/operator of the ski resort. To that end Ms Badawi and Mr Russell attended a business meeting and social activities, including dinner, with clients from Perisher Blue and other business associates on the afternoon and evening of 26 July 2007.
Arrangements were made for Ms Badawi and Mr Russell to ski with Mr Allan, the principal representative from Perisher Blue, on 27 July 2007. He arranged for Ms Badawi and Mr Russell to receive ski equipment and clothing free of charge. At short notice, Mr Allan withdrew from the skiing activity due to other business commitments. Notwithstanding the client’s absence from the group, Ms Badawi and Mr Russell elected to ski in any event, to occupy time available to them before their transport left the resort at 5.00 pm that day. Whilst skiing Ms Badawi continued to receive work phone calls and to check her emails. In the afternoon she took a skiing lesson. After that lesson she received a phone call from Mr Russell at about 2.30pm requesting she meet him to discuss their business proposal further. Whilst skiing to meet Mr Russell, Ms Badawi received the injury to her left knee for which she now claims compensation.
Commander’s workers compensation insurer (Allianz) declined Ms Badawi’s claim on the basis that her injury did not occur during the course of her employment, or alternatively, her employment was not a substantial contributing factor to the injury as required under section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 6 December 2007 Ms Badawi filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’) claiming weekly compensation at a rate of $1,538.46 per week from 27 July 2007 to 22 October 2007 and medical expenses in the sum of $3,133.85.
The matter proceeded to arbitration hearing on 12 February 2008. Both parties were represented. The Worker gave evidence and was cross-examined and both parties made oral submissions. The Arbitrator reserved and issued her decision on 26 February 2008. She found that Ms Badawi suffered injury to her knee in the course of employment and, under section 9A of the 1987 Act, that her employment was a substantial contributing factor to the injury.
On 25 March 2008, Commander sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the Arbitrator’s decision. The Appellant does not challenge the Arbitrator’s finding that Ms Badawi suffered the injury to her knee in the course of employment, but challenges the finding under section 9A, that her employment was a substantial contributing factor to the injury.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 26 February 2008, records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. The Respondent to pay the Applicant weekly benefits compensation pursuant to section 36 at the rate of $1538.46 per week from 27 July 2007 to 22 October 2007.
2. The Respondent to pay the Applicant’s section 60 medical and treatment expenses.
3. The Respondent to pay the Applicant’s costs as agreed or as assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in her application of section 9A in:
1) finding there was the necessary casual relationship between the employment activity Ms Badawi was engaged in at the time of injury and the injury itself, and
2) exercising her discretion on the facts to find that employment was a substantial contributing factor to the injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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 Numbers 1 and 6, the documents that are before me, and the submission 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 25 March 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The thresholds under section 352(2)(a) and (b) are satisfied.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
EVIDENCE AND SUBMISSIONS AT THE ARBITRATION HEARING
There is no dispute between the parties that Ms Badawi suffered injury to her left knee when she fell whilst skiing at Perisher on a business trip. The MRI scan dated 20 August 2007 showed a ruptured anterior cruciate ligament, and fractures of the tibia and fibula. In addition, the Worker developed a serious complication of pulmonary emboli, and a collapsed right lung, which required an emergency admission to hospital and ongoing treatment.
At the hearing, Ms Badawi relied on her signed statement dated 19 November 2007. She confirmed that her duties as client services manager, required her to manage clients’ accounts, to regularly meet with clients both locally and nationally, and to maintain and develop those relationships. She stated that she, and her supervisor, Mr Russell attended at Perisher from 26 to 27 July 2007, to meet representatives from Perisher Blue with the aim of securing Perisher Blue as a new client. The Worker stated that she arrived at Sydney airport at 8.30 am to fly to the Snowy Mountains Airport, upon arrival, they transited to Perisher by coach and attended a two hour afternoon meeting with representatives from Perisher Blue, including Mr Allan and representatives from Telstra and Alcatel-Lucent.
In addition to the business meeting, the Worker, her partner, and Mr Russell attended social engagements in the evening with staff from Perisher Blue and also arranged to ski and have lunch with Mr Allan the following day. Mr Allan’s hospitality extended to paying for ski equipment hire for Ms Badawi, her partner, and Mr Russell.
On 27 July 2007, due to other work commitments, Mr Allan was unable to ski or lunch with Ms Badawi and Mr Russell. Ms Badawi stated, at [17] of her statement:
“As skiing had been planned, and my direct manager and I had hired the ski gear [paid for by Mr Allan] and [sic] it was decided that we would continue with the skiing activity. In between skiing runs, we continued to check our mobiles for calls, discuss the proposal generally and deal with emails that went to our phones.”
Ms Badawi stated that after skiing “for a considerable part of the day”, she received a telephone call from Mr Russell asking her to meet with him to discuss further aspects of their business proposal, prior to departing on the coach to the airport at 5.00 pm. Ms Badawi stated that she was at the top of the mountain, having completed a ski lesson, when she received the call from Mr Russell, and when she commenced to ski down to meet Mr Russell she fell injuring her knee. She required assistance from the resort ski patrol to descend the mountain on a rescue sled.
Ms Badawi stated that client entertainment is budgeted for and a routine part of her job. In her executive role she would regularly take clients for meals, to events and activities such as sailing and other recreational activities. She would participate in activities that interested the client and this was a regular part of, and pivotal to, her role as client services manager. Ms Badawi believed, that given Perisher is a ski resort, skiing was a “business-related activity”.
At the arbitration hearing, Ms Badawi gave very limited oral evidence. Mr Baker, counsel for the Employer, sought clarification in cross-examination that Ms Badawi’s ski lesson took place half way up the mountain. It commenced at 12.30pm and was of 45 minutes duration. Mr Russell rang at about 2.30 pm to request her attendance to meet with him to discuss their business proposal. In re-examination, Mr Beauchamp, counsel for Ms Badawi, confirmed that she was due to bring the ski equipment back at 5.00 pm.
The Worker also relied on a factual investigation report prepared by MJM dated 21 September 2007 at the request of Allianz. This report contained a number of unsigned statements from senior staff of the Employer.
Mr Russell’s unsigned statement dated 17 September 2007, confirmed that meeting with and securing business from Perisher Blue was a big opportunity for both himself and Ms Badawi. The purpose of the trip was to spend a number of days meeting and socialising with Perisher Blue’s key people. He confirmed that they were looking for activities to do and the main aim was to ski with Mr Allan and have lunch with him on the Friday (27 July 2007) and on that basis flights were arranged to leave on Friday evening.
Mr Russell stated that after Mr Allan said that he was unable to join them, they had time on their hands and they each arranged ski lessons, which they paid for themselves, along with their lift passes. Mr Russell was in a more advanced class and Ms Badawi and her partner were in a beginner’s lesson. Mr Russell and Ms Badawi also checked emails and business information on their phones. Mr Russell confirmed that the lessons finished at 1.45 pm and at about 2.30 pm he telephoned Ms Badawi requesting she meet with him. He next heard from her partner to advise that she had fallen when she commenced to ski down the mountain to meet him.
Mr Russell’s statement refers to skiing with the client as being very important and that “people buy through relationships and not through products”. The skiing was conducted “with [Mr Russell’s] knowledge and direction”. He gave authority and approval for the skiing on the business trip.
The Respondent’s Reply annexed a copy of the ‘Outcome of Review by Insurer’ under section 287A of the 1998 Act. In this document the Respondent detailed the reasons for declining liability. Those relevant to the section 9A issue on appeal are:
1) The Worker skied with her boyfriend knowing that that the skiing would not be an opportunity to spend time with the client and foster the business relationship;
2) The Worker paid for her own ski lift ticket and ski lessons undertaken immediately before the accident;
3) She was skiing with her boyfriend not with her supervisor, and
4) Being employed as an account manager, Ms Badawi was not engaged in work for her employer at the time of the injury.
The ‘Outcome of Review by Insurer’ had attached to it, ‘Appendix A’ which listed the documents which the Insurer relied upon relevant to its decision. The documents listed include the MJM factual report dated 21 September 2007, the Worker’s claim form dated 9 August 2008, two medical certificates and two letters from the Worker’s solicitors dated 4 October 2007 and 5 October 2007.
At the hearing before the Arbitrator, the Worker’s counsel’s submissions on the application of section 9A are found at page 6, lines 47-58 and page 7, lines 1 to 14:
“Once you’re in the course of your employment or arising out of the employment and this is an activity absolutely related to your employment, that is, actually attending before one of the officers, senior officers, of the respondent, then there's no doubt in this case, unlike Allan’s case, that the fall caused the injury to the knee, the knee caused the incapacity, therefore, the nexal link exists. So 9A becomes an irrelevance once it's found that the activity is actually a work activity. And those cases, like the lady who is picking up the piece of paper on the ground and those sorts of things, are all causation cases in terms of section 9A, they're all about whether the activity that you were doing was capable of causing the damage that was suffered. Likewise, the chap getting out of the bathtub in ‑ I think he was in Africa ‑ no, he might have been in Hong Kong while he was working for Qantas. He won his case because he was getting out of a bathtub and not out of a shower. I can't think of the name, but I did the case for him. And at home he didn't have a bathtub; he only had a shower. So there was an increased risk. And at this lady's home I want you to assume that at Belmore there are no slopes, no ski fields, no probability of this type of injury. So it's clear that the work‑related activity causes it. That's all I need to say.”
It was also submitted on behalf of Ms Badawi that a benefit accrued to the Employer, and “part of this deal was to keep the prospective client happy” (transcript page 14, line 8).
Further, it was submitted that at the time she was injured, Ms Badawi was responding to a direct request from her supervisor. He knew where she was when he asked to come down and speak with him and it was expected that she would ski down the mountain to attend the meeting.
In reply, Mr Baker submitted that if Ms Badawi had been injured whilst skiing with Mr Allan, the client, the Employer would have no defence and the injury would be compensable. The Employer argued that from the time Mr Allan advised that he was unable to keep the skiing and lunch arrangements, Ms Badawi was in “free time”. “They are not required to entertain Mr Allan” (transcript page 7, line 55).
It was argued that, accepting that Ms Badawi and Mr Russell checked telephone calls and emails in the morning, from the time they decided to take skiing lessons, pay for the ski lessons and the lift pass, the character of the activity changed. Ms Badawi’s taking of skiing lessons and skiing after the lesson was not an activity authorised, related to or required by her duties. Counsel for the Employer relied on the decision of Neilson J in Stanton-Cook v TAFE Commission (NSW) (1999) 17 NSWCCR 632(‘Stanton-Cook’), the decision of Bishop J in Farrelly v Qantas Airways Limited (2001) 22 NSWCCR 331 (‘Farrelly’).
SUBMISSIONS ON APPEAL
The Appellant contends that the Arbitrator’s decision contains an error of law insofar as she found the Respondent worker’s employment was a substantial contributing factor to the injury.
Commander concedes, properly in my view, that Ms Badawi’s received her injury in the course of her employment and that she satisfies the requirements of section 4 of the 1987 Act. However it is submitted that, for the purposes of section 9A of the 1987 Act, it is insufficient to prove that the employee was injured in the course of employment and that a causal relationship must be established between the work activity and the injury and the Arbitrator erred in finding that there was such a causal relationship in the circumstances of this case.
The Employer submits that at the time of injury the Worker was not performing positive work activities and it is not sufficient to find that section 9A is satisfied by finding that the activity being performed was authorised or sanctioned by the employer. Once the client cancelled the skiing engagement, Ms Badawi was no longer undertaking her role as a marketing manager, or courting Perisher Blue as a potential client and “From the time of the cancellation of this meeting the respondent worker was engaged in an unrelated activity with her boyfriend” (Appellant’s submissions on appeal at [2.7]).
In reply to the appeal, the Worker submits that the authorities of Mercer v ANZ Banking Group (2000) 48 NSWLR 740, (2000) NSWCA 138 (‘Mercer’) and Farrelly establish that it is sufficient to prove that the injury arose in the course of employment and there was a causal connection with the employment, which is of a lesser degree than that required to prove that the injury arose out of the employment.
The Worker relies on the remarks of Armitage J in Reed v Qantas Airways Ltd 18 (1999) NSWCCR 461 where his Honour said at [55]:
“…the fact that he was where he was doing what he was doing in the precise location where he was doing it was, in my view a matter dictated by the requirements of his contract of employment, so that the employment in this case contributed substantially to the occurrence of the injury.”
It is submitted that the Arbitrator correctly identified the “implied and express duties, obligations, liberties and expectations associated with her employment.” (Ms Badawi’s submissions on appeal dated 24 April 2008). She applied the authorities and demonstrated no error in finding that the Worker’s employment was a substantial contributing factor to the injury.
ARBITRATOR’S DECISION
The Arbitrator’s findings and determination in relation to section 9A are found at [21] – [24] of her statement of reasons and are as follows:
“21. Section 9A of the Workers Compensation Act 1987 (the 1987 Act) provides that no compensation is payable unless the employment is a substantial contributing factor to the injury. The Respondent relied on a Commission decision in Le Brocq v Australian Mushrooms Pty Limited & Ors (2007) NSWWCCPD 136 (Le Brocq). In that decision despite finding that the worker was in the course of his employment at the time of the injury, the Deputy President decided the worker was not entitled to compensation because at the time of the injury he was not engaged in a work related activity. He was engaged in a personal activity even though he was using the employer’s forklift with the authority of the employer. That decision is distinguishable from the facts before me.
22. The law is well established that what is required to satisfy the requirements of section 9A is a causal relationship between the injury and the work performed contributing to the injury (Mercer v ANZ Banking Group (2000) NSWCA 138; Meeson v Placer Pacific Management Ltd and Placer (Png) Exploration Pty Ltd and WorkCover Authority of NSW (2002) NSWCC 47; Healey v Delta Electricity (2000) NSWCC 21 and Muscat v Woolworths Ltd (2000) NSWCC 16 (Muscat)).
23. Ms Badawi’s work at the relevant time was to attend Perisher in order to secure the business of Perisher Blue. Perisher Blue is in the business of skiing and entertaining skiers. The skiing undertaken by Ms Badawi on 27 July 2007 was impliedly authorised and sanctioned by her employer as part of the requirements in undertaking her role as sales and marketing manager in the courting of Perisher Blue as a potential client. It was well established law that “employment” extends to acts that are not inconsistent with the duties of employment (Muscat’s case). Although Ms Badawi was not employed to ski, she was employed to secure the business of Perisher Blue. The client expected she would be skiing on 27 July 2007. Arrangements were made to that effect. I am satisfied Ms Badawi was carrying out of an activity that is incidental to Ms Badawi’s employment with the Respondent at the time of her injury. There is no evidence before me of any gross misconduct contributing to the injury. There is no evidence that she would have injured her left knee had she not been in Perisher skiing. I am satisfied Ms Badawi’s employment was a substantial contributing factor to her injury to the left knee. I am satisfied that the requirements of section 9A are satisfied.
24. I am satisfied that Ms Badawi is entitled to compensation pursuant to the 1987 Act for the period she was totally incapacitated.”
LEGISLATION AND AUTHORITIES
Section 9A reads as follows:
9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
In the second reading speech, Legislative Council on 26 November 1996, page 6501-10, the Attorney General, said with respect to the introduction of section 9A:
“Turning to the details of this package, the bill will limit compensation coverage to situations where employment is a substantial contributing factor to the worker’s injury or disease. This is in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work. The amendments specify that the weaker test of considering whether an injury arose out of or in the course of employment will no longer be enough by itself. Questions relevant to whether the employment was a substantial contributing factor in a worker’s injury can include the time and place of the injury, the nature and duration of the work, whether it was merely a coincidence that the injury occurred at work, and the extent of any non‑employment contributing factors” (emphasis added).
Section 9A was considered in Stanton-Cook where Judge Neilson held at paragraph [44]:
“However, since the enactment of s 9A, it is insufficient to prove that the employee was in the course of his employment. It must be established that the injury arose out of the employment, that is there was a causal relationship between the injury and the work which the worker is required, expected or authorised to do in pursuit of his employment contract.” (emphasis added)
Mason P observed in Mercer that there may be more than one substantial contributing factor to an injury and “[t]he word ‘substantial’ qualifies ‘contributing factor’, thereby indicating that it is the strength of the causal linkage that is in question” (see Mercer at [17]).
Further, in Mercer at [22] Mason P said:
“The worker correctly submits that the words ‘employment concerned’ in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of “a substantial contributing factor to an injury” is exegeted in ss (2) and (3) of s 9A.” (emphasis added).
In Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46 (‘Dayton’), the Appellant, Mr Dayton sought compensation on the basis that stressful events at work at Coles caused him to develop schizophrenia. The judge at first instance found that the major causes of Mr Dayton’s schizophrenia were biological susceptibility and prolonged use of marijuana. In dismissing Mr Dayton’s appeal, the Court held that findings as to the relative contributing factors to an injury are questions of fact and questions of impression and degree. As noted by Giles JA at [22]:
“...‘substantial’ qualifies ‘contributing factor’, indicating that it is the strength of the causal linkage that is in question: and it is ‘the employment concerned’ which must be a substantial contributing factor, meaning not the fact of being employed but what the worker was doing in his employment” (emphasis added).
Mr Farrelly, a Qantas flight attendant, was injured during ‘slip time’ between rostered flights whilst staying at the hotel at Long Beach, Los Angeles. Qantas provided staff with recreational equipment for use at their hotel accommodation. Staff would pay a nominal amount each week for use of the equipment. Mr Farrelly selected a bicycle from the equipment and rode it along an exercise track on Long beach. Whilst riding he lost his balance and fell from the bike after trying to avoid a small girl who moved out in front of him. As a result of the fall Mr Farrelly sustained injury to his right shoulder. Whilst the employer encouraged its staff to remain fit and provided the equipment through the recreational club, Bishop J in a reconsideration application confirmed the award for the respondent and held:
“Even if this was to be regarded as a contributing factor to the subject injury, the contribution in my opinion was not substantial and in particular not substantial in comparison to the action of the little girl and the applicant’s own freely expressed interest in personal fitness” (Farrelly at [20]).
In McMahon v Lagana [2004] NSWCA 164 (‘McMahon’), the worker was employed on a fishing vessel as a deckhand and lived on the boat whilst at sea and also when in port, unless it was fishing near Evans Head, his home town and then he would live at home. Whilst the boat was moored at Ulladulla, the worker completed his work duties at about midday. Later that day he went to a hotel, after which he was involved in a fistfight. The worker returned to the boat and then went ashore after being challenged by the man he had previously fought. The assailant attacked the worker with a machete causing serious injuries.
At first instance, a Commission arbitrator found that the worker did not suffer an injury arising out of or in the course of employment nor was his employment a substantial contributing factor to the injury.
Deputy President Fleming, on appeal found that the arbitrator had erred in the application of section 4 and the test in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473. She found that the whole time he was residing on the boat he was in an overall period of employment and what followed when he finished his duties on the boat around midday was an interval or interlude in his overall period of employment and therefore the injury occurred in the course of his employment. The Deputy President also found that his employment was not a substantial contributing factor to his injuries. The worker appealed the Deputy President’s decision on the basis that she had erred in not finding that the worker’s employment was a substantial contributing factor to his injury.
The Court of Appeal dismissed the appeal, Hodgson JA, with Santow JA and Stein AJA agreeing, held at [36]:
“…the circumstance that the living arrangements induced or encouraged by the employer could be considered as exposing the appellant to an increased risk of injury, could possibly have supported a finding that employment was a substantial contributing factor. However, there were countervailing factors, including the circumstance that the appellant was not performing any positive duties, and the circumstance that attendance at the hotel and subsequently going onto the wharf to continue dealings with the assailant, even if they might be considered as incidental to the circumstances of residence, were not themselves induced or encouraged by the employer. In my opinion, it could not be said that the facts were so compelling that the Deputy President's finding that the employment was a minor contributing factor and not a substantial contributing factor was one which indicated an error of law” (emphasis added).
Justice Hodgson added, at [35] that:
“…the question whether the worker is performing positive employment duties or is merely in an interval between such duties, when the injury occurs, may be relevant to whether the employment was a substantial contributing factor to the injury;”
The Court treated substantial contributing factor as “a distinct and additional question to that of the course of employment” (Hodgson JA at [33]).
In Chubb Security Pty Ltd v Trevarrow [2004] NSWCA 344, Ms Trevarrow, a part time security guard who provided security services at a premises in Baulkham Hills, was on a rostered day off when she attended at the corporate premises of Chubb in Ashfield to complain to her supervisor about a co-worker’s behaviour and to submit a medical certificate to support a pending claim for sick leave. Before attending to those tasks Ms Trevarrow slipped and fell in Chubb’s car park suffering injury. Chubb’s primary submission on appeal was that Ms Trevarrow was not entitled to compensation because her employment was not a substantial contributing factor to her injury under section 9A. In dismissing the appeal from Deputy President Byron, Santow JA, with whom Beasley JA and Ipp JA agreed, held at [33] – [35]:
“33.The actual work activity in which Ms Trevarrow was engaged was attending the headquarters of her employer in order to discuss the terms and conditions of her employment, and in particular make a complaint about the behaviour of her co-worker. To my mind that falls squarely within the test as set out in Mercer. The activity of making a complaint about a co-worker was, if not directly part of her usual employment activities, certainly part of it in an incidental or ancillary sense. Ms Trevarrow's employment was an instigating factor (being a characteristic of the conditions in which her work was performed) in her attendance at the Ashfield premises, where she sustained the injury.
34.It is misconceived to attempt to interpret employment as confined essentially to Ms Trevarrow walking her beat around the IBM premises at Baulkham Hills to which she was assigned to guard. The respondent's written submissions correctly criticise this as an attempt to resurrect a narrow interpretation which was rejected by the High Court in respect of s4 in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (at 632-3, 642). The respondent correctly states that there is nothing in Mercer or any other authority to suggest that the same approach is inapplicable to s9A.
35.No error of law has been shown in the legal tests as set out by the Deputy President in relation to s9A, and consequently there is no appellable error of law. The Deputy President's conclusion that the employment was a substantial contributing factor was a finding of fact - a matter of impression and degree, albeit informed by legal considerations - and against such findings, no redress is provided by s353 WIM: see McMahon v Lagana [2004] NSWCA 164. In any event, in my view, the particular finding that Ms Trevarrow's employment was a substantial contributing factor was entirely appropriate, being well open on the state of the evidence.”
The Appellant relies on the decision of Acting Deputy President Martin in Le Brocq. This decision was recently upheld on appeal (see Le Brocq v WorkCover Authority of New South Wales [2008] NSWCA 125). In that matter, Mr Le Brocq was injured when the employer’s forklift he was driving rolled over. At the time of the injury he was using the employer’s forklift to remove steel benches he had been given permission by his employer to take for his own use. The Court upheld Acting Deputy President Martin’s decision that the worker was not performing work for his employer at the time of the injury because he was not “performing positive employment duties” but was in an interlude within an overall period of employment. The only connection with the employer was that the injury was sustained on the employer’s farm, using the employer’s equipment, and in an interlude in an overall period of employment.
Rein J, with whom Tobias JA and Gzell J agreed, considered and applied the approach taken by Mason P in Mercer noting at [24]-[26]:
“24. S 9A(4) requires the “employment concerned” to be a substantial contributing factor. In Mercer Mason P noted at [13] – [17] that one starts with the question of ‘what if anything the worker was in fact doing in his or her employment that caused or contributed to the injury’, and then considers whether the employment was a contributing factor and, if so, to then consider the strength of the causal linkage between the injury and the contributing factor, to determine whether that factor is a substantial one.
25.Thus there is a need to determine what was the Appellant’s employment and to determine whether the activity or task which led to the injury was an activity or task falling within the tasks required by virtue of the contract of employment or was incidental to those tasks; for example, taking lunch during the course of work. In this case it was conceded that at the time of his injury, the Appellant ‘was not engaged in any work on behalf of the employer’: 112 O to P of the Red Appeal Book and see also 117 S to U where that finding was made. This case is quite different to Mercer where the employee was performing tasks that were part of her employment on the premises of her employer. It is quite clear that the work in which the Appellant was engaged, namely sorting through, and removing, benches for his own requirements, was not work being carried out on behalf of AMPL (or Metro). The finding that AMPL induced or encouraged the Appellant to use its forklift in response to his request did not, it appears, lead the Acting Deputy President to doubt the factual conclusion that the work performed by the Appellant was not to be viewed as work for, or an activity of, the employer and there was no suggestion made before us that there was an inconsistency in the two findings.
26. S 9A(3)(a) makes it clear that the fact that the injury arose out of, or in the course of, or arose both out of and in the course of employment is not of itself sufficient to make the worker’s employment a substantial contributing factor” (emphasis added).
The Court rejected the appellant’s submissions that the Acting Deputy President erred and held at [28]:
“It appears that, in assessing the degree to which the Appellant’s employment was a substantial contributing factor, the Acting Deputy President regarded the fact that the injury occurred during an interval or interlude within an overall period of work and that the Appellant was not then engaged in any work on behalf of the employer, as of considerable significance. That was a conclusion clearly open to him on the facts as found. It does not bespeak error of law” (emphasis added).
DISCUSSION AND FINDINGS
The Arbitrator’s reasoning at paragraph [23] of her statement of reasons referred to at [40] above, clearly demonstrate that she considered a number of factors she regarded as relevant to her determination that employment was a substantial contributing factor to Ms Badawi’s injury. She referred to the following:
1) Ms Badawi’s work was to attend Perisher in order to secure the business of Perisher Blue;
2) Perisher Blue is in the business of skiing and entertaining skiers;
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3) the skiing undertaken by Ms Badawi was “impliedly authorised and sanctioned by her employer as part of the requirements in undertaking her role as sales and marketing manager in the courting of Perisher Blue as a potential client”;
4) ‘employment’ extends to acts that are not inconsistent with the duties of employment;
5) the client expected she would be skiing and made arrangements to that effect;
6) whilst she was not employed to ski, she was employed to secure the business of Perisher Blue;
7) there was no evidence of gross misconduct, and
8) there was no evidence she would have injured her knee of she had not been skiing.
After considering the factors listed above, the Arbitrator concluded that Ms Badawi’s employment was a substantial contributing factor to the injury she sustained to her left knee.
Whilst the factors referred to at [58] above, are relevant to whether the Worker was in the course of her employment at the time of the injury, they do not, of themselves, establish that employment was a substantial contributing factor to the injury.
Substantial contributing factor is a separate and additional question that must be determined, in addition to determining that the worker was in the course of employment (see Dayton at [33]). Ultimately, findings as to the relative contributing factors to an injury are questions of fact and questions of impression and degree (see Dayton at [29]).
In order to establish that employment was a substantial contributing factor to the injury, it is necessary:
“…to determine what was the worker’s employment and to determine whether the activity or task which led to the injury was an activity or task falling within the tasks required by virtue of the contract of employment or was incidental to those tasks (per Rein J, P in Le Brocq at [25]).”
In the present case “the activity or task, which led to the injury” (Le Brocq at [25]) was the activity of skiing. Ms Badawi’s evidence was:
“With a view to meeting with Mr Russell as arranged I commenced skiing down the mountain when I fell suffering a significant injury too my knee” (Ms Badawi’s statement dated 19 November 2007 at [18]).
As conceded by Mr Baker at the arbitration, if Mr Allan had been skiing with Ms Badawi as part of a client relationship building activity, then there would be no doubt that not only was the Worker in the course of employment but that her employment was a substantial contributing factor to the injury. However, the fact that Mr Allan withdrew from the arranged skiing activities that morning and Mr Russell, Ms Badawi and her partner decided to ski throughout the day, including taking ski lessons and purchasing lift passes at their own expense, changed the character of the skiing to one that was primarily a recreational activity.
The Arbitrator failed to consider, or give sufficient weight to, the recreational character of the skiing in assessing whether it, and therefore the employment, was a substantial contributing factor to the injury, other than to observe that it was impliedly authorised and sanctioned by the employer.
In assessing the strength of the connection between the employment and the injury, it is necessary to consider the terms of section 9A(2). The matters to be taken into account in determining if section 9A is satisfied are listed in section 9A(2) and include, but are not limited to:
(a)the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
Applying the terms of section 9A(2), I make the following findings and observations:
a) In relation to ‘the time and place of the injury’, the injury occurred at 2.30 pm on Friday 27 July 2007 when Ms Badawi was skiing with her partner as she had “time on [her] hands” (Mr Russell’s statement at [29].
b) In relation to ‘the nature of the work performed and the particular tasks of that work’, Ms Badawi was not performing any work activity at the time that she received the injury, but was skiing with her partner because they had “time on [their] hands”.
c) ‘The duration of employment’ is not relevant in this particular case.
d) In relation to ‘the worker’s state of health before the injury and the existence of any hereditary risks’, there was no evidence that Ms Badawi had any problem with her left knee prior to the injury.
e) In considering ‘the probability that the injury or a similar injury would have happened anyway’, it was highly unlikely that Ms Badawi would have sustained the injury she did had she not been skiing.
f) In relation to ‘the worker’s lifestyle and his or her activities outside the workplace,’ there is no evidence that Ms Badawi’s lifestyle caused or contributed to her injury.
Once Mr Allan withdrew, the skiing was, at most, incidental to her employment but was primarily recreational. Whilst she was permitted to go skiing even after Mr Allan opted out, she was not required or expected to do so. As in Le Brocq, the activity in which Ms Badawi was engaged when she received the injury was not, in the circumstances of this case, “work for, or an activity of, the employer” (see Rein J in Le Brocq at [25]).
Whilst it could be argued that employment was a contributing factor, in that it was her employment that took her to Perisher, it was not a substantial contributing factor to the injury. Skiing after the client cancelled, buying a ski lift pass, paying for ski lessons and skiing with her partner, all contributed to change the character of the skiing activity to one that was primarily volitional and recreational, and significantly diminished the strength of the causal connection between the injury and her employment. Critically, it is the “strength of the causal linkage that is in question” (per Giles J in Dayton at [22]) and there is an insufficient linkage in the present case to justify a finding that section 9A is satisfied. Such a finding is also consistent with the approach adopted in Farrelly.
I have carefully considered whether the casual linkage with the employment was strengthened by the fact that immediately before the injury Ms Badawi took a telephone call from Mr Russell, who asked her to meet with him to discuss additional aspects of the business proposal prior to their departing on the coach to the airport. Ms Badawi responded to this request immediately and she injured her knee while skiing to meet Mr Russell. There is, however, no evidence that Ms Badawi was injured because she was distracted by the telephone call or because she was hurrying to meet him. To the contrary her evidence was that she agreed to meet with him and commenced to ski down the mountain and fell. With or without the telephone call from Mr Russell, Ms Badawi would have descended the mountain in any event, and I do not consider that the telephone call from Mr Russell introduces any additional employment link, or sufficiently strengthens the causal link to the employment, to justify a finding under section 9A in favour of Ms Badawi.
Therefore, on balance, having conducted a “review on the merits” (per Spigelman J in State Transit Authority v Fritzi Chemler [2007] NSWCA 249 at [28]), I am not satisfied Ms Badawi’s employment was a substantial contributing factor to her injury and the Arbitrator’s finding and orders in Ms Badawi’s favour must be revoked.
DECISION
The decision of the Arbitrator dated 26 February 2008 is revoked and the following decision made in its place:
“1. An award for the Respondent employer.
2. No order as to costs.”
COSTS
No order as to costs of the appeal.
Judge Greg Keating
President
14 July 2008
I, MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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