Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos
[2024] NSWPICPD 7
•6 February 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos [2024] NSWPICPD 7 |
APPELLANT: | Ready Workforce (a Division of Chandler Macleod) Pty Ltd |
RESPONDENT: | Costa William Andronicos |
INSURER: | RGF Staffing APEJ Pty Ltd |
FILE NUMBER: | A1-W4983/22 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 6 February 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 7 February 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Fresh evidence on appeal – s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; CHEP Australia Ltd v Strickland [2013] NSWCA 351 applied – journey provisions – s 10 of the Workers Compensation Act 1987 –statutory construction - Second Reading Speech considered - Saeed v Minister for Immigration and Citizenship [2010] HCA 23; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr N Maley, solicitor | |
| Holman Webb Lawyers | |
| Respondent: | |
| Mr S Moffet, counsel | |
| Walker Law Group | |
DECISION UNDER APPEAL | |
MEMBER: | Mr G Whiffin |
DATE OF MEMBER’S DECISION: | 7 February 2023 |
INTRODUCTION AND BACKGROUND
The respondent, Mr Costa Andronicos, commenced employment with the appellant, Ready Workforce (a Division of Chandler Macleod) Pty Ltd (a labour hire company) in 2017 as a casual on-hire employee. He was assigned by the appellant to work as a bus driver for Keolis Downer Northern Beaches Pty Limited (Keolis).
On 11 April 2022, after finishing his shift at Keolis and walking to his car, the respondent sustained injuries to his right hip and right shoulder after tripping over a bumper stopper within a car park located at the same address as Keolis, namely, 1472 Pittwater Road, Warriewood. There were several lots at this location, of which Keolis leased an office and some 12 parking spaces (within Lot 1 DP1250192). The area in which the respondent tripped was within Lot 1, but not within the office or car park spots specifically leased by Keolis.
The impact of the fall was so significant that the respondent required hospitalisation and surgery by way of a total right hip replacement and correction of a right rotator cuff repair. A claim for workers compensation was provisionally accepted but subsequently denied by the appellant in notices issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 23 and 24 June 2022. The basis of the denial was that the injury was not sustained in the course of employment as defined by s 4 of the Workers Compensation Act 1987 (the 1987 Act). Rather, the appellant believed the respondent was on a journey at the time of his injury, which was not compensable because there was no real and substantial connection between employment and his accident, a requirement under s 10(3A) of the 1987 Act. The appellant denied that the circumstances of the fall were related to employment, as it had occurred in a public space which neither it nor Keolis had any control over.[1]
[1] Application to Resolve a Dispute (ARD), pp 79–88.
This denial was maintained following a review conducted under s 287A of the 1998 Act which maintained that the fall occurred outside of employment, and specifically, outside the car park area that Keolis had leased.[2] In seeking this review, the respondent supplied an email which became a key piece of evidence in the proceedings below, and also in this appeal. The respondent said that this email from Mr Eamonn Murray of Keolis, dated 8 April 2022 “instructed” him to park in the specific car park prior to his shift.[3] It stated:
“As of this morning we have now commenced operating out of our new offices at Warriewood adjacent to the southbound B-line stop (1472 Pittwater Road Warriewood if you ever need an address)
To confirm at this stage you can park in the B-line car park in any spot that does not require you to go through the boom gate so that is where from you enter, around to the left and outside and then back around to the right to exit. Please do not park in our marked spots as cars will be infringed if they are not authorised
On busy days if its full the u [sic] may need to find another spot like in the spots adjacent to Rat Park.”[4]
[2] ARD, p 99.
[3] Request for Review, ARD, p 94.
[4] ARD, p 96.
A subsequent request to for review was made by the respondent, care of his solicitors.[5] In this request, the appellant was asked to consider the application of Green v Secretary, Department of Education and Communities[6] and Smith v Woolworths Limited,[7] authorities which respectively dealt with the issues of the boundary of employment, and more specifically, an injury sustained in an employee car park (Smith). The appellant maintained its dispute pursuant to ss 4 and 10. It asserted that the authorities were not applicable, and the email of 8 April 2022 was not a direction relating to employment; it was merely a statement that parking was available if employees wished to use it. The appellant also raised s 9A of the 1987 Act.[8]
[5] ARD, p 105.
[6] [2014] NSWWCCPD 71 (Green).
[7] [2017] NSWWCC 290 (Smith).
[8] ARD, pp 107–113.
Proceedings thus commenced in the Personal Injury Commission (the Commission) before Member Whiffin, who heard the matter by way of written submissions following an unsuccessful conciliation. As summarised helpfully in the Statement of Reasons attached to his Certificate of Determination of 7 February 2023,[9] the issues for determination by the Member were whether the respondent was on a journey at the time of injury and if so, whether there was a real and substantial connection to employment and the accident in accordance with s 10(3A) of the 1987 Act; if not, whether the injury arose out of, or in the course of employment (s 4) and whether employment was a main contributing factor (s 9A). Pending this, the Member was tasked with determining the extent of the respondent’s entitlement to weekly compensation and medical expenses.[10]
[9] Andronicos v Ready Workforce (A Division of Chandler Macleod) Pty Limited [2023] NSWPIC 44 (reasons).
[10] Reasons, [9].
The issues raised in the dispute notices were re-ventilated before the Member in written submissions. The Member did not accept the appellant’s dispute. He determined that the respondent’s injury did not occur during a journey; rather, finding that it arose out of or in the course of employment, which was a substantial contributing factor to his injury pursuant to ss 4 and 9A of the 1987 Act. The Member awarded weekly compensation and medical expenses, finding that the respondent had no current work capacity.
The appellant appeals the Member’s decision, submitting that the findings in respect of journey, s 4, s 9A, and capacity are infected with multiple errors of fact and law. The appellant, in support of its submissions against the Member’s findings regarding capacity for work, has also filed fresh evidence on appeal.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant requests that the appeal “should be dealt with by oral submissions expanding on the grounds … given the significance of the matters raised”.[11]
[11] Appellant’s appeal submissions, [3].
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the detailed submissions of the parties, 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. I am not satisfied that this matter requires oral submissions.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE MEMBER’S REASONS
The Member referred to the numerous evidentiary statements before him, including four from the respondent. The Member noted the respondent’s statement of 11 May 2022 indicated that the only office space within the car park belonged to Keolis.[12] In a subsequent statement of 22 July 2022, the respondent explained that there were parking spots allocated for Keolis vehicles, but he was advised through the email of 8 April 2022 (referred to at [4] of this decision) that he could park his personal vehicle in any spot. Accordingly, on the date of his injury, he parked approximately 10 metres from the office. He attended the office to collect keys for the bus he was driving that day and returned them to the office at the conclusion of his shift for a “changeover” with another driver. As he was walking back to his car, he tripped.[13]
[12] Reasons, [35].
[13] Reasons, [19]–[28].
The respondent’s statement of 17 October 2022 attached photographs of the car park, and a diagram of his movements, from which the Member ascertained that the respondent walked up steps to the front office, and then around it into the car park behind it, passing a row of parking spots, then a driving lane, and then another row of parking spots before he tripped. The Member noted the respondent’s belief that “changeovers” were in fact meant to occur in the car park area, but that the respondent was unaware of this on the date of injury.[14] The Member observed another statement of 1 November 2022 confirmed that that the car park was split into two sections, including one behind a boom gate which the respondent did not use as he was directed in the email not to park there.[15]
[14] Reasons, [29]–[31].
[15] Reasons, [33]–[34].
The Member referred to a statement from Ms Lewis, a colleague of the respondent’s, dated 11 May 2022. She advised that the area of the fall was the direct path one would take when leaving the office to go to the car park, there being no other suitable way, and that she too parks her car there.[16] The Member considered to the evidence of Mr Murray who sent the email of 8 May 2022. In conversation with the investigator engaged by the appellant, Mr Murray was questioned as to the ownership and responsibility of the car park. Mr Murray confirmed it was not owned by Keolis nor did they have responsibility for it, as they only leased the office and 12 parking spaces. The Member also outlined the statement of Mr Williams, injury management specialist for the appellant, who said he believed the respondent was “on the premises of Keoride”[17] at the time of injury, his routine requiring him to park his car in the car park “for the company”, drive a mini bus, proceed back into the car park, exit the bus, and get back into his car.[18]
[16] Reasons, [37]–[39].
[17] Earlier in the statement Mr Williams was asked whether ‘Keoride’ is the same as ‘Keolis’ to which he replied, “that’s right”; ARD, p 57.
[18] Reasons, [43].
The Member reviewed a New South Wales Land Registry Title and Deposited Plan search which revealed that Pittwater Council (now part of Northern Beaches Council) was the registered proprietor of the lot on which both Keolis’ office and the car park where the respondent fell were situated.[19]
[19] Reasons, [45].
The lease indicated that the “premises” leased was the office and 12 parking spots. When referenced with the photographs supplied by the respondent, the Member interpreted these to indicate that the respondent had fallen approximately half-way between the office and six of the parking sports leased by Keolis. Although Keolis had not leased the entirety of the land on the lots, there were “common areas” which Keolis employees and the public had access to and could use, including “roads, carparks, elevators, escalators, ramps, stair ways, walk ways, path ways, corridors, entrance ways, exits, courts, foyers, pedestrian malls, toilets, washrooms, recreational areas, storage areas and loading docks”. The Member observed that the lease prescribed obligations on Keolis in respect of common areas, including compliance with law.[20]
[20] Reasons, [55].
In his submissions, the respondent maintained that the injury occurred within the boundaries of Lot 1 DP1250192 just after completing work and when walking towards his car parked within that lot, which was only parked there at the direction of Mr Murray. He said he was not on a journey as the injury occurred before he crossed the boundary of land upon which his employment was situated, within the meaning of Green. It was submitted that his injury occurred “in the” course of employment as the path he took to his car was “within the contemplation” of being incidental to his employment, with reliance on John Stewart & Son (1912), Ltd v Longhurst.[21] It was submitted that his injury also occurred “out of” the course of employment as he was brought to the location at the instruction of Mr Murray’s email of 8 April 2022. With reference to Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited,[22] the respondent submitted that employment was a substantial contributing factor to injury as walking to his vehicle at the end of his shift was conduct either “authorised, encouraged or permitted by the [appellant]”. The respondent asked the Member to consider Smith as an analogous case.[23]
[21] [1917] UKHL 506 (Longhurst).
[22] [2009] NSWCA 324 (Badawi).
[23] Reasons, [63]–[68].
The appellant, on the other hand, argued that the respondent had commenced his journey, having left the boundary of land upon which the employer was based, which was confined to the leased office and the 12 parking spots only. It was submitted that there was no evidence of a real and substantial connection between employment and the incident as required under s 10(3A) of the 1987 Act. Section 10(3A) was introduced to the 1987 Act by the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amendments). The appellant argued that the Second Reading Speech of 19 June 2012 for the Workers Compensation Legislation Amendment Bill 2012, which proposed amendments to s 10 so that “employers will no longer be liable for a journey between a worker’s home and his or her place of work where the risk of injury is outside the control of the employer”, intended that the amendments enacted require analysis of “control by the employer”. It argued that making the employer liable in this circumstance which it had no control over would be a rejection of parliamentary intention. It maintained that the email of 8 April 2022 was not a direction, at best it was an invitation to use a public car park near the office. It argued that Smith was distinguishable as the car park referred to therein was designated for staff, and that the principles in Green did not require consideration here as that case concerned circumstances where the “place of employment” was not defined – in this case the boundary of employment was clearly defined by the lease as the Keolis office and 12 parking spaces.[24]
[24] Reasons, [70]–[77].
The appellant submitted that if the journey had not commenced, then the respondent was not within the course of his employment, primarily due to the lack of control the appellant had over the area outside the leased premises, or the barrier over which the respondent fell, or over the way in which the respondent walked to his car. The act of walking to his car was not incidental to employment. The appellant submitted that the test of arising “out of employment” could be satisfied merely by a worker being brought to where an injury occurs by reason of employment. These facts could be distinguished from Longhurst as in that case, the employer had required a particular form of travel, which was not the case for the respondent in this matter. He was not directed, and did not need to drive to work at all, and could have approached the work area in any way he saw fit. If there was a finding on injury, the appellant argued that the respondent had failed to establish that employment was a substantial contributing factor, and proceeded to address each of the factors prescribed by s 9A(2) of the 1987 Act. The appellant asserted that the respondent had also failed to lead evidence in respect of capacity.[25]
[25] Reasons, [78]–[82].
In reply, the respondent argued that firstly, the boundary of the employer’s land was not determinative in deciding where someone is on a journey – the test in Green was whether the boundary was crossed. The boundary had been not crossed here, as the boundary captured the entirety of Lot 1 including where the respondent fell. Secondly, he argued that whether a worker ceases duties for the day is not determinative for s 4; and thirdly, even though the respondent was not parked in a designated spot, the email of 8 April 2022 resulted in the respondent’s conduct of walking to his car, which both parties could anticipate as incidental conduct that was “authorised, encouraged or permitted” in accordance with Badawi.[26]
[26] Reasons, [84].
The Member did not accept the appellant’s view that the respondent had commenced his journey at the time of sustaining his injury, and as a result, he was not required to consider the application of s 10(3A).[27]
[27] Reasons, [99].
In coming to his view on ‘journey’, the Member acknowledged that there was no dispute that the injury occurred when the respondent finished his duties and was walking to his car, nor was there a dispute that the injury occurred on land which was not leased by Keolis, but it did occur within the same lot on which Keolis was located, and at the street address of 1472 Pittwater Road, Warriewood. The car park in which the accident occurred was a “common area” which employees were given access to, as noted in the email of 8 April 2022 and the lease. The Member accepted that the email would not have been sent if not for advice from the lessor that Keolis employees could use the car park.[28]
[28] Reasons, [86]–[90].
The Member held that he was bound by the decision of Green, where a worker was injured in the foyer of a building on her way to work and was found to be within the boundary of the land upon which her workplace was situated, notwithstanding other occupiers within that address or that another entity owned the land, similarly to the present case. The Member held that the appellant had failed to correctly identify the authoritative tests in Green and Chawla v Transgrid.[29] The Member repeated and applied excerpts from Green, specifically where Roche DP considered the “place of employment”, and Chawla, as authority which confirmed that the question of ownership, control, or management of the land upon which the accident occurred was irrelevant, thus rejecting the appellant’s arguments in this regard. The Member found that Lot 1 of 1472 Pittwater Road, Warriewood was the address of the respondent’s place of employment, and his injury occurred before he crossed outside the boundary of that land, even if the injury was not sustained in the specific premises leased by Keolis. The Member rejected the appellant’s argument that crossing the “boundary of land upon which the employer is based” was determinative – rather, the test was crossing of the boundary of the land upon which the workplace is situated, being 1472 Pittwater Road, Warriewood (Lot 1 DP1250192).[30]
[29] Compensation Court of NSW, Burke ACCJ, 11 June 2002, unreported (Chawla).
[30] Reasons, [91]–[95], [97].
The Member held that the appellant’s reliance on the Second Reading Speech in respect of journey provisions arising from the 2012 Amendments was irrelevant, as this was not an injury sustained on a journey. Further, the Member observed that the case of Green (which applied the older authority of Chawla) had been decided after the legislative amendments to journey provisions, and thus, he rejected the appellant’s argument that the amendments to s 10 in 2012 had affected the application of Chawla.[31]
[31] Reasons, [96], [98].
In deciding whether the injury arose “in the” course of employment pursuant to s 4 of the 1987 Act, the Member referred to Whittingham v Commissioner of Railways (WA)[32] as authority which extended the course of employment beyond normal work hours or place of work, to include actions that are incidental to employment, including that of going to or leaving work. The Member referred to Henderson v Commissioner of Railways (WA)[33] as the test requiring consideration of what a person is “… reasonably required, expected or authorised to do in order to carry out his actual duties. That the workman is liable to the control of the employer is of some importance”.[34]
[32] [1931] HCA 49 (Whittingham).
[33] [1937] HCA 67; 58 CLR 281 (Henderson).
[34] Henderson, 294.
The Member was satisfied that the email sent by Mr Murray of 8 April 2022 was “authorisation for the [respondent] to park in the car park where his injury occurred, and then walk through the car park to the place where his employment duties would begin. Following the sending of the email, the [appellant] clearly expected that he would do so, even though it may not have required him to do so.” The Member accepted that the email was not a direction, and rather, an invitation, but its effect was to create an expectation that the respondent would park thectate it authorised him to do so, noting that another employee parked there too. Henderson was authority that the concept of control was not determinative. The Member found both Longhurst and Smith to be applicable, also being satisfied that the injury arose “out” of the course of employment, as the respondent was brought to the location of injury as a result of the email – if not for it, he may have parked elsewhere. The fact of employment in this job “caused or materially contributed to his injury”.[35]
[35] Reasons, [106]–[111].
The Member was also satisfied that employment was a substantial contributing factor to the injury.[36] The Member confirmed this was an evaluative “question of fact and … a matter of impression and degree”, with reference to Dayton v Coles Supermarkets Pty Ltd[37] and Kelly v Secretary, Department of Family and Community Services.[38] The car park was at the same address as Keolis; the respondent was injured when proceeding along a direct path where there was no other suitable path available to him; and it was a “common area” contemplated to be accessible per the lease. A reasonable inference could be drawn from the email of 8 April 2022 that parking there was authorised, encouraged and permitted (Badawi). The Member was satisfied of the causal connection between employment and the respondent’s injury, finding that the injury was incidental to his employment.[39]
[36] Reasons [122].
[37] [2001] NSWCA 153 (Dayton).
[38] [2014] NSWCA 102 (Kelly).
[39] Reasons, [114]–[119].
The Member also considered the specific factors under s 9A(2) of the 1987 Act. He rejected the appellant’s submissions in regard to these factors, being satisfied of the time and place of injury (the same address as Keolis, moments after he finished work when exiting the premises); that the nature of work was incidental to the injury, and it being improbable that the injury would have happened anyway if not for being in the course of employment. The duration of employment and the respondent’s state of health were not relevant factors under s 9A(2).[40]
[40] Reasons [120]–[122].
In assessing the evidence as to the respondent’s capacity for work, the Member considered the medical evidence was “rather thin”.[41] The Member accepted the opinion of Dr Machart, orthopaedic surgeon who examined the respondent at the request of the appellant, that the respondent was currently unfit for pre-injury employment as a bus driver.[42] In considering suitable employment options pursuant to s 32A of the 1987 Act, and with reference to Wollongong Nursing Home Pty Limited v Dewar,[43] the Member concluded there was no “real job” the respondent was able to engage in. Whilst Dr Machart referred to working at “desk level”, this was no more than a “theoretical proposition”. There was no evidence of any injury management plan, nor an occupational or vocational assessment. He accepted the evidence of the respondent’s general practitioner that the respondent had no current work capacity.[44]
[41] Reasons, [124].
[42] Application to Admit Late Documents (AALD) 21/10/22, p 207.
[43] [2014] NSWWCCPD 55.
[44] Reasons, [123]–[138].
Accordingly, the Member entered orders for the respondent, and the Certificate of Determination issued on 7 February 2023 records:
“The Commission determines:
1. The [respondent] sustained a personal injury to his right hip and right shoulder arising out of and in the course of his employment with the [appellant] on 11 April 2022, pursuant to s 4(a) of the Workers Compensation Act 1987 (the Act). The [respondent’s] employment with the [appellant] was a substantial contributing factor to the personal injury pursuant to s 9A of the Act.
2. Since 11 April 2022, the [respondent] has been incapacitated for work and has possessed no current work capacity, as a result of the injury received on that date.
3. The [respondent] is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the Act paid by the [appellant].
The Commission orders:
1. There will be an award that the [appellant] pay the [respondent] weekly compensation pursuant to s 36(1) of the Act from 7 July 2022 to 22 July 2022, at the rate of $838.70 (as adjusted if necessary applying relevant indexing) per week.
2. There will be an award that the [appellant] pay the [respondent] weekly compensation pursuant to s 37(1) of the Act from 23 July 2022 to date and on a continuing basis, at the rate of $706.27 (as adjusted if necessary applying relevant indexing) per week.
3. There will be an award that the [appellant] pay the [respondent’s] reasonably necessary treatment expenses pursuant to section 60 of the Act.”
GROUNDS OF APPEAL
The appellant relies on the following eight grounds of appeal:
Ground One – The finding that the respondent’s journey had not commenced at the time he was injured was wrong in fact and in law (error of fact and law).
Ground Two – The finding that the respondent’s journey had not commenced at the time he was injured was against the weight of the evidence (error of law).
Ground Three – The finding and reasons given for the finding that the employment with the appellant arose out of or in the course of employment were wrong in fact and in law (error of fact and law).
Ground Four – The finding that the employment with the appellant was a substantial contributing factor to the respondent’s injury was wrong in fact and in law (error of fact and law).
Ground Five – The finding that the employment with the appellant was a substantial contributing factor to the respondent’s injury was against the weight of the evidence (error of law).
Ground Six – The Member misunderstood the test to be applied in determining if the employment with the appellant was a substantial contributing factor to the respondent’s injury, and applied the wrong criteria (error of law).
Ground Seven – The finding that the respondent was incapacitated from 23 January 2023, or at all, was wrong in fact and in law (error of fact and law).
Ground Eight – The finding that the respondent was incapacitated from 23 January 2023, or at all, was against the weight of the evidence (error of law).
PRELIMINARY MATTER – Appellant’s application under s 352(6) of the 1998 Act for leave to lead fresh evidence on appeal
The appellant seeks leave under s 352(6) of the 1998 Act to lead the following six pieces of evidence:
(a) medical certificate issued by Dr G Williams dated 23 January 2023;
(b) letter from Holman Webb, solicitors for the appellant to Walker Law Group, solicitors for the respondent, dated 23 February 2023;
(c) letter from Walker Law Group to Holman Webb dated 27 February 2023;
(d) letter from Walker Law Group to Allianz dated 14 February 2023;
(e) Certificate of Capacity of Dr G Williams dated 13 February 2023, and
(f) letter of Dr G Williams dated 27 February 2023.
Before turning to the arguments in support of and against this application, it is necessary to briefly record the chronology of this matter before the Member. The matter had been listed before the Member for a conciliation/arbitration hearing on 4 November 2022. As the matter was unable to conclude in the time allotted on that date, the Member made directions for the exchange and supply of written submissions, indicating to the parties that the matter would be decided ‘on the papers’. The last date for submissions, which were the respondent’s reply submissions, was 6 December 2022. Both parties were content with that approach.
The decision was subsequently issued on 7 February 2023. Save and except for the first document, being Dr Williams’ certificate dated 23 January 2023, all of the fresh evidence sought to be relied on has only come into existence after the decision had been issued.
The appellant submits as follows:
“The Court of Appeal considered the legislative gateway for the tender of further evidence on appeal (s 352(6) of the 1998 Act) in Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; … per Basten JA
… the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.
The Appellant submits that the new evidence is directly relevant to the issues discussed in Grounds 7 and 8. It is submitted that had this material been available to the Member, it was highly probative and relevant evidence on the issue of capacity. Had it been available, the finding concerning ongoing capacity would not have been made and at best a closed period of weekly compensation would have been awarded under s 37 of the 1987 Act, up to and including 22 January 2023 only.
It is directly relevant to, and shows the error in, the Member’s findings on the facts and the law as set out in paragraph [130] of the Determination, and as discussed further in respect to Grounds 7 and 8 below.”[45]
And further:
“The finding at [130] is wrong in fact and in law and should be rejected. There was acceptable evidence to the contrary, but which was not available to the Appellant employer at the time of its preparing of its case. It was available to the Respondent worker at the time of the issue of the COD on 7 February 2023.
The new evidence … is clearly germane on this point, when the Member made clear that the reason he carried out his analysis at paragraph [131 to 138] was because of the lack of evidence.
That new evidence should be admitted and a finding made that as and from 23 January 2023, the respondent worker was fit for pre-injury duties.
The respondent worker will make a submission that Dr Williams was confused, or did not understand the position, given the later certificate and his explanation. It appears that this explanation was given after the ramifications of his certificate of 23 January 2023 were explained to him by the Respondent worker’s solicitor. However, it is submitted that the unguarded evidence of Dr Williams, in the certificate of 23 January 2023, is the best evidence and should be accepted. The balance of the evidence should be rejected as it was created once it was realised what the consequences of giving of this unguarded, truthful, evidence was. According to the Fox v Percy principles, that documentary certificate is the best, most robust evidence, and best reflects the evidence applying from 23 January 2023.”[46]
[45] Appellant’s submissions, [7]–[9].
[46] Appellant’s submissions, [47]–[50].
In summary, this application to rely on fresh evidence only relates to the Member’s finding with respect to capacity, which is challenged in Grounds Seven and Eight. The finding sought to be impugned can be found at reasons [130] where the Member said as follows:
“I find that the [respondent] is currently unfit for his pre-injury employment as a bus driver. That is accepted by Dr Machart and there is no acceptable evidence to the contrary.”
In reply, the respondent says that none of this fresh evidence was before the Member and only came into existence after the matter was heard and by definition there can be no error on the Member’s part. The respondent says that the application ought to be refused.
Alternatively, the respondent submits that “Dr Williams explained in his report the context of the certificate that contained the ‘fit to return to work’ entry and the evidence therefore remains that the respondent has no current capacity as per the Member’s finding.” The report referred to here is the letter of letter of Dr G Williams dated 27 February 2023 filed as fresh evidence.[47]
[47] Respondent’s submissions, [5].
Some principles regarding the admission of fresh evidence under s 352(6) of the 1998 Act
I would record that the rules of evidence do not apply in Commission proceedings.[48] However, subject to the Commission’s power to allow fresh evidence on appeal by leave (discussed below), the parties will be bound by the presentation of their case before the Member.[49]
[48] Section 43(2) of the 2020 Act.
[49] Coulton v Holcombe [1986] HCA 33; 162 CLR 1, 7; University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481.
Section 352(6) of the 1998 Act provides as follows:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
In order to make such an application the party seeking leave to rely on fresh evidence must comply with r 123(1)(b)(iv) of the Personal Injury Commission Rules 2021 (the Rules) and Procedural Direction WC3 – Presidential appeals and questions of law, paragraphs [20] and [21].
In CHEP Australia Ltd v Strickland,[50] Barrett JA (Macfarlan JA agreeing) said as follows in relation to the approach to s 352(6) of the 1998 Act:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
[50] [2013] NSWCA 351 (Strickland).
The Court continued:
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.
32. The Presidential member referred with approval to the decision in Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 where, in relation to the s 352(6) power to receive further evidence, reliance was placed on the following passage in the judgment of McHugh, Gummow and Callinan JJ in CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at [111]:
‘Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.’
33. That statement is consistent with what was said by Dixon J in Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 642. But it is a statement about the significance of further evidence where the question is whether there should be a new trial. The present context is not of that kind. The question here is as to the reception of further evidence upon an appeal the scope of which is confined in the way stated in s 352(5) of the [1998 Act]:
‘An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.’
34. The power of the appellate tribunal upon such an appeal is a narrow power to correct operative error of fact, law or discretion. The power of the Presidential member to admit further evidence (subject to satisfaction of one of the statutory pre-conditions) was therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was affected by such error: Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [66].”
As stated by the appellant in its submissions on this application and as referenced in Strickland at [34], Sackville AJA in Heggie stated that “the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.”[51]
[51] Heggie, [66].
In Marks v Ricegrowers Co-Operative Ltd[52] Acting Deputy President Lansdowne said the following about fresh evidence on appeal:
“New evidence on appeal is not an opportunity to address weaknesses in the Appellant’s original case, as revealed in the primary decision. … Again, new evidence on appeal is not evidence in reply. If a party wants to obtain such evidence, it must be obtained for the original hearing.”[53]
[52] [2006] NSWWCCPD 46 (Marks).
[53] Marks, [18].
The documents subject to this application
I have closely read the six documents which are the subject of this application for admission as fresh evidence. They can be placed into two categories.
The first, and more important, category is the three documents authored by Dr G Williams dated 23 January 2023 (document (a)), a Certificate of Capacity dated 13 February 2023 (document (e)), and a brief report or letter dated 27 February 2023 (document (f)). I say this is the more important category because these three documents contain the views or opinions of the respondent’s general practitioner regarding the respondent’s capacity for work at the time each document was produced.
Document (a) is in the nature of a brief, single page handwritten pro-forma Medical Certificate. The document provides for boxes to be ticked and there is space for very brief comments or information to be written. It describes that the respondent attended the doctor on 23 January 2023 and that he was “Fit to Return to Work” from “23/1/23 to ONWARDS inclusive.”
Document (e) is the pro-forma “Certificate of Capacity/Certificate of Fitness” issued by the State Insurance Regulatory Authority for use in workers compensation or compulsory third party claims. This is a more detailed pro-forma than document (a) and contains more space for the medical practitioner to provide greater detail. This document is three pages in length. This document was signed by the doctor on 13 February 2023 and records brief details of the accident on 11 April 2022, the injuries and treatment received by the respondent. The document has a box which has been crossed on page 2 of 3 indicating that the respondent “has no current capacity for any work from 29/11/22 to 27/3/23”. It is noted that the respondent is to be next reviewed on 27 March 2023.
Finally, document (f) is a single page, type written document on the general practice’s letterhead and is entitled “To whom it may concern”. This document is signed by Dr Williams and is dated 27 February 2023. The document reads in full as follows:
“On the 23/01/2023 Costa William Andronicos … attended my practice and requested to return to work, as he was very bored and unable to stay at home.
I provided a basic medical certificate to return to work, whilst also reminding Costa if he was unable to perform his duty then to return.
Costa returned to my practice on the 13/02/2023 with severe returning pain.
I advised Costa not to continue to work.
I then completed a work injury certificate after my examination.
The certificate confirms Costa is unfit for work of any kind.”
The second category of documents comprises a letter from the appellant’s solicitors (document (b)) and two letters from the respondent’s solicitors (documents (c) and (d)). These letters attach or make reference to Dr Williams’ reports and put on the record the parties’ positions in relation to those documents. I do not read them as being “evidence” per se for the purposes of this application, which seeks to lead fresh evidence to overturn the Member’s finding on the respondent’s capacity for work. Rather, these solicitors’ letters are part of the exchange between the parties on the issue of capacity.
The application itself
As I have described above, Strickland holds that under s 352(6) of the 1998 Act, there are two threshold questions which arise in the alternative. The appellant’s submissions on the two threshold questions are not very clear. Reading them as favourably to the appellant as I can, it appears that reliance is placed upon both alternatives. The appellant says had this material been available before the Member, “it was highly probative and relevant evidence on the issue of capacity. Had it been available, the finding concerning ongoing capacity [presumably incapacity] would not have been made ...”.[54] Later in the submission the appellant says: “The finding at [130] is wrong in fact and in law and should be rejected. There was acceptable evidence to the contrary, but which was not available to the Appellant employer at the time of its preparing its case.”[55] This evidence, the appellant asserts, shows that the respondent was fit for pre-injury duties.[56]
[54] Appellant’s submissions, [8].
[55] Appellant’s submissions, [47].
[56] Appellant’s submissions, [49].
I will therefore proceed on the basis that the appellant is relying upon both limbs of s 352(6) – namely that the evidence was not available at the time of the hearing or that it is evidence which directly contradicts the capacity finding at reasons [130], and hence its non-admission would cause a substantial injustice in the case.
Consideration
The appellant’s application, insofar as it relies upon the first threshold in s 352(6) of the 1998 Act, is not established.
Dr Williams has been known to the parties as the respondent’s general practitioner well before the hearing. The respondent says the doctor is his GP at paragraph [39] of his statement[57] and Dr Williams’ records were before the Member, including extensive clinical notes.[58] A review of the doctor’s records, especially the Certificates of Capacity which he issued from time to time,[59] reveals the doctor’s opinion at those times that the respondent had no current work capacity.
[57] ARD, p 6.
[58] ARD, pp 150–300; AALD 5/9/22, p 1; AALD 21/10/22, p 51; AALD 25/10/22, p 10.
[59] Certificate dated 18/10/22, AALD 25/10/22, p 10; certificate dated 15/8/22, AALD 5/9/22, p 1.
The appellant says the three documents from Dr Williams now sought to be relied upon as fresh evidence were ‘not available’ at the time it was preparing for the hearing. A more accurate description would be that they were not in existence. As can be seen from the evidence, the doctor from time to time would issue a certificate positing his view on the respondent’s capacity. The fact that another such document was issued by the doctor after the decision was reserved is unsurprising, given his ongoing treatment of the respondent. Indeed one would expect such an occurrence to be relatively commonplace.
Further, however, there is no evidence or explanation from the appellant as to why the doctor’s opinion, now sought to be relied upon, was ‘unavailable’ to it. There is no explanation or description of what efforts the appellant reasonably made to obtain the doctor’s opinion before the hearing or why it was unavailable.
The first threshold in s 352(6) is not satisfied.
I now turn to consider the second threshold; whether the failure to grant leave would cause a substantial injustice in the case.
I have set the doctor’s three documents out at length above. Clearly there is a development in the doctor’s opinion between document (a) and documents (e) and (f).
Document (a), the brief certificate, gives a bald, unreasoned opinion that the respondent is fit for work. This document, and I mean no disrespect to the doctor, is singularly unhelpful. There is no path of reasoning in it that the Commission could rely upon in order to make its findings. There is no satisfactory basis in this document to allow the Commission to make its findings.[60]
[60] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, [82].
The appellant says that I should ignore the latter opinions in documents (e) and (f) for the reasons advanced at paragraph [50] of the appellant’s submissions, which I have recounted at [36] above. The arguments in paragraph [50] are speculative at best. It would not be proper, and indeed it would constitute a denial of procedural fairness, to discount the doctor’s opinions in documents (e) and (f) simply based upon the appellant’s bald and speculative assertions. The only proper way to test the development of the doctor’s views from document (a) to documents (e) and (f), would be to require the doctor to be cross-examined. Relying upon the appellant’s submission at [50] to discount the later opinion as having no weight is not a proper basis for the Commission to make a decision on this issue.
There is a ready procedure available for the appellant to pursue this argument, should it so choose and that is by way of the reconsideration power.[61] I make no remark about the prospects of such an application other than to say it is the far preferable course of action to the one which the appellant has pursued on this particular issue.
[61] Section 57(1) of the 2020 Act.
The second limb of s 352(6) has not been established. There is no basis for me to conclude that the non-admission of this material would cause a substantial injustice, given the problems I have identified with the first certificate, document (a), and the unsatisfactory manner in which the appellant has sought to deal with the contrary opinions in documents (e) and (f). Indeed, were I to accept the views posited by Dr Williams in document (f), no change in the original decision would emerge. The state of Dr Williams’ evidence across these three documents is unsatisfactory and could only be resolved were he to be cross-examined.
In terms of the solicitors’ letters I do not consider they are ‘fresh’ evidence in the way that term is understood. Additionally, no submission has been made as to why these letters would satisfy either limb of s 352(6) of the 1998 Act.
I decline the appellant’s application for leave to rely upon the fresh evidence.
LEGISLATION
Section 10 of the 1987 Act deals with journey claims. The subsections relevant to this appeal are as follows:
“10 Journey claims
(cf former s 7 (1) (b)–(d), (f), (g))
(a) 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.”
Section 4(a) of the 1987 Act defines “injury” as “personal injury arising out of or in the course of employment”.
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
DISCUSSION
The appellant has grouped its appeal grounds into four categories where similar arguments in different grounds are dealt with together. I will deal with the grounds in this way.
As to Grounds 1 and 2
The appellant asserts that the Member was wrong in law to apply the authorities of Chawla and Green. The appellant asserts further that the Member erred in fact and in law by finding that the place of employment was the entire lot in which Keolis’ premises were located rather than just the leased area.[62]
[62] Appellant’s submissions, [25].
The appellant contends, once again, that it had no control over the place outside the leased area. The appellant disputes that Chawla and Green were correctly decided and further submits that it was Parliament’s clear intention that the employer was only liable for injuries in a workplace over which it had control. The appellant relies upon the Second Reading Speech of the 2012 Amendments in support of this submission.[63] The appellant says that there was no finding and no evidence that Keolis had any control over the common areas of the premises and any finding to that effect was not factually supported.[64]
[63] AALD 21 October 2022, p 4; appellant’s submissions, [27].
[64] Appellant’s submissions, [28].
In reply, the respondent states that the Member was not in error by following Green, indeed the respondent states that the Member was “bound to apply Green as binding legal precedent.” The respondent asserts that the appellant has suggested that the Member ought to have applied the Second Reading Speech that introduced the 2012 Amendments. This, the respondent argues, did not amend s 10(3) of the 1987 Act, did not change the meaning of the phrase “place of employment” and said nothing about where a “journey” began. The respondent submits that the appellant “appeared to be saying that the legislative changes introducing section 10(3A) had a bearing on the Member's finding of injury”. The respondent says there was no error.[65]
[65] Respondent’s submissions, [2].
Consideration
Before the Member, the appellant argued that Chawla was decided before the 2012 Amendments which, for relevant purposes, inserted s 10(3A) into the 1987 Act, and that reliance on Chawla should be rejected, and by implication, so should Green as it applied Chawla to the extent of ascertaining the place of employment for the purpose of when a journey begins or ends. The appellant pointed the Member to the Second Reading Speech which it says mandated a requirement for there to be control by an employer.[66] I confirm that although Chawla was most definitely decided before the 2012 Amendments (it was decided in 2002), Green is a 2014 decision which considered the journey provisions following the 2012 Amendments.
[66] Appellant’s written submissions before the Member, 21 October 2022.
Part of the argument on appeal is put differently to what was argued before the Member. The appellant now asserts that Chawla and Green were not decided correctly.[67] I have carefully reviewed both of the written submissions relied on by the appellant before the Member and this argument was not put to him. By definition, the Member was thus not called upon to decide whether Chawla and Green were correctly decided. There is no error in not dealing with an argument that was not put.[68] To the extent that this ground relies upon an assertion that was not put to the Member, namely that the two cases were not correctly decided, this ground cannot not succeed.
[67] Appellant’s submissions, [27].
[68] Brambles Industries Ltd v Bell [2010] NSWCA 162, [30].
However, I think it is tolerably clear from a reading of the appeal submissions that the essential argument that was put to the Member, namely that Chawla, and by implication Green, were superseded by the intention behind the insertion of s 10(3A) into the 1987 Act by the 2012 Amendments and thus ought not be followed, is maintained on appeal and this is the argument that I will deal with. The argument pursued in these grounds is encapsulated in paragraph [29] of the appeal submissions which reads as follows:
“The Member was wrong in law and in fact in applying Chawla’s case and Green’s case, and in not applying the intent of the Parliament expressed in the second reading speech, when he determined that the land upon which the workplace is situated was the entirety of the lot, and not simply the leased area.”
The appellant’s submissions both before the Member and on appeal place extensive reliance on the Second Reading Speech for the 2012 Amendments in the Legislative Assembly on 19 June 2012. The relevant passage of the Second Reading Speech appears in the appellant’s submissions to the Member dated 21 October 2022 at paragraph [2.2] and reads as follows:
“Schedules 5 and 6 of the bill make essential changes to the workers compensation scheme in the area of liability. Proposed amendments to section 10 of the Workers Compensation Act mean that journey claims will no longer be covered by the New South Wales workers compensation scheme consistent with the position in many other Australian jurisdictions. While workers who travel for work will still be covered by the scheme, employees [sic, employers] will no longer be liable for a journey between a worker’s home and his or her place of work where the risk of injury is outside the control of the employer.”[69]
[69] New South Parliamentary Debates, Legislative Assembly, 19 June 2012, 13017, Treasurer M Baird.
A Second Reading Speech is extrinsic material and “cannot be relied upon to displace the clear meaning of the text. That remains so even if the secondary material suggests that, through oversight or inadvertence, the intention of the Parliament has not been translated into the text of the law.”[70]
[70] Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231, [10] per Meagher JA, McColl and Campbell JJA agreeing.
In Saeed v Minister for Immigration and Citizenship,[71] a unanimous decision of the High Court, the following was said:
“As Gummow J observed in Wik Peoples v Queensland, it is necessary to keep in mind that when it is said the legislative ‘intention’ is to be ascertained, ‘what is involved is the ‘intention manifested’ by the legislation.’ Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.”
[71] [2010] HCA 23 (Saeed), [31].
The Second Reading Speech has been deployed to attack the Member’s finding (based on the application of Chawla and Green) that the area wider than the leased area was the respondent’s ‘place of work’, particularly an area which was not within the host employer’s control. The Member dealt with this argument at reasons [88]–[99]. Control is not the relevant question and was specifically discounted in these two cases.
Statutory construction is a textual exercise.[72] Nowhere, either before the Member or on appeal, has the appellant undertaken this exercise of construing the text of the relevant provision, s 10(3A). The consideration of a Second Reading Speech does not displace the need to consider the words of the text.[73] There is no submission that s 10(3A) of the 1987 Act is either ambiguous or unclear such that recourse to the Second Reading Speech is necessary to divine its true intended meaning.
[72] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, [47].
[73] Saeed, [31].
I do not accept, based on the above authorities, that the Member was in error in failing to give primacy to the Second Reading Speech. This argument has not been established. It is simply insufficient to point to the Second Reading Speech and ascribe to it the character of a binding legislative obligation. Whilst I accept that the Second Reading Speech says what appears at [78] above, the concept relied upon by the appellant, namely “the risk of injury being outside the control of the employer” is not a phrase used in a 10(3A) of the 1987 Act. The fact that an intention expressed in a Second Reading Speech and the words of the statute do no correspond is a circumstance which occurs from time to time. All this means is that that aspect of the Parliament’s stated intention has not found its way into the statute. The remarks of Gummow J at [80] above are most apposite to this situation.
The Member was obliged to follow the decisions of Chawla and Green. I accept the respondent’s submission that the Member was bound to apply Green.[74] Whilst Chawla was a Compensation Court authority and Green a decision of the former Workers Compensation Commission, the position for a member in following such authorities is as follows. In Favelle Mort Ltd v Murray,[75] Barwick CJ stated the position in respect to the abolition of appeals from the High Court to the Privy Council. The remarks in the following extract neatly reflect the relationship of the Commission and its legacy institutions, the Compensation Court of NSW and the Workers Compensation Commission. Barwick CJ said:
“… within this body of precedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgement, has laid down that principle as part of the relevant law. Outside the area of binding precedent, there is an area where comity or respect for the high standing of a court outside that juristic unit dictates that the views of such a court in general be accepted unless the court is clearly convinced as to the erroneous nature of the decision or reasoning of that other court, and there are sufficient reasons for departing from that decision or that reasoning. Thus, respect is accorded to the decisions of the House of Lords and, perhaps to a lesser degree, those of the English Court of Appeal. In line with this approach to decisions which do not bind as precedents, no doubt this Court will at least accord a like respect to decisions of the Privy Council to that which it is accustomed to accord to the House of Lords.”[76]
[74] Respondent’s submissions, [2].
[75] [1976] HCA 13; 133 CLR 580 (Favelle Mort).
[76] Favelle Mort, 591.
These two legacy bodies were charged with deciding cases under the 1987 and 1998 Acts. These bodies were responsible for the creation of a large body of jurisprudence across all aspects of the 1987 and 1998 Acts which have been from time to time been affirmed, modified or rejected by the Court of Appeal and the High Court of Australia. These decisions have been routinely applied by Commission members, both at first instance and in Presidential appeals. One of the objects of the 2020 Act requires the Commission to ensure that its decisions are “consistent and of a high quality.”[77] Part of ensuring compliance with this object is Commission members following precedent, whether as a matter of binding precedent or comity.
[77] Section 3(d) of the 2020 Act.
In this case the Member was obliged to apply Chawla and Green if the Member was of the view that these decisions were applicable to the facts presented in this case. There was no error in this approach. In following these authorities, the Member was not in error in finding that the area outside of the leased area was the respondent’s ‘place of employment’. The appellant has not shown how the Member was in error in reaching this decision based on the authorities relied upon.
Grounds 1 and 2 are dismissed.
As to Ground 3
The appellant asserts the following errors in this ground. Firstly it is asserted that the Member misdirected himself as to the test to be applied to prove injury under s 4 of the 1987 Act, pointing to reasons [100]–[122]. The appellant says that for s 4 to operate the injury must occur at a ‘workplace’. Secondly, the appellant also says that the Member has conflated the notions of ‘land’ and ‘workplace’ in s 10 of the 1987 Act, and injury must occur at the ‘workplace’. I remark that this second error points to reasons [36], which does not address this issue at all. Rather, reasons [36] refers to statements obtained by an investigator.
The respondent says that the Member has correctly dealt with both s 4 (at reasons [100]–[112]) and s 9A of the 1987 Act (at reasons [116]). The respondent says that the Member correctly construed the language, namely ‘incidental to’, which is referred to in a number of s 4 and s 9A authorities. The respondent says that the Member correctly stated the legal propositions applying to s 9A at reasons [114] and [118] and s 4 at reasons [103], [104], [105], [109], [112] and finally [115].
Consideration
I have in a number of decisions in 2023 referred practitioners to the Full Federal Court decision in Kowalski v Repatriation Commission[78] where the following was said:
“A ground of appeal must identify, in a meaningful way, what is alleged to be the error in the judgment of the court below rather than leave the reader to speculate by reference to a particular passage or, even worse, just judgment paragraph number what the error might be.”[79]
[78] [2011] FCAFC 43 (Kowalski).
[79] Kowalski, [21].
This appeal ground has not been advanced in a very helpful manner and does, to some extent, suffer from the vice identified in Kowalski. Intervention on appeal requires the identification of error,[80] hence the necessity for the asserted error to be identified in “a meaningful way”.
[80] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston).
However, doing the best I can, I am able to decide the essence of the complaint being advanced by the appellant. I do so mindful of the remarks in Beale v Government Insurance Office of NSW[81] that reasons should be read as a whole. Having regard to the issues dealt with and the structure of the Member’s decision, this is a very relevant authority to my considerations of this ground.
[81] (1997) 48 NSWLR 430 (Beale), 444.
That the respondent suffered injury at the time and place alleged was not in issue. What was in issue was whether he had commenced his journey and the appellant took issue with the place where the injury occurred as not being under its control. The Member was called upon, for the purposes of considering s 10 and the authorities of Chawla and Green, to closely examine the layout of 1472 Pittwater Road, Warriewood, including the leased and common areas, as well as the permission or advice the respondent had been given about where he was permitted to park his car. This examination was done in order to ascertain whether or not the respondent had commenced his journey. This examination was also carried out to ascertain whether the injury occurred in the course of the respondent’s employment. Pausing here, the concept of the “course of employment” is an element of s 4(a) and s 10(1) of the 1987 Act. “Place of employment” is the concept that the Member’s attention is drawn to in s 10(3) of the 1987 Act.
The structure of the Member’s decision is as follows. At reasons [94] the Member found that 1472 Pittwater Road, Warriewood was the “worker’s place of employment”. This was done in order to assess the applicability of the circumstances presented in this matter to the authorities of Chawla and Green. These cases required the Member to assess the layout of the land at 1472 Pittwater Road, Warriewood, the appellant’s control argument and whether the journey had commenced at the time of injury, as well as making a finding about “place of employment.”
Factually the Member found that at the time of the injury, the respondent was “still in the course of his employment with the [appellant] – with Keolis.”[82] For both s 4(a) and s 10 of the 1987 Act, this was a relevant finding that had to be made. But as I set out above, to get to the making of this finding, the Member was required to closely examine the area of land at 1472 Pittwater Road, Warriewood. The appellant points to reasons [116] as constituting what is said to be the “conflation” of the terms ‘work premises’ and ‘workplace’ with the test in s 4. I do not think that this is a fair reading of reasons [116], which is really the terminus of the Member’s consideration of a number of concepts, including whether the respondent’s journey had begun. The Member had in the passages before [116], indeed from [86] onwards, closely examined various concepts and the authorities (Green, Chawla) to reach his ultimate determination. In particular, the relevant finding was at reasons [101], namely that the journey had not commenced and the respondent was still in the course of his employment. Reading the decision as a whole reveals that the ‘conflation’ argument falls away.
[82] Reasons, [101].
No error as alleged has been established. Ground 3 is dismissed.
As to Grounds 4, 5 and 6
The appellant argues that the Member, at reasons [100]–[122] “confused and misdirected himself as to the operation of section 9A of the 1987 Act, and confused the test needed to be applied with the test for injury in section 4 of the 1987 Act. He has also misunderstood the evidence and his finding that the application of criteria in s 9A support a finding that employment has been a substantial contributing factor is against the weight of the evidence.”[83]
[83] Appellant’s submissions, [33].
Once again, the appellant takes issue with reasons [116], arguing that the term “workplace” has no application in s 9A. The appellant contends that the Member has misapplied the terms “land” and “workplace”, arguing that no finding was made that the respondent was at the “workplace”.[84]
[84] Appellant’s submissions, [34].
In terms of the findings of fact relating to the s 9A(2) criteria, the appellant says these findings were “against the weight of the evidence and plainly wrong”.[85] The appellant criticises the finding at reasons [116], stating that if this was the s 9A decision, then the reasoning was not adequate. The appellant says that at the time the respondent suffered his injury, this was not “activity incidental to his employment as contemplated by section 9A.”[86] The appellant also argues that the Member misapplied the authority of Badawi, a case which had clearly required travel on a ski lift for work (for the reasons stated at appellant’s submissions [38]–[39]). The appellant states that the email of 8 April 2022 was merely an invitation, not an authorisation or encouragement, to the respondent as to where he might park his car.
[85] Appellant’s submissions, [35].
[86] Appellant’s submissions, [37].
The appellant states that the Member’s findings at reasons [121] in respect of the s 9A(2) factors are wrong, stating that for s 9A purposes, the address of the employer or place of injury are not elements of the section. This, the appellant says, is a conflation of these issues and the finding was against the weight of the evidence of what the worker was doing, namely going home.
The appellant continues by arguing that the differing tests in s 4 and s 9A are conflated, pointing to reasons [121(a), (b) and (c)] with findings as to time and place of injury, the nature of work performed and the probability of the injury having occurred anyway, as being against the weight of the evidence.[87] Further the appellant says that there was no assessment of alternative contributing factors, such as the respondent’s failure to take care for his own safety, or the exposure of the ‘stopper’ or barrier he tripped over, or a history of his own pre-existing surgeries prior to injury.[88] In summary, the appellant says that the Member applied the wrong test in determining s 9A and the assessment of the criteria under s 9A(2) was not supported and was against the weight of the evidence. The appellant sets out at [44] of its submissions the findings that it says the Member should have made in respect of each s 9A(2) factors.
[87] Appellant’s submissions, [41].
[88] Appellant’s submissions, [42].
In reply the respondent argues as follows:
“Consistent with section 9A(3)(a), the Member found that section 9A is not satisfied merely because the injury arose both out of and in the course of employment (reasons [115]) notwithstanding what was said by the appellant ... It is suggested that the Member erred in doing something that he did not do, namely, in referring to a group of authorities other than in their correct context ... The Member referred to those authorities when addressing the issue of injury (reasons [100] to [112]). It is then suggested (appellant’s submissions [37] and [39]) that the member erred when making a finding (reasons [117] and [119]) in relation to Mr Murray’s email (ARD p 7). The email on its terms ‘permitted’ and ‘authorised’ the respondent worker to park where he did as per Badawi as referred to by the Member (reasons [118]). In his statement (ARD p 49), Mr Murray did not disown, explain or even refer to the email. In relation to section 9A(2), the matters required for consideration are examples only. The matters need to be considered by the Commission but there is nothing in the subsection as to how to weigh the various considerations. Contrary to what is submitted by the appellant, the subsection does refer to the ‘place of the injury’ (s 9A(2)(a)). The Member took account of matters pursuant to the subsection (reasons [121]). No legal authority was referred to by the [appellant] as to how the Member erred in his consideration of the matters or in his application of the subsection. Taking a different angle to the exercise as the appellant did (appellant’s submissions [44]) does not prove or support the allegation of error. Paragraph 3 above is repeated. There was no error.”[89]
[89] Respondent’ submissions, [4].
Consideration
These grounds primarily deal with the Member’s findings in respect of s 9A of the 1987 Act. However, given the argument made by the appellant that the Member has both conflated and confused the requirements of various statutory provisions, the starting point for the consideration of these appeal grounds is the structure of the Member’s decision.
The Member had a number of different provisions of the 1987 Act that he was called upon to construe and then decide. These provisions, s 10, s 4(a), s 9A, s 36, s 37, s 32A and finally s 60 were decided in this sequence for the logical reason that the respondent had to satisfy each provision before the Member could proceed to decide the succeeding provision. Section 10 was the logical provision to commence with as the Member had to decide whether or not the respondent’s journey home had commenced. If the answer to this question had been in the positive, the Member would have had to proceed to decide if there was a real and substantial connection between the employment and the incident out of which the injury arose. As the answer to this question was to the negative, that he was not on a journey, the Member moved to the next question, which was s 4(a) injury, and then onto s 9A(1) and (2) after injury had been found. Then, the monetary orders, ss 36, 37 and 60, were decided once the primary liability had been established.
As I will recount in deciding the various arguments under these three grounds, the approach to examining error involving the exercise of a broad evaluative judgment is as follows. In Australian Air Express Pty Limited v Langford,[90] McColl JA (Ipp and Tobias JJA agreeing) said:
“[When] reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Ltd v Commissioner of State Revenue (1997) 37 ATR 528 at 533 … it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; 105 IR 66 at [14] per Ipp JA.”[91]
[90] [2005] NSWCA 96 (Langford).
[91] Langford, [15].
Additionally, and as the Member himself made reference to,[92] Emmett JA in Kelly said:
“While the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder. Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact.”[93]
[92] Reasons, [114].
[93] Kelly, [46].
As a corollary to this point, it has long been the case that the weight attaching to evidence is a matter within the province of the trial judge, unless it can be said that the finding was so against the weight of the evidence that some error must have been involved.[94]
[94] Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308 (Rigby).
Additionally, findings of fact made at first instance will normally not be disturbed on appeal if they have rational support in the evidence.[95]
[95] Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy),125–6.
The Member, in his decision, was exercising a broad evaluative judgment in relation to various matters of contention, not the least of which involved the consideration of the address at 1472 Pittwater Road, Warriewood, the area leased by Keolis, the common area of the property where the respondent’s injury occurred, the circumstances of his employment which led the respondent to park where he did and to take the path he did, such as Mr Murray’s email of 8 April 2022. Likewise, deciding whether or not the journey had commenced involved an evaluative assessment of the evidence as did his consideration of the Mr Murray’s email of 8 April 2022.
I now turn to the various complaints in this ground.
The appellant focuses upon the of the term “workplace” in reasons [116] and says it has no part in the s 9A consideration. I would state the following two matters in response to this submission. Firstly, the term used by the Member at reasons [116] was “work premises’’. In this paragraph, the Member says “I am satisfied that such a causal connection between the applicant’s employment and his injury is available on the evidence. He suffered an injury whilst undertaking an activity incidental to his employment, that is, exiting his work premises.” I accept that whether the term is workplace or work premises, it is a distinction without a difference, but the correct terminology actually used by the Member ought be what is being considered. Secondly, I do not consider that by the use of the term “work premises”, the Member misdirected himself.
Reasons [116] read in context with the passages both before and after it reveals the Member assessing the evidence and authorities in assessing whether the respondent’s employment was a substantial contributing factor to his injury for s 9A purposes. This is but a part of the Member assessing all of the facts before reaching his ultimate conclusion on this question at reasons [119] and [122]. The relevant finding at reasons [116] is that of there being a ‘causal connection’ between employment and injury as stated by the plurality in Badawi.[96] The Member made two findings in being satisfied of the relevant causal connection – namely that the respondent was injured while undertaking an activity incidental to his employment and that it occurred on work premises. While the term ‘work premises’ is not specifically referred to in s 9A, that is not to the point. Rather it was referred to by the Member in his considerations regarding causation. Nowhere has the appellant alleged that considering that question, namely a consideration of the locus in quo (the work premises), was an error for the purposes of the Member’s decision with respect to causation. I do not accept that the error in this respect has been established.
[96] Badawi, [82].
While on reasons [116], the appellant also asserts that if it was the s 9A decision, then the reasons were inadequate.[97] As I found above, this was part of the Member’s consideration of the question of causation, which was part of the Member’s path of reasoning leading up to the finding that employment was a substantial contributing factor to injury. This consideration is not limited to that single paragraph. The Member makes his finding at reasons [116] and then proceeds to substantiate it in the following paragraph at reasons [117], by referring to the evidence he placed weight on, including Keolis’ address, the path the respondent took through a common area (per the lease) and there being no other suitable path available to him. No challenge has been made to these reasons, on which it is apparent from a fair reading that the findings at [116] were based. The reasons given here are consistent with the Commission’s obligation to publish reasons.[98] Reasons do not have to be lengthy or elaborate.[99] On the discrete issue being considered at reasons [116], causation, I do not find that the Member’s reasons, when the decision is read as a whole and reasons [117] is taken into account, were inadequate. This submission is rejected. The appellant has not stated how the finding under s 9A was wrong in law. As it was not particularised, this assertion must fail.
[97] Appellant’s submissions, [36].
[98] Section 294(2) of the 1998 Act; rule 78 of the Personal Injury Commission Rules 2021; Secretary, Department of Education v Dawking [2024] NSWCA 4, [67]–[70], per Gleeson JA.
[99] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280, per McHugh JA.
The next submission to consider relates to the appellant’s complaints about the Member’s construction and finding about the effect of Mr Murray’s email of 8 April 2022.[100] The appellant says that the activity at the time of injury was not ‘incidental to employment’ as contemplated by s 9A, and further that the email was merely an invitation.
[100] ARD, p 7.
Whilst the appellant has not identified the passages of the Member’s decision that are the subject of the complaint about how the email was construed and relied upon by the Member, I think it is tolerably clear that the passages are those found at reasons [118] and [119]:
“118. In Badawi, Basten JA stated at [121]:
‘Where it is the very activity of the claimant, which was the conduct authorised, encouraged or permitted by the employer (and in this case, the conduct exhibited all of those characteristics), the conclusion that the employment was a substantial contributing factor to the injury is the only conclusion reasonably open’.
119. In relation to the [respondent], the only reasonable inference from the email sent by [Mr] Murray on 8 April 2022 is that the parking by the [respondent] of his vehicle in the relevant car park was conduct that was authorised, encouraged, and permitted by the [appellant]. It was conduct that exhibited all the characteristics referred to by Basten JA. Therefore, in my opinion, the only conclusion open to me is that when the [respondent] tripped over the bumper stopper on his way to his vehicle (parked as authorised, encouraged, and permitted by the [appellant]), his employment was a substantial contracting factor to his resulting injury.”
Much is said by the appellant about the email and its preferred interpretation of it. I will set these submissions out in full:
“18. The email was not sent to the Respondent worker by the Appellant.
…
37. The Respondent worker was not at the time of injury undertaking activity incidental to his employment as contemplated by section 9A. He had left the work premises. Whilst he may still have been on the ‘land’ upon which the workplace is situated, he was not still on Keolis’ work premises. The email from Mr Murray was not sent by the Appellant, and that email cannot create an “incidental” connection. The Appellant never invited the Respondent to park in the car park, and there is no evidence of that fact. The statements at paragraphs [116] and [117] are irrelevant to the matters to be determined in applying the language in s 9A.
…
39. In this case there is no evidence that the Appellant had ever encouraged or authorised the Respondent worker to fall over the buffer, or even to park in the carpark. The letter was an invitation by Keolis. Furthermore, the fact that an email had been sent making an invitation that parking might be available was not an authorisation or encouragement by the Appellant employer. The respondent worker always had to travel from his workplace to his home (or other place) irrespective of any invitation given by Keolis to him to do anything. The respondent worker had to leave the premises in any event, and that was what he was doing.”
The email was not sent in a vacuum even though the appellant disowns any participation in either its content or transmission to the respondent. The appellant was in the labour hire business. It engaged persons like the respondent and provided their services to third parties for a fee. In the ARD, the respondent provided evidence about his engagement[101] and in particular said as follows:
[101] ARD, p 1.
“10. I began working for Chandler Macleod Group in around November 2017. They are an employment agency and I sought assistance from them to find work.
“11. They then sent me to work at Keolis Downer at their Newport Depot on the Northern Beaches.
…
14. Each day I have a different supervisor, and that supervisors [sic] reports to Mr Eamonn Murray.
…
18. The company then moved to a new location on the weekend of 9–10 April 2022 from their prior premises nearby at Newport. The new address of Keolis Downer where I sustained my injury is 1472 Pittwater Road, Warriewood NSW 2102.
19. I would now like to provide some information about the parking arrangements at work:
a. There is a car park at Warriewood, it is known as a ‘park and drive’ car park for those using the Warriewood 81 stop (so people who want to catch the bus can park their car at that car park and then catch the 81 bus from right near that car park into the city). The address of the car park is 1472 Pittwater Road, Warriewood NSW 2102 - the same as the address of Keolis Downer Warriewood (my employer).
b. Inside that car park, there is an office space. There is only one office space inside that car park on the ground floor, and that office space is occupied by my employer.
c. So when I arrive at work in the morning, I park my own personal car in a spot inside that carpark. I then go to the office inside that same car park and then get the keys for the vehicle I will drive clients around in.
d. As far as I'm aware, Keolis Downer has a lease agreement with Northern Beaches Council/Transport for NSW. So we have an office space inside that car park and we are allowed to park the company’s vehicles inside that car park. I think that inside that carpark there are 12 car park spots that are allocated to the company for their company cars. The employees of Keolis Downer generally park their cars in the general/public section of the car park.
e. I attach to this statement as Annexure ‘A’ an email dated 8 April 2022 from Mr Eamonn Murray regarding the parking arrangements. In that email, he clearly states: ‘As of this morning we have now commenced operating out of our new offices at Warriewood adjacent to the southbound B-line stop (1472 Pittwater Road Warriewood if you ever need an address ... To confirm at this stage you can park in the B-line car park in any sport that does not require you to go through the boom gate so that is where from you enter, around to the left and outside and then back around to the right to exit. Please do not park in our marked spots as cars will be infringed if they are not authorised ...”
Mr Eamonn Murray, the Keolis Supervisor, describes the labour hire arrangement with the appellant in the following terms:
“5. Do you know who Mr Costa William (Bill) Andronicos is, if so, what is your relationship to him at Chandler Macleod?
6. Yes, I do, I am on the Demand Manager that runs Keoride, and Chandler Macleod supply driver's [sic] on a labour hire arrangement, so I am the indirect Supervisor, l suppose I would be.
7. Who does Bill report to in his role?
8. Again, employed by Chandler Macleod, but day to day on site he reports to the On Duty Supervisor, and myself as the on-demand manager.
9. Does the On Duty Supervisor change from day to day?
10. Yes, it's a rotating shift.”[102]
[102] ARD, p 50.
At page 70 of the ARD, the respondent has supplied a copy of the “Terms and Conditions of Employment” (Terms) between the appellant and the respondent. Extracted below are the provisions relevant to a consideration of what the appellant says about the email:
“3.2 You are employed as a casual ‘on-hire’ employee of the Company. This means that:
…
(g) you agree to comply with all day to day directions given to you by any authorised representatives of the Client on any Assignment, so as to properly discharge the duties and responsibilities of your position on that Assignment.
…
6.2 Subject to 6.3(c) below, you will carry out all duties of your Position during any Assignment, and any other ancillary duties that you are required to perform by the Company or the Client on any Assignment from time to time, to the best of your abilities.
6.3 You agree that you will:
…
(b) take direction and supervision from the Client in regard to the defined working arrangements and the manner and proficiency in which your work is to be performed on any Assignment”.[103]
[103] ARD, pp 71–72.
I would remark that “Client” as referred to in these two clauses is defined in cl 1 of the Terms as: “Client means the organisation to which your labour is supplied by the Company, on any Assignment.” Company is defined in the same clause as being the appellant.
It was always understood or contemplated by the appellant, as its Terms specifically address this question, that employees like the respondent would receive directions and take supervision from the Client, who in this case, is Keolis. This was an obligation under the Terms. The email is an exemplar of the “Client” (as defined) giving direction to a worker, in the position of the respondent, which is an available construction of the email.
Consequently I do not accept the appellant’s submissions on this appeal which seek to distance itself from the direction that was given, or the characterisation put upon it now, and before the Member, as but a mere “invitation.” It was open to the Member, on the evidence, to reach the view that he did as expounded at reasons [119] which I have set out above. The inference drawn there was available, proper and appropriate. The inference and findings made are consistent with Rigby and Fox v Percy, authorities I have referred to above. The characterisation of the email, especially when one reads the Terms and Mr Murray’s evidence, is entirely available. The appellant advances an alternate approach to the email, this does not show how the Member was wrong.
The Member was not in error in making the findings at reasons [119] including drawing the stated inference about the email.
The next complaint relates to how the Member dealt with s 9A(2). At paragraphs [41] and [42] of the appellant’s submissions the following is submitted:
“The findings at [121(a), (b) and (d)] are also against the weight of the evidence. They again conflate and misunderstand the differing tests and issues of s 4 with s 9A. That the injury occurred at the same address as the workplace [121(a)] is not a concept contemplated in s 9A(2), and is a misdirection in reaching the wrong decision. The direction [121(b)] was a misunderstanding as to the facts and Badawi’s case application. The comments in [121(d)] about the incident happening anyway is a causation conflation, and is dealt with in the comments above about a neighbouring shopping centre. These findings are wrong in fact and law.
There was also no evaluation of alternative contributing factors, such as the Respondent’s own failure to take care for his safety, the exposure of the stopper by conduct of the Northern Beaches Council, or the exposure of the stopper because a car had been poorly parked or the Respondent’s own history of significant surgeries in the months before injury. This analysis was essential in order to weigh up that if employment was a contributing factor, it was not a minor contributing factor, as discussed in Dayton. The Respondent worker bore the onus on this point and did not discharge it.”
The appellant then proceeds, at [44] of its submissions, to state the findings that it says ought to have been made:
“The Member ought to have determined the matter in the following manner, applying … s 9A(2) as follows:
a) The time and place of the injury.
i. The injury occurred after the Respondent worker’s shift had ceased. It occurred in a public car park of which the occupier had no control.
b) The nature of the work performed and the particular tasks of that work.
ii. At the time of the accident there was no work being performed. No normal tasks of the Respondent worker’s job were being performed at the time of the injury.
c) The duration of the employment.
iii. The Respondent worker’s shift was not excessively long and he had not been rostered on for continuously excessive hours prior to the incident. Fatigue caused by the worker’s job was not a factor in this incident, unlike in Easterman.[[104]]
[104] Namoi Cotton Co-Operative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29.
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.
iv. The injury occurred in a car park as a result of a feature many car parks possess. It is not unreasonable to assume that had the Respondent worker been walking in another and tripped on a similar ground buffer that he would have suffered a similar injury. There is nothing that differentiates the car park that he suffered the injury in to any other car park. This is especially so considering his health, with multiple recent surgeries.
e) The worker’s state of health before the injury and the existence of any hereditary risks.
v. The Respondent worker had been suffering from Osteoarthritis and had previously had a left hip replacement prior to the injury that necessitated a right hip replacement. He also suffered from degenerative changes in his bilateral knee joint and had a spinal surgery. These may have been factors adding to the chances of a fall.
f) The worker’s lifestyle and his or her activities outside the workplace.
vi. Not applicable”.
As is evident, the appellant principally takes issue with what appears at reasons [121]. I therefore set out [121] in full:
“I reject the [appellant’s] submission that the six examples raised in s 9A(2) support a finding that the [respondent’s] employment was not a substantial contracting factor to his injury – in fact, I find that an analysis of the examples either support the connection or are neutral or irrelevant:
(a) in relation to the time and place of the injury, I have already found that the injury occurred at the same address as Keolis’ office – it also occurred moments after the [respondent] had finished his work duties on 11 April 2022 – it occurred in circumstances encountered by the [respondent] only because of his employment – it occurred in circumstances incidental to the performance of the [respondent’s] work, that is, in exiting the premises where he worked;
(b) in relation to the nature of the work performed, I have already found that the injury occurred in circumstances incidental to the performance of the [respondent’s] work, that is, in exiting the premises where he worked – the plurality in Badawi at [98] also make it clear that the example at s 9A(2)(b) does not ‘deal with activities during the course of employment … which cannot be said to be within an interval or interlude … but which are not employment related’;
(c) in relation to the duration of the employment, I do not find the example to be particularly relevant – if anything, the example is neutral – neither the length of the [respondent’s] employment (since November 2017) nor how long the [respondent] had worked on 11 April 2022 had any effect upon the nature of the injury suffered by the [respondent], which occurred as a result of a specific event;
(d) in relation to the probability that the injury would have happened anyway and at about the same time and stage of the [respondent’] life, it is highly unlikely in my opinion that a similar accident (tripping over a bumper stopper in a car park) would have happened anyway and at a similar time – the accident was a specific event occurring on a specific date while the [respondent] was in the course of his employment with the [appellant], and
(e) there has been no medical or other evidence presented to suggest that either the worker’s state of health before the injury or his lifestyle and activities outside the workplace were in any way relevant to, or in any way responsible for, his tripping over the bumper stopper on 11 April 2022.”
In terms of the appellant’s assertion that the findings at reasons [121(a), (b) and (d)] are against the weight of the evidence, it is generally not helpful for that submission to be made without directing attention to the other evidence which is said to constitute “the weight of the evidence”. Absent such identification of the evidence said to be the “weight of the evidence”, this submission fails. In terms of the submission about s 9A(2) having no relation to the concepts discussed at [121(a)], I do not accept that the Member was in error. This provision, s 9A(2)(a), refers to time and place of injury. The finding at [121(a)], when read in context, is unremarkable and consistent with earlier evidentiary findings, and in particular I refer to reasons [94] and [101].
In terms of what is said about reasons [121(b)], there is an assertion that it misunderstands the facts, but does not say how. It also asserts that Badawi was misapplied. Again, no submission is made as to the alleged error the Member is said to have made in applying Badawi. As a consequence, neither of these submissions is established.
In terms of what is asserted about reasons [121(d)], the appellant has relied on an alternate proposition it advanced about the injury hypothetically occurring in a neighbouring shopping centre. This submission fails to set out why the finding made by the Member was wrong, which is the essence of intervention on appeal. No error has been established in respect of this discrete paragraph of the reasons.
This now leaves the appellant’s submission at paragraph [44] which I have set out above. I have closely read the written submissions the appellant relied on before the Member on this point, which is at paragraph [5] of the submission dated 2 December 2022, where the appellant submitted to the Member on each aspect of s 9A(2). A number of these submissions are merely a repetition of what had been submitted to the Member. The structure of the submissions at [44] sets out the appellant’s preferred view of the findings that it says ought to have been made. This is not the task on appeal, rather the task on appeal involves the identification and correction of error.[105]
[105] Raulston.
Additionally, there is criticism of the Member at [42] of the appellant’s submissions, which I have set above, of a number of matters which it is asserted were not evaluated, such as the respondent’s care for his own safety, the exposure of the stopper and his health prior to injury. I have closely examined both sets of written submissions the appellant relied on before the Member and nowhere were these issues brought to the Member’s attention as being relevant to the s 9A(2) consideration. The Member was not in error in not dealing with a submission that was not made.[106]
[106] Brambles Industries Ltd v Bell [2010] NSWCA 162, [30].
The appellant has not been able to establish error in these three grounds. Each ground is therefore dismissed.
As to Grounds 7 and 8
These two grounds, being a challenge to the Member’s findings of incapacity, are advanced on the assumption that the appellant’s application for fresh evidence will be granted.[107]
[107] Appellant’s submissions, [47]–[50].
I have, for the reasons set out above, declined to grant leave to the appellant to rely upon the fresh evidence identified by the appellant. As a consequence of this ruling, Grounds 7 and 8 must fail.
Grounds 7 and 8 are dismissed.
DECISION
The Certificate of Determination dated 7 February 2023 is confirmed.
Judge Phillips
PRESIDENT
6 February 2024
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