Reid v Yamma Pty Limited

[2006] NSWWCCPD 343

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Reid v Yamma Pty Limited [2006] NSWWCCPD 343

APPELLANT:  Anna Maria Reid 

RESPONDENT:  Yamma Pty Limited

INSURER:Employers Mutual Indemnity (Workers Compensation) Limited

FILE NUMBER:  WCC16386-05

DATE OF ARBITRATOR’S DECISION:          27 February 2006

DATE OF APPEAL DECISION:  15 December 2006

SUBJECT MATTER OF DECISION: Serious and wilful misconduct ; ‘under the influence of alcohol’; interruption to a journey and ‘the risk of injury’ within the meaning of section 10 of the Workers Compensation Act 1987; adequacy of reasons; findings of incapacity and weight of evidence; failure to apply the ‘five steps’ in Mitchell; adequacy of evidence in respect of section 60 award.

PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore

HEARING:On the papers

REPRESENTATION:  Appellant:      Paul J Keady & Associates

Respondent:    Dutton Lawyers

ORDERS MADE ON APPEAL:  A.         The decision of the Arbitrator dated 27 February 2006 is revoked and the following decision made in its place:

1.        That the Respondent (Yamma Pty

Limited) pay the Applicant (Anna Maria Reid) weekly compensation at the rate of $494.36 for the period 25/6/03 to 8/9/03 under s.36 of the Workers Compensation Act 1987.

2. That the Respondent pay the Applicant weekly compensation at the rate of $103.16 for the period 9/9/03 to 26/10/04 and from 5/11/04 to 10/1/06 under s.40 of the Workers Compensation Act 1987.

3. That the Respondent pay the Applicant weekly compensation at the rate of $60.00 per week from 11/1/06 to date and continuing under s.40 of the Workers Compensation Act 1987.

4. That the Respondent pay the Applicant’s section 60 expenses pursuant to the provisions of the Workers Compensation Act 1987 on production of accounts or receipts.

5.        That the Respondent pay the Applicant’s costs as agreed or assessed.

B.Yamma Pty Limited is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 10 March 2006 Anna Maria Reid (‘Ms Reid’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 27 February 2006.

1. On 20 March 2006 Yamma Pty Ltd (‘Yamma’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the same decision.

1. Ms Reid was employed by Yamma which traded as the Albemarle Hotel (‘the Hotel’) at Menindee in the far west of New South Wales. Ms Reid commenced employment on a casual basis in about December 2002 initially as a cleaner, but after approximately three weeks became the ‘cook’ after the existing cook left that employment.

1. There was conflicting evidence as to her hours of work, but it appears that she worked somewhere between 10 and 30 hours per week.

1. On Tuesday 24 June 2003 Ms Reid apparently completed her shift at approximately 9:00pm. On that particular day, she had worked both the lunch (12:00pm to 2:30pm) and dinner (6:00pm to 9:00pm) shifts.

1. At the completion of her evening shift, as was apparently her usual practice, she remained to have a complimentary staff drink provided by her employer. She claimed she then had a second drink, disputed by other’s present, and left the hotel at approximately 10:45pm.

1. As Ms Reid left the Hotel, she walked along Menindee Street in the direction of her residence. When she was approximately 400 metres away from the Hotel, Ms Reid claimed that she saw bright headlights approaching and, “… as I stepped off the road to get out of the way of her car and stepped in a hole approximately 3 to 4 feet from the edge of the road.”

1. As a consequence of that incident, Ms Reid suffered an injury to her right ankle and left knee.

1. Ms Reid was off work until early September 2003 during which time she received social security payments.

1. Ms Reid resumed work with Yamma on or about 8 September 2003 but on, she claimed, reduced hours.

1. It is not clear from the material before the Arbitrator just when Ms Reid made a claim on Yamma’s insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’) but in any event, liability was denied.

1. On 26 September 2005 Ms Reid lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 25 June 2003 to date and continuing, together with medical, hospital or related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. On 17 October 2005, Yamma filed a ‘Reply’ disputing Ms Reid’s claim on a number of grounds to which I will refer later.

1. The parties attended a conciliation/arbitration hearing on 24 February 2006. On 27 February 2006, a ‘Certificate of Determination’ was issued. The ‘Statement of Reasons – Ex Tempore Orders’ accompanying the ‘Certificate of Determination’ noted that “… the reasons for the orders … were given orally at the arbitration hearing.”

The Arbitrator’s reasons are contained at pages 43 to 48 of the transcript.

1. The decision of the Arbitrator was as follows:

“1. That the Respondent pay the Applicant weekly compensation at the rate of $494.36 for the period 25/6/03 to 8/9/03 under s.36 of the Workers   Compensation Act 1987.

2. That the Respondent pay the Applicant weekly compensation at the rate of $103.16 for the period 9/9/03 to 31/12/03 under s.40 of the Workers   Compensation Act 1987. An award for the Respondent thereafter.

3. That the Respondent pay the Applicant’s medical expenses incurred up to 26 October 2004 under s.60 of the Workers Compensation Act, 1987 on production of accounts or receipts. An award for the Respondent thereafter.

4.        That the Respondent pay the Applicant’s costs as agreed or assessed.”

1. On 10 March 2006 Ms Reid filed an ‘Appeal Against Decision of Arbitrator’ on a number of grounds to which I will shortly refer. On 3 May 2006 Yamma filed a ‘Notice of Opposition’ to that appeal.

1. On 20 March 2006 Yamma also filed an ‘Appeal Against Decision of Arbitrator’, and on 24 April 2006 Ms Reid filed a ‘Notice of Opposition’ to that appeal.

SUMMARY

1. Both the parties have appealed the Arbitrator’s determination. For convenience, and for the purposes of the Commission records, the determination and reasons for decision in each appeal are set out below. However, Presidential decision numbers are allocated in both appeals determined together. The two presidential decisions are:

·Ms Reid’s appeal is: Reid v Yamma Pty Limited [2006] NSWWCCPD 343, and

·Yamma’s appeal is: Yamma Pty Limited v Reid [2006] NSWWCCPD 344.

THE ISSUES IN DISPUTE

Ms Reid’s issues on appeal

1. Ms Reid submits that the Arbitrator has failed to properly consider all the evidence, which, she claims, entitled her to a continuing award of weekly payments of compensation and section 60 expenses pursuant to the provisions of the 1987 Act.

1. Ms Reid submits that the Arbitrator’s determination was against the weight of the medical evidence particularly in circumstances where Yamma did not tender any medical evidence, and the dates upon which the Arbitrator terminated her entitlements were merely “arbitrary” and did not correspond to the whole of the evidence before him.

1. Further, Ms Reid submits that the Arbitrator failed to properly apply the principles set out Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) in making his award pursuant to section 40 of the 1997 Act.

1. Finally, Ms Reid submits that the Arbitrator failed to provide adequate reasons for his decision both as to weekly payments and medical expenses in accordance with the requirements of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and the Workers Compensation Commission Rules 2003 (‘the Rules’).

Yamma’s Issues on Appeal

1. Yamma has identified six grounds of appeal set out hereunder:

“1. The Arbitrator erred in finding that the Applicant was not engaging in serious and wilful misconduct due to the consumption of alcohol pursuant to s.10(2) [sic] of [the 1987 Act], when such a finding was against the evidence presented.

2.The Arbitrator erred in finding that the Worker’s accident would have occurred regardless of the alcohol actually consumed by the Worker, when no such evidence or inference was available to the Arbitrator.

3.        The Arbitrator erred in finding that the respondent employer encouraged its   employees to remain on the employment premises after staff drinks, when   no such evidence or inference was available to the Arbitrator.

4. The Arbitrator erred in finding that the worker’s journey home had not been interrupted pursuant to s.10(2) of [the 1987 Act], when such a finding was against the evidence presented.

5. The Arbitrator erred in awarding the worker s.60 expenses beyond 31 December 2003, when such a finding was against the evidence presented.

6. The Arbitrator erred in ordering the Respondent employer to pay the Applicant’s s.60 expenses beyond 31 December 2003 when no evidence supporting such an award was before the Arbitrator.”

1. Both parties, in their Notices of Opposition, have taken issue with all the appeal points raised by each other, and the substance of those submissions will be dealt with in the decision which follows.

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act provides:

“(6)     If the Commission is satisfied that sufficient information has been supplied   to it in connection with proceedings, the Commission may exercise   functions under this Act without holding any conference or formal hearing.”

1. Both parties submit that the matter is suitable for a determination on the papers.

1. As I have said, both parties have filed extensive submissions with detailed reference to a number of authorities.

1. Having regard to these submissions, evidence and documents that are presently before me, I am satisfied that I have sufficient information to proceed on the papers in each appeal without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE TO APPEAL

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

1. The amount at issue on each appeal satisfies the requirements of section 352(2), and both appeals were filed within the time limits prescribed by section 352(4) of the 1998 Act.

1. Leave to appeal is granted to both parties.

THE SUBMISSIONS, EVIDENCE AND FINDINGS

1. The issues to consider on appeal may be summarised as follows:

·Did Ms Reid’s conduct in remaining on the hotel’s premises and drinking at the completion of her shift amount to “serious and wilful misconduct” within the meaning of section 10(1A) and (1B) of the 1987 Act, and did any such consumption of alcohol “contribute in any way” to her injury?

·Did Ms Reid’s conduct constitute an “interruption” to her journey home such as to materially increase the risk of injury within the meaning of section 10(2) of the 1987 Act?

·Did the Arbitrator err in his determination of the section 40 award?

·Did the Arbitrator err in his determination of the claim for section 60 expenses?

·Did the Arbitrator provide adequate reasons for his determination?

The “Serious and Wilful Misconduct” Issue

1. It is useful at this point to set out the relevant provisions of section 10 of the 1987 Act. It is in the following terms:

“10(1)  A personal injury received by a worker on any journey to which the 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.

1(A)     Sub-section (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.

1(B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999), unless the alcohol or other drug did not contribute in any way to the injury or is not consumed or taken voluntarily.”

1. There was no real dispute between the parties that Ms Reid was on a daily or periodic journey between her place of employment and place of abode at the time of her injury within the meaning of section 10(3) of the 1987 Act. The real issue was whether or not her conduct amounted to serious and wilful misconduct such as to disentitle her to the benefits provided by section 10(1).

1. In a statement dated 4 November 2004 made to an investigator engaged by EMI and annexed to Yamma’s ‘Reply’, Ms Reid stated as follows:

“I had 2 drinks, one was a complimentary staff drink and the other I paid for, and   left with Peter [her partner] around 10:00pm or thereabouts. The hotel was not   shutting when I left.”

1. In a statement dated 20 September 2005 annexed to her Application, Ms Reid again confirmed that she had two drinks stating: “The first drink was a complimentary staff drink provided by my employer. This was common practice of my employer to provide a drink to staff at the conclusion of a shift.” She then stated:

“I recall advising [the investigators] that I left work at 10:00pm or thereabouts. On                    reflection I left my employer’s premises at no later than 10:45pm. The hotel was   not shutting when I left. Neither my partner nor myself had observed Mary Jenkins              [proprietress] in the bar at the time we left the hotel.”

1. In a letter to EMI dated 14 July 2003, Mary Jenkins, the proprietress of the Albemarle Hotel stated:

“Anna Reid is a cook at our hotel. She signed off at 9:00pm on Tuesday 24 June   2003. I walked into the bar at 11:15pm to help the barman lock up and Anna was in   the bar socialising with her husband and friends. It is most unusual for her to be so               late on a Tuesday night. She occasionally stays back after work with another staff   member that only a Thursday or Friday …”

1. In a statement to EMI’s investigator dated 4 November 2004, Ms Jenkins stated as follows:

“… Anna was still here when I closed up at 11:30pm. Anna is a brandy drinker and                   had been drinking for the 2.5 hours or so after her shift had finished … I cannot say   how many drinks Anna would have had and I don’t recall her being extremely   intoxicated but she’d obviously had a few drinks.”

1. A colleague of Ms Reid’s, Natasha Files, was also present at the time. In a statement dated 5 November 2004 to EMI’s investigator, Ms Files stated:

“Anna usually has one or two drinks after work but very rarely does she have any   more than that. I wouldn’t say that she is a big drinker. On this particular night   though she and her partner, Peter, stayed for more than a few drinks, which I   remember being unusual … Whilst I cannot accurately say how many drinks she   had, it was definitely more than a few as she was under the influence when she   left. I remember she had a bit of a sway going and was quite giggly but she wasn’t                   ‘plastered’ or anything like that.”

1. Gemma Vote, daughter of Ms Jenkins, was also present. In an unsigned statement dated 23 January 2006 annexed to a further factual report obtained by EMI dated 31 January 2006, she stated:

“Whilst I was not sitting directly with Anna, it was a quiet night in the pub so I was                  talking to her and the others at various times. The night was not any particular   occasion and it was unusual for Anna to stay for any longer than her one ‘staffie’.   Anna was definitely drinking alcohol from the time she completed her shift until   closing time. I cannot say how many drinks she consumed but it was more than one                 or two … I would not be able to say whether or not Anna was under the influence at   the time she left the hotel.”

1. Ms Reid gave oral evidence at the hearing before the Arbitrator contained at pages 8 to 27 of the transcript. Ms Reid again confirmed that she had only one drink after her staff drink. She denied that she was “intoxicated” when she left work. In cross examination she stated that her “usual behaviour” mid week was to have one or two drinks. She said “that was the normal thing, yes” (page 10 transcript). At page 11, she again confirmed that she would “… just normally have one or two drinks every night.” Ms Reid confirmed that the Albemarle Hotel was “… not a really big pub or anything like that” and at page 13 the following exchange took place:

“Q.     And your evidence is that you only had two alcoholic drinks?

A.       Yes.

Q.       Over a period of one and half approximate hours?

A.       Yes.”

1. Thereafter, Ms Reid was asked a number of questions as to the time she left the hotel. It was noted that she had apparently told “treatment providers” that the accident occurred around 11:00pm to which she responded “No, I got home about 11:00pm” (see page 13 transcript).

1. At page 17 of the transcript this exchange took place:

“Q.Can I suggest that you had more than two drinks that evening?

A.No, you can’t suggest. I didn’t.

Q.       Okay. And can I suggest that at the time you left the premises you were   affected by alcohol?

A.I don’t think I was affected by alcohol but I had had the two drinks.”

In her evidence, Ms Reid specifically denied that she was intoxicated when she left work (page 9 transcript).

1. Peter Reid, Ms Reid’s, partner, provided a statement dated 6 February 2006. He said:

“Anna had one complimentary drink provided by her employer. I purchased Anna   one further drink and we walked home sometime between 10:00pm and 10:30pm   … At the time I was not intoxicated. To my observation Anna was not intoxicated.”

1. A brief statement from Wade Cowie, the barman, did not add anything to the issue at hand.

1. It is fair to say that the evidence was certainly equivocal as to how many drinks Ms Reid had consumed. As to this evidence, the Arbitrator said this (page 44 transcript):

“The Applicant has consistently said that she had no more than two drinks. She may possibly have had a soda water or a soft drink in addition to that, but she says that that is her normal course. That evidence does not sit well when reflected by other statements that are tendered today, which indicate that the Applicant may have had – sorry, not may have had but certainly would have had more than two drinks. The other statements don’t indicate as to how many drinks that may have been, and that may not be absolutely essential, given that the crucial words really are whether or not the Applicant was under the influence of alcohol. 

Whether or not the Applicant had two or four drinks, I would certainly accept the Applicant’s view that she was not, and I think the popular term that was used today in evidence, pissed. She was not a person given to consuming large amounts of alcohol, and I am satisfied that that is probably the case.

I am satisfied, however, that she was under the influence of alcohol. That standard is not something that the Act assists greatly as to what constitutes being under the influence … Once that has been established, there is an onus on the Applicant to show that the influence did not contribute to the incident giving rise to the injury.”

1. The Arbitrator concluded (page 45 transcript):

“I don’t think a great deal turns on whether it was 10:45pm, 11:15pm or 11:30pm … clearly, the Respondent would put to me, and I think it is a legitimate submission, that the longer the period the more likely the Applicant would have had a few more drinks … All the evidence is clear that the Applicant fell into a pot hole and that as a result of that fall, she injured herself.

The fall came after a motor vehicle driven by Ms Natasha Files did a u-turn and as a result of the high beam that was on at the time, it caused some night blindness in the Applicant Worker. She stepped back and fell into a hole. On all the evidence, and [sic] I think the better view is that whether or not she was intoxicated probably would not have made any great difference as to whether or not she would have stumbled into that hole.

It seems to me an ordinary event of going home that that did occur, and I’m not persuaded that intoxication would have any influence in that result, and I find that the evidence … today that … as a result of the high beam lights and the moving back off the roadway is a sufficient discharge of the onus on the Worker.”

1. This is primarily a question of fact. Whilst I have some concerns as to the Arbitrator’s conclusion that Ms Reid was “under the influence of alcohol” in light of her statement that she consumed soft drinks in between alcoholic drinks, ultimately it must be said that it was a finding open to the Arbitrator, given the statements particularly of Ms Jenkins and Ms Files. It is also fair to say that a distinction should be drawn between being ‘intoxicated’ and ‘under the influence of alcohol’.

1. It is important to consider this evidence in the context of the Commission objectives as set out in section 367 of the 1987 Act and indeed the procedures before the Commission as set out in section 354 of that Act, in particular, that proceedings be conducted with as little formality and technicality as the proper consideration of the matter permits. In those circumstances, it was appropriate for the Arbitrator to have regard to the written statements of Yamma’s witnesses.

1. Having found that Ms Reid was indeed “under the influence of alcohol”, the Arbitrator then determined that the onus was upon Ms Reid to demonstrate that “... the alcohol … did not contribute in any way to the injury …”

1. It is on this particular aspect of the legislation that Yamma submits the Arbitrator has erred.

1. Yamma submits that the Arbitrator’s finding that Ms Reid’s fall was effectively as a result of the high beam lights on Ms File’s car was not open on the evidence presented. Yamma submits that “the facts are that the Worker was affected by alcohol and stumbled into a hole in the side of the road. It is submitted that, prima facie, alcohol must have played a part in the fall.”

1. Yamma has placed great emphasis in its submissions on the Arbitrator’s finding that Ms Reid “… stepped back and fell into a hole” (page 45 transcript). Yamma submits that Ms Reid’s version of events given in her statement and at the arbitration hearing was to the effect that she stepped off the road to get out of the way of the car and stepped in a hole approximately three to four feet from the edge of the road. Yamma states:

“There is no suggestion in the abovementioned version of events that the Worker ‘stepped back and fell into a hole’ as found by the learned Arbitrator … The only inference available is that the Worker either walked forwards to get off the roadway, or turned to one side and walked off the roadway. The hole therefore must have been either in front of the Worker or to one side. Thus it is therefore not immediately open to the Arbitrator to find that the Worker would have fallen regardless of whether or not she was intoxicated. The Appellant accepts that had the Worker stepped backwards into the hole as a result of ‘night blindness’ caused by high beam headlights, then the level of the Worker’s intoxication would not necessarily have made any great difference as to whether the fall occurred. However, as submitted above, it is not possible for the hole to have been behind the Worker. Accepting that the hole was either in front of the Worker, or more likely to the side, it is then encumbant upon the Worker to establish that the alcohol did not contribute to the injury.”

1. Yamma submits that Ms Reid failed to discharge that onus for the following reasons:

“The High Court has held that in general terms pedestrians are more able to see and                  avoid imperfections in a road surface: Brodie v Singleton Shire Council [2001] HCA 29.

The Worker alleges that due to the brightness of the headlights it made it difficult to                 see the ground in front of her.

The Worker chose not to call any expert evidence concerning the possibility and   effects of ‘night blindness’.

The Worker’s own evidence in chief in relation to the effect of the head lights was                    that ‘I didn’t know where I was at the moment that much.”

1. As I said earlier regarding the procedure before and objectives of the Commission, it was not, in my view, either necessary or appropriate for Ms Reid to provide “expert evidence” as to the effects of ‘night blindness’. In her statement to EMI’s investigator dated 4 November 2004, Ms Reid said this:

“Natasha [Ms Files] drove past us and whilst she did a u-turn to double back to pick us up Peter and I crossed the street so that we were on the same side of the road as the pub. There was no footpath on this particular stretch of the road. As Natasha’s car came towards us the brightness of the headlights made it difficult to see the ground in front of us. I stepped off the road to get out of the way of her car and stepped in a hole approximately three to four feet from the edge of the road.”

1. Ms Reid gave a similar version of events in her statement dated 20 September 2005. Importantly, she stated that she “stepped off the road”.

1. The Arbitrator variously described the incident as “… the Applicant fell into a pot hole …”, “she stepped back and fell into a hole …” and “… the moving back off the roadway …”

1. None of this evidence suggests that Ms Reid “… was affected by alcohol and stumbled into a hole on the side of the road” as is submitted by Yamma.

1. It is really a question of semantics. Yamma’s own investigator’s report included some photographs. Although of poor quality and photocopies only, there is clear evidence of a large hole at the side of the road (bearing in mind there was no footpath). It is by no means improbable that Ms Reid, when confronted by high beam lights (confirmed by Ms Files in her statement) would step sideways off the roadway (no footpath) to avoid the oncoming vehicle.

1. Yamma’s submission might carry more weight if the facts were simply that Ms Reid was walking home after work, under the influence of alcohol, and fell into a hole. However, the evidence before the Arbitrator was clearly that the proximate cause of the injury was the impact of the high beam lights on Ms Reid. In those circumstances, it was open to the Arbitrator to conclude that the consumption of alcohol did not contribute in any way to the injury.  Again, the Arbitrator accepted that Ms Reid was not ‘intoxicated’ but merely ‘under the influence of alcohol’.

1. This issue was considered by Neilson CCJ of the former Compensation Court in Cunningham v Tobin, Bolt and Rawlings t/as Stingray Café (2001) 21 NSWCCR 524 (‘Cunningham’). In that case, the worker sustained very serious injuries following a motor vehicle accident when he was driving home following a Christmas party organised by his employer. However, in that case, the worker had a blood alcohol reading of at least 0.138. The worker failed in his claim, His Honour stating as follows:

“The Applicant then must prove in my view that the alcohol did not contribute, ‘in any way’ to the injury. On my findings of fact I have no hesitation in finding that the synergistic effect of alcohol and fatigue was responsible for the collision in which the Applicant was so grievously injured. There is proof positive to the contrary to that which the Applicant bears the onus of disproving”.

1. Interestingly, in that case, His Honour also made this remark:

“S.10(1A) is a disqualification and (1B) deems having a prescribed concentration of alcohol in the blood to be serious and wilful misconduct, ‘unless the alcohol or other drug did not contribute in anyway to the injury or was not consumed or taken voluntarily’.

In other words, His Honour’s interpretation of section 10(1B) is by reference to a “prescribed concentration of alcohol” as defined in Part 2 of the Road Transport (Safety and Traffic Management) Act 1999 (‘the 1999 Road Act’).

1. As the Arbitrator pointed out, the question of whether or not a person is under the influence of alcohol “… is not something that the Act assists greatly as to what constitutes being under the influence.” The terms of the section suggest that it must be “within the meaning of [ the 1999 Road Act].” Does that mean that section 10(1B) only operates in circumstances where a prescribed concentration of alcohol is determined? Judge Neilson’s decision in Cunningham would suggest that it does. In this case, no blood alcohol reading was taken so that it is not possible to determine Ms Reid’s state of intoxication.

1. On one reading of section 10(1B), it could be argued that the alcohol referred to must be of a level as defined in the 1999 Road Act such that the requirement to demonstrate that the alcohol did not contribute in any way to the injury is only applicable where the level of alcohol exceeds the prescribed range set out in Part 2 of that Act. The only definition of “under the influence of alcohol” in the 1987 Act appears to be that it is within the meaning of the 1999 Road Act. In the absence of such evidence, it could be argued that being merely “under the influence of alcohol” as described by a worker or indeed other witnesses is insufficient to bring into effect the disqualification provisions of section 10(1A).

1. I am inclined to think that it does, otherwise, what is the purpose of the qualification “within the meaning of [the 1999 Road Act]”?  However, if I am wrong, it remains for Ms Reid to prove, on the balance of probabilities, that the alcohol she had consumed did not contribute in any way to her injury. (See WorkCover Authority (NSW) v Billpat Holdings Pty Limited (1995) 11 NSWCCR 565, and Alcatel Australia Limited v Griffiths (1997) 15 NSWCCR 390).

1. These issues were discussed recently by Deputy President Fleming in DST International Pty Limited v MacIntosh [2005] NSWWCCPD 91. The circumstances of that case were a little different. The Worker admitted to being affected by alcohol she consumed at a work social function. She left the social function in a taxi and was assaulted by the taxi driver. Deputy President Fleming concluded that: “In my view section 10(1B) of the 1987 Act was never intended to operate to deny a Worker an entitlement to compensation in circumstances such as those faced by Ms MacIntosh.” Deputy President Fleming then went on to consider the amendments to section 10 of the 1987 Act by the Workers Compensation (Amendment) Act 1989. She stated as follows:

“Relevantly, sub-section (1A), (1B) and (1C) were inserted … In Alcatel Australia                    Limited v Griffiths (1997) 15 NSWCCR 390, Mason P referred to the ‘Explanatory Note’ to the Bill which stated the objects of the Bill were:

‘To exclude a claim for workers compensation for injuries received by a   Worker on a journey between the Worker’s home and place of employment   (and certain other journeys) if the injury was caused wholly or partly by the   fault of the Worker.’

The Minister for Industrial Relations said, in his Second Reading Speech:

‘The Bill provides that workers compensation will not be claimable if a periodic journey injury was caused, wholly or partly, by the fault of the Worker. Fault is defined to include failure by the Worker to take reasonable care for his or her own safety, and other circumstances involving negligence. Specific provision is made regarding alcohol and drug consumption. If the Worker was under the influence of alcohol or another drug at the time, the journey injury is taken to have been caused by the Worker’s fault, unless the alcohol or drug did not contribute to the injury. The onus will be on the Claimant to prove that the injury was not due to his or her fault because of such factors. (Parliamentary debates Hansard, Legislative Assembly, 21 November 1989) …”

1. Deputy President Fleming considered that Ms MacIntosh was “… taking ‘reasonable care for her own safety’ by taking a taxi home …”

1. In the present case, a similar argument could be mounted. Ms Reid in her evidence before the Arbitrator said this: (page 9 transcript)

“Q.     … Natasha Files had offered you a lift home?

A.       She had.

Q.       Yes. But you declined that?

A.       I did. She had been there since 5:30pm, and I declined to.

Q.       What’s the reason you declined her lift?

A.       She’d been drinking from 5:30pm.

Q.       So you didn’t think it was safe to have a lift home?

A.       No. And I prefer walking anyway. It was our normal thing to walk.”

1. At page 14 of the transcript, when asked about Ms Files, Ms Reid stated:

A.       “I wouldn’t like a lift – she is not a very good driver at the best of times. So   alcohol and bad driving is not something I would – so I have never accepted   a lift from her as yet to date. So that’s just the way I am.

Q.       If she wasn’t drinking would you just not get a lift with her?

A.       Yes.”

1. Ms Files confirmed in her statement that she had arrived at the hotel at around 5:30pm.

1. Accepting Ms Reid’s statement, there was insufficient evidence to conclude that the consumption of alcohol contributed in any way to the injury which could be described as the worker’s fault: it was the effect of the bright headlights causing her to take evasive action as a consequence of which she fell in a hole and suffered injuries.

1. ‘Fault’ in this context is distinguishable from that set out in section 14 of the 1987 Act, but is applicable in the context of the requirement of a worker to establish that he or she should not be disentitled to compensation as a result of their conduct associated with a ‘journey’.

1. In all the circumstances, I am not persuaded that the Arbitrator has erred in finding that the alcohol consumed by Ms Reid did not contribute in any way to her injury. Again, it is a finding of fact made by the Arbitrator on the evidence before him, and should not be disturbed unless it is clear that there was no reasonably probative evidence to support his finding. There was in my view adequate evidence to support his conclusions.

The ‘Interruption’ Issue.

1. Section 10(2) of the 1987 Act provides as follows:

“(2)     Sub-section (1) does not apply if –

(a)       the injury was received during or after any interruption of, or   deviation from, any such journey; and

(b)       the interruption or deviation was made for a reason unconnected   with the worker’s employment or the purpose of the journey,

Unless, in the circumstances of the case, the risk of injury was not   materially increased because of the interruption or deviation.”

1. There are essentially three issues to consider in relation to this section. Firstly, was there an interruption? Secondly, if so, was it connected with Ms Reid’s employment? Thirdly, if there was an interruption, did it materially increase the risk of injury?

1. Yamma submits that the circumstances of this case demonstrate that there was an interruption in Ms Reid’s journey home which materially increased the risk of injury.

1. Yamma makes the following points:

·By remaining at the hotel at the conclusion of the staff drink for a significant period of time, Yamma submits that the site changed from a place of employment to a place of entertainment.

·There was no evidence before the Arbitrator to suggest that Yamma encouraged or induced the worker to remain on the premises following the staff drink.

·The issue is not whether the increase in risk of injury resulting from the interruption actually caused the injury, but whether in fact there has been a material increase in a risk of injury.

·In determining that issue, a comparison of the risk likely to arise had there been no interruption should then be made with the risk that did in fact arise.

1. Yamma then cites in its submissions a number of factors influencing the question of ‘risk’ such as the absence of any evidence from Ms Reid as to the lighting of the relevant area between 9:30pm and the time of her accident or any meteorological evidence.

1. Yamma makes the point that Ms Reid conceded in cross examination that had she left her place of employment at the conclusion of her staff drink, the driver of the motor vehicle that later caused the night blindness – and therefore the accident – would not have been on the road.

1. I have already made reference to Ms Reid’s evidence as to the state of intoxication of Ms Files. Yamma submits that at the time Ms Reid left the premises she was aware that Ms Files was affected by alcohol and was about to drive her motor vehicle.

1. In terms of the ‘comparison’, Yamma submits as follows:

“(a)     If the worker left her employment premises at the conclusion of her staff   drink at approximately 9:30pm - Natasha Files would not have been affected   by alcohol and driving her motor vehicle on the relevant section of road; or

(b)       The worker left her employment premises some time later, at a time she   knew that Ms Files was affected by alcohol and was about to drive her   motor vehicle on the same street that the worker was to be walking.”

1. These factors, Yamma submits, indicate that the interruption to Ms Reid’s journey home has materially increased the risk of injury.

1. Whilst there is merit in some of Yamma’s submissions, the ultimate reasoning, in my view, is flawed. The evidence suggested that the ‘party of four’ effectively broke up when Ms Reid decided to leave, and it was at that point that Ms Files offered her a lift home. There was no evidence to suggest that that chain of events may not have occurred at an earlier time, as suggested by Yamma, ie, around 9:30pm. Ms Files may well still have been affected by alcohol having been drinking since 5:30pm. These are merely matters for speculation. There was insufficient evidence to reach a positive conclusion that if Ms Reid had left at 9:30pm that Ms Files would not have been affected by alcohol and driving her vehicle on the relevant road.

1. It is true to say that Ms Reid in her evidence indicated that she was aware that Ms Files was affected by alcohol and was about to drive her motor vehicle, but Ms Reid had also given evidence that she understood Ms Files was going to drive another person home and was going in the opposite direction, another reason for declining the lift. In those circumstances, Ms Reid could not have been expected to know that Ms Files, on her return, would do a u-turn to pick her up in circumstances where she had already declined the lift.

1. In other words, there was nothing in the evidence to indicate that the accident would not have occurred if Ms Reid had indeed left the hotel an hour or so earlier.

1. As to this issue, the Arbitrator made the following findings contained at pages 45 to 46 of the transcript:

“I then move to the interruption aspect … the fact is that the licensee of the hotel who is the principle of the Respondent in this matter, does, as many pubs do, as far as I am aware, and provides [sic] complimentary drinks to their staff.

In this case, the licensee has exercised what could be considered responsible management and allows workers to have one staff drink. There may be many reasons for that and I am entitled to take some notice of those aspects as an Arbitrator in the Commission. The fact is it is a small country pub. No doubt it’s useful to have people in the pub. It provides a more inviting atmosphere for other patrons to enter and presumably if staff then go on to have some further drinks thereafter at their own expense, that would not be discouraged either.

We are talking about a small hotel in a small country town. It seems to me that any attempt in these circumstances to define a break over a relatively short period between work and a social setting is academic and splitting hairs. It seems reasonable to me that the licensee would encourage staff to remain at the pub, would encourage them to have discussions, would encourage staff to build morale and to have good relationships and to provide a dynamic atmosphere within that hotel.

There are many cases which deal with such events as Christmas parties and special events. This wasn’t a special event. This was a regular occurrence in which staff would remain at the conclusion of their shift, and I do not consider that the period of time that the Applicant stayed, even if it’s at the outer end is of a period that would lead me to consider that that employment relationship in that employment setting had been broken. Therefore, I do not consider that there has been an interruption prior to the journey home.”

1. Having found that there was no interruption to Ms Reid’s journey home, the Arbitrator was not required to consider the question of any material increase in the risk of injury.

1. My task is then to determine whether there was sufficient evidence to justify the Arbitrator’s finding that there was no “interruption” to Ms Reid’s journey in light of a number of authorities on this issue.

1. It was not disputed by Yamma that it was a normal occurrence of the hotel to provide one staff drink at  the conclusion of a shift. In her statement of 20 September 2005 Ms Reid said:

“It was normal practice that after my shift finished the staff would gather and be provided with a complimentary drink by the employer and then discuss what was happening at work. We would organise the events of the hotel. This was because everybody had more time at the end of the shift to discuss things. We would also discuss other events happening in Menindee and how the hotel could attract patrons from the other events. We would also discuss what is happening in and around the Menindee area.”

1. Present on this occasion were Ms Reid’s partner Peter (not an employee), Natasha Files (an occasional employee) and Tony Marani (Ms Files’ partner), and Gemma Vote, daughter of the proprietors Ross and Mary Jenkins, and a fellow employee together with the barman and possibly even Ms Jenkins.

1. In cross examination, Ms Reid was asked about her fellow drinkers, but nothing was put to contradict her written statement referred to in paragraph 89 above. True, when asked “so as best you can recall, you were the only employee amongst the four of you at that time?” Ms Reid replied “yes”. The ‘four’ were identified as Ms Reid, Peter Reid, Natasha and Tony. But according to other statements, Gemma Vote and Ms Jenkins were also present, the latter however apparently working and not ‘socialising’.

1. Did this evidence support the finding that Ms Reid had effectively embarked on a ‘single journey’, uninterrupted, commencing at the time she left the Albemarle Hotel, or had the circumstances changed such that she was no longer in a place of employment but a place of entertainment?

1. In Cross v Design & Interiors Pty Limited [1975] WCR 20, Judge McGrath as he then was considered this issue where the facts were not dissimilar. In that case, the employer had contracted with a club for certain renovations to the club premises and had arranged with the club for his workers to have “a few drinks” in the club after they finished their days work. The worker had remained for “a few drinks” and was injured in a motor vehicle accident on his way home. His Honour determined that the worker commenced his journey home after drinking at the club for a short time and was on a journey from the place of employment to his place of abode. Alternatively, if it were concluded that the stay in the club had gone beyond what was contemplated under the employer’s arrangement with the club, then it was to be treated as in interruption of the journey from the place of employment to the place of abode. If it was a substantial interruption, it had to be determined whether it had materially increased the risk of a injury on a journey home. His Honour found that there had been no material increase of risk.

1. In essence, as His Honour said:

“Whilst to some extent the place of employment has been defined and considered                    in various cases, so far as it is a factual matter, I do not think there is any kind of   legal model, if you like, that one can impose upon the particular facts of a particular               case”.

1. His Honour considered that “… so long as the person remained there with the permission of the club, that it was all within the scope of the contemplated arrangement.”  He noted that the situation could be negated if for example:

“… The Applicant had been in fact signed in perhaps by another clubman with whom he may have had an acquaintanceship, I think that sort of evidence would clearly indicate that what happened was outside the scope of the arrangement between the Respondent and the club.”

1. His Honour noted that a place of employment can cease to be a place of employment and become a place of entertainment. He concluded:

“… Provided what the Applicant was doing was within the scope of the contemplated arrangement between the contractor and the club about the refreshment of his workers from time to time in the course of a job, he would still be at his place of employment. The question is then whether or not the staying on in the particular circumstances should be regarded as evidence of an abandonment of the worker’s contemplated journey home that day in favour of the utilisation of the club in such a way that his journey in fact would really be a journey home from a place of entertainment rather than from the place of employment via a place of entertainment, like an hotel or something like that, to his home.”

1. His Honour went on as follows:

“If one then regarded the change in the premises to be that from the place of employment to a place of entertainment, the question then is whether or not the daily journey was abandoned. On the facts, the only thing that happened, if he did change from one to the other, was that he did remain having a few more beers for another couple of hours. These sorts of facts to me are more or less within what a laymen might think would be the after-work drinking hours of a drinking worker … if this man had stayed for dinner and had gone to the show after dinner I think that one would say the journey was abandoned. I do not think that in the present case the journey was abandoned. I think it was a journey home via a place of refreshment with a few beers. That was clearly a break. Because of the length of time I think it was a substantial break, so that the question of whether or not the risk of injury was materially increased by reason of the break arises.”

1. His Honour concluded that, although the Applicant had indeed had a number of drinks, that there was insufficient evidence to demonstrate that “… he was drunk” and considered argument as to whether or not there was evidence as to whether it was dark or light at the time of the accident. Ultimately, His Honour concluded that the risk of injury was not materially increased.

1. The amount of alcohol consumed is obviously a matter of degree and a fact to be determined in each case. The relevance of this particular decision however is to the concept of an “arrangement” to stay after work for an hour or so having a drink where it was demonstrated that the worker was, as His Honour put it, “… a drinking worker”. In the present case, the evidence was that it was ‘usual’ for Ms Reid to remain and enjoy her ‘staffie’ drink such that her journey home could be said to be merely “via a place of refreshment”.

1. The facts in the present case would certainly suggest that there was an “arrangement” for at least one staff drink to be given at the end of a shift. Nothing in the evidence suggested that staff were actively encouraged to leave the premises after consuming that drink. Arguably, on Ms Reid’s evidence in her statement of 20 September 2005, any such “interruption” was in any event connected with her employment.

1. In Tucker v WD & HO Wills (Australia) Limited [1969] WCR 11, a worker was driven in daylight by a friend from his place of work to an hotel near his home. The hotel was not on the worker’s direct route. Having spent an hour in the hotel, “… where he refreshed himself in his customary manner”, the worker left the hotel in darkness, and while walking to his home, was injured in a street accident. The Workers Compensation Commission as it then was, found that the worker was injured on a periodic journey between his place of work and his place of abode after a substantial interruption of and deviation from his journey and that, although the risk of injury was increased, it was not materially increased by reason of such interruption and deviation. On appeal, the court held that the Commission was entitled to make those findings on the evidence before it. As per Herron CJ and Jacobs JA, the court held that “… the worker cannot be expected to deal exhaustively with all the hazards of his journey.”

1. Judge Gibson in proceedings before the Commission had held that “… the intake of alcohol and the dark does not materially increase the risk of injury. I say this because the intake of alcohol was a normal intake and not excessive for a working man in the Applicant’s position …”

1. Nevertheless, a raft of more recent decisions suggest that a worker must go further and demonstrate that the activity occurring during the “interruption” was authorised, encouraged or permitted by the employer if it is in fact an activity unconnected with the worker’s employment. 

1. A number of these decisions were considered in detail by Acting Deputy President Roche recently in J P Morgan Holdings Australia Limited t/as J P Morgan Operations Australia Limited v Haider & Ors [2006] NSWWCCPD 234 (“J P Morgan’). ADP Roche discussed the ‘football’ cases and ‘picnic cases’. He said:

“The High Court in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 (‘Hatzimanolis’) considered a number of earlier decisions. The test was summarised at (9) where the majority said:

In Henderson v. Commissioner of Railways (W.A)(3) (1937) 58 CLR 281, at p294, Dixon J. acknowledged that general expressions such as ‘incidental to the performance of the work’ had not ‘proved very helpful’ in determining whether an injury had occurred in the course of employment. His Honour suggested that, in cases which were not concerned with injuries sustained during actual work, the test of whether an injury had been sustained in the course of employment ultimately depended upon whether the workman was doing something which he was ‘reasonably required, expected or authorized to do in order to carry out his actual duties’ (4) ibid. Dixon J. also applied that principle in Humphrey Earl Ltd. v. Speechley (5) (1951) 84 CLR 126, at p 133 although in that case he omitted the adjective ‘actual”.

1. ADP Roche went on to consider their Honours decision in some detail noting the following:

“14. A striking feature of the recent cases which have held that an injury
occurring in an interval between periods of actual work was within the course
of employment is that in almost all of them the employer has authorised,
encouraged or permitted the employee to spend his time during that interval at
a particular place or in a particular way. However, it would be an
unacceptable extension of the course of employment to hold that an employee
was within the course of employment whenever the employer had authorised,
encouraged or permitted the employee to spend the time during an interval
between periods of actual work at a particular place or in a particular way.
That formulation would cover not only the case of the ‘lunchtime’ injury, as
in Oliver, and the case of the railway worker, as in Danvers, but also many
cases involving injuries occurring during intervals between daily periods of
work which could not fairly be regarded as within the course of employment.
Thus, an employee who is encouraged by his or her employer to see a doctor
after working hours is not ordinarily within the course of employment if
injured while visiting the doctor, although the case would come within such a
formulation. The course of employment is ordinarily perceived as commencing
when the employee starts work in accordance with his or her ordinary or
overtime hours of work and as ending when the employee completes his or her
ordinary or overtime hours of work.” (emphasis added)  

1. He referred to Clancy v Department of Public Health [1962] NSWR 2 quoting from Evatt CJ and Wallace J as follows:

“If the activity is not an independent excursion but is reasonably incidental to the worker’s employment, it is sufficient to bring the case within the statute. The activity need not be an actual duty but may be merely something which the worker is reasonably expected or authorised to do under the terms of his employment. Questions of fact, degree and circumstance are of course involved;...”

1. ADP Roche also considered the decision of Judge Burke of the former Compensation Court in Worrell v Longworth & Anor (2000) 20 NSWCCR 400, a decision also relied upon by Yamma in its submissions. That was a case where:

“… The worker worked on the employer’s agricultural property as an irrigation foreman. His hours of work varied depending on the season and the irrigation requirements. At peak times he would work 12 hours per day, seven days per week. On the day of his injury he worked for two or three hours up to 8am and he proposed working a similar stint at 5pm that afternoon. The worker lived about 5 to 10 km from the employer’s property in rented premises. On the day of the injury the employer rang him and invited him and his family to a picnic at the dam on the property. The worker accepted. While the worker was reattaching a rope to a speedboat on the dam the boat accelerated causing his finger to be amputated. The worker failed with his claim. Judge Burke held that the break in work was an “interlude between two discrete periods of work” [25] and that there had been no “overt encouragement or inducement to accept the invitation” [23]. In his decision his Honour made the following observations about Hatzimanolis at [12]:

“12. Hatzimanolis has been considered, and possibly interpreted, in quite a number of matters decided subsequently. Two matters raise a pertinent consideration: Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 and WorkCover Authority (NSW) v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565. Both place some stress upon an employer not merely passively authorising a particular activity but actively encouraging or inducing it before the requisite nexus to employment can be established. Glenbuddah Pty Ltd v Williams (1995) 12 NSWCCR 468 and Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250 have the same general thrust on this particular aspect. Hatzimanolis appears to have modified one limb of the test in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 per Dixon J at 133, of ‘reasonably required, expected or authorised to do’. If ‘required’, the activity was explicitly part of the employment; if ‘expected’, it is tacitly part of the employment. It is the ‘authorised’ parameter that has been modified. Insofar as that merely imports permission that, of itself, will not suffice to render the activity part of the employment. It must not merely be permitted but encouraged or induced.”

1. As Kirby A-CJ (as he then was) noted in WorkCover Authority (NSW) v Billpat Holdings Pty Limited & Ors (1995) 11 NSWCCR 565 at 593:

“But mere authorisation is not enough to cast the protective net of the Workers Compensation Act. To give the very substantial protections what that Act affords, their needs, according to the majority opinion in Hatzimanolis, to be a more direct connection with the employers enterprise. This involves encouragement and even inducement by the employer”.

1. A useful summary of the relevant authorities was set out by Deputy President Byron in Steven Albert Ingram v Norco Co-Operative Limited [2003] NSWWCCPD 1 (‘Ingram’) at para 32:

“An injury arising in the course of employment is one that arises during the whole of the time that the person is engaged in the performance of his or her duties of employment and other things that are reasonably incidental to it: Davidson and Another and Mould [1944] 69 CLR 96. In Katroullis v E R McNamara Pty Ltd [1993] NSWCC 6, Geraghty J observed that the words ‘in the course of employment’ “do not seem to bear any longer their obvious and immediate meaning. They have an extended meaning, a development which has taken place since Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.” His Honour also referred to Hatzimanolis v ANI Corporation Ltd (1992) 8 NSWCCR 242. He said:

“In their joint judgments, Mason CJ, Dean, Dawson and McHugh JJA, refer to section 9 of the Act which provides that a worker who has received an injury is to receive compensation. Section 4 of the Act defines injury as meaning ‘personal injury arising out of or in the course of employment’. For the purposes of section 4, ‘course of employment’ is not identical with a period of employment of a worker, or with the work which the person performs. It includes ‘the natural incidents connected with a class of work’. It also includes episodes, incidents in which the worker may be injured in doing something which is part of or incidental to his service.

Dixon J, in Whittingham v Commission of Railways (WA) (1931) 46 CLR 22 at 29 thought that in considering what was incidental to service:

‘the sufficiency of the connection between the employment and the thing done by the employee cannot but remain a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment.’”

In that case Dixon J also said that there could ‘no longer be any doubt that the accident must happen while the employee is doing something which is part of or incidental to his service.”

In Humphrey Earl Ltd v Speechley, Dixon J, said at 133 that the question whether a worker had been injured in the course of employment is aided by asking was the worker doing “something which he was reasonably required or authorized to do in order to carry out his duties.”

However, in Hatzimanolis v ANI Corporation Ltd, cited above, the High Court held:

“an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.”

McManamey, Goldberg and Monaghan, Workers Compensation Law Manual at par 2.440 state that the essential thread running through the cases (since Hatzimanolis) is that the employer expressly or impliedly induced or encouraged the activity. The mere authorization by an employer of an activity will not be enough to bring it within the course of employment: WorkCover Authority (NSW) v Billpatt Holdings Pty Ltd (1995) 11 NSWCCR 565.”

1. In the present case, it must be said that there was very little evidence addressing this issue. Ms Jenkins in her statement commented upon the “time frame” of the incident in that it occurred an hour or two after Ms Reid ceased employment. She also stated:

“At the time Anna’s partner, Peter Reid, and some of our other patrons were in the bar so she stayed to have a few drinks with them. This was very unusual for her as I had never known her to stay on a Tuesday night after work. Often she would have few drinks of a Thursday or Friday night after work with the waitress that we employ … but not on a Tuesday.”

1. Ms Jenkins also stated that “Wade Cowie was working behind the bar that night and my daughter, Gemma, was in the bar as well. The only other patrons I recall were Natasha Files, Tony Marini, Anna and Peter Reid.”

1. The statement of Ms Files does not address the issue such that the only evidence addressing the issue as to whether the ‘interlude’ following completion of Ms Reid’s shift could be regarded as an activity which was “part of or incidental to” her service came from Ms Reid in her statement dated 20 September 2005 to which I have referred in paragraph 89 above.

1. Ms Reid was not challenged on this aspect of her statement in cross examination but did concede, as I said earlier, that she was perhaps the only employee present. This slightly conflicts with Ms Jenkins’ recollection but overall, the substance of her statement to the effect that her conduct was “incidental” to her employment was not challenged. Incidentally, Ms Jenkins in her statement appears to suggest that it was common practice for employees to remain at the hotel at the completion of their shifts.

1. In my view, in the absence of any other evidence, it was open to the Arbitrator to find that the relevant activity was actively encouraged or induced by her employer not merely passively authorised within the meaning of the authorities to which I have referred.

1. Similarly, it must be said that the alleged “interruption” occurred over a relatively short time, ie, one to two hours such that it was open to the Arbitrator to conclude that the employment relationship in that particular employment setting had not been broken.

1. I do not accept Yamma’s submission that “there was simply no evidence before the Arbitrator to suggest that the Appellant encouraged or induced the worker to remain on the premises following the staff drink …” I accept that the evidence was scant indeed, but it was the best evidence available to the Arbitrator. As ADP Snell said in Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 31:

“The weight and relevance to be given to evidence before an Arbitrator is a matter in the discretion of the Arbitrator, and should not be overturned unless it can be shown he failed to exercise that discretion fairly and according to law.”

1. It follows therefore that I reject Yamma’s submission that “… in all the circumstances the place of work must have changed to a place of entertainment.” As the authorities clearly establish, this is a question of fact and degree, to be weighed and assessed in the circumstances of each particular case. The evidence certainly suggested that others, not just Ms Reid and her three friends, not employed by the hotel, were in fact present, but the extent of their involvement is not clear. Ms Vote in her statement of 23 January 2006 said this:

“[Ms Reid] was drinking with her partner, Peter Reid, and two other locals, Natasha Files and Tony Marini. They were sitting at the bar and I was nearby at a table with my partner at the time, Michael Harper. Whilst I was not sitting directly with Anna, it was a quiet night in the pub so I was talking to her and the others at various times.”

1. Whilst I certainly accept Yamma’s submission to the effect that there was some evidence to suggest that the premises had altered to become a “place of entertainment”, it was open to the Arbitrator on the totality of the evidence to conclude that no such change had taken place, as a consequence of which there was no “interruption” to Ms Reid’s employment.

1. Yamma has relied on a number of authorities in support of its submissions on the “interruption” issue to which it is appropriate I now refer. I have previously made reference to the decision of Judge Burke in Worrell, but it must be said that the facts of that case were markedly different. The injury occurred when the worker had returned home after completing his morning ‘shift’. Later in the day, his employer rang him and invited him and his family to a picnic at a dam on the employer’s property. The worker agreed that he was quite free to accept or reject the invitation. The accident occurred in the course of the picnic activities, and His Honour concluded that the interval in question was not an interlude in one continuous period of work but rather an interlude between two discrete periods of work. His Honour concluded:“It was an optional social occasion without any evidence of active encouragement or inducement by the employer.” As a consequence, the worker failed in his claim.

1. George(as tutor for Neil George) v Mechanical Advantage Group Pty Limited [2002] NSWCC 16 involved a deviation on a lengthy motor vehicle journey for two overnight stays. On the second ‘deviation’, the worker fell off a balcony at the hotel in which he was staying and was injured. Neilson CCJ of the Compensation Court as it then was upheld the worker’s claim.

1. In Mechanical Advantage Group Pty Limited v George [2003] NSWCA 121, the Court of Appeal noted that the Worker’s right to compensation depended on the proviso to sub-section 2 of section 10: “Unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.” As Handley JA said, quoting from Fullagar J in Scobie v K D Welding Co Pty Limited (1959) 103 CLR 314 at 326: “The proviso is concerned not with cause of injury but with increased risk of injury.”

The court upheld the appeal and set aside the orders of Neilson CCJ.

1. Again, the facts of that case were markedly different and involved either an “interruption” or “deviation” for a substantial period of time. In the present case, as I have said, the claimed “interruption” was for a period of approximately two hours.

1. In Babcock Australia Limited v Proudfoot (1993) 9 NSWCCR 525, the worker had a blood alcohol reading of 0.183 on admission to hospital. He had ceased work around 2:30pm and he and a number of co-workers went to a nearby hotel where they remained for approximately two hours. They then went to one of the co-worker’s homes where the worker remained for about another hour and a half. The worker left his co-worker’s house at about 6:00pm and was injured in the motor vehicle accident at about 6:45pm. The court rejected the employer’s submission that the “deviation” both to the hotel and to the co-worker’s home and the “socialising and drinking that took place at both places” meant that at the time of the accident the worker was not on a journey to which section 10 of the 1987 Act applied. As Cripps JA said:

“Section 10 does not mandate that to be within its preview a worker must take the shortest most direct route home. Furthermore, a journey once started does not cease to be one because of deviations or interruptions. What the section provides is that an injury arising during or after a deviation or interruption unconnected with work will not be one arising out of or in the course of the worker’s employment unless the worker discharges the onus of establishing the proviso. The Respondent’s [worker] intention at all relevant times was to return home. He intended to journey home when he left work and had that intention up to the time of his accident. After he left the hotel he made two small deviations each resulting in a significant interruption.”

1. Nonetheless, the court concluded that the interruptions and deviations did in fact result in material increase of risk since the blood alcohol reading, at the time of the accident, had the result that “when driving he was four times more likely to have an accident than had he not been drinking” and thus, the worker was unsuccessful in his claim.

1. In Walker v Amalgamated Wire Australasia Pty Limited (1985) 1 NSWCCR 88, the worker ceased work at around 4:30pm. He intended to drop a fellow worker at the Petersham RSL Club. It was raining heavily, and the brakes on the worker’s vehicle were adversely affected. On arrival at the club, some 20 minutes later, the worker’s passenger suggested that he stay a while to allow the brakes to dry. The worker remained drinking at the club and did not leave until at least 9:30pm, and was subsequently involved in a motor vehicle accident and injured. Burke CCJ said this:

“In law, the Applicant bears the onus of establishing that he was on a relevant journey within section 7(1)(b) of the Act, that being so, the Respondent then bears the onus of establishing the disqualifying factor of substantial interruption and/or deviation for a purpose unconnected with the employment. That disqualification being established, the Applicant bears the onus of establishing that the risk of injury was not materially increased by reason only of such substantial interruption, deviation etc.”

1. He noted this:

“An ingestion of drink in the course of the interruption was held in Churchill v Commissioner for Railways [1967] 41 WCR (NSW) 110 to indicate a relevant increase in risk of injury. The superinvention of darkness, the ingestion of drink, and the onset of rain were held not to constitute an increase of risk in Tucker v WD & HO Wills (Australia) Limited [1969] 43 WCR (NSW) 11. It is plain that these are authorities on propositions of law not on factual situations. It is a question of fact, in the individual circumstances, of an individual case, whether or not there has in fact been a material increase in risk of injury …”

1. His Honour concluded, on the facts of that case, that:

“… During the duration of that four and a half hours at the club, taking no steps on the face of the evidence to do anything to either remedy the wipers and/or dry out the brakes, that such an interval could be a reasonable incident of the journey itself. There was, in my view, a relevant interruption”.

1. His Honour then noted that the onus was then on the worker to establish that the risk of injury was not materially increased. As to that, His Honour concluded that the accident occurring some one and half hours after leaving the club on what should have been a half hour journey home was unexplained. That fact, coupled with the fact that the worker was more tired, concluding his journey in substantially worse weather and on a road not usually used by him was sufficient to conclude, on the probabilities, that there was in fact a material increase in the risk of injury by reason only of the interruption.

1. In Ingram [supra], the worker attended his usual place of employment on the day of his accident but was in fact on recreation leave. He was not there with either the knowledge or authority of his employer. He attended the premises to obtain a lift to Brisbane with a subcontractor for the employer. There was conflict in the evidence as to whether in fact he performed any work on the day of the accident but in any event, the Arbitrator concluded that any task he performed had been completed by the time he accepted the lift. On arrival at the employer’s Brisbane premises, the worker was injured when a forklift ran over his foot. He was unsuccessful in his claim, the significant factor being that he was not requested to attend the Respondent’s premises on the date in question and was there for his own personal reasons and without the knowledge or authority of the employer.

Again, the facts and circumstances differ markedly from those in the case at hand.

1. In all the circumstances, I am satisfied that there was adequate evidence to support the Arbitrator’s finding that there was in effect a “single journey” commencing at the time Ms Reid left the Albemarle Hotel and that she remained in an employment relationship in line with the authorities to which I have referred up until that time. Similarly, I am satisfied with the Arbitrator’s conclusion that the premises had remained a place of employment not a place of entertainment.

1. In any event, were I to conclude that the Arbitrator had erred and that Ms Reid had in fact “interrupted” her journey for a reason unconnected with her employment, I am satisfied on the whole of the evidence and again, in line with the authorities to which I have referred, that there was no material increase in the risk of injury. The accident occurred in June in early winter and it would have been dark either at 9:30pm or 11:00pm. It is a matter of mere speculation to suggest that Ms Files would not have adopted the course of action she did at 9:30pm or 11:00pm. Any “comparison” proposed by Yamma is purely arbitrary. Whilst it is fair to say that Ms Reid was aware that Ms Files was affected by alcohol, there was insufficient evidence to conclude that Ms Files “was about to drive her motor vehicle the same street that the worker was to be walking” particularly when the offer of a lift had been rejected.

The Section 40 Assessment

1. Ms Reid submits that the Arbitrator has erred in a number of respects in his assessment of her entitlement to weekly benefits.

1. Ms Reid submits that the Arbitrator failed to take into consideration the medical and lay evidence as to her ongoing incapacity for employment. Ms Reid submits:

“There is no evidence upon which the Arbitrator could terminate the Applicant’s weekly payments on 31 December 2003. The date reflected by the Arbitrator is an arbitrary date that did not relate to any of the medical evidence or lay evidence in the proceedings.”

1. Ms Reid further submits that the Arbitrator wrongly stated the evidence as to her pre and post injury hours of work with Yamma.

1. Additionally, Ms Reid submits that:

“… The Arbitrator pursuant to section 40 did not take into consideration the steps as referred to by the NSW Court of Appeal in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) and failed to provide adequate reasons in accordance with section 294(2) of the 1998 Act and Rule 73 of the ‘Rules’.”

1. At pages 43 and 44 of the transcript, the Arbitrator summarised the medical evidence before him. He then proceeded to deal with the issues of “serious and wilful misconduct” and “interruption”. At page 46 he then considered Ms Reid’s entitlement in the following terms: “The question then is as to the incapacity of the worker. It follows from what I have just said … that the Applicant is entitled to a section 36 payment for the initial period, and that payment would be at the maximum statutory rate under that section which would be $494.56.”

1. No issue is taken with this assessment by Ms Reid on appeal. Yamma I accept submits that Ms Reid has no entitlement to any compensation for the reasons referred to earlier in this decision.

1. At page 47, the Arbitrator then said this:

“The medical evidence, it seems to me, is plain and simple in one respect, and that is that the Applicant could return to full duties as at 26 October 2004 … of course, Dr Crowley throws some doubt onto that view. However, even he accepts that there is partial capacity. Further, though, is the oral evidence from the Applicant today, and which is supported by every other relative piece of evidence on the point, that there was a downturn in the work available. Paragraph 19 of the Applicant’s statement is partly in these terms:

The hoteliers, Ross and Mary Jenkins, had taken more responsibility for the   duties for financial reasons and due to the drought there wasn’t as great a   need to justify having me work more shifts.

This is a relevant aspect for a section 40 determination under the first step in Mitchell … and it seems to me that the Applicant by and large but for the time around when she was undertaking other paid and fairly rigorous employment she took the shifts that were available to her, and I don’t think there is any great argument either with respect to her resignation earlier this year, that that was a considered choice that she made and, indeed, a choice that Mrs Reid should be congratulated for …

I have considered that she has suffered no real financial loss for which section 40 should compensate but for the second period, and I appreciate that this may be a little academic. However, I need to find a cut-off point somewhere on the evidence before me.

The evidence is that the hoteliers after the initial section 36 period probably during that period had used that time to reorganise themselves. They became more hands-on as a necessity. At this time, the drought conditions were deteriorating and the business was contracting. Also at that time Mrs Reid’s recovery was probably still continuing, and it seems to me that that period from 8 September 2003 to 31 December 2003 is a reasonable period for which I might make the section 40 award given all of those circumstances at $103.16 for that period. Thereafter, I would make an award for the Respondent.”

1. The Arbitrator placed considerable reliance on reports of Dr Vicki Tee, Medical Officer with the Royal Flying Doctor Service. In her report dated 20 November 2004 she stated this:

“Ms Reid initially presented to Menindee Health Service … on 25/6/03, with the history that she fell into a pot hole the previous night whilst walking home from work. She was assessed by the nurse on duty and because a doctor was not available for a face-to-face consultation, a remote telephone consultation was performed with Dr Peter Lyall from the Royal Flying Doctor Service. It was noted from the notes of the nurse and the doctor that Ms Reid fell into the pot hole with her right ankle first then fell onto her left knee. Her right ankle was very swollen, especially laterally and she was unable to weight bear. Her left knee was … swollen and very tender, but she could put weight on the knee. She was given [medication], a splint applied and referred to the emergency department of Broken Hill Hospital (about  110 kilometres away) for an x-ray and review.”

1. Dr Tee recorded that Ms Reid was first seen by her on 29 July 2003. Dr Tee stated: “At the time she noted gradual improvement, but she had ongoing difficulties with prolonged walking greater than 20 minutes and bending.” Dr Tee certified Ms Reid unfit for work and ordered an ultrasound of her right ankle and an x-ray of her left knee. Dr Tee reported that the radiology reports revealed “small linear flakes on the right medial malleolus” consistent with ligamentous injury. The x-ray of the left knee was described as “unremarkable”.

1. Dr Tee went on to note that when seen on 5 August 2003, Ms Reid “… had experienced no significant improvement to her level of pain but felt she was able to walk better”. Dr Tee stated “review on 19/8/03 showed improvement, although not total resolution of her pain, and she was returned to work on lighter duties with a letter to her employer”.

1. Dr Tee then stated as follows:“Ms Reid did not attend the health service again until 28/9/04, when she reported ongoing pain of the right ankle and left knee.”  Dr Tee said:

“I completed a WorkCover Certificate with restricted duty times, and organised a referral to an orthopaedic surgeon. An ultrasound of her right ankle on 7/10/04 showed suspected deltoid ligament injury, appearances consistent with post traumatic granulation scar tissue of the inframalleolar tibialis posterior tendon, and an irregular thickened anterior talo-fibular ligament suggesting previous injury and healing fibrosis.”

1. Dr Tee referred Ms Reid to a podiatrist and physiotherapist.

1. Dr Tee then stated:

“We did initially restrict her duties on her WorkCover Certificate dated 28/9/04, but on review on 26/10/04 returned her to her usual duties as she felt that her restricted duties did not differ significantly from her pre-injury duties.”

1. Dr Tee concluded:

“Ms Reid has suffered significant soft tissue injuries to her right ankle … as well as soft tissue injury to her left knee which may also have been subsequently affected by compensatory gait due to her right ankle pain. Because of the initial severity of the injuries, the slowness of improvement and the long duration of her symptoms, I would expect that further improvement could only be gradual. She requires ongoing allied health input … she is currently awaiting an orthopaedic assessment. I feel that with ongoing therapy she has a good chance of improvement of her symptoms.”

1. Dr Richard Crowley, Orthopaedic Surgeon in Adelaide, prepared a report dated 18 April 2005. He has not indicated when he first saw Ms Reid but noted “examination of the gross laxity of the anterior talo-fibular ligament and medial joint line tenderness of the left knee.” Dr Crowley then stated as follows:

“Ms Reid sustained damage to the articular cartilage of her left knee, a possible medial meniscal tear and ruptured the anterior talo-fibular ligament complex of her right ankle which is the major stabilising ligament of the ankle joint. Ms Reid’s prognosis remains poor without orthopaedic surgical intervention. Ms Reid has partially responded to physiotherapy. I have recommended left knee arthroscopic assessment and treatment and a formal right ankle anterior talo-fibular ligament reconstruction. Ms Reid’s current capacity for employment is compromised by her left knee and right ankle conditions, which are ongoing. Ms Reid is currently performing between 10 and 12 hours of work per week and as she is coping with this, should continue until her surgical intervention …”

1. No medical evidence was submitted by Yamma. At page 28 of the transcript, Ms Reid’s solicitor stated:

“The Respondent conceded that the Applicant attended a medical appointment with                  Dr Roger Pillemer, Orthopaedic Surgeon in Newcastle, on 16 January 2006 and that                    the Applicant travelled by bus from Menindee to Newcastle to attend that   appointment.”

That statement was accepted by Counsel for Yamma.

1. In short, the only specialist evidence was that of Dr Crowley. It is clear from his report that Ms Reid has suffered significant injuries to her left knee and right ankle in the fall on 24 June 2003. Nonetheless, it is also clear that Dr Tee certified Ms Reid fit for pre-injury duties as from 31 October 2004. The only other medical certificates before the Arbitrator were one (date illegible) certifying Ms Reid unfit to work from 24 June 2003 to 16 July 2003 and another dated 28 September 2004 certifying her fit for suitable duties from 30 September 2004 to 30 October 2004.

1. In her statement dated 20 September 2005, Ms Reid claimed that “prior to 24 June 2003 I was working approximately 30 hours per week.” She then stated: “I was off work until 8 September 2003 … on resuming work my hours were reduced to 15 – 20 hours per week. My reduced hours were for a number of reasons including my reduced capacity to work due to ongoing pain in my knee and ankle.” She also referred to the drought and downturn in business to which I have referred previously. She then stated:

“Subsequent to my resuming employment I now do not carry out any heavy lifting at work and I seek help with the heavier aspects of my employment. I now have to sit down on a chair to get into the fridges at work to get items out. I also pack the freezer how I want it at present and this reduces the necessity for me to bend down. I take rests as often as I can and try to do exercises provided to me by my physiotherapist …”

1. At that stage, the evidence was that Ms Reid was taking medication, still attending the Menindee clinic once per month and receiving physiotherapy by the visiting physiotherapist from Broken Hill Hospital who attends Menindee. Ms Reid then stated:

“I presently have problems squatting, bending and kneeling. Subsequent to my injury I cannot climb a ladder. I find it difficult to walk on uneven surfaces. I also find it difficult to walk for any length of time due to increase in pain in my right knee and ankle. At present, I have reached between 15 and 20 hours per week with my employer.”

1. In her statement, Ms Reid also confirmed that in October 2004 she took a short term casual job packing apricots at an orchard in Menindee “… to see whether I could cope with this type of heavy work with the injuries that I had sustained.” That work, she stated, required her to stand all day and she was only able to work seven days when “… I decided that the work was too hard and I could not continue with it.”

1. In her evidence before the Arbitrator, Ms Reid confirmed that on 10 January 2006 she ceased employment to return to school to study her Higher School Certificate. When asked “What was the reason you went back to school, apart to study the HSC? Was there any other reasons?” She replied “There was OH&S issues at work”, although it was suggested that this response may have been made by her partner, Peter Reid.

1. In her statement dated 4 November 2004, Ms Jenkins said:

“When we first employed Anna she worked approximately 18 to 20 hours per week however due to the drought we had to cut back her hours and restricted her to working from 6:00pm until 9:00pm on Thursday, Friday and Saturday. These hours were changed after Anna injured herself.”

1. However, the records accompanying the factual investigator’s report were reported to show as follows:

“At the time of her accident, she was working between 10 and 25 hours depending upon the volume of trade in the hotel as they often accommodated seasonal workers in town. Her usual shifts, regardless of trade, were Thursday, Friday and Saturday nights from 6:00pm to 9:00pm.”

1. It is noted that on the day of the accident, a Tuesday, Ms Reid had worked both the lunch (12:00pm to 2:30pm) and dinner (6:00pm to 9:00pm) shifts.

1. Ms Reid was cross examined at length about her hours of work. She agreed that from the time she returned to work on 8 September 2003 until 4 October 2003 she worked 24 out of 28 days. She was unsure as to whether she had told her physiotherapist on 17 September 2003 that she had “zero problems” at work. At page 18 when asked the question “You had been able to attend to return to normal duties?” she replied “Yes.” She disputed that she had told her physiotherapist that she was “happy to be discharged” stating (page 19) “he suggested I be discharged. I agreed”.

1. Ms Reid agreed that at about the time she returned to work the region was in drought and there was a general downturn in business at the hotel. She also confirmed that other employees, including herself, had reduced hours as a result of those conditions. It was put to her that from the time she returned to work in September 2003 until resigning in January 2006 she had never turned down work because of her injuries to which she responded “I had turned down some work yes.” At page 20 she agreed that the “aggravation from working at the orchard” was only temporary but that as a consequence, she had some off from the hotel “to reduce some swelling” but later conceded that she could not recall if she had in fact rejected work or had some time off.

1. At page 22 when asked “You haven’t knocked back any work at the hotel, have you?” She replied “No, I have not, no.” She also stated that when she was first employed at the Hotel her hours were not 18 to 20 but “up to around 20 to 30”.

1. At pages 23 and 24 of the transcript, this evidence was given:

“Q      [Dr Tee] certified you fit for your pre-injury duties on 31 October 2004 …   didn’t she?

A.       Yes.

Q.       You then went and did some work at the orchard?

A.       Yes, she suggested I go and try and do more work.

Q.       And you are giving evidence to the effect that that work aggravated your   injuries?

A.       Yes.

Q.       You didn’t go back to Dr Tee, though, and get a further WorkCover Medical   Certificate to say, ‘I shouldn’t be back on full duties yet’?

A.       Dr Tee wasn’t available for a couple of weeks, and I rang the nursing   service and they just said, ‘just rest’. I couldn’t get a doctor’s certificate for   that at that time.

Q.But, in any event, it was only for one or two shifts that you may have noted it?

A.       Yes.

Q.       And then after that you were back to where you were before the orchard   work. The orchard aggravation …?

A.       Well I took on less work when I went back.

Q.       But your evidence has been at best you rejected one or two shifts?

A.       Yes.

Q.       And that you have accepted every other shift?

A.       Yes.

Q.       And that the shifts then available to you may have been less than before   your accident but the reason for that is due to a general downturn in   the business?

A.       Yes.

Q.       So you consciously haven’t made a decision to reduce your work load?   You’ve had no choice in the matter?

A.       No. I’ve had no choice.”

1. At page 24 Ms Reid agreed that she had told Dr Tee that her restricted duties didn’t differ significantly from her pre-injury duties and that that was in fact the case. When asked “So from the time you have been on what you say are restricted and suitable duties to when you left in January this year you have been pretty much doing your pre-accident duties?” She responded “Yes”.

1. She denied that she had been able to do her tasks with “zero problems” stating “Well, I still have to be careful … but – I just still manage to do it until now”.

1. Ms Reid then gave evidence to the effect that she had resigned in January 2006 in part to attend Yamma’s medical appointment with Dr Pillemer in Newcastle. That journey she described as so arduous that “my injuries made sure I was going to have to do something else.” She then agreed that she chose to resign and take up study.

1. The transcript records that the parties agree that “the Wages Schedule is agreed as to the actual figures … but not as to the actual loss.” That document disclosed that pre-injury earnings were $494.36 per week. During the period 8 September 2003 to 31 December 2003 Ms Reid’s actual earnings were $391.20, a loss of $103.16. Thereafter, during 2004 and up until January 2006 Ms Reid appears to have earned an average of around $250.00 per week.

1. In summary, the evidence suggests that, at all times since her accident, Ms Reid has suffered from a degree of physical disability as a consequence of her injuries. No doubt, there were periods where she evinced some improvement but this should be treated with some caution given that Ms Reid was not able to consult a specialist for at least 18 months following her injury. With no disrespect to the members of the Royal Flying Doctor Service, it is clear that medical resources in Menindee are limited. I consider that statements made by Ms Reid or indeed others as to any perceived improvement should be treated with some caution in light of the ultimate radiological findings and the opinion of the orthopaedic specialist, Dr Crowley.

1. Having said that, it seems clear on all the evidence that certainly much of the reduction in Ms Reid’s hours on resuming work in September 2003 were as a consequence of factors unrelated to her injuries.

1. Section 40 of the 1987 Act is in the following terms:

“40(1)Entitlement. The weekly payment of compensation to an injured worker in respect to any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.”

1. Nowhere in the Arbitrator’s findings or reasons does he assert that Ms Reid has recovered from her injuries, rather, his findings relate, so far as the section 40 assessment is concerned, to whether or not those injuries have resulted in any economic incapacity. It was entirely appropriate given the decision in Mitchell’s case for the Arbitrator to take into account the downturn in business however, it is difficult to reconcile his ultimate determination with a number of his findings.

1. To begin with, the Arbitrator determined that “… the Applicant could return to full duties as at 26 October 2004”. In that respect, the Arbitrator said this: (page 47)

“I have already indicated that I accept the clear and unambiguous reforms [sic] of Dr Tee that this was a considered and realistic assessment from the doctor who had treated the Applicant worker and who had a history. There is none of the artifice that one sometimes sees in medical reports. It is a clear and sensible appraisal of the Applicant’s condition.”

1. However, the Arbitrator appears to have accepted the certificate of Dr Tee at face value without recourse to her comment in her report of 20 November 2004. Dr Tee stated: “… but on review on 26/10/04 returned her to her usual duties as she (my emphasis) felt that her restricted duties did not differ significantly from her pre-injury duties.” In other words, Dr Tee’s certificate seems to reflect the attitude of Ms Reid, not of any physical examination. Ms Reid’s evidence, it must be recalled, was to the effect that Dr Tee “suggested I go and try to do more work”. Ms Reid then commenced effectively a full time job apricot picking, relatively arduous work, she claimed, but found that after 7 days she could no longer continue. She explained that her reason for not obtaining a further certificate at that time was because Dr Tee was not available.

1. The Arbitrator’s reference to the opinion of Dr Crowley was cursory indeed, and it is not clear in what context the Arbitrator stated: “Dr Crowley throws some doubt onto that view. However, even he accepts that there is partial capacity.” Thus on the one hand the Arbitrator seems to accept that Ms Reid was fit to “… return to full duties as at 26 October 2004” but on the other hand, acknowledges Dr Crowley’s view that “there is partial capacity.”

1. These statements are plainly incompatible such that it is difficult to reconcile them with the Arbitrator’s ultimate conclusion that “… I have considered that she has suffered no real financial loss for which section 40 should compensate but for the second period …” Quite what is meant by the “second period” is not clear, nor is it clear why the Arbitrator stated “I need to find a cut off point somewhere on the evidence before me.”

1. As I have said, the totality of the medical evidence provided by Ms Reid suggested that she had an ongoing physical incapacity. Whether that incapacity translated into any economic incapacity was the issue for determination by the Arbitrator.

1. As I said in Fletcher International Exports & Barrow NSWWCCPD [2006] PD 119:

“The concept of “the open labour market” is particularly relevant in this case. As the Arbitrator rightly points out that at the time Mr Barrow was terminated, he had to, as it were, ‘sell himself’ with his disabilities on the “open labour market” and it is that market that is determinative in any assessment of weekly benefits. As Jacobs JA said in Metropolitan Coal Company Limited v Duffy (1996) 67SR (NSW) 163 (at 168):

“... The question is whether the admitted employment injury has affected the value of the worker on the labour market ... The fact that his previous job is open to him and that he is able to carry it out are no doubt very important elements in determining whether the injury has affected the value of the worker on the labour market. However, they are not conclusive and, particularly if his pre-injury employment is a suitable employment as a result of particular circumstances of the Applicant’s position, it does not follow as a matter of law that the Applicant has suffered no incapacity for work.”

In Steggles Pty Limited v Aguirre (1998) 12 NSWLR 693 Priestly JA, quoting from Atkin LJ in Hamilton v Shelton Iron and Steel & Co Limited (1926) 96 LJKB 295 said:

“... If (the partially incapacitated worker) gives up a job of his own accord, it may very well be found by the Judge that in fact he was able to earn those wages, because except for his own fault he would be in that employment still earning those wages. That is a matter to be taken into account: but if the job has ceased, then it seems to me it matters not why it has ceased ... the job, at any rate, is then at an end and the Judge has to determine whether or not the man is able to earn in the labour market the wages, and if so, at what rate, taking into account the fact that he was when last employed earning the particular wages that he received from his employer.”

In other words, an enquiry must be made as to whether the compensable injury impacts in a negative way on the worker’s capacity to earn in the open labour market.”

1. Ms Reid did not consult Dr Tee between August 2003 and September 2004. On the latter occasion, Dr Tee noted that Ms Reid reported “ongoing pain of the right ankle and the left knee”. It was then that she issued a certificate certifying Ms Reid fit for suitable duties from 30 September 2004 to 30 October 2004 with restrictions on lifting and standing. Ms Reid’s evidence was to the effect that she had some difficulties in performing some of the tasks at work particularly heavy lifting or bending or squatting.

1. There was clearly a gap in the medical evidence between August 2003 and September 2004, such that it is not at all clear from the Arbitrator’s determination as to why he concluded that Ms Reid suffered a financial loss “… for the second period …” which he appears to have arbitrarily determined ceased on 31 December 2003. No explanation has been given by the Arbitrator as to the basis upon which he concluded that the period from 8 September 2003 to 31 December 2003 “… is a reasonable period for which I might make the section 40 award …”

1. Implicit in this determination is an acceptance that at that time Ms Reid was partially incapacitated for work and suffering a wage loss. I have some difficulty in interpreting the Arbitrator’s apparent reason for confining the period of the award. He stated:

“The evidence is that the hoteliers after the initial section 36 period probably during that period had used that time to reorganise themselves. They became more hands on as a necessity. At this time, the drought conditions were deteriorating and the business was contracting. Also at that time Mrs Reid’s recovery was probably still continuing …”

1. Ms Jenkins in her statement claimed that Ms Reid’s hours were reduced after she was injured to working from 6:00pm until 9:00pm on Thursday, Friday and Saturday. The Wage Schedule prepared by Ms Reid disclosed that during the period 8 September 2003 to 31 December 2003 her actual earnings were $391.20 per week. That suggests that she was working more than nine hours per week, given that her pre-injury earnings were $494.36 per week. That same Wage Schedule also discloses that between January 2004 and January 2006 Ms Reid earned an average of approximately $250.00 per week, significantly less than in the September to December 2003 period.

1. I accept Ms Reid’s submission that there was really no adequate evidence upon which the Arbitrator could terminate the award of weekly payment as at 31 December 2003. It seems to me that it is an arbitrary date that did not relate either to the medical or lay evidence. I am also inclined to agree that the Arbitrator has failed to provide adequate reasons for his determination on this aspect of the claim. As the court pointed out in Mitchell’s case:

“... The capacity to proceed informally as regards proof of evidence does not relieve the Court of the duty to disclose its essential reasoning process. Indeed, that duty may be heightened where the court dips into its general store of knowledge rather than proceed upon the basis of the evidence tendered before it ... the reader of the critical passage in the judgment is left with no basis for determining how or from what source the Judge arrived at the figure of [$700.00] per week.”

1. I have considerable difficulty in interpreting the Arbitrator’s reasoning process. It seems to me that his finding that Ms Reid suffered a loss of $103.16 in the period 8 September 2003 to 31 December 2003 was perhaps a reflection of both Ms Reid’s physical incapacity and possibly a continuing recovery process together with some reduction in the available hours due to gradually deteriorating business conditions. Ms Reid’s earnings in the period from January 2004 to January 2006 may reflect a more severe decline in business. She was earning, as I said, approximately $250.00 per week, compared with pre-injury earnings of $494.00. The reduction in earnings from approximately $391.00 to $250.00 per week seems an appropriate reflection of the “downturn” in business.

1. Nevertheless, Ms Reid still had a physical incapacity which in my view impacted in a negative way on her capacity to earn in a labour market reasonably accessible to her. If the Arbitrator’s award was intended as a reflection both of Ms Reid’s incapacity and a downturn in business, I can see no basis upon which it should cease as at December 2003. I say this particularly because as at September 2004, Dr Tee was of the view that Ms Reid remained partially incapacitated for work such that at the very least, she was entitled to an award at least until 25 October 2004.  Dr Crowley considered that she was partially incapacitated for work when he saw her in 2005.

1. Ms Reid undertook a period of fulltime employment for approximately seven days and did not suffer any economic incapacity during that period. However, on her unchallenged evidence, she was unable to continue because of increasing symptoms and ceased. Thereafter, she returned to the state she was in prior to the commencement of that employment. This seems consistent with the view of Dr Crowley that she was “coping” with 10 to 12 hours of work per week.

1. In January 2006 Ms Reid resigned her employ with Yamma, in part she says because of her physical condition, particularly following her trip to Newcastle, and in part to return to her studies. This as she said in her evidence was a voluntary decision and she agreed that she could have remained and continued with her duties at the Albemarle Hotel. Nonetheless, as Atkin LJ said in Hamilton v Shelton Iron & Steel Co Limited (1926) 96 LJKB 295, to which I have referred previously, the ceasing of work voluntarily is not necessarily a bar to an award of compensation. Thus in this case, the task of the Arbitrator was to determine what Ms Reid was able to earn in a labour market reasonably accessible to her given her particular circumstances, and in light of her decision to resign her employment with Yamma.  Her evidence was she intended to resume study for her HSC.  That presumably was a day time activity, such that she would in theory be available for shifts at the hotel from 6:00pm until 9:00pm on a Thursday, Friday and Saturday night. Indeed, she may well have been available for additional weekend work. This is conjecture to some extent, but relevant to my decision in the exercise of my discretion as to whether or not to reduce her award during this period

1. Ms Reid submits that the Arbitrator failed to properly address the “five step” process in Mitchell’s case. I agree. Whilst the Arbitrator made reference to Mitchell in his determination, he failed to address all the relevant steps.

1. I propose to deal with the award at the conclusion of my review.

The Section 60 Award

1. Ms Reid submits that there was no evidence that would enable the Arbitrator to terminate an award pursuant to section 60 of the 1987 Act as at 26 October 2004 and that the Arbitrator has failed to provide any or any sufficient reasons for his decision in this regard. Ms Reid submits that the Respondent did not make any submission in respect of section 60 medical expenses nor tender any medical evidence before the Arbitrator.

1. Yamma submits that: “It is clear from the learned Arbitrator’s award that the Arbitrator accepted that the worker continued to improve until 31 December 2003 and thereafter did not require further treatment.” Yamma submits that the Arbitrator was not bound by the medical evidence and was entitled to make his own determination, and that the onus was on Ms Reid to establish that the section 60 expenses incurred were reasonable and necessary. Yamma submits that Ms Reid failed to discharge that onus.

1. Yamma submits that there was insufficient medical evidence before the Arbitrator for any award for section 60 expenses beyond 31 December 2003 and that therefore it is not reasonable and necessary for the worker to receive treatment beyond that date

1. Yamma’s submissions with respect are somewhat misconceived. Nowhere in the Arbitrator’s reasons does he state that Ms Reid “did not require further treatment”. The Arbitrator appears to have confused the issue of ‘fitness for work’ with the provision of medical treatment in section 60 of the 1987 Act.

1. Section 60 provides that if, as a result of an injury received by a worker, it is necessary that medical or related treatment be provided, the worker’s employer is liable to pay, in addition (my emphasis) to any other compensation under the Act, the cost of that treatment or service.

1. It was clear that Ms Reid had sustained an ‘injury’ and, according to Dr Crowley in particular, required ongoing treatment. Indeed, Dr Tee who was the author of the certificate dated 26 October 2004 upon which the Arbitrator based his decision, was clearly of the view, expressed in her report dated 20 November 2004, that Ms Reid “requires ongoing allied health input, including physiotherapy and podiatry.” Dr Tee noted at that stage that Ms Reid was awaiting orthopaedic assessment. Dr Tee concluded “I feel that with ongoing therapy she has a good chance of improvement of her symptoms”.

1. Thus it must be said that all the medical evidence before the Arbitrator confirmed the need for ongoing treatment. There was accordingly no basis whatsoever upon which the Arbitrator could terminate the award of section 60 expenses as at 26 October 2004 and he has patently erred in that aspect of his determination.

1. Since Ms Reid was the only party to provide any evidence as to the requirement for medical treatment, it is inappropriate for Yamma to submit that she failed to discharge her onus of establishing that her treatment expenses were reasonable and necessary.

1. In the absence of any evidence from the Respondent to suggest that treatment was neither necessary nor reasonable, or indeed any evidence at all, it was not open to the Arbitrator to determine that such payments should cease.

The Adequacy of Reasons Issue

1. I have dealt with this issue to some extent in some of the preceding paragraphs.

1. No issue is taken by Yamma in its submissions as to the adequacy or otherwise of the Arbitrator’s reasons. The thrust of Yamma’s submissions are to the effect that the Arbitrator was wrong in law in his determination of the issues relevant to the operation of section 10 of the 1987 Act.

1. Ms Reid submits that: “The Arbitrator has a duty to provide adequate reasons for his decision in section 294(2) of the 1998 Act and rule 73 of the Commission’s Rules …” Ms Reid submits that the Arbitrator failed to base his findings on material questions of fact on the basis of the available medical evidence in relation to the issues of incapacity and section 60 expenses.

1. Rule 73 of the Rules is in the following terms:

“73(1)  The statement of the Commission’s reasons referred to in section 294(2) of   the 1998 Act is to include:

(a)       The findings on material question of fact, referring to the evidence   or other material on which those findings were based, and

(b)       The Commission’s understanding of the applicable law, and

(c)       The reasoning processes that led the Commission to the conclusions   it made.

(2)       Without limiting sub-rule (1), the reasons set out in the statement referred to   in sub-rule (1) are to be stated sufficiently (in the opinion of the   Commission) to make the parties aware of the Commission’s view of the   case made by each of them.”

1. The Commission has held that it is not necessary for Arbitrator to give lengthy reasons for a decision. Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant and judicial authority on the matters decided. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56 at 45).

1. As Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247:

“A Judge is not required to make a finding in respect of every fact leading to the final conclusion of fact … nevertheless, a Judge must distinguish between the essentials and the peripherals … reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The Judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted … It is necessary that the essential grounds upon which the decision rests should be articulated.”

1. In my view, the Arbitrator erred in law in failing to give adequate reasons in respect of his decision relating to the claim for weekly benefits and for medical expenses. I am satisfied that Ms Reid has demonstrated not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the Application. (See YG & GG v Minister for Community Services [2002] NSWCA 247 and Absolon v NSW TAFE  [1999] NSWCA 311).

CONCLUSION

1. The Arbitrator’s findings in relation to the issues raised by section 10 of the 1987 Act were open to him on the totality of the evidence before him, and in line with a number of authorities to which I have referred.

1. The Arbitrator’s reasoning process in relation to the section 40 award was both flawed and inadequate, and amounts to an error of law. My powers on review of a decision of an Arbitrator to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error. (See Allesch v Maunz [2000] 203 CLR 172).

1. In the present case, having determined that the Arbitrator erred in his determination of the section 40 award, I consider it appropriate to substitute an award and, in accordance with the principles in Mitchell, set out the basis of that award hereunder.

1. Accordingly, I find as follows:

1.        Ms Reid’s probable earnings but for injury were $494.36 per week as agreed   between the parties.

2.        The amount that Ms Reid is earning or would be able to earn in suitable   employment from 8 September 2003 to 25 October 2004 and from 5 November

2004 to 11 January 2006 is $391.20.

3. Accordingly, Ms Reid is entitled to an award pursuant to section 40 of the 1987 Act at the rate of $103.16 per week from 8 September 2003 to 26 October 2004 and from 5 November 2004 to 11 January 2006 at the rate of $103.16.

4.I can see no basis upon which, in the exercise of my discretion, I would reduce that amount given the circumstances of the case. However, I am of the view that since 11 January 2006 when Ms Reid ceased employment with Yamma to undertake fulltime study, her commitment to that task may have reduced her availability for casual or part time work, particularly on week nights. In the exercise of my discretion, I consider it appropriate to reduce the award from 12 January 2006 to $60.00 per week to reflect this.

5.There will be an award in favour of Ms Reid in the terms set out above which I have formalised in my decision which follows:

DECISION

1. The decision of the Arbitrator dated 27 February 2006 is revoked and the following decision made in its place:

1. That the Respondent (Yamma Pty Limited) pay the Applicant (Anna Maria Reid) weekly compensation at the rate of $494.36 for the period 25/6/03 to 8/9/03 under s.36 of the Workers Compensation Act 1987.

2.That the Respondent pay the Applicant weekly compensation at the rate of $103.16 for the period 9/9/03 to 26/10/04 and from 5/11/04 to 10/1/06 under s.40 of the Workers Compensation Act 1987.

3.That the Respondent pay the Applicant weekly compensation at the rate of $60.00 per week from 11/1/06 to date and continuing under s.40 of the Workers Compensation Act 1987.

4.That the Respondent pay the Applicant’s section 60 expenses pursuant to the provisions of the Workers Compensation Act 1987 on production of accounts or receipts.

5.        That the Respondent pay the Applicant’s costs as agreed or assessed.

COSTS

1. Yamma is to pay the costs of the appeal.

Deborah Moore

Acting Deputy President

15 December 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE