Roads & Traffic Authority of New South Wales v Cormick
[2007] NSWWCCPD 220
•2 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Roads & Traffic Authority of New South Wales v Cormick [2007] NSWWCCPD 220
APPELLANT: Roads & Traffic Authority of New South Wales
RESPONDENT: James Richard Cormick
INSURER:Treasury Managed Fund (TMF)
FILE NUMBER: WCC689-07
DATE OF ARBITRATOR’S DECISION: 21 May 2007
DATE OF APPEAL DECISION: 2 November 2007
SUBJECT MATTER OF DECISION: Extension of time to appeal – Rule 16.2(11) of the Workers Compensation Commission Rules 2006 – ‘exceptional circumstances’; alleged error in fact finding; ‘eggshell skull’ principle; adequacy of reasons; section 10(1D) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION: Appellant: Thompson Cooper
Respondent: Slater & Gordon
ORDERS MADE ON APPEAL: Leave to appeal is refused.
Appellant Employer to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 27 June 2007 the Roads & Traffic Authority of New South Wales (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’).
The Respondent to the Appeal is James Richard Cormick (‘the Respondent Worker’).
The Respondent Worker was born on 5 January 1978, and has no dependants. It is clear, from the medical evidence overall, the Respondent Worker has throughout his life suffered from a serious genetic medical condition, Osteogenesis Imperfecta Type 3. As a consequence, his bones are prone to fracture much more easily than those of other people, and he has experienced multiple fractures over his lifetime. He never walked, and has always been wheelchair bound. The history recorded by Dr Harrison described “multiple rodding procedures to his upper and lower limbs to deal with fractures and deformities”. Notwithstanding this condition, the Respondent Worker attended a mainstream high school to completion of Year 11, at the end of 1994. He then undertook computer based courses at TAFE during 1995.
He started working with the Appellant Employer on 24 October 1995. He initially worked twelve hours per week. These hours increased to about twenty-five hours per week, by 15 June 2004, the date of the incident relied upon in these proceedings (T8.35). His duties at that time were described in his evidence at T2 to T3, and again at T10 to T12. They included data entry on a computer with a keyboard and mouse, filing, carrying out errands, opening mail, and sorting paperwork.
Due to his condition of Osteogenesis Imperfecta, it was the Respondent Worker’s practice to use a taxi cab to travel between his home and his place of work with the Appellant Employer, at Parramatta. He always used the same taxi and driver, the taxi of course needed to be suitable to transport his wheelchair, and to accommodate a person who was wheelchair bound.
The Respondent Worker’s statement described leaving work at about 1pm on 15 June 2004, and boarding his usual taxi cab. The statement continued:
“As the cab got under way I tried to open the sliding window next to me on my right-hand side. On this particular day the taxi was wet as it had been raining. I think that for this reason that the window was harder to open than normal. As I tried to push the window open with my right arm as I normally did, I felt a snap in my right forearm and this was accompanied with sharp pain.
When this happened my right arm went limp.”
The statement described the taxi driver taking the Respondent Worker directly to Westmead Hospital, and he said he also contacted his supervisor to report what had happened. X-rays of that date are described as demonstrating undisplaced fractures of the right radius and ulnar, together with osteoporosis generally in that upper limb (see the report of Dr ALG Smith dated 7 February 2007 at page 2.9).
The Respondent Worker was off work until 20 July 2004, when he resumed “on suitable duties”. He said his right arm condition worsened while carrying out these duties, and he ceased again on 27 September 2004 (see statement at page 3). A letter from the Appellant Employer dated 28 February 2005 suggests it paid compensation on a voluntary basis for time lost up to 25 March 2005. That letter states the claim is being denied, and payments ceased, as from 25 March 2005, on the basis section 9A of the 1987 Act was not satisfied, as the Respondent Worker’s employment was not a substantial contributing factor to the injury.
The Respondent Worker gave evidence he returned to work with the Appellant Employer “in about March-April ‘05” as “the insurance company told me to go back to work” (T19). He said that when he returned to work he was “just an ornament there” (T12.50). It was common ground he took a voluntary redundancy (T1.55). The pleaded weekly claim was ongoing, and commenced from 16 September 2005, when he left work consequent upon the redundancy. He gave evidence of carrying out a small amount of graphic design work from home since that time. In addition to the weekly claim, he sought an order for the payment of medical expenses, and a lump sum pursuant to section 66 based upon six percent whole person impairment.
The matter proceeded to arbitration hearing on 19 April 2007. Both parties were legally represented. The Respondent Worker gave evidence and was cross-examined. Both parties made submissions. Notwithstanding the basis on which the Appellant Employer originally declined liability, it was common ground at the arbitration hearing that section 9A of the 1987 Act did not apply, due to section 9A(4), which precludes its operation from ‘journey’ claims covered by section 10 of that Act. The Appellant Employer conceded the Respondent Worker was on a journey home from work, at the time of the alleged injury (T1). The Appellant Employer, in its submissions, placed reliance upon section 10(1D) of the 1987 Act (see T21 to 22).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 21 May 2007 records the Arbitrator’s orders as follows:
“1. There will be an award for the Applicant in respect of the claim for weekly compensation on the basis of total incapacity for the period 16 September 2005 to 15 March 2006 in accord with section 36 and in respect of the period 16 March 2006 to 19 April 2007 in accord with section 37.
2. There will be an award for the Applicant for weekly compensation on the basis of partial incapacity from (sic) the period 20 April 2007 to date and continuing in accord with section 40 which I believe based on the differential would in essence be represented by the maximum weekly benefit for a single worker without dependants varied in accord with the Act.
3. The Respondent to meet the Applicant’s reasonable and necessary Section 60 expenses upon production of accounts and/or receipts.
4. Respondent to pay the Applicant’s costs as agreed or assessed.”
The Certificate was accompanied by nine pages of Reasons for Decision. The arbitrator found the Respondent Worker fractured his right arm when opening the taxi window, as alleged. He held that the Appellant Employer bore the onus of establishing section 10(1D) had application, applying the decision of Armitage J in McGraw v Commonwealth Bank of Australia Limited (2002) 24 NSWCCR 372 (‘McGraw’). He found “the journey did contribute to the injury”, the consequence of which was that section 10(1D) did not apply. He then proceeded to assess the weekly entitlement, which is not challenged in this appeal.
ISSUES IN DISPUTE
The Appellant Employer raises the following issues in its application to appeal:
(a)The arbitrator erred in approaching the matter on the basis there was no issue the Respondent Worker had suffered ‘injury’. It is submitted the arbitrator failed to weigh the evidence supporting the occurrence of ‘injury’, against competing evidence. It is submitted the arbitrator incorrectly assumed there was no issue on this point.
(b)The arbitrator failed to comply with the requirements set out in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (‘Soulemezis’). I take this to be a ground the arbitrator failed to give any or any adequate reasons for his finding ‘injury’ had occurred.
(c)The arbitrator erred in finding section 10(1D) did not apply. It is submitted the act of opening a window was not part of the journey. In so far as that act caused or contributed to injury to the Respondent Worker’s right arm, this did not establish the journey caused or contributed to the injury. The injury should be characterised as one resulting from the medical or other condition of the worker, such that the ‘journey’ provisions in section 10 do not apply.
The Respondent Worker submits (a) and (b) above are misconceived. It is submitted the occurrence of injury was not raised in the Appellant Employer’s Reply, nor did the Appellant Employer address on the basis there was an issue the injury did not occur as alleged, when the Respondent Worker was opening the taxi window. It is submitted the Appellant Employer’s medical case was consistent with the occurrence of injury. It was appropriate the arbitrator did not give “expansive reasons”, because the Appellant Employer’s medical evidence conceded the point.
The Respondent Worker submits the act of opening a window in the taxi “is a fundamental part of travelling in a motor vehicle”. That act forms part of the journey, and accordingly the journey should be regarded as contributing to the injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The sum awarded clearly exceeds the figure of $5,000.00, and the whole sum is appealed against. The Respondent Worker properly concedes the requirements of section 352(2) of the 1998 Act are satisfied.
The appeal was initially lodged on 18 June 2007, within twenty-eight days of the Arbitrator’s decision. However the Registry rejected that document under cover of letter dated 20 June 2007, for the following procedural reasons:
(i)a copy of the Certificate of Determination had not been attached;
(ii)a list of authorities had not been attached;
(iii)copies of unreported decisions had not been attached;
(iv)reasons addressing whether the matter could be determined on the papers, or required an oral hearing, had not been included.
The appeal was then re-lodged, with procedural difficulties cured, on 27 June 2007. By that date, it was outside the period of twenty-eight days within which an appeal can be lodged, pursuant to section 352(4) of the 1998 Act.
Accordingly, the Appellant Employer requires an extension of time pursuant to Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), if leave to appeal is to be granted. That rule provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The Appellant Employer, in its submissions in support of its application to extend time, raises the following matters:
(i)Its solicitors had previously filed appeal documents in other proceedings, in form identical to the document rejected by letter dated 20 June 2007. Such previous documents had not been rejected, in the other proceedings.
(ii)The point described at (iii) of paragraph [20] above was inappropriately raised by the Registry, as the Appellant Employer did not seek to rely upon any unreported decisions in its submissions.
(iii)Other procedural deficiencies have been rectified.
(iv)There would not be prejudice to the Respondent Worker if time were extended.
(v)To deny the application to extend would deny the Appellant Employer natural justice. To extend time would be consistent with section 354(3) of the 1998 Act, which provides “The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The Respondent Worker, in his submissions, accepts the appeal was initially lodged within twenty-eight days of the decision appealed against. He does not make any submissions agitating against the extension of time, and does not assert any prejudice.
Exceptional Circumstances
“Exceptional circumstances” are necessary to enliven the discretion contained in rule 16.2(11). Recently in Yacoub v Pilkington (Australia) Ltd (2007) NSWCA 290 the New South Wales Court of Appeal considered the phrase, in the context of rule 31.18(4) of the Uniform Civil Procedure Rules 2005. Campbell JA (with whom Tobias JA and Handley AJA agreed) said:
“66. Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]-[69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).
67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.”
Consistent with the above passage, it would be appropriate, in deciding whether “exceptional circumstances” exist, to have regard to sections 3 and 354 of the 1998 Act. Section 3 provides:
“3 System objectives
The purpose of this Act is to establish a workplace injury management and workers compensation system with the following objectives:
(a) to assist in securing the health, safety and welfare of workers and in particular preventing work-related injury,
(b) to provide:
• prompt treatment of injuries, and
• effective and proactive management of injuries, and
• necessary medical and vocational rehabilitation following injuries,
in order to assist injured workers and to promote their return to work as soon as possible,
(c) to provide injured workers and their dependants with income support during incapacity, payment for permanent impairment or death, and payment for reasonable treatment and other related expenses,
(d) to be fair, affordable, and financially viable,
(e) to ensure contributions by employers are commensurate with the risks faced, taking into account strategies and performance in injury prevention, injury management, and return to work,
(f) to deliver the above objectives efficiently and effectively.”
Section 354 provides in part:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The Appellant Employer has asserted in its submissions, and this has not been challenged, that rejection by the Registry of its initially lodged appeal was unusual, and documents previously lodged by its solicitors in other matters, in the same form, had not been rejected. This constitutes the element of circumstances not regularly, routinely or normally encountered, referred to in the above passage. I also note the submission (which is borne out by reference to the Commission file) that submissions in the originally filed appeal did not refer to any unreported decisions. Thus there was no need to attach copies of unreported decisions, and one of the bases on which the appeal was originally rejected was inappropriate. This also is a circumstance tending to establish exceptional circumstances. The other matters leading to the appeal being rejected were of a relatively minor and technical nature. Whilst a list of authorities was not attached to the appeal, there were only three authorities referred to in the relatively short submissions, and citations were supplied for these. A copy of the Certificate of Determination of the decision appealed against was not included, but copies of that document were on the Commission file, and would have been provided to the solicitors for the Respondent Worker, routinely, when the arbitral decision was made.
I have concluded the combination of factors constitutes ‘exceptional circumstances’. The appeal documentation was rejected unexpectedly having regard to the prior experience of the solicitors in preparing and lodging such material. It was rejected in part for a reason which was inappropriate. Such a finding is appropriate having regard to the rationale of the particular provision in the Rules, which is to provide relief from the strict application of section 352(4), in an appropriate case. It is also consistent with section 354 of the 1998 Act, in particular sub-sections (1) and (3).
Having found exceptional circumstances to exist, it remains necessary to consider whether loss by the Appellant Employer of its right to seek leave to appeal “would work demonstrable and substantial injustice”, and whether the discretion conferred by rule 16.2(11) should, in all of the circumstances, be exercised.
The following passage from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 has frequently been applied in Presidential decisions dealing with this discretion:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)
In considering whether an extension should be granted, for the purpose of doing justice between the parties, it is necessary to consider the prospects of success of the appeal. I have formed the view the appeal does not have reasonable prospects of success, and accordingly it is inappropriate I exercise my discretion to extend time. This requires some consideration of the merits of the appeal.
DISCUSSION AND FINDINGS
The ‘Injury’ Issue
The first ground relied upon is that the arbitrator erred in his approach to the question of ‘injury’. The arbitrator said “There can be no issue that the applicant suffered an injury” (at [24] of the Reasons). The Appellant Employer submits “Neither Dr Macauley nor Dr Smith conceded that the sliding of a window in a taxi in fact caused the fracture”. Dr Macauley was a rheumatologist, and Dr Smith an orthopaedic surgeon, qualified and relied upon by the Appellant Employer in its defence of the claim. The Appellant Employer submits the arbitrator did not direct his mind to whether, given the Respondent Worker’s “extremely serious underlying condition”, he discharged the onus of establishing the injury upon which he relied.
The submission by the Respondent Worker, that the Reply filed on the Appellant Employer’s behalf did not put ‘injury’ in issue, is correct. The Reply raised both section 9A (subsequently abandoned, appropriately, on the arbitration hearing), and section 10(1D) (further discussed below), but did not dispute the alleged injury occurred.
The way the Appellant Employer conducted its case on the arbitration hearing was consistent with the proposition the event (a fracture involving the right arm whilst attempting to close the taxi cab window) occurred. Cross-examination of the Respondent Worker went predominantly to matters relevant to quantification of any weekly entitlement. The Respondent Worker’s version of the injury, set out at [6] above, was not challenged. It was conceded, on the Appellant Employer’s behalf, that the Respondent Worker’s truthfulness was not in issue (T23.5). At T22.25, in the course of making submissions on the applicability of section 10(1D), the Appellant Employer’s counsel said “Now, there was a window. Mr Cormick moved to open the window and Mr Cormick sustained his injury.” At the conclusion of his submissions going to section 10(1D), counsel for the Appellant Employer said “If I am wrong about that or if your view is that I’m wrong about that, Arbitrator, then there is no doubt that the worker sustained an injury which required medical treatment.” (T22.55).
In the Appellant Employer’s medical case, Dr Macauley, in his report dated 1 February 2005, said “His recent right forearm fracture was related to opening a window in a maxi-cab and he has had ongoing pain and disability in his right forearm since that time.” (page 3.1). Dr Macauley went on to say “The substantial contributing factor to his condition is the underlying congenital bone disease and not his employment with the Roads and Traffic Authority”, and “The mechanism that he describes would not have caused a fracture in a normal person.” (page 3.4). Dr Macauley did not indicate he doubted the fracture occurred as alleged, in the taxi cab. The other quoted comments, going to causation, are of little relevance given the incident occurred on a ‘journey’, to which section 9A did not apply. Even if section 9A had application, Dr Macauley’s comment went to the wrong test, as section 9A requires that employment be a substantial contributing factor to an injury, not the substantial contributing factor.
Dr ALG Smith, the orthopaedic surgeon relied upon by the Appellant Employer, in his report dated 7 February 2007, said “This man then has a history that would suggest he has had a fracture on his way home from work involving the right forearm on 15 June 2004.” (page 4.2). Dr Smith commented on causation:
“In essence, he has been sliding the window open and closed in the past. It is a normal activity and should not produce a fracture in anybody however, because of his underlying Osteogenesis Imperfecta Type III, he is liable to suffer pathological fractures and he did on 15 June 2004.
If it were not for the underlying Osteogenesis Imperfecta, the fracture would not have occurred.” (at page 4)
The arbitrator does record that one of the matters in dispute was “Did the applicant receive an injury arising out of or in the course of employment? The 1987 Act s 9)” (at [1] of the Reasons).
The Reply, and how the case was conducted on the arbitration hearing, were consistent with the real issue being whether section 10(1D) gave the Appellant Employer a defence, rather than whether the injurious event occurred as alleged, during the journey in the taxi cab. I will deal with the section 10(1D) argument subsequently, as it is raised separately as a ground of appeal. On the question of whether an event occurred during the course of the journey, which constituted an ‘injury’, the arbitrator, consistent with the pleadings, the medical evidence overall, and how the arbitration hearing was conducted, correctly approached the matter on the basis there was no serious issue between the parties.
The submissions made by the Appellant Employer on the appeal seem rather to grapple with questions of causation, and whether there was a sufficient causal link between the event (opening a window), and the medical consequence (fractures of the right forearm). The arbitrator did not specifically deal with this issue, and this was understandable given how the matter was conducted. For the sake of completeness, I should note the evidence amply justified a finding the act of opening the window caused the forearm fractures, constituting ‘injury’. That this activity, whilst the precipitant of the fractures, was not the only contributing factor, is clear. Another significant contributing factor was the underlying condition. The competing roles of these factors may have been highly relevant in considering the operation of section 9A, if it had application (see generally Dayton v Coles Supermarkets Pty Limited (2001) 22 NSWCCR 46). But it did not. Accordingly, all that was required to be established was that the fracture resulted from the act of opening the window. This is consistent with the “commonsense” test on causation described by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (‘Kooragang Cement’):
“Whether death or incapacity results from a relevant work injury is a question of fact. The importance of notions of proximate cause by the use of the phrase “results from”, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death “results from” a work injury. What is required is a commonsense evaluation of the causal chain.” (at Pp 463 to 464)
This decision was recently referred to without criticism in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (‘Chemler’) at [37].
The medical evidence relied upon by the Appellant Employer, established the simple act of opening a taxi cab window would not, in a person unaffected by the condition of Osteogenesis Imperfecta from which the Respondent Worker suffered, have been likely to result in the relevant fractures. This however does not assist the Appellant Employer in its argument the fractures did not result from that event. In Chemler Spigelman CJ said:
“In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them.”
The medical evidence clearly supported the finding the fractures resulted from the act of opening the window, notwithstanding the elevated vulnerability to such an injury resulting from the underlying condition. Thus in my view the arbitrator did not err in how he approached the question of ‘injury’. The issue was not seriously contested. It was understandable he dealt with it briefly in those circumstances. The finding was amply justified on the evidence, and the medical evidence relied upon by the Appellant Employer did not seriously contest the issue. Some of the opinions expressed in the Appellant Employer’s medical case may have been of relevance to the question of ‘substantial contributing factor’ if section 9A had application, but it did not.
Adequacy of Reasons
The second ground raised by the Appellant Employer (by implication from its reference to Soulemezis), is that inadequate reasons were given by the arbitrator for his decision, on the ‘injury’ issue. It is well established an arbitrator has a duty, both at common law and pursuant to statute, to give reasons. The statutory requirements are set out in section 294 of the 1998 Act, and Rule 15.6 of the Rules. The extent of the duty to give reasons will vary depending upon the circumstances of a case. In Mifsud v Campbell (1991) 21 NSWLR 725 Samuels JA said:
“The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.” (at 728D)
This decision was referred to with approval by McColl JA in Hume v Walton [2005] NSWCA 148.
In Soulemezis Mahoney JA quoted from his earlier decision in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, where his Honour said:
“Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585 at 587, 588; [1983] 1 All ER 824 at 826.
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.”
The arbitrator’s succinct statement of his finding on ‘injury’ was expressed as follows:
“There can be no issue that the Applicant suffered an injury, and as such the issue is to determine whether or not section 10(1D) has any application.” (at [24]).
This was supplemented by the arbitrator’s discussion of ‘injury’ and causation at [25] to [27] of his Reasons. There is a causation issue inherent in a consideration of the application of section 10(1D). Consequently these paragraphs involve a consideration of the causation issue relevant to ‘injury’, in tandem with a consideration of section 10(1D). These paragraphs followed the arbitrator setting out a summary of both parties’ medical cases at [19] to [20] of his Reasons. His reasoning process, although succinct, clearly enough demonstrates why he reached the finding he did on ‘injury’. It was a concise way of saying the evidence was all one way, and there was not a serious dispute between the parties on that particular issue. In my view this was consistent with the medical evidence of both parties, the unchallenged evidence of the Respondent Worker regarding the circumstances of the fracture, and the way the case was conducted before the arbitrator. Whilst it is a relatively short way of dealing with the particular issue, it was all that was required “in the circumstances of the individual case”, on that particular issue. In my view the arbitrator’s reasons on the point satisfied both his common law and statutory duty.
Section 10(1D) – Did the Journey Cause or Contribute to the Injury?
Section 10 of the 1987 Act relevantly provides:
“10 (1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury.”
It was common ground the injury occurred on a journey within the meaning of section 10(3)(a), this constituting a journey to which section 10(1) applied, subject to issues arising pursuant to section 10(1D).
The arguments of the Appellant Employer on the point appear at T21.10 to T22.50. They were:
(i)The words “resulted from” in section 10(1D) involve application of the commonsense test of causation found in the judgment of Kirby P in Kooragang Cement.
(ii)If the decision of Armitage J in McGraw v Commonwealth Bank of Australia Limited (2002) 24 NSWCCR 372 (‘McGraw’), is authority for the proposition “that the only protection afforded to section (1D) is protection where the injury sustained is entirely intrinsic, if I can put it that way, then, with respect to him, Judge Armitage is not correct.”
(iii)Section 10(1D) should not necessarily be construed beneficially to a worker, as it is a depriving section, not one conferring benefits.
(iv)The journey did not cause or contribute to the injury. The act of opening the window in the taxi cab was an activity “on the journey”, rather than being part of the journey. If that act contributed to the injury, this is insufficient to lead to a conclusion the journey contributed to the injury.
The arbitrator’s reasoning on the point is at [23] to [27] of his Reasons. He dealt with the issue as follows:
(i)The Appellant Employer bore the onus of establishing section 10(1D) had application: McGraw.
(ii)In that section “contribute” involves a lesser connection with the injury than “cause”.
(iii)The Respondent Worker suffered injury attempting to open the window, as alleged. Section 9A had no application.
(iv)Dr Harrison’s report dated 17 August 2006 provided evidence the circumstances of the Respondent Worker being in the taxi cab, and the position in which he sat in his wheelchair “constrained at that point near a window”, and his “efforts to open the window were instrumental in causing this injury”.
(v)Accordingly he was satisfied the journey contributed to the injury.
The Appellant Employer’s submissions on this point, on the appeal, raise the following arguments:
(i)McGraw can be distinguished on its facts. In McGraw the worker was injured when stepping onto a grass verge, which was an inherent part of the journey. By contrast the act of opening a window was not an inherent part of the journey, but rather an incidental action carried out while the journey was in progress, no different to opening a brief case or adjusting clothing. This argument, it is submitted, was not dealt with by the arbitrator.
(ii)Even if the Appellant Employer bore the onus regarding the application of section 10(1D), it had discharged that onus, and there ought to have been an award in its favour.
(iii)Section 10(1D) has two limbs. The first, on which the employer may well bear the onus, is that of establishing “injury resulted from the medical or other condition of the worker”. If an employer discharged this onus, the onus then moved to the worker, to establish “the journey did not cause or contribute to the injury”, if he was to avoid the disentitling provision of the sub-section. Reference is made to the judgment of Handley JA in Aardvark Security Services Pty Limited v Ruszkowski (1996) 13 NSWCCR 1 (‘Aardvark Security’) at 16.
The Respondent Worker makes the following submissions relevant to these points:
(i)Opening a window is a fundamental part of travelling in a motor vehicle, and constitutes part of the journey.
(ii)If the taxi cab was struck from the rear whilst the Respondent Worker was seated in it, whilst the driver was walking back to his driving position after assisting the worker, it would be an absurdity to conclude injury in such a collision was not compensable, as the taxi cab was not actually travelling at the time.
(iii)Even if the Respondent Worker carried the onus of establishing the journey contributed to the injury, the arbitrator made a positive finding of fact that the journey did contribute. So the Appellant Employer’s argument on onus would not affect the result.
Aardvark Security was a case involving the ‘fault’ provisions, which then comprised part of section 10 of the 1987 Act. Section 10(1A) at that time provided “Subsection 1 does not apply if the personal injury was caused, partly or wholly, by the fault of the worker.” The passage of the judgment of Handley JA, to which the Appellant Employer refers, simply recorded an acknowledgment by the employer in that case, that it carried the onus of establishing the case fell within the then section 10(1A). This was consistent with the later judgment of the High Court in Vetter v Lake Macquarie City Council [2001] 202 CLR 439 (‘Vetter’). Armitage J in McGraw referred to the passage in Aardvark Security as “a simple application of the dictum ‘he who asserts must prove’”. Armitage J referred to the second reading speeches accompanying the legislation of which section 10(1D) formed part. His Honour concluded the principles of onus applicable to section 10(1A) (as it was at the time of Aardvark Security) had equal application to section 10(1D). He accordingly held the onus was on the employer to establish the elements of section 10(1D), if it were to be successfully relied upon as a defence. I respectfully agree with his Honour’s analysis on this point.
Armitage J went on to deal with the phrase “cause or contribute” in section 10(1D). His Honour concluded “or” should be read disjunctively, so that “cause” and “contribute” are alternatives, and “it is sufficient to negate the operation of the section to prove that the journey contributed to the injury even if it did not cause it”. I respectfully agree also with this conclusion, which in my view is consistent with the clear words of the section. Armitage J then considered the meaning of “contribute” in this context. I accept his Honour’s conclusion on this point:
“What must be proved is that the journey contributed causally, even if in a minor way, to the happening of the injury.” (at [43])
It is noteworthy the contribution required for this purpose need not be a substantial contribution, as is required by section 9A.
It follows I reject the Appellant Employer’s submission that McGraw was wrongly decided on the question of where the onus lay.
Even if, contrary to the above, the onus lay upon the Respondent Worker, it is true, as the Respondent Worker submits, the arbitrator made a positive finding of fact the journey did contribute to the injury. Such a finding was, in my view, a correct one on all of the evidence. The medical case of the Appellant Employer was consistent with the fractures being “related to opening a window” (Dr Macauley at page 3.1), and to that act being “a substantial contributing factor to this pathological fracture of both bones in his right forearm” (Dr Smith at page 4.7). Thus, even if the argument of the Appellant Employer were correct on the onus question, it would not affect the result on this point.
Neither party has cited any authority relevant to the argument that the act of opening a window in the taxi cab, as it did not constitute part of the actual process of movement between the place of employment and place of abode, was not part of the ‘journey’, for the purpose of contributing to the injury. The nature of journeys covered by section 10(1) is defined (subject to various other statutory restrictions) by reference to place, described in section 10(3). However a journey, if it falls within one of those definitions, is not simply two points on a map. Of necessity, it involves the physical activities and events which occur, whilst the journey between two geographical points takes place.
Some assistance may be gained from cases dealing with the scope of the journey provisions. In Eggins v Prospect Electricity (1997) 14 NSWCCR 473 Campbell CJ dealt with the question of where and when a journey from a worker’s place of abode commenced. After reviewing a number of authorities, including the decision of the NSW Court of Appeal in Kerr v New South Wales Club [1971] 45 WCR (NSW) 13, his Honour said:
“In my view, whilst these cases establish that the journey must have commenced at the boundary, they do not confine the journey to points physically between the boundary and the place of employment. On the contrary, Bury and Kerr support the view that, in appropriate circumstances, return within the boundary does not bring the journey to an end.” (at 478D)
In Vetter, the judgment of Gleeson CJ, Gummow and Callinan JJ states:
“The appellant’s real destination was her own residence. She always intended to spend the night at her own residence. As Mahoney JA said in Minchinton v Homfray[31]:
“The term ‘journey’, used in the relevant sense, has an indeterminate meaning or meanings. In the Shorter Oxford English Dictionary, the relevant meanings are:
‘a day’s travel; the distance travelled in a day or a specified number of days ...; a spell of going or travelling, viewed as a distinct whole; an excursion or expedition to some distance; a round of travel ...’.
Having regard to the statutory reference to ‘interruption or duration’ (sic), the relevant meaning for present purposes is, I think: ‘a spell of going or travelling, viewed as a distinct whole’.”
There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker’s abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption. That is what the Act requires. Any question whether that requirement has been satisfied is not to be answered by posing and answering a different question altogether and of the kind posed by the Court of Appeal, was the appellant engaged in one or more journeys.” (at [29])
It is clear from the above that a journey may continue, notwithstanding a worker is not engaged in the physical act of travelling between his place of employment and place of abode (or other relevant locations in section 10(3)). In an appropriate case, it may not matter that he returned to his place of abode or employment after commencing the journey. It may not matter that he travelled in a direction away from the most direct route, or that he ceased, for a period, to travel (as did the worker in Vetter). This is inconsistent, in my view, with restricting the meaning of “journey” in section 10(1D) in the manner for which the Appellant Employer contends. Applying the meaning of “journey” in the judgment of Mahoney JA, quoted in the above passage of Vetter, “a spell of going or travelling, viewed as a distinct whole”, leads to the conclusion a journey must include activities reasonably incidental to it. Such an approach is consistent with the above authorities, and less artificial than the approach the Appellant Employer argues. I accept the submission of the Respondent Worker that “opening a window is a fundamental part of travelling in a motor vehicle”. In my view that activity is clearly both incidental to, and forms part of, the journey on which the Respondent Worker was engaged, when he sustained injury.
Additionally, the arbitrator placed reliance upon the opinion of Dr Harrison, who in his report of 17 August 2006 identified a causal relationship between the position in which the Respondent Worker found himself as a passenger in the taxi cab, and the occurrence of the fractures. Dr Harrison recorded a reasonably detailed description of the mechanism of injury (at page 2.1). He concluded the fractures were attributable to the Respondent Worker meeting “unexpected resistance” when sliding the window, and also the position in which he was located in the taxi cab relative to the window (at pages 8.6 to 9.3). The way in which the Respondent Worker was situated in the taxi cab, which was conveying him home, must be regarded as part of the journey for this purpose.
It follows from the above, that the various arguments advanced by the Appellant Employer on the appeal would fail. The appeal ought not be regarded as having reasonable prospects of success, and accordingly I decline to exercise my discretion to extend the time within which it can be made, pursuant to Rule 16.2(11).
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the costs of the appeal.
Michael Snell
Acting Deputy President
2 November 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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