Ryan v Regional Imaging Pty Ltd - [2017] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ryan v Regional Imaging Pty Ltd [2017] NSWWCCPD 48
APPELLANT:	Courtney Ryan
RESPONDENT:	Regional Imaging Pty Ltd
INSURER:	AAI Ltd t/as GIO – Agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-456/17
ARBITRATOR:	Mr A Scarcella
DATE OF ARBITRATOR’S DECISION:	19 July 2017
DATE OF APPEAL DECISION:	10 November 2017
SUBJECT MATTER OF DECISION:	Section 4 of the Workers Compensation Act 1987; arising out of or in the course of employment; s 9A of the Workers Compensation Act 1987; whether employment a substantial contributing factor to injury; Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 applied
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Slater & Gordon Lawyers
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 19 July 2017 is revoked and the following orders are substituted in its place: (a) An award in favour of the applicant under s 36 of the Workers Compensation Act 1987 from 17 December 2015 to 31 January 2016 at the rate of $862.16 per week. (b) The respondent employer is to pay the worker’s hospital and medical treatment expenses under s 60 of the Workers Compensation Act 1987 in the sum of $369.07.

INTRODUCTION

The worker was employed as a receptionist. Shortly prior to the end of her shift at 3.30 pm, she was required to attend the local Post Office to post the daily mail. To do this, she left work shortly prior to the end of the shift and drove her own car to the vicinity of the Post Office where she parked and proceeded on foot. After posting the mail, she went to cross the street to return to her vehicle when she was struck by a passing vehicle and was injured.
This appeal concerns whether the worker was in the course of her employment when she was injured or in the alternative whether the injury arose out of the employment, pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act). In either case whether the employment was a substantial contributing factor to the injury was also in issue.
In the alternative, the appeal concerns whether the worker was on a journey from her workplace to place of abode when she was injured and whether there was a “real and substantial connection” between the employment and incident, pursuant to s 10(3) of the 1987 Act.
For the reasons given in this decision, the worker’s appeal is successful.

BACKGROUND

Courtney Ryan, the appellant worker, was employed by Regional Imaging Pty Ltd, the respondent employer. Her duties required her to answer telephone calls, make appointments and, prepare and deliver the mail. She was required to deliver the mail to Albury Post Office, when she worked a shift between 7 am and 3.30 pm.
On 16 December 2015, Ms Ryan worked a shift between 7 am and 3.30 pm. It is not disputed that it was Ms Ryan’s usual practice to deliver the mail to Albury Post Office prior to the completion of this shift. To achieve this, Ms Ryan was required to leave the office at 3.15 pm and drive to the Post Office and deliver the mail.
Ms Ryan left the office at 3.15 pm and drove to Albury Post Office to deliver the respondent’s mail. She delivered the mail and commenced to walk back to her vehicle when she was struck by a car as she crossed the road. The exact time the incident occurred is unclear; it occurred sometime between 3.30 pm and 3.40 pm. Ms Ryan suffered fractures to her right leg and left elbow. She was transported to Albury Wodonga Hospital and discharged on 21 December 2015.
On 17 December 2015, Ms Ryan made a claim for compensation. She claimed that she was “struck by a vehicle as a pedestrian after delivering the work mail to the post office in Albury at the end of her shift. hit behind by another car. Car has thrown her onto the ground and run over her. [She] had just delivered the mail to the post office at approx. 3.30 pm”.
On 24 December 2015, the respondent’s insurer, GIO, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the claim. It claimed that, pursuant to s 10(3A) of the 1987 Act, there was no real or substantial connection between Ms Ryan’s employment and the incident on 16 December 2015.
On 22 February 2016, the insurer issued a further s 74 notice. It confirmed its s 74 notice of 24 December 2015, and added that in the alternative Ms Ryan was not in the course of her employment and that employment was not the substantial contributing factor to her injury (ss 4 and 9 A of the 1987 Act). It claimed that Ms Ryan had no entitlement to weekly benefits and that any treatment expenses were not reasonably necessary as a result of any work injury.
On 1 February 2017, Ms Ryan filed an Application to Resolve a Dispute (the Application) in the Commission. She claimed that she injured her right leg and left elbow, when she was “hit by a car, at work, after dropping off mail at the Post Office”. She sought weekly compensation for a closed period, 17 December 2015 to 31 January 2016, together with a claim for medical expenses pursuant to s 60 of the 1987 Act in the sum of $369.07.
On 22 February 2017, the respondent filed a reply to the Application disputing liability for the reasons stated in the s 74 notices.
On 12 May 2017, the matter came before a Commission Arbitrator for conciliation/arbitration proceedings. Following submissions from the parties, the Arbitrator reserved his decision.
On 19 July 2017, the Arbitrator issued a Certificate of Determination in favour of the respondent. The Arbitrator found that the injury did not arise out of or in the course of Ms Ryan’s employment pursuant to s 4(a) of the 1987 Act. The Arbitrator also found that employment was not a substantial contributing factor to the injury and the injury did not fall within the journey provisions pursuant to s 10 of the 1987 Act.

ON THE PAPERS

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.”
Having regard to Practice Directions No 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed “on the papers” without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
Section 352(3) provides that there is no appeal under s 352 unless the amount of compensation at issue on the appeal is both at least $5,000 (s 352(3)(a)) and at least 20% of the amount awarded in the decision appealed against (s 352(3)(b)). As there was no amount awarded in the decision appealed against there is no requirement to consider s 352(3)(b).[1] The total amount of weekly compensation and medical expenses in dispute exceeds the monetary threshold requirement of $5,000 by a modest amount.
[1] Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5; Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7, at [25]-[28].

THE EVIDENCE

Ms Ryan filed two statements, dated 24 May 2016 and 31 January 2017. She states she rotated between five different shifts, every five weeks. Her duties included answering calls, making appointments, preparing the mail and delivering it to the Post Office prior to the completion of her shift (when she worked the 7 am – 3.30 pm shift).
She recalls that she left work at 3.15 pm on 16 December 2015 and drove her vehicle to the Albury Post Office. She did not do anything else at the Post Office other than drop off the mail. She did not go into any other shops in the area. Once she dropped off the mail she started walking back up Kiewa Street towards Swift Street where she had parked her car. She walked down Swift Street and proceeded to cross over Swift Street to her parked car. She recalls:
“… I stepped out from between two parked cars at the loading bay and as soon as I stepped out from between these cars I was hit by another car … I believe that the driver of the vehicle which struck me had intended on turning left into Kiewa Street.”
She recalls being hit on her right hand side. The impact spun her around and she landed on the ground on her left hand side. She sustained a broken tibia and fibula in her right leg and a fracture in her left elbow. She also sustained grazes on both elbows and bruising on her right arm.
Ms Ryan was conveyed by ambulance to Albury Base Hospital, where she remained for five days. She ceased work at the time of the incident and did not return to work until 1 February 2016.
The Ambulance Electronic Medical Record records that an emergency call was received at “15:40” in respect of the incident. Under the heading “Case History Case Nature” it records “pedestrian collision; >> LOW SPEED – HIT BY CAR”. It also records pain and abrasion to the right leg, ankle and elbow.
The NSW Police Report records that the incident occurred “[a]bout 3.40 pm” on 16 December 2015. It records that Ms Ryan stepped from the kerb in between stationary vehicles and then stepped in front of the vehicle that impacted with her right side.
In evidence is a letter from Luke Fellows, Regional Manager, Regional Imaging Border, dated 29 January 2016. In that letter, Mr Fellows states:
“It is the duty of a Medical Receptionist rostered to the 7:00am shift to deliver the mail to the post office prior to the completion of each shift. To allow for this task to be done within their working day, the employee is to leave the office at 3:15pm. The employee is scheduled to work until 3:30pm; this 15 minute window allows sufficient time to deliver the mail to the post office prior to the end of their shift.
On the day of Courtney Ryan’s accident, her rostered shift was 7:00am to 3:30pm in which the delivery of the mail to the post office was her last work responsibility for the day.”

RELEVENT LEGISLATIVE PROVISIONS

Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
Section 10 of the 1987 Act provides:
“10 Journey claims
(1) A personal injury received by a worker on any journey to which this section applies is, for the purpose of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(3) The journeys to which this section applies are as follows:
(a)The daily or other periodic journeys between the worker’s place of abode and place of employment,
…
(4) For the purposes of this section, a journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated.”
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note: In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e)the worker's state of health before the injury and the existence of any hereditary risks,
(f)the worker's lifestyle and his or her activities outside the workplace.
(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b)the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

GROUNDS OF APPEAL

The issues in dispute on the appeal are whether the Arbitrator erred in:
(a) applying the test under s 4(a) with respect to “arising in the course of employment”;
(b) applying the test under s 4(a) with respect to “arising out of employment”;
(c) failing to properly apply the test under s 9A with respect to substantial contributing factor, and
(d) determining that the provisions of s 10 of the 1987 Act were not satisfied.

IN THE COURSE OF EMPLOYMENT

The Arbitrator’s Reasons

The Arbitrator’s analysis of the facts to the established principles in respect of an injury arising in the course of employment is relatively brief. He set out the following findings:
“(a) Part of Ms Ryan’s duties as a receptionist with the respondent included being responsible for the respondent’s incoming and outgoing mail and on 16 December 2015, her shift ended at 3:30pm but the respondent allowed her to leave the business premises 15 minutes prior to the end of her shift to enable her to deliver mail to the Albury Post Office and then travel home or elsewhere.
(b) Ms Ryan drove her motor vehicle from the respondent’s West Albury premises to the Albury CBD, where she parked her vehicle and then walked to the Albury Post Office.
(c) Ms Ryan had attended to her final duties for the day at the Albury Post Office.
(d) Once Ms Ryan left the Albury Post Office, she had completed her day’s employment for the respondent, be that at 3:30pm or some short time later.
(e) Ms Ryan left the Albury Post Office and was walking to where she had parked her vehicle for the purpose of driving home, when she stepped out onto the roadway between parked vehicles and was knocked down by a passing vehicle and sustained injury at or about 3:40pm.
(f) [Ms Ryan’s] accident was caused either by [Ms Ryan’s] carelessness or the negligence of the driver of the vehicle that knocked her down, or both.
(g) Ms Ryan’s personal injury did not arise in the course of employment.”[2]
[2] Ryan v Regional Imaging Pty Ltd [2017] NSWWCC 167 (Reasons), at [119].
The Arbitrator essentially concluded that Ms Ryan was not engaged in any actual work activity at the time of the injury. The injury did not occur at the Post Office. The Arbitrator found that Mrs Ryan had completed her work activities at the Post Office. He further found that whilst she was walking back to her vehicle from the Post Office it was during a period after she had completed her duties for the day.

Ms Ryan’s Submissions

The Arbitrator accepted the general proposition that one can still be in the course of employment if there is a duty that is incidental to the injured worker’s employment. The question that needs to be asked is whether the worker was doing something that was reasonably required, expected or authorised to do in order to carry their duties.[3]
[3] Reasons, at [61].
It is recognised that “course of employment” covered not only the actual work which a person is employed to do but also the “natural incidents connected with that class of work.”[4]
[4] Citing Hatzimanolis v AMI Corporation Ltd (1992) HCA 21 (Hatzimanolis).
In Whittingham v Commissioner of Railways (WA)[5] the High Court held that there can “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”[6]. His Honour added:
“in considering what was incidental to service, the sufficiency of the connection between the worker’s employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered.”[7]
[5] (1931) HCA 49 (Whittingham), at [29] (Dixon J).
[6] Citing Whittingham, at [29].
[7] Citing Whittingham, at [29].
Ms Ryan submits that the Arbitrator erred by applying too narrow an approach in his assessment, and the application of the authorities to the facts of this case, particularly having acknowledged that whether the worker is in the course of his employment is a matter of degree to be considered on the facts of each case.
The Arbitrator held that “it cannot be argued that the respondent used or encouraged her to be at the place she was injured.”[8] Ms Ryan submits that that finding was also too narrow an approach and notes that Ms Ryan was not only induced or encouraged to be at the relevant area of the accident at the relevant time but rather she was required, as part of her workplace duties, to be at that place.
[8] Reasons, at [118].
Ms Ryan also submits the fact that the injury did not occur within the Post Office, but rather outside, does not detract from the fact that Ms Ryan was required to attend those premises as part of her duties.
In so far as the injury may have occurred outside of Ms Ryan’s contracted hours, and noting the evidence of Mr Fellow’s, it is submitted that it is “patently obvious” that when undertaking duties incidental in Ms Ryan’s position, would on occasion be continuing to undertake duties outside those hours incidental to the requirements of the role.[9]
[9] Bill Williams Pty Ltd v Williams (1972) HCA 23, at [4]–[5].
Ms Ryan submits that the entire process of travelling to the Post Office and returning to her vehicle falls squarely in the requirements and expectations of her role within the employment. It clearly provides a sufficient connection between the employment and the thing done by her, having regard to the time, place and circumstances, in addition to the practice outlined by Mr Fellows, so as to give rise to a determination that the injury occurred “in the course of employment”.

The Respondent’s Submissions

The place that the respondent induced or encouraged Ms Ryan to attend was the Albury Post Office. However, the place where the accident occurred was “a point removed from the Albury Post Office, some 10 minutes later and between parked cars by a roadway”.
On the basis of the authority cited by the Arbitrator, in particular Hatzimanolis and Comcare v PVYW,[10] it was open to the Arbitrator to find that the injury did not occur as a result of Ms Ryan leaving a particular “place” when the injury was sustained.
[10] [2013] HCA 41 (PVYW), at [92].

The Arbitrator was correct to find that the injury was referable to an “activity”. The “activity” so it is submitted, was Ms Ryan being struck by the approaching vehicle when crossing the road (whilst engaged in “jaywalking”).
Having regard to that finding, the respondent submitted, it was open to the Arbitrator to find that the respondent did not induce or encourage Ms Ryan to “jaywalk” there being no evidence to the contrary.
As such, the Arbitrator was correct to find that the accident did not occur in the course of employment.

Consideration

This is an appeal under s 352 of the 1998 Act. The appeal is characterised by the identification and correction of legal, factual or discretionary error.
It is convenient to first refer to the relevant legal principles concerning whether an injury occurs in the course of employment.
An injury arising in the course of employment refers to the mere temporal connection with employment, so that if a worker sustains an injury during the time constituted by the course of employment the injury will arise in the course of the employment.[11] It is unnecessary to show some further relationship with the employment to establish “injury”, subject to satisfying the requirements of s 9A of the 1987 Act.
[11] Commonwealth v Oliver (1962) 107 CLR 353; ALR 609.
The course of employment extends beyond the worker’s normal hours and place of work to “natural incidents connected with that class of work”[12]. If a worker “is doing something which is part of or is incidental to his service”[13] he or she is in the course of employment.[14] Therefore, the service is not confined to the actual performance of the work that the worker is employed to do but includes all the things incidental to the performance of that work.
[12] Kavanagh v The Commonwealth [1960] HCA 25; 103 CLR 547 (Kavanagh), at [5].
[13] Charles R Davidson & Company v M Robb (1918) AC 304, 321.
[14] Whittingham, at 29; Kavanagh.
The test of what constitutes “in the course of” was considered by of the High Court in Henderson v Commissioner of Railways (WA)[15] and Humphrey Earl Ltd v Speechely[16].
[15] [1937] HCA 67; (1937) 58 CLR 201 (Henderson).
[16] [1951] HCA 75; (1951) 84 CLR 126 (Speechely).
In Henderson, Dixon J stated the test as follows:
“Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties.”[17]
[17] Henderson, at [294].
Justice Dixon endorsed this statement in Speechley.[18]
[18] Speechley, at 137.
As was noted in Bill Williams Pty Ltd v Williams[19]:
“Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work: Kavanagh v The Commonwealth per Fullagar J. (1960) 103 CLR, at p 559. It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, ‘there is nothing more in the concept than time measured by activity of a particular character’: Kavanagh v The Commonwealth per Menzies J. (1960) 103 CLR, at p 570. It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of employment. (at p 159)
That which is incidental to a worker’s work depends upon ‘the sufficiency of the connection between the employment and the thing done by the employee’ which is ‘a matter of degree, in which time, place and circumstance, as well as practice, must be considered together with conditions of employment’: Whittingham v Commission of Railways (WA), per Dixon J. (1931) 46 CLR 22, at p 29. It is a consideration of these factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work and the task is aided by asking whether he ‘was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties’: Humphrey Earl Limited v Speechely per Dixon J (1951) 84 CLR 126, at p 133: whether the accident has happened ‘while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service’: Pearson v Fremantle Harbour Trust (1929) 42 CLR 320, p 330.”
[19] [1972] HCA 23, at [4]– [5] (Stephen J).
In considering what is incidental to service, the sufficiency of the connection between Ms Ryan’s employment and what she was doing at the time that she was injured could only be “a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered”.[20]
[20] Hatzimanolis, at [7] citing Whittingham, at 29.
The gravamen of Ms Ryan’s complaint is that the Arbitrator erred by applying too narrow an approach to the application of the authorities to the facts as found. I accept that submission. The Arbitrator’s determination focused on his conclusion that once Ms Ryan left Albury Post Office on or about 3.30 pm she completed her day’s work and that the real cause of the accident was Ms Ryan’s own carelessness or the negligence of the driver of the vehicle that struck her, or both.[21] The Arbitrator failed to consider the terms of employment, and what was reasonably required, expected or authorised by the respondent in order for Ms Ryan carry out her actual duties.
[21] Reasons, at [119(f)].
The concept of whether an injury occurs in the course of employment, as I have said, involves a consideration of whether the injury occurred whilst the worker was engaged in work which he or she is employed to do or something incidental to it. It is a concept devoid of any causal link between that which the worker is employed to do and the injury sustained. As Justice Menzies said:
“There is nothing more in the concept than time measured by activity or the particular character.”[22]
[22] Kavanagh, at [5].
I note that the Albury Post Office is quite some distance from the respondent’s premises. It is reasonable to infer that Ms Ryan’s use of her own car to travel from her place of work to the Post Office was authorised by the respondent. There is nothing in Mr Fellow’s evidence to indicate to the contrary nor was it suggested during the arbitration that there was anything unusual about that practise or that it was unauthorised. That being the case, it is also reasonable to infer that Ms Ryan would be expected to park her car in the vicinity of the Post Office and walk between her parked car and the Post Office in order to post the daily mail.
It follows that, when walking between her car and the Post Office Ms Ryan was doing something that was incidental to her employment. Therefore, having regard to the authorities cited, Mr Ryan remained in the course of her employment while walking between her car and the Post Office.
The Arbitrator erred by failing to take into consideration all of the circumstances surrounding the terms of employment, the circumstances in which work was done and what was reasonably required, expected or authorised of Ms Ryan in order to travel to the Post Office and attend to the posting of the respondent’s mail. Rather he treated the time of the accident and immediate cause of it as decisive factors in his determination. That was also an error.
The Arbitrator’s reasons indicate that he was influenced by the fact that the injury occurred some ten minutes or so after 3.30 pm which was when Ms Ryan normally ended her shift. The respondent authorised Ms Ryan to leave her workplace to go to the Post Office 15 minutes before the end of her shift to post the mail. I infer that that was a notional period to allow her to complete the posting of the mail and finish her duties at around 3.30 pm. That did not mean that if the task of posting the mail was incomplete at 3.30 pm that the employment for the day came to an end at that point in time. It is reasonable to infer that, on occasion, the task of posting the mail would take longer than 15 minutes. That would be so if for example there was a long queue at the Post Office. As I apprehend the evidence, Ms Ryan was expected to complete the task of posting the mail whether it could be completed within the space of 15 minutes or whether it took a longer period. It follows that whether the injury took place shortly after the scheduled end of the shift is not decisive. A worker may still be in the course of employment where the accident arises shortly before the beginning of actual work or shortly after its cessation.[23]
[23] Henderson.
For these reasons, I find that Ms Ryan was in the course of her employment at the time she sustained the subject injury. The Arbitrator’s finding to the contrary was an error. This finding is sufficient to uphold the appeal and to enter an award in favour of Ms Ryan. However, if I am wrong and Ms Ryan completed her duties for the day at the time of the injury her appeal would still succeed for the following reasons.
The High Court in Hatzimanolis focused on the test to be applied in cases of injury that occur between intervals of work and which are held to be within the course of employment. The majority said:
“Accordingly, it should now be accepted that 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.”[24] (emphasis added)
[24] Hatzimanolis, at [16].
In PVYW, the High Court stated:
“The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principal in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury would have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of these circumstances is present that the question arising from the Hatzimanolis principal becomes relevant. When an activity was engaged in at the time of injury, the question is: Did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: Did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.”[25]

[25] PVYW, at [38]-[39].
I do not accept the respondent’s submission that “the place” Ms Ryan was induced or encouraged to attend by the respondent was the Albury Post Office and not a point removed from the Post Office. “The place” Ms Ryan was encouraged to attend, indeed directed to attend was the Post Office. However, as I have explained, because she was required to travel to the Post Office by car, which necessitated parking in the vicinity of the Post Office and proceeding on foot, “the place”, for the purpose of the Hatzinanolis test, was not just the Post Office but also the area between the Post Office and Ms Ryan’s parked car.
I accept Ms Ryan’s submission that not only was she induced or encouraged to be at the relevant place at the time of her injury, she was directed and required to be there as part of her employment duties. So much is made clear by her evidence and the evidence of Mr Fellows (which the Arbitrator accepted). Ms Ryan was at the place of the injury for no reason other than to attend to her employment duties of posting the respondent’s mail. It follows that Ms Ryan was induced and encouraged to be at that particular place by reasonably expressed terms of her employment.
I reject the respondent’s submission that “the activity” being engaged in was the activity of being struck by a motor vehicle caused by jaywalking. That is a specious submission. The activity she was engaged in was the posting of the mail as directed by the respondent. That also brings her within the course of employment within the Hatzimanolis test.
If it is accepted that at the time of the injury Ms Ryan was still in the course of her employment, as I have found, unless it can be established that at the relevant time Ms Ryan was guilty of gross misconduct, which has not been alleged (nor could it be) the fact that Ms Ryan may have been guilty of jaywalking is not decisive.[26]
[26] Hatzimanolis, at [16]; Badawi, at [122].
For the above reasons, I find that Ms Ryan was in the course of her employment at the time of the injury. The Arbitrator’s finding to the contrary was an error.

INJURY “ARISING OUT OF EMPLOYMENT”

The Arbitrator’s Reasons

The Arbitrator found that the meaning of “arising out of employment” is settled and involves the adoption of a common sense approach to the application of the phrase, noting that it involves a causative element.
The Arbitrator concluded that, when adopting the common sense approach to the phrase “arising out of employment” and considering the degree of causal connection between the accident and the employment, and whether to some extent, the respondent contributed to the injury, that the injury did not arise out of the employment.[27]
[27] Reasons, at [122].
The Arbitrator stated that:
“On the facts of this case, I cannot find that [Ms Ryan’s] employment in some degree caused or to some material extent contributed to her injury. The accident was caused either by [Ms Ryan’s] carelessness or the negligence of the driver of the vehicle that knocked her down, or both. It is not enough for [Ms Ryan] to argue that but for the employer’s direction to take the day’s mail to the Albury Post Office, she would not have been where she was at the time of the accident and the accident would not have occurred. She must go further and demonstrate some degree of causal connection and demonstrate that, to some material extent, her employment contributed to the injury. I find that she has failed to do so.”[28]
[28] Reasons, at [123].

Ms Ryan’s Submissions

Ms Ryan submits it is accepted that whether an injury arose out of employment is a matter to be inferred from the surrounding facts as a matter of common sense, the approach to that task being acknowledged by the Arbitrator as being appropriate.[29] Ms Ryan also submits that the Arbitrator applied too narrow an approach to the common sense determination of whether the injury arose out of the employment. She relies on her submissions at [30] to [37] above.
[29] Reasons, at [120]-[123].
Ms Ryan submits that it was a requirement of her employment that she attend Albury Post Office from the respondent’s premises in order to deliver the respondent’s mail. That duty in turn, necessitated her driving her vehicle to the location in order to follow the instructions of the respondent. In the requirement to undertake that task, it is submitted that, Ms Ryan would be required to walk to and from the Post Office from the location of her parked car. In the course of undertaking the required task Ms Ryan suffered injury. On any reading of the evidence, so it is submitted, there was a clear connection by a common sense analysis between the requirements of her role as a receptionist with the respondent and the way in which the injury occurred.
Ms Ryan submits that the Arbitrator failed to provide sufficient reasoning to support his findings that there were other material contributions to her injury. She also submits that he failed to acknowledge the concession on the part of the respondent that an injury could be said to have arisen out of the employment in circumstances where it “to some extent contributed to” the injury.
Ms Ryan further submits that the Arbitrator erred; that his determination should be revoked and an alternative determination substituted in its place.

The Respondent’s Submissions

The respondent submits that the Arbitrator, when applying the factual findings to the law, reached a conclusion that was open to him on the evidence. Either the cause of the injury was due to Ms Ryan’s carelessness or it was due to the driving of the vehicle that struck her, or both.
For these reasons, so it is submitted, the Arbitrator was correct to find that employment was not the cause of the injury. The employment only put Ms Ryan at the Post Office. It did not in any way contribute to her actions or that of the driver of the vehicle that struck her.

Consideration

In Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited[30] the majority held:
“The meaning of ‘arising out of ... employment’ is settled. In Nunan v Cockatoo Island Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 in what is sometimes still referred to as the authoritative decision on the phrase the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a common sense approach to the application of the phrase, noting that it involved a causative element. In doing so, their Honours, at 123, endorsed the comments of Lord Wright in Dover Navigation Co v Craig [1940] AC 190 at 199 that the Act was a remedial Act intended to give rights to workers that were more extensive than common law rights and which used non-technical language in doing so. As Lord Wright said:
‘Nothing could be simpler than the words ‘arising out of and in the course of employment.’ It is clear that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.’”[31]
[30] [2009] NSWCA 324; 7 DDCR 75 (Badawi).
[31] Badawi, at [73].
A worker will have established that an injury arose out of the employment if it appears that “the fact of his [or her] being employed in the particular job caused, or to some material extent contributed to, the injury…”.[32]
[32] Nunan v Cockatoo Docks and Engineering Co. Ltd [1941] 41 SR (NSW) 119 (Nunan), at [124].
The Arbitrator made reference to the relevant authorities.[33] In his discussion of the question he acknowledged that satisfaction of the phrase “arising out of employment” involves a causative element.[34]
[33] Reasons, at [96]–[101].
[34] See Reasons, at [121].
The Arbitrator concluded that the employment did not contribute in any material extent to Ms Ryan’s injury because the injury was caused either by her carelessness or the negligence of the driver of the vehicle that struck her, or both. His brief reasons for so concluding are extracted at [70] above. The Arbitrator did not elaborate further on his analysis of the issue.

I accept Ms Ryan’s submission that she was required by the terms of her employment to attend Albury Post Office to deliver the respondent’s mail. That duty in turn necessitated her driving her vehicle to the vicinity of the Post Office in order to follow the instructions of the respondent. I also accept, Ms Ryan’s submission, that to undertake that task she was required to first walk from where her vehicle was parked in Swift Street to the Post Office and following the delivery of the mail, walk back to where her vehicle was parked. That included crossing Swift Street where the accident happened. I further accept Ms Ryan’s submission that there is a clear connection on a common sense analysis between the requirements of her employment and the circumstances in which she was injured. It was the fact of being in the particular job that caused or at the least materially contributed to the injury.[35] The Arbitrator erred by failing to explain his reasoning for the conclusion that the matters above did not give rise to a material contribution to the injury.
[35] Nunan.
I agree with Ms Ryan’s submission that the Arbitrator erred by taking too narrow an approach to his analysis of the extent of the material contribution of the employment to the injury. The Arbitrator placed too much weight on the actual task of posting the mail at the Post Office. He concluded that Ms Ryan had completed her work for the day when she left the Post Office at 3.30 pm or some short time thereafter. Although the Arbitrator stated that the completion of that task necessitated parking her car in the “Albury CBD” and walking to the Post Office he failed to recognise that that aspect of the employment materially contributed to the injury.
The Arbitrator found that the cause of the accident was Ms Ryan’s own carelessness or the negligence of the driver of the vehicle that struck her. The significance of that finding is not explained. However, from a reading of the decision as a whole, it is reasonable to infer that the Arbitrator treated these as factors that militated against a finding in favour of Ms Ryan. The immediate cause of the accident, although relevant, was not decisive.
The requirements of Ms Ryan’s employment caused her to be in the Albury CBD, on foot and negotiating traffic when she was injured. The clear causal link to the employment was the requirement for her to use her own car to travel from the respondent’s premises to the Albury CBD, park it and then walk to and from the Post Office to attend to the task of posting the mail. That was a factor that materially contributed to the injury and was sufficient to satisfy the requirements of s 4 of the 1987 Act, in that the injury arose out of the employment. The Arbitrator’s finding to the contrary was an error.
The respondent’s opposition to the submissions of Ms Ryan on this issue are extremely brief and not persuasive. It merely submits that the Arbitrator’s conclusion was “open to him” relying upon the carelessness of Ms Ryan or the negligence of the driver of the vehicle that struck her. I disagree. Those submissions ignore the causal connection, being the direction by the respondent to send Ms Ryan to Albury Post Office to post the day’s mail knowing that that would involve her utilising her own vehicle which would necessitate proceeding on foot between the post office and her parked vehicle.
For these reasons, I find that the injury was sustained arising out of Ms Ryan’s employment. The Arbitrator’s conclusion to the contrary was an error.

SUBSTANTIAL CONTRIBUTING FACTOR

The Arbitrator’s Reasons

Although the Arbitrator was not satisfied that the injury was sustained in the course of or arising out of the employment, in the event that he was wrong, as I have found, he determined the question of whether the employment was a substantial contributing factor to the injury within the meaning of s 9A of the 1987 Act. He concluded that s 9A was not satisfied.
The Arbitrator excluded a consideration of s 9A(2) (d), (e) and (f) as irrelevant.
As with his consideration of the s 4 issues, the Arbitrator concluded that the employment was not a substantial contributing factor to the injury because he found that Ms Ryan had concluded her duties for the day when she left the Post Office at about 3.30 pm. Further, he found that the accident was due to Ms Ryan’s own carelessness or the negligence of the driver of the vehicle that struck her, or both.

Ms Ryan’s Submissions

The Arbitrator correctly identified that the question of whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree having regard to the non-exhaustive list of matters to be taken into account under s 9A(2).
Ms Ryan submits that the Arbitrator’s reasoning in relation to the application of s 9A “is infected” by his alleged errors in relation to the application of the legal tests in respect of whether the injury arose “in the course of employment” or “out of employment” pursuant to s 4 of the 1987 Act. The factual circumstances giving rise to the injury were premised on Ms Ryan being required to attend the Albury Post Office using her own vehicle in order to complete her expected employment tasks. The time taken to complete the task varied as it required a number of incidental steps to be undertaken by Ms Ryan including making her way to and from the Post Office. It was the nature of her work and the particular task of that work that required her to be placed in the position she found herself.
The term “employment” in s 9A extends to matters that are incidental to the contract of employment.[36]
[36] Citing Stanton-Cook and Stewart v NSW Police Service (1998) NSWCC57.
There may be more than one substantial contributing factor to an injury. In Mercer v ANZ Banking Group[37], Mason P observed that the word “substantial” qualifies “contributing factor” thereby indicating that it is the strength of the cause of linkage that is in question.[38]
[37] (2000) NSWCA138 (Mercer), at [17].
[38] Citing Mercer, at [17].
Ms Ryan submits that the Arbitrator erred in determining that employment was not a substantial contributing factor to her injury. Further, she submits that even if he accepted that a further causal relationship could be identified with another driver “that would not devoid the injury of its substantial connection to Ms Ryan’s employment”.

The Respondent’s Submissions

The respondent’s submissions are brief and are reproduced in full:
“Once again, this ground must be dismissed once the factual findings are accepted.
The substantial contributing factor to [Ms Ryan’s] injury was not employment. It was [her] own conduct, or the conduct of the other driver.”

Consideration

The Court of Appeal in Badawi stated, applying Mercer:
“Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (at [49] 216 per Spigelman CJ (Hodgson and Bryson agreeing) and Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46] at [22] per Giles JA.”[39]
[39] Badawi, at [48].
The Arbitrator approached the question of whether s 9A was satisfied by making two critical findings. Firstly, Ms Ryan’s employment ended at 3.30 pm or some short time later when she attended to her final duties of the day at the Post Office. Secondly, that the accident was caused either by her carelessness or the negligence of the driver of the vehicle which struck her, or both.
Ms Ryan’s challenge on appeal is that the Arbitrator’s approach was too narrow and failed to take into account the factual circumstances giving rise to Ms Ryan’s injury.
The respondent’s submission on this issue, which I have extracted in full, are not persuasive. Those submissions concentrate, as the Arbitrator did, on the immediate cause of injury to the exclusion of other factors. It ignores the fact that there may have been other significant contributing factors to the injury. This was the error identified in Badawi by Beazley JA (Allsop and McColl JA agreeing), where her Honour said:
“… Section 9A(2)(b) directs attention not to what the employee was doing when the injury occurred but to ‘the nature of the work performed and the particular tasks of that work’ that is, ‘of the employment concerned…’”[40]
[40] Badawi, at [96].
In his consideration of s 9A(2)(b), the Arbitrator merely concluded that Ms Ryan’s duties involved leaving work 15 minutes prior to the end of her shift to enable her to deliver mail at Albury Post Office and then travel home or elsewhere from there, utilising her own vehicle. Although the Arbitrator identified those features of Ms Ryan’s employment, he focused only on the final aspect of his analysis of the duties, namely that Ms Ryan had attended her final duties of the day at the Post Office at about 3.30 pm or sometime later. That was an error. He focused on the duties being performed at or immediately prior to the injury rather than focusing on the nature of the work performed and the particular tasks of Ms Ryan’s work.[41] The Arbitrator should have considered the nature of the work performed in his consideration of s 9A(2)(b) not just the fact that Ms Ryan had completed her duties for the day.
[41] Badawi.
To compound the error, the Arbitrator concluded that s 9A(2)(d) was not relevant. That subsection focuses on “the probability that the injury or similar injury would have happened anyway, at about the same time or at about the same stage of the workers life, if he or she had not been at work or had not worked in that employment.” Clearly that was a matter that was highly relevant to a consideration of whether the employment was a substantial contributing factor. Having regard to the whole of the evidence, I find that it is highly unlikely that a similar injury would have happened at the same time or at the same stage of Ms Ryan’s life had it not been for the particular tasks of her employment.
Having particular regard to s 9A(2)(a), (b) and (d), I am more than comfortably satisfied that the connection between the incident and the employment was real and of substance, therefore the provisions of s 9A are satisfied.[42]
[42] Badawi.
It follows that Ms Ryan sustained an injury arising out of and in the course of her employment with the respondent on 16 December 2015 to which her employment was a substantial contributing factor.

THE JOURNEY CLAIM

Mr Ryan’s principle position before the Arbitrator was that she sustained an injury within the meaning of s 4. As I have found, that has been established. In the alternative, Ms Ryan relied on s 10 of the 1987 Act, namely that the injury was sustained during the course of a daily or other periodic journey between her place of abode and pace of employment.
Having regard to my findings above, it is unnecessary to entertain the further submissions in relation to the journey provisions.

ORDERS

The Arbitrator’s determination of 19 July 2017 is revoked and the following orders are substituted in its place:
(a) An award in favour of the applicant under s 36 of the Workers Compensation Act 1987 from 17 December 2015 to 31 January 2016 at the rate of $862.16 per week.
(b) The respondent employer is to pay the worker’s hospital and medical treatment expenses under s 60 of the Workers Compensation Act 1987 in the sum of $369.07.

Judge Keating

President

10 November 2017