S L Hill and Associates Pty Ltd (de-registered) v Hill - [2019] NSWWCCPD 37

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status: Appeal to the Court of Appeal dismissed – Workers Compensation Nominal Insurer v Hill* [2020] NSWCA 54**
CITATION:	S L Hill and Associates Pty Ltd (de-registered) v Hill [2019] NSWWCCPD 37
APPELLANT:	S L Hill and Associates Pty Ltd
FIRST RESPONDENT:	Steven Leslie Hill
SECOND RESPONDENT:	Liam Charles Christy Carroll
THIRD RESPONDENT:	Jeffrey Charles Burrowes and Julie Anne Burrowes as tutors for Charles Steven Leslie Hill
INSURER:	AAI Limited trading as GIO – Agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A2–3503/17
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:	19 December 2018
DATE OF APPEAL DECISION:	22 July 2019
SUBJECT MATTER OF DECISION:	Section 4 of the Workers Compensation Act 1987 (the 1987 Act) – arising out of employment”, “in the course of employment”; s 9A of the 1987 Act – substantial contributing factor; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473; Comcare v PVYW [2013] HCA 41; 303 ALR 1; Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hall & Wilcox
First Respondent:	No appearance
Second Respondent:	Gianacas Argiris McDonald
Third Respondent:	Duffy Elliott Lawyers Pty Ltd
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 19 December 2018 is amended at [2] to read: “Liam Charles Christy Carroll and Charles Steven Leslie Hill were wholly dependent for support upon the deceased at the date of death. There were no other persons dependent.” 2. The Certificate of Determination dated 19 December 2018 is otherwise confirmed. 3. The matter is remitted pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for determination of the remaining issues by the same Arbitrator.

INTRODUCTION

This appeal is an appeal from a decision of an arbitrator, in which the Arbitrator found that Ms Michel Wendy Carroll, who was employed by S L Hill and Associates Pty Ltd (the appellant), died as a result of injuries arising out of and in the course of her employment on 16 June 2010, and that Ms Carroll’s employment was a substantial contributing factor to her injuries. Ms Carroll died at her home, where she co-habited with her de facto, in Wamberal, New South Wales, which was also where she conducted her employment duties for the appellant.
Ms Carroll’s death was caused by injuries inflicted by her de facto husband, Mr Steven Leslie Hill (the first respondent). The first respondent was found not guilty of Ms Carroll’s death by reason of mental illness.[1] The first respondent was the director of the appellant, and employed by the appellant as a financial adviser associated with the AMP organisation (AMP). The appellant and the first respondent were required to report to the Australian Securities and Investments Commission (ASIC).
[1] R v Stephen Leslie HILL [2011] NSWSC 1196.

BACKGROUND

On 16 January 2016, the first respondent made a claim for compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) in respect of Ms Carroll’s death.
The appellant declined the claim on the basis that the injuries were not sustained in the course of Ms Carroll’s employment, and her employment was not a substantial contributing factor to the injuries pursuant to s 9A of the 1987 Act.
On 12 July 2017, the first respondent lodged an Application to Resolve a Dispute (ARD), seeking payment of the lump sum compensation provided for pursuant to s 25(1)(a) of the 1987 Act, to be apportioned between him and the deceased’s two sons, Liam Charles Christy Carroll (the second respondent) and Charles Steven Leslie Hill (the third respondent). The first respondent also sought weekly payments of compensation pursuant to s 25(1)(b) of the 1987 Act on behalf of the second and third respondents.
The matter came to conciliation and arbitration on 20 November 2017 before a different (senior) arbitrator. At that arbitration, the first respondent abandoned his claim for a portion of the lump sum compensation. There was no dispute that the second and third respondents were dependent for support upon Ms Carroll, and it was agreed between the parties that if the death benefit was payable, 70% should be apportioned to the third respondent and 30% to the second respondent. The parties further agreed that crime scene photographs showed that Ms Carroll had died on her bed in her pyjamas, which she was wearing when the second respondent found her that afternoon.
The Senior Arbitrator determined the matter, entering an award in favour of the appellant on 16 January 2018. The second respondent appealed that decision. In a decision dated 7 May 2018, President Keating revoked the award in favour of the appellant, and remitted the matter for re-determination by a different arbitrator.
The parties attended an arbitration on 26 October 2018, the matter was stood over part heard, and resumed on 26 November 2018.
The Arbitrator issued a Certificate of Determination (COD) dated 19 December 2018. She determined that Ms Carroll’s injuries causing her death arose out of and in the course of her employment with the appellant (s 4(a) of the 1987 Act), and that in accordance with s 9A of the 1987 Act, Ms Carroll’s employment was a substantial contributing factor to the injuries.
The appellant appeals that decision. The first respondent, who had abandoned his claim for compensation, elected not to file an Opposition to Appeal Against Decision of Arbitrator, and consequently made no submissions in respect of the appeal.

ON THE PAPERS

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.”
The appellant seeks an oral hearing of the appeal. The appellant submits that the appeal concerns important legal issues relating to issues of causation in respect of ss 4 and 9A of the 1987 Act. The appellant refers to the irregular hours worked by Ms Carroll, that Ms Carroll was killed in her home, the time of death was highly uncertain, that there was no evidence that established Ms Carroll was working at the time of the assault, and the serious nature of the first respondent’s illness. The appellant submits that the appeal submissions filed by the parties indicate how complex and difficult the central issue is, which involved consideration of the onus of proof. The appellant asserts that written submissions could not provide the type of assistance that could be given by counsel in an oral hearing.
The second respondent submits that the appeal can be determined on the papers. He says that the Arbitrator determined the issues on the basis of the documentary evidence and the submissions of the parties which were recorded. The second respondent submits that the evidence and the submissions are available for review and the basis upon which the Arbitrator determined the matter can be addressed by written submissions on the appeal.
The third respondent submits that the dispute is a factual one, that many relevant facts were not in dispute, and the matter does not raise any novel question of law. He says that the transcripts of the proceedings are available, the appellant has been provided with the opportunity to reply to the respondents’ submissions, and so there is no reason why the matter cannot be dealt with on the papers.
The three grounds of appeal alleged by the appellant are each limited to challenges to the Arbitrator’s factual findings. There is nothing novel or complex raised on the appeal that might be persuasively in favour of proceeding to an oral hearing.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties as to whether 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.
The Arbitrator determined the issue of liability for, and entitlement to, the lump sum compensation, but stood the matter over to a telephone conference to hear submissions in respect of the claim for interest and the periods during which weekly payments should be made. The appeal was lodged before the telephone conference took place. On one view, the Arbitrator has not finally and conclusively dealt with the matter so that a consideration as to whether the Arbitrator’s decision is interlocutory in nature is therefore required.
Subsection 352(1) of the 1998 Act provides for an appeal “against a decision in respect of the dispute by the Commission constituted by an Arbitrator” (emphasis added). A “decision” is defined in subs 352(8) to include “an award, interim award, order, determination, ruling and direction”. Subsection 352(3A) provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The meaning of “interlocutory” in subs 352(3A) is undefined.
In the High Court authority of Licul v Corney,[2] Gibbs J identified that the distinction between interlocutory and final decisions was not always easy to draw, and it was established law that whether a decision is interlocutory depends on the nature of the order made. His Honour observed that the test was whether the judgment or order finally disposed of the rights of the parties.[3] Gibbs J’s observations provide some guidance, but consideration should also be given to the context of the legislative and procedural framework of the Commission.
[2] [1976] HCA 6; 180 CLR 213 (Licul).
[3] Licul, [11].
In P & O Ports Limited v Hawkins,[4] the issue decided by the Arbitrator was whether the deemed date of injury in a ‘disease’ case was before or after 31 December 2001. Following the determination of that issue, the matter was referred to an Approved Medical Specialist for assessment of Mr Hawkins’ permanent impairment pursuant to s 66 of the 1987 Act, either in accordance with the Table of Disabilities (for injury before 1 January 2002), or whole person impairment. The appellant appealed before the assessment took place. Deputy President Roche determined that the finding of the deemed date of issue was a preliminary finding as to how the permanent impairment was to be calculated, did not result in payment of compensation and did not finally determine the parties’ rights. He observed:
“The finding has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.”[5]
[4] [2007] NSWWCCPD 87 (Hawkins).
[5] Hawkins, [44].
Acting Deputy President Snell (as he then was) applied Hawkins in Maricic v Medina Serviced Apartments Pty Limited.[6] The Acting Deputy President said that it was the nature of the Arbitrator’s decision that the worker could no longer succeed in recovering compensation of any description in respect of the pleaded incident. This decision on ‘injury’ was final and binding, and ought not be characterised as ‘interlocutory’.”[7]
[6] [2007] NSWWCCPD 196 (Maricic).
[7] Maricic, [20].
The distinction was further examined by Deputy President Roche in EdmundDiab v Salem Naji,[8] in which the appellant appealed findings of fact made by the Arbitrator concerning injury. The Deputy President said that the:
“… findings are conclusive, and bind the parties and define the rights and liabilities of each concerning the various heads of entitlement to compensation benefits as provided by the Acts. … I conclude that the Arbitrator’s decision, including those findings of fact, is not one of an interlocutory nature within the meaning of section 352(8).”[9]
[8] [2010] NSWWCCPD 33 (Naji).
[9] Naji, [20]–[21].
Adopting those principles, it is clear that the Arbitrator’s determination that Ms Carroll’s injuries were incurred in the course of and arising out of her employment were conclusive findings defining the rights of the parties in relation to the entitlement to compensation benefits pursuant to s 25 of the 1987 Act.
The findings are not interlocutory in nature, and It follows that leave to appeal the Arbitrator’s determination is not required.

THE EVIDENCE

The first respondent’s statement evidence

Mr Steven Hill (the first respondent) was interviewed by police on 17 June 2010 and the record of the interview is in evidence.[10] The expert medical opinions regarded the answers provided by the first respondent as unreliable because of his mental state at the time, and the Arbitrator formed the same view. As that evidence was not taken into account by the Arbitrator and is of no assistance in this appeal, it is not necessary to record it here.
[10] Application in Respect of Death of Worker (application), pp 203–268.
The first respondent provided a statement dated 11 January 2016.[11] He described the commencement of the business, its changing structure, and said that throughout the 1990’s and up until 2005, the business was thriving. The first respondent said that the business was operated from premises at Wamberal (the premises), where he and Ms Carroll both lived. He said the offices were located on the ground floor of the premises. The first respondent reported that, as a result of changes to statutory entitlements, the business deteriorated from 2005. By June 2010, the business was employing only the first respondent and Ms Carroll.
[11] Application, pp 11–27.
The first respondent said that Ms Carroll was employed initially as the office manager, but from 2007 Ms Carroll also took on the role of a “paraplanner.” That role involved the preparation of statements of advice and supervising the telemarketing team. According to the first respondent, Ms Carroll’s joint role required her to work office hours and “longer by arrangement.” He said he and Ms Carroll worked together from about 9 am to 5 pm, with a break between midday and 1 pm. At 5 pm they would usually break for dinner, and from 5.30 pm, either the first respondent or Ms Carroll would supervise the telemarketers, who would also work from the ground floor of the premises, working from 5.30 pm until 8.30 pm. When the first respondent was away from the premises, he would communicate with Ms Carroll by telephone or email, and much of the work would be done by Ms Carroll. The first respondent said that after the third respondent was born, Ms Carroll would take breaks more frequently, and work with the third respondent by her side, attending to him as required.
The first respondent described the gradual onset of his delusions, in which he eventually came to believe that Ms Carroll was being used by AMP and ASIC to report on him, and that Ms Carroll was accessing his computer, spying on him, and recording his conversations. He reported that his attempts to reverse the faltering trading position of the company (the appellant) were failing, which impacted his personal financial circumstances. Consequently, this caused increasing levels of anxiety and depression, alcohol dependence and prescription drug abuse.
The first respondent stated that, subsequent to Ms Carroll’s death, he was diagnosed with schizophrenia and, as a result of that condition, held paranoid beliefs and perceived that the work stressors were much greater than they were, and were insurmountable. The first respondent said that the work stressors became the focus of his paranoid thinking, which led to the delusions that Ms Carroll was spying on him, accessing his computer to assist AMP and ASIC, and undermining the company.
The first respondent reported that he was preoccupied and focussed on Ms Carroll’s duties, he developed a mistrust of her, and the mistrust led to the belief she was unfaithful and having affairs with the second respondent’s friends. The first respondent said that in 2009 he organised for Ms Carroll to undergo a lie detector test, which was principally directed at employment issues (but in which she was also asked if she had been unfaithful). The test was paid for by the appellant. The first respondent referred to the state of his mental condition as causing him to doubt the accuracy of the test.
The first respondent reported a deterioration in his functioning and disorganised and irrational thinking. He did not attribute the difficulties in the business to himself, but instead blamed Ms Carroll for her failure as a manager, the manner in which she dealt with staff, and the relationship with AMP. The first respondent described his deteriorating paranoia, which caused him to believe AMP and ASIC were hacking into his computer. This prompted him to invest in more cyber security, leave lights on all night for fear of an attempted break in to steal files, and develop email strategies to avoid detection by AMP. He said these actions failed to alleviate his paranoia, and he began to focus more on the theory that AMP and ASIC, with Ms Carroll’s help, were conspiring against him. The first respondent began to perceive that AMP had instigated a campaign on social media and the internet, and was paranoid about what people were saying about him. He began to hear voices, and believed that on-air television personalities were discussing him and his relationship with AMP and ASIC, and laughing about his predicament.
The first respondent referred to the birth of the third respondent, and his belief that the third respondent was not his child, which was based on his mistrust of Ms Carroll.
The first respondent said that, in his confused and paranoid state, he decided to visit his mother in Melbourne. While he was away, he continued to liaise with Ms Carroll by telephone and email in relation to business matters that arose. He returned to the premises on 15 June 2010.
The first respondent could not recall much of what occurred thereafter, but said that on 16 June 2010, the second respondent had gone to school, and he believed that he and Ms Carroll were alone in the premises with the third respondent. His recollection was that there had been a verbal exchange that set off a reaction in him, and he went to the kitchen to get a hammer, returned to the bedroom and hit Ms Caroll in the head with it. He said that at that time, he experienced an overwhelming sense of helplessness and despondency.
The first respondent referred to the subsequent medical treatment provided to him, and his arrest and criminal trial, which resulted in a verdict of not guilty by reason of mental illness. He was permanently detained in a mental health unit, not to be released until the Mental Health Review Tribunal was satisfied he no longer posed a danger to himself or the public.

The second respondent’s statement evidence

The second respondent provided a statement to police dated 17 June 2010.[12] He said that he and Ms Carroll moved in with the first respondent in December 2004. He said that in 2007, Ms Carroll commenced a business relating to safety equipment, and she and the first respondent ran each of their businesses from the premises.
[12] Application, pp 197–202.

The second respondent said that initially, the first respondent seemed fine and was happy, but with the onset of problems in both businesses, the first respondent began to change, displaying mood swings, drinking heavily and staying in his bedroom for days at a time. The second respondent said that the first respondent’s behaviour became paranoid, and he would frequently accuse both Ms Carroll and himself of listening to telephone calls, hacking into the computers, and stealing work documents. The second respondent said that in January 2010, his laptop lead, internet dongle and television remote went missing. The first respondent denied taking them, but later returned the lead and the dongle.
The second respondent reported that he observed an argument between Ms Carroll and the first respondent, in which the first respondent struck Ms Carroll. Ms Carroll and the second respondent then left the house, but returned a week later. The second respondent said that in the following months, Ms Carroll and the first respondent continued to fight, having arguments about money and the first respondent making accusations that Ms Carroll and the second respondent were recording him and stealing things.
The second respondent describes how, on 16 June 2010, he left for school at 7.30 am. He returned home from school in the afternoon on the 3.15 pm bus. He said that there was water pouring over the first floor balcony, and he went inside. He could smell smoke, observed the microwave door was open and was black inside, and the glass microwave plate was smashed on the floor. There was blood on the kitchen floor. The second respondent said he then went to the main bedroom of the house, and the first respondent was lying on the floor of the ensuite bathroom, which was being flooded by the overflowing bath. Ms Carroll was lying on her back on the floor of the ensuite.
The second respondent said that he felt Ms Carroll’s stomach, and described her as being cold, with “a tiny bit of warmth.” He could not feel a heartbeat or breathing.
In his second statement dated 3 July 2010,[13] the second respondent said that on 16 June 2010, he left for school at 7.30 am, saying goodbye to Ms Carroll before he left, at which time the first respondent and Ms Carroll were still in bed, with Ms Carroll breast feeding the third respondent.
[13] Application, pp 369–370.
The second respondent provided a number of further statements.
In a statement dated 13 July 2016,[14] the second respondent relevantly referred to Ms Carroll usually working in various areas of the house, such as the living room, kitchen and bedroom, including on the bed. He said the work entailed dealing with documents, making telephone calls and using a laptop. The second respondent described Ms Carroll’s working routine after the birth of the third respondent. He said Ms Carroll would work from as early as 7.30 am and at times until 9 pm on weekdays, and would occasionally work on weekends. He recalled that Ms Carroll would take more regular breaks after the third respondent was born.
[14] Application, pp 459–467.
In his fourth statement (dated 11 November 2016),[15] the second respondent said he would often hear Ms Carroll taking calls from clients and others in the kitchen or laundry, and there would frequently be files and paperwork on the kitchen bench and dining room table. He said that when he returned from school in the afternoons, it would be more common than not that Ms Carroll would be working in the bedroom, and taking telephone calls from the bedroom. He observed that Ms Carroll would take regular breaks throughout the day to attend to the third respondent’s needs.
[15] Second respondent’s Reply to Application (Reply), pp 60–62.
In a further statement dated 20 November 2017,[16] the second respondent said that Ms Carroll would often spend the day in the clothes she slept in, or otherwise wore loose and casual clothes through the day. The second respondent added that in the 12 month period prior to Ms Carroll’s death, the first respondent appeared less motivated to work and spent increasing amounts of time watching television and reading books. As a result, Ms Carroll’s involvement in the business increased, with Ms Carroll urging the first respondent to have more contact with the clients.
[16] Second respondent’s Application to Admit Late Documents (AALD), pp 1–5.

Jeffrey Burrowes’ statement

Mr Burrowes is Ms Carroll’s brother, and visited Ms Carroll on the long weekend in June 2010, just prior to her death. He provided a statutory declaration dated 11 July 2016.[17]
[17] Third respondent’s Reply, pp 6–28.
Mr Burrowes said that over the weekend, Ms Carroll received a number of telephone calls from the first respondent. Mr Burrowes said that some of the calls appeared to be work related, and on several occasions after receiving those calls, Ms Carroll would go down to the ground floor office area and be gone for between 15 minutes and an hour.
Mr Burrowes also made a statement to police on 30 June 2010,[18] in which he described the appellant’s offices as comprising the entire ground floor of the premises. He also described the first respondent’s duties. Mr Burrowes said that he visited Ms Carroll over the weekend because their mother was concerned about her.
[18] Application, pp 346–354.
Mr Burrowes referred to overhearing telephone calls between the first respondent, who was in Melbourne, and Ms Carroll, and that the tone seemed normal and loving. He indicated that Ms Carroll had told him that the first respondent had been working very hard and needed a rest.

Further statement evidence

A number of other statements from family and friends were also in evidence, and stated as follows:
(a)    Mr Charles Burrowes, (Ms Carroll’s father), in a statement dated 5 July 2010, remarked that “things were not quite right” between the first respondent and Ms Carroll, and that Ms Carroll had complained that the relationship with the first respondent was like being imprisoned. He said she complained she did not have a door key and the first respondent had deleted numbers from her telephone;[19]
[19] Application, pp 374–379.
(b)    Ms Angela Daly, Ms Carroll’s sister, reported in a statement dated 18 June 2010 that she observed the first respondent’s behaviour to gradually change. Ms Daly reported that Ms Carroll told her that:
i)the first respondent doubted that the third respondent was his child, even after paternity tests proved that he was;
ii)the first respondent was becoming paranoid about AMP spying on him;
iii)the first respondent accused Ms Carroll of having extra-marital affairs, had accessed his safe and copied his files;
iv)after Ms Carroll left the premises in March 2010, she and the first respondent were attending relationship counselling by agreement, and
v)the first respondent refused to give Ms Carroll any money, and Ms Carroll was forced to take money from the second respondent’s bank account.[20]
[20] Application, pp 295–300.
(c)    Ms Kirstin Daly (Ms Carroll’s niece) said that she stayed with Ms Carroll from 2 June 2010 to 6 June 2010, while the first respondent was in Melbourne. She stated that the first respondent called Ms Carroll frequently, and their conversations appeared amicable, but Ms Carroll said that he was checking up on her. Ms Daly said that when Ms Carroll stayed with Ms Daly’s family, the first respondent would ring and blame Ms Carroll for things going wrong in the business. Ms Daly described the first respondent as being obsessed with the business and his own wealth.[21]
[21] Statement dated 18 June 2010; Application, pp 307–311.
(d)    Mrs Eileen Carroll (Ms Carroll’s ex mother-in-law and the second respondent’s grandmother) expressed the view that the first respondent became distant and very paranoid after Ms Carroll fell pregnant, and doubted the third respondent was his child. Mrs Carroll said that when the first respondent left for Melbourne, Ms Carroll was upset and told her that the first respondent was showing no emotion towards her and the baby, and was not giving her any money, while at the same time he stayed in expensive hotels and was gambling. Mrs Carroll said she gave money to Ms Carroll, and bought food for the family.[22]
[22] Statement dated 17 June 2010; Application, pp 277–280.
(e)    Mr Robert Carroll, the second respondent’s father, said that he became friends with the first respondent, and that after Ms Carroll’s safety equipment business lost a lot of money, the first respondent blamed Ms Carroll. Further, after the economic downturn in 2008, the first respondent fell into a deep depression and became obsessed with finances, which was the subject of every conversation the two men had.[23]
[23] Statement dated 17 June 2010; Application, pp 284–287.
(f)    Mr John Carroll, the second respondent’s paternal grandfather, stated that during the previous six years, the first respondent became obsessive with his business dealings, and expressed concerns that AMP were watching him and had hacked into his computer, bugged his telephone, and were trying to sabotage him. Mr Carroll reported that Ms Carroll advised him that the first respondent was concerned he was going to be audited and was paranoid that someone was targeting him. Mr Carroll said that the first respondent would often say that someone was “out to get him,” and Ms Carroll would tell the first respondent to not worry about it. Mr Carroll said that this occurred every time he visited Ms Carroll and the first respondent, and the first respondent would continue to go through his records meticulously.[24]
(g)    Ms Dianna Manders (one of Ms Carroll’s friends) stated that in the twelve months prior to her death, Ms Carroll told her that the first respondent:
i)was checking her emails and telephone account;
ii)installed a listening device into her telephone;
iii)blamed Ms Carroll for the failure of the safety equipment business, and
iv)accused her of having affairs, removing papers from his office and knowing the combination for the safe.
Ms Carroll also told Ms Manders about undergoing a lie detector test, in which one of the questions was about whether Ms Carroll knew the combination to the safe. Ms Manders said that Ms Carroll disclosed that the first respondent was losing clients in the AMP business, and that he was unmotivated to work, spending days in bed.[25]
(h)    Ms Jacqueline Bristow (Ms Carroll’s friend) reported that in March 2010, Ms Carroll contacted her and advised that the first respondent had accused Ms Carroll of having an affair, that the unborn third respondent was not his, and told her to leave the house. Ms Bristow also said that she spoke with Ms Carroll on 8 June 2010. Ms Carroll told her that the first respondent was showing signs of paranoia because he was stressed about the AMP work. Ms Carroll complained that the first respondent believed she was having an affair, and that he was not the third respondent’s father. Ms Carroll complained of financial difficulties, and that the recession had significantly impacted the business. Ms Bristow said that if she tried to discuss the first respondent’s behaviour with Ms Carroll, Ms Carroll would become defensive and annoyed.[26]
[24] Statement dated 17 June 2010; Application, pp 281–283.
[25] Statement dated 18 June 2010; Application, pp 301–306.
[26] Statement dated 16 June 2010; Application, pp 185–189.

The police and related evidence

There is no challenge on this appeal to the Arbitrator’s finding that the assault, and Ms Carroll’s death, occurred in the area of the main bedroom.[27] The appellant raises an alleged error in respect of the finding that the assault occurred between 8 am and 10 am, in the context of its ground of appeal in respect of whether employment was a substantial contributing factor to the injury. Although the appellant contends that the only “certainty” as to the time the assault occurred is that it took place at some time between 7.30 am and 3.45 pm, and the second respondent asserts that an alternative explanation as to when the assault took place was that it occurred at the time of the unanswered calls, putting the assault within business hours, there is no properly expressed or argued challenge to the Arbitrator’s finding that it occurred between 8 am and 10 am.[28] The evidence that tends to establish the time and the place of the assault is therefore not relevant to the questions raised in this appeal. It is not necessary, therefore, to summarise the totality of the police and related evidence, which in any event is well summarised by the Arbitrator in her decision.
[27] Hill v S L Hill Pty Ltd (3503/17, 19 December 2018) (reasons), [321].
[28] Reasons, [324].
It is, however, relevant to refer to the observations made by Senior Constable Hayden in his statement dated 15 September 2010.[29] Senior Constable Hayden was attached to the Gosford crime scene section of the New South Wales Police Force and his duties included the examination of scenes of major crimes. He attended the premises on the evening of 16 June 2010. Relevantly, he noted that there were a lot of items under the bed in the main bedroom, which included a laptop and paperwork.[30]
[29] Third respondent’s AALD dated 19 October 2018, pp 8–137.
[30] Senior Constable Hayden’s statement, AALD, p 31.

The telephone records

The telephone records of both Ms Carroll’s mobile telephone, the first respondent’s mobile telephone and the home/office landline were in evidence.[31]
[31] Third respondent’s AALD dated 19 October 2018, pp 4–7.
It is sufficient to note that those records disclosed numerous calls between the first respondent and the appellant during the period between 10 June 2010 and 15 June 2010, which occurred outside of working hours, including several calls prior to 8 am on 11,13 and 15 June 2010.
The telephone records also showed that on 16 June 2010, there were calls to the first respondent’s number at 8.43 am, 10.38 am, 12.11 pm, 12.49 pm, and 15.03 pm, all of which lasted less than one minute. There were also calls made to Ms Carroll’s telephone, the first at 9.57 am (lasting 63 seconds), and at 12.49 and 15.33 pm, each lasting less than 30 seconds.
The Arbitrator’s conclusions that some of the calls prior to 16 June 2010 were likely to have been work related, and the brevity of the calls on 16 June 2010 indicated that they were probably either not answered or went to voicemail, have not been challenged on appeal.

The relevant medical evidence

The Arbitrator provided a thorough review of all of the relevant medical evidence. Given the scope of this appeal, it is not necessary to repeat the extensive content of that material. However, the appellant’s submissions on appeal raise the need for a consideration of the opinions of the four psychiatric experts that were in evidence before the Arbitrator and upon which the Arbitrator based her conclusions.
The first respondent was medically assessed at the request of the Mental Health Review Tribunal by Dr Kheng Swee Chan, psychiatrist at Long Bay Hospital. Dr Chan provided a report dated 18 August 2010.[32] Dr Chan took a history of three years of worsening persecutory beliefs that slanderous information about him was being displayed on an internet website, and television programs were spreading rumours that he was cheating and “ripping off” his customers. The history included that Ms Carroll and the second respondent were “passively” involved in the conspiracy. The paranoia revolved around his business and involved AMP.
[32] Application, pp 28–31.
Dr Richard Furst, consultant forensic psychiatrist, initially assessed the first respondent on 28 June 2010. He provided a number of reports. In his report dated 7 February 2011,[33] Dr Furst said that at the first consultation, he did not believe the first respondent was mentally well. He considered that the first respondent was either in, or coming out of, a psychosis and was highly agitated and paranoid about corrective services staff. Dr Furst concluded that the first respondent was very mentally unwell at the time he first came into custody. Dr Furst took a history of severe depression and paranoid beliefs, that included the belief from about 2007 that Ms Carroll was involved in a plot against him, and that AMP had had put listening devices in his home and office in an attempt to get information about him. The first respondent confronted Ms Carroll about her involvement and forced her to undergo a lie detector test. The first respondent doubted he was the third respondent’s father, despite a DNA test, and believed Ms Carroll was having affairs with the second respondent’s friends. Dr Furst said that this conduct was consistent with a diagnosis of paranoid schizophrenia, which was a chronic psychotic illness.
[33] Application, pp 32–59.
In a report requested by the first respondent dated 2 September 2016,[34] Dr Furst reviewed the details contained in his report dated 7 February 2011. Noting those observations and conclusions, Dr Furst considered that the predominant themes of the first respondent’s delusional ideation related to AMP and ASIC, including that his phone calls were being monitored, his computer was being hacked and listening devices were installed in his house by AMP, who were spying on him. Dr Furst observed that schizophrenia is a constitutional condition, and that it manifests in deficits in perception of reality and associated delusional thinking. Dr Furst concluded that:
“Without his employment as a financial advisor and the involvement of himself and Ms Carroll in her employment as an office manager and para‑financial planner for S L Hill & Associates Pty Ltd and their mutual involvement in this work with AMP, it is unlikely that those delusional beliefs would have existed in that form at the time of the assault on Ms Carroll that led to her death.”[35]
[34] Application, pp 90–95.
[35] Dr Furst’s report dated 2 September 2016, Application, p 94.
Professor David M Greenberg, forensic psychiatrist, also conducted a medico-legal examination of the first respondent. In his report provided to the Director of Public Prosecutions dated 6 May 2011,[36] Professor Greenberg took a long and detailed history of the first respondent’s past history, and recollection of the events that led up to the assault, the assault, and its aftermath. Professor Greenberg conducted an examination of the first respondent’s mental state and reviewed the substantial factual material. Dr Greenberg concluded that:
“Mr Hill reports that in year 2007 he began to believe that ‘people’ were accessing his computer by hacking into his hard drive. He felt that ASIC and AMP were behind this hacking invasion. I asked Mr Hill what evidence he had for this belief, and he stated that he had a female customer in his financial planning business who was working for ASIC. He had phoned her and she was talking about ‘things’ that had previously happened several months before she phoned. He states he believes that she was privy to a conversation he had before with his secretary. He decided to put extra security on his computer using Norton software. He also began to lock up his computer and turn it off each day to make it more secure from hackers. Mr Hill stated he also made several extra gmail accounts to avoid AMP and ASIC hacking into his email.
He reports he felt there was a conspiracy between his partner Michel and AMP and ASIC in late year 2009. He reports that Michel denied these accusations.
Mr Hill then reported that in late 2009 he got his wife to do a lie detector test because he thought she may be part of this conspiracy with AMP. … He also asked the lie detector investigator to question his de facto partner about her fidelity. Mr Hill claims he felt his de factor partner Michel was having an affair with Liam’s friends who were then aged approximately 15 or 16 years old. I asked Mr Hill why he thought his partner was having affairs with young boys and he stated that his partner told him that she could ‘get someone to come in rather than go out’. This statement indicated to him that she was cheating on him. He states he ‘put two and two together to get five’. … He states he confronted her about having affairs with young boys and she denied the accusation. The lie detector test showed that she was not having any affairs but he states that he later began to doubt the validity of the test. …
Mr Hill reports that he began to check his partner’s mobile phone in September 2009. He did this because he questioned her fidelity. Later in October 2009 he admits that he threw her phone in the pool. … Mr Hill claims he also believed that his partner’s mobile phone was bugged. …
Mr Hill reports that between October 2009 and March 2010 things were ‘reasonably good’ at home. However, he states, he believed that his partner was cold towards him because of his beliefs of collusion between his wife Michel and AMP and ASIC and her infidelity with young boys. … He states he felt it wasn’t fair ‘what she was doing’. He reports that at the time he believed that AMP and ASIC were trying to have him sacked, and that Michel was part of this conspiracy.”[37]
[36] Application, pp 65–85.
[37] Dr Greenberg’s report; application, pp 68.

Dr Greenberg concluded that:
“I am therefore of the opinion that Mr Hill was suffering from a psychotic disorder involving paranoid delusions about a conspiracy between his wife, AMP and ASIC, delusions of infidelity by his de facto partner … and he was receiving messages from Chanel [sic] 9 TV hosts.”[38]
[38] Dr Greenberg’s report; application, p 80.
Dr John Albert Roberts, consultant forensic psychiatrist, was qualified by the appellant to provide an opinion based on a review of the documents provided to him. He provided a report dated 25 October 2017.[39]
[39] Appellant’s AALD dated 13 November 2017, pp 22–35.
Dr Roberts expressed the view that he did not agree with Dr Furst’s opinion that employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the first respondent’s schizophrenic/delusional condition. He commented that the presence of paranoid delusional ideation was a function of paranoid schizophrenia and it was inevitable that the experience of the person suffering from the delusional belief would be incorporated into the content of that delusional belief system.
Dr Roberts was of the view that the side effects of the significant medication prescribed for the first respondent would have contributed to the first respondent’s behaviour. He formed the view that any contribution from the circumstances and conditions of employment to the delusional beliefs would be “so negligible as to be not assessable.”[40] Dr Roberts said that the facts of the first respondent’s paranoid schizophrenia, his alcohol abuse and potential medication misuse combined to compromise the first respondent’s capacity to perform his obligations in an appropriate manner. Dr Roberts rejected any assertion that financial stressors contributed to the precipitation of the first respondent’s mental illness and subsequent violent actions. He observed that a personality disorder is a long standing pre-existing condition that would have an onset long before any business stressors were involved. Dr Roberts added that it could be reasonably inferred that the business stressors arose as a result of the delusional belief system, rather than as a result of real facts, and were a product of his paranoid, delusional and disordered thinking.
[40] Dr Robert’s report; appellant’s AALD dated 13 November 2017, p 26.
Dr Roberts concluded that the substantial cause of the first respondent’s distress related to his perception of events and the perceived actions of others, including those of Ms Carroll. He opined that, assuming there were stressors present other than the first respondent’s delusional beliefs, and in the context of the severity of the stressors stemming from those delusional beliefs, in a consideration of the totality of the stressors, the other stressors would have been so minimal they could not be assessed.
Dr Roberts was asked to provide a supplementary report. In his report dated 17 November 2017,[41] Dr Roberts commented that “a person suffering from a psychosis and a delusional belief system responds to those delusional beliefs as a normal person would if such beliefs are assumed to be true.”[42] Dr Roberts confirmed his view that the beliefs that caused the first respondent’s distress were the product of a diseased psychotic mind and did not originate in reality.
[41] Appellant’s AALD dated 17 November 2017, pp 1–2.
[42] Dr Roberts report dated 17 November 2017, appellant’s AALD, p 2.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues which she was required to determine to be as follows:
(a)    the identity of Ms Carroll’s employer;
(b)    whether Ms Carroll suffered an injury in the course of her employment which resulted in her death;
(c)    whether Ms Carroll suffered an injury which arose out of her employment;
(d)    whether employment was a substantial contributing factor to her injury;
(e)    whether the injury occurred during an authorised recess;
(f) the apportionment of the lump sum compensation payable as a result of the death of Ms Carroll pursuant to section 29 of the 1987 Act, and
(g) orders in relation to payment of compensation pursuant to section 85A(1)(a) of the 1987 Act.
In relation to the first issue, the Arbitrator noted that, at the commencement of the arbitration, the appellant argued that at around the time of Ms Carroll’s death she was employed by Shill Corporation Pty Ltd (Shill) trading as SS Safety Equipment and not the appellant. The Arbitrator further noted, however, that this issue was not ultimately pressed. The Arbitrator also referred to an agreement reached between the parties that:
(a)    Ms Carroll died while on the bed in the bedroom;
(b)    she was wearing her pyjamas, and
(c)    she was dressed in her pyjamas when the second respondent found her in the afternoon.
The Arbitrator also noted that issues were raised in respect of when any entitlement to weekly compensation would cease and the entitlement to claim interest on any unpaid lump sum entitlement. The Arbitrator recorded that the parties agreed that submissions on those issues would be made after the liability issues were determined.
The Arbitrator provided a thorough summary of all of the evidence before her, which included statement evidence from the first and second respondents, statements from Ms Carroll’s family and friends, NSW Police statements and notebook entries, the NSW Police Force Report of Death to the Coroner, the autopsy report, crime scene photographs, reports prepared by the Mental Health Review Tribunal, and forensic pathologists reports. She also noted the contents of Ms Carroll’s bank records and reviewed the telephone records pertaining to the home/office land line and the mobile telephones of the appellant and Ms Carroll, as well as the forensic analyses of the usage of all of the computers obtained from the Wamberal premises.
The Arbitrator discussed at length the evidence from numerous medical reports provided by psychiatrists and relied upon by each of the parties.
The Arbitrator also recorded the submissions made by each party.
The Arbitrator quoted from Nguyen v Cosmopolitan Homes[43] in respect of what she was required to consider in determining the existence of a fact to the requisite standard, that is on the balance of probabilities.
[43] [2008] NSWCA 246.
The Arbitrator firstly considered the evidence going to the reliability of the first respondent’s evidence, noting that Dr Furst’s report dated 7 February 2017 recorded some improvement in the first respondent’s condition, but that the first respondent was continuing to receive treatment, and remained mentally ill. The Arbitrator further referred to the opinions of Dr Furst and Dr Greenberg in relation to the reliability of the first respondent’s answers to the police in the Electronically Recorded Interview of Suspected Person (ERISP), recorded on 17 June 2010. The Arbitrator formed the view that at the time of the interview, the first respondent was clearly psychotic, and his answers could not be considered reliable.
The Arbitrator considered that the second respondent’s evidence, recorded in his statement to police given on 17 June 2010, revealed that the second respondent was an acute observer, and noting that there was no substantive challenge to that evidence, she accepted the second respondent as a witness of truth.

Injury arising out of employment

The Arbitrator identified the relevant legislation and indicated that what was required to be determined was whether Ms Carroll’s injuries which resulted in her death arose out of or in the course of her employment with the appellant, pursuant to s 4(a) of the 1987 Act. The Arbitrator quoted passages from a number of authorities dealing with the phrase “arising out of” employment, which are discussed below.
The Arbitrator recited the evidence that at the time of Ms Carroll’s death, she was in a de facto relationship with the first respondent and in the employ of the appellant, working with the first respondent and living at the premises at Wamberal.
The Arbitrator noted that the first respondent suffered from paranoid delusions about Ms Carroll’s fidelity and the conduct of her employment duties. She referred to Dr Furst’s description of the second respondent’s initial symptoms prior to the full development of his mental illness and said that the evidence of the second respondent’s behaviour over those years was consistent with Dr Furst’s description.
The Arbitrator further noted that the respondents must prove, on the balance of probabilities, that it was the fact of Ms Carroll’s being employed in her employment that caused, or to some material extent contributed to, the injuries. The Arbitrator described Ms Carroll’s work duties as recorded in the evidence given by the first and second respondents, summarised at [29] and [45]–[47] above. The Arbitrator referred to the belief which the first respondent held that Ms Carroll was conspiring with ASIC and AMP to take away his clients and accreditation as a financial planner, accessing his computer, spying on him and recording his conversations. The Arbitrator referred to the first respondent’s evidence that he became preoccupied and focussed on Ms Carroll’s activities which led him to suffer a new delusion that she was being unfaithful. The Arbitrator further referred to the evidence that the first respondent required Ms Carroll to undertake a lie detector examination, paid for by the appellant and principally in relation to employment issues, but included asking her about her fidelity.
The Arbitrator also referred to the statements from the family and friends, noting that they focussed on personal issues, but that some statements did include evidence of the first respondent’s obsessive and paranoid behaviour and financial concerns. The Arbitrator said that the evidence from family and friends focussed more on the first respondent’s delusions of Ms Carroll’s infidelity and the paternity of the third respondent than employment matters. She reasoned, however, that they were statements to the police and were dependent on the questions being asked. Further, they were substantially reports of what Ms Carroll told them, rather than what they were told by the first respondent. The Arbitrator determined that it was preferable to look at the histories provided by the first respondent to the psychiatrists who examined him, in order to ascertain the factors that precipitated the first respondent’s actions on the day in question.
The Arbitrator noted the history taken by Dr Chan on 21 July 2010 of increasing persecutory beliefs of the first respondent being slandered on television and on the internet, and that his wife and children were passively involved in a conspiracy. The Arbitrator pointed out there was no reference to paternity or fidelity issues. The Arbitrator observed that in Dr Furst’s report dated 7 February 2011, a consistent history was recorded of paranoid ideas including plots by AMP against him, microphones around the home, and requiring Ms Carroll to undergo a lie detector test. Dr Furst also recorded the first respondent’s delusions about fidelity and paternity. The Arbitrator further noted the history taken by Dr Greenberg of delusions about the conspiracy against him by ASIC and AMP, Ms Carroll’s involvement in the conspiracy, Ms Carroll’s infidelity, as well as the paternity issue.
The Arbitrator observed that the histories taken by both Dr Furst and Dr Greenberg, which were recorded within a year of the event and followed each doctor examining the first respondent twice, were detailed. The Arbitrator concluded that the history established that the first respondent’s paranoia involved delusions of collusion or conspiracy between Ms Carroll and AMP and ASIC and delusions in relation to Ms Carroll’s fidelity and the paternity of the third respondent.
The Arbitrator further observed Dr Furst’s opinion that the conflict between the first respondent and Ms Carroll was a product of the first respondent’s disorganised and paranoid thinking about the business, Ms Carroll’s alleged monitoring of him and her alleged affairs. The Arbitrator further observed that the first respondent’s paranoid delusions about his work were “quite extensive.” She recorded the extent of those delusions as reported by the first respondent to Dr Chen, Dr Furst and Dr Greenberg and as recalled by Ms Daley, Mrs Eileen Carroll and the second respondent, which appeared to manifest from about 2009.
The Arbitrator accepted that the first respondent’s paranoid beliefs included beliefs that Ms Carroll was unfaithful and about the paternity of the third respondent. The Arbitrator formed the view, however, that the paranoid beliefs about Ms Carroll being part of a conspiracy against him, accessing his computer, recording his phone calls and stealing his work documents were all beliefs that were directly related to Ms Carroll’s employment as an office manager and paraplanner with the appellant. The Arbitrator concluded that the attack erupted mainly as a result of a long held, deep belief that Ms Carroll was implicated in the conspiracy that was destroying his business.
The Arbitrator said that the question to be addressed was not whether the first respondent’s work aggravated his condition, but involved a consideration of whether the fact of Ms Carroll being employed in the particular job caused, or to some extent materially contributed to, the injury. The Arbitrator identified that what was required was to consider whether the paranoid beliefs about the way Ms Carroll performed her work led to the assault.
The Arbitrator referred to Dr Furst’s opinion that it was unlikely that the form of the first respondent’s delusional beliefs would have existed without the employment relationship between the first respondent and Ms Carroll’s role in the business, and their mutual involvement with AMP. The Arbitrator said that in the earlier reports from Dr Furst, who saw the first respondent as early as two weeks after the assault, the predominant theme related to delusional ideation in relation to AMP, but there was no reference to ASIC. The Arbitrator commented, however, that Dr Greenberg reported on 6 May 2011 that the first respondent believed that Ms Carroll was colluding against him with AMP and ASIC.
The Arbitrator noted the appellant’s submission that the question posed to Dr Furst in relation to whether there was an unbroken causal chain of connection invited a conclusion rather than a reasoned response. The Arbitrator rejected that submission. She considered that Dr Furst’s final report must be read in the context of his earlier reports, and Dr Furst’s response to the question was sufficiently reasoned.
The Arbitrator recorded Dr Roberts’ view, which she assumed to be that delusions of a paranoid schizophrenic are related to circumstances in his or her own life. The Arbitrator said that in the case of the first respondent, the delusions included both work and other aspects of his life. She said the delusions from which the first respondent suffered were the cause of the injuries that resulted in Ms Carroll’s death. The Arbitrator accepted that although some of the first respondent’s delusions related to their personal relationship and domestic situation, other long-term delusions concerned the first respondent’s work as a financial adviser and the manner in which Ms Carroll performed her work as an employee of the appellant. The Arbitrator reasoned that the lie detector test was predominantly because of the first respondent’s delusions about Ms Carroll’s work performance.
Further, the Arbitrator considered it erroneous to characterise the matter simply as a man committing a violent crime on his partner in their home. The Arbitrator reasoned that the premises were the only permanent working headquarters from which the business was run and where the business records were kept. It was where Ms Carroll exclusively worked, was required to work regular days and significant hours, and interacted with the first respondent closely. The location included the bedroom where the fatal injuries occurred. In addition, the Arbitrator observed that the first respondent’s work relationship with Ms Carroll was demanding and stressful, that he relied on Ms Carroll to be trustworthy in her work performance and placed great demands upon her. He perceived major difficulties with ASIC and AMP and his paranoia was focussed on his belief that Ms Carroll was involved with those bodies in a conspiracy against him.
The Arbitrator formed the view that “[t]his caused him to harbor a persistent anger and suspicion, which put her at risk of physical injury from him expressing his rage by violent acts within the business premises.”[44]
[44] Reasons, [272].
The Arbitrator drew what she thought to be an indistinguishable analogy between Ms Carroll’s situation and that of a psychiatric nurse being violently assaulted by a patient in a mental health facility. The Arbitrator said that it was the same close causal connection between the attack and the employment because the fact of being employed in a particular job at the workplace caused or materially contributed to the injury. The Arbitrator considered that the connection was stronger in Ms Carroll’s case because the first respondent was in a direct command position and working in close physical proximity to Ms Carroll.
The Arbitrator concluded that although the personal relationship between the first respondent and Ms Carroll was one cause of the injury, she was satisfied that the strongly predominant cause of the injury to Ms Carroll was the fact of her employment with the appellant. The Arbitrator found that she was satisfied that the facts established that there was a sufficient causal connection between the injury and Ms Carroll’s employment so that the injury arose out of Ms Carroll’s employment.

Injury in the course of employment

The Arbitrator observed that in order to determine whether the injury occurred in the course of employment it was necessary to consider the temporal connection between the employment and the injury sustained. She referred to Whittingham v Commissioner of Railways (WA)[45] and observed that the course of employment extends beyond a worker’s normal hours and place of work, and that the “service is not confined to the actual performance of the work that the worker is employed to do, but includes all things incidental to the performance of that work.”[46]
[45] [1931] HCA 49; 46 CLR 22.
[46] Reasons, [275].
The Arbitrator considered the relevant authorities in respect of whether an injury is incurred in the course employment.[47] The Arbitrator observed that it does not follow that a worker who works from home is always in the course of their employment when they are at home.
[47] Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (Hatzimanolis); Comcare v PVYW [2013] HCA 41; 303 ALR 1 (PVYW); Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi); Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97 (Van Wessem); Archer v East West Airways Limited (1976) WCR 176.
The Arbitrator considered that there were a number of matters that needed to be taken into account to determine whether Ms Carroll was in the course of her employment when she died.
The Arbitrator did not regard the evidence that Ms Carroll was in her pyjamas when she died as significant, noting the second respondent’s evidence that Ms Carroll would often remain in her sleeping clothes during the day, while working. The Arbitrator also regarded the evidence that Ms Carroll was on the bed at the time of her death did not of itself mean that she was not working, again referring to the second respondent’s evidence that it was common for Ms Carroll to work from the bedroom. The Arbitrator concluded that Ms Carroll had not yet commenced work when the second respondent had left for school on the day of the assault.

The Arbitrator accepted that after the third respondent was born, Ms Carroll worked from as early as 7.30 am, including “being available to perform all aspects of her employment related duties. Ms Carroll in the past either did receive, or at least was ‘on call’ to make and receive”[48] telephone calls from clients, and would perform other work duties. The Arbitrator considered the time of death was an important issue. She referred to the submissions of the parties, that is, that the appellant submitted that the death occurred between 7.30 am and 9 am, while the second and third respondents submitted that it would have occurred sometime after midday, or alternatively if it was shortly after 7.30 am, Ms Carroll was “on call”.
[48] Reasons, [288].
The Arbitrator considered the evidence from the various forensic experts as to the time of death. The Arbitrator detailed the calls made to the first respondent’s mobile telephone between 10.38 am and 12.11 pm on 16 June 2010, and on the basis of the short length of the calls, she inferred that those calls were not answered, because the first respondent was either unwilling or unable to answer them. The Arbitrator observed that none of the computers examined were apparently used between 7.30 am and 3.45 pm on 16 June 2010.
The Arbitrator reviewed the evidence relating to the place of death. The Arbitrator provided a detailed summary of that evidence.
The Arbitrator concluded that, on balance, she was persuaded that the assault occurred in the bedroom.
The Arbitrator provided an overview of all of the evidence. She said that Ms Carroll died as a result of injuries received in an assault by her professional and personal partner. Their home was the appellant’s sole office, where Ms Carroll performed her duties in various parts of the house, including the bedroom, where the police found work papers and equipment including the laptop. Ms Carroll’s duties included being on call to receive business and related calls. Ms Carroll would remain at the home performing work duties and attending to the third respondent, as required.
The Arbitrator was satisfied that Ms Carroll did not perform work on a token basis or work intermittently, but in fact, according to the second respondent’s evidence, her work duties had increased over the previous twelve months.
The Arbitrator concluded that on the basis of the forensic medical opinions, the time of death was likely to be between 8 am and 10 am. She also took into account the evidence that:
(a)    no telephone calls were answered;
(b)    the computers were not used;
(c)    Ms Carroll had finished feeding the third respondent (who was in his cot), and
(d)    the unanswered call on the first respondent’s mobile telephone at 10.38 am indicated the first respondent was not available to take the call.
The Arbitrator said that if the time of death was between 9 am and 10 am, then the death occurred during Ms Carroll’s normal working day, or during a short recess. She said the question then remained as to whether Ms Carroll was “on call” between 8 am and 9 am.
The Arbitrator referred to the evidence from the second respondent, and the telephone call at 7.33 am between Ms Carroll and the first respondent lasting over 9 minutes on 15 June 2010. The Arbitrator also referred to the evidence from the first respondent that Ms Carroll would work beyond 5 pm if required and the evidence of Mr Burrowes that Ms Carroll took a call from the first respondent and spent some time in the office on the long weekend.
The Arbitrator concluded that she was satisfied that Ms Carroll was on call from about 7.30 am, and that on the basis that there were work files in the bedroom, Ms Carroll worked from her bedroom from as early as 7.30 am, particularly when she had to care for the third respondent. Further, there was an expectation that she was required to answer calls from AMP, whether the fist respondent was available or not.
The Arbitrator determined that Ms Carroll was either performing her work related duties at the time of her assault, or was on call, and that there was a sufficient temporal connection between her employment and her death to establish that she was in the course of her employment when she was assaulted.

Section 9A of the 1987 Act – was Ms Carroll’s employment a substantial contributing factor to the injury?

The Arbitrator identified that it was not necessary that “a” substantial contributing factor be “the” contributing factor, and that it is not relevant that there may be a predisposition or susceptibility to injury, citing Mercer v ANZ Banking Group.[49] The Arbitrator further referred to and quoted Kelly v Secretary, Department of Family and Community Services,[50] where Basten JA made the following observations:
“The Deputy President acted on the basis that there needed to be a substantial causal nexus between the grievance which motivated the aggressor and the nature of the employment of the appellant. That approach involved a restriction on the terms of s 9A which is not found within the language of the provision, nor does it arise by way of reasonable implication.”
[49] [2000] NSWCA 138; 48 NSWLR 740; 20 NSWCCR 70.
[50] [2014] NSWCA 102, [28].
The Arbitrator referred to the submissions of the parties, and noted the submissions made by both the second and third respondents that because the first respondent’s paranoia and delusions were due in part to employment related matters, there was a sufficient causal nexus between the employment and Ms Carroll’s death, so that s 9A was satisfied.
The Arbitrator quoted from the decision of Burke CCJ in Dayton v Coles Supermarkets Pty Ltd,[51] in which his Honour reviewed the relevant authorities dealing with the interpretation of the concept of “employment.” That is, that “employment” included its nature, its conditions, its obligations and incidents, and extends to matters necessarily incidental to that employment. The passage reproduced from his Honour’s judgment included reference to the judgment of Kitto J in Federal Broom Co Pty Ltd v Semlitch,[52] in which Kitto J observed that “employment” included “some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed.”[53]
[51] [2000] NSWCC 14, [72].
[52] [1964] HCA 34; 110 CLR 626, (Semlitch).
[53] Semlitch per Kitto J, [4].
The Arbitrator also considered and discussed the decision of the Full Court of the Court of Appeal in Badawi in respect of the phrase “substantial contributing factor” contained in s 9A of the 1987 Act, and noted that the Full Court did not follow the earlier decision in Mercer. The Arbitrator distilled the following principles from Badawi:
(a) the word “substantial’ must be given effect, so that the contributing factor must be causative, and “real and of substance”;
(b) in determining whether employment was a substantial contributing factor, the matters identified in s 9A(2), to the extent that they are relevant, must be taken into account;
(c) section 9A(2)(b) directed attention to the nature of the work performed, and not the particular activity the worker was actually doing at the time of the injury;
(d) the causal test was more stringent than that imposed by s 4 of the 1987 Act, and
(e) if the conduct out of which the injury arose occurred in the course of employment, unless there was misconduct on the part of the employee, the only available conclusion was that employment was a substantial contributing factor to the injury.
The Arbitrator considered the factors identified in s 9A(2).
In relation to “time and place” (s 9A(2)(a)), the Arbitrator noted her finding that the assault occurred between 8 am and 10 am in the bedroom of the Wamberal premises, which was both her home and her workplace. The Arbitrator observed that, since the birth of the third respondent, the bedroom was a place where she frequently worked so that she could attend to the care of the third respondent. The Arbitrator took into account that the first respondent also worked for the appellant, of which he was the director. The Arbitrator concluded that Ms Carroll’s employment was a substantial contributing factor to the injury.
The Arbitrator considered the “nature of the work performed and the particular tasks” (s 9A(2)(b)). The Arbitrator summarised the broad range of Ms Carroll’s work duties, including that she was required to liaise with AMP and report to ASIC, and that she was required to report to the first respondent, who suffered a psychotic episode which resulted in Ms Carroll’s injury and death. The Arbitrator referred to the conclusion of Dr Furst that, at the time of the assault, the first respondent was suffering from paranoid delusions that in part related to a conspiracy by Ms Carroll in her dealings with AMP and ASIC. The Arbitrator formed the view that those delusions related to Ms Carroll’s work duties and the tasks that she performed in that employment.
In respect of the duration of Ms Carroll’s employment (s 9A(2)(c)), the Arbitrator considered that factor to be inconsequential, apart from the fact that the long period of employment put her in a position where she had access to records of the appellant and her employment duties put her in a position where the first respondent considered that Ms Carroll was conspiring against him.
The Arbitrator considered whether the probability that the injury or similar injury would have happened in any event, at that time or stage of Ms Carroll’s life (s 9A(2)(d)). She concluded that as Ms Carroll was in a de facto relationship with the first respondent, and some of his delusional beliefs related to the notions that she was having an affair and the third respondent was not his child, there was a “slight probability”[54] that the assault would have occurred in any event. The Arbitrator said, however, that she had already determined that the first respondent’s paranoid delusions related to Ms Carroll and the alleged conspiracy, which led him to attack Ms Carroll. The Arbitrator pointed to the opinion of Dr Furst, which she accepted, that without the involvement of the first respondent and Ms Carroll in her employment with the appellant, and their mutual involvement with AMP, it was unlikely that the delusional beliefs would have existed in the form that they did at the time of the assault.
[54] Reasons, [340(d)].
The Arbitrator observed that Ms Carroll’s state of health and hereditary factors were not relevant (s 9A(2)(e)), and that her lifestyle and activities outside of her employment were only relevant in so far as Ms Carroll was in a relationship with the first respondent, which she had already dismissed as being causative of the assault.
The Arbitrator concluded that Ms Carroll’s injury arose out of and in the course of her employment, that there was a causal connection between the injury and Ms Carroll’s employment, and that Ms Carroll’s employment was a substantial contributing factor to the injury.
The Arbitrator proceeded to consider and determine whether she was satisfied that both the second and third respondents were dependent upon Ms Carroll at the date of Ms Carroll’s death.
The Certificate of Determination issued on 19 December 2018 records:
“The Commission determines:
1.     The deceased, Michel Carroll, died on 16 June 2010 as a result of injury arising out of and in the course of her employment.
2.     Liam Charles Christie [sic] Carroll and Charles Steven Leslie Hill were wholly dependent for support upon the deceased at the date of death. There were no other persons dependent.
3. The lump sum compensation of $449,850 payable pursuant to section 25(1)(a) of the Workers Compensation Act 1987 is to be apportioned in accordance with section 29 of the Workers Compensation Act 1987 as follows:
(a)$314,895 to Charles Steven Leslie Hill, and
(b)$134,955 to Liam Charles Christy Carroll.
4. I order the first respondent to pay $134,955 to Liam Charles Christy Carroll, pursuant to section 85A(1)(a) of the Workers Compensation Act 1987.
5. I order the first respondent to pay the further sum of $314,895.00 to the NSW Trustee & Guardian to hold on trust for Charles Steven Leslie Hill for his benefit until he attains the age of 18 years pursuant to section 85A(1)(a) of the Workers Compensation Act 1987.
6.     Matter to be listed for a further telephone conference on 21 January 2019 at 3:30pm to consider the claim for interest and periods of payment of weekly amounts of compensation to the second applicant and third respondent.”

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal, which I have paraphrased as follows:
(a)    Ground 1: The Arbitrator erred in determining that she was satisfied on the balance of probabilities that Ms Carroll’s employment in the particular job caused or materially contributed to the injury resulting in her death and as a consequence of that finding, was in error by concluding that Ms Carroll’s death was an injury arising out of her employment;
(b)    Ground 2: The Arbitrator erred in concluding that she was satisfied that Ms Carroll was either actually performing her employment related duties at the time of the injury, or else was on call, and consequently erred in finding that the injury arose in the course of Ms Carroll’s employment, and
(c)    Ground 3: The Arbitrator erred in determining that Ms Carroll’s employment was a substantial contributing factor to her injury and death.

LEGISLATION

Section 4 of the 1987 Act defines “injury” and relevantly provides as follows:
“4     Definition of ‘injury’
In this Act:
injury:
(a)    means personal injury arising out of or in the course of employment,
(b)    …”.
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.”

SUBMISSIONS

Ground 1: The Arbitrator erred in determining that she was satisfied on the balance of probabilities that Ms Carroll’s employment in the particular job caused or materially contributed to the injury resulting in her death and as a consequence of that finding, was in error by concluding that Ms Carroll’s death was an injury arising out of her employment

The appellant’s submissions

The appellant, relying on Badawi, submits that it is well established that whether an injury arises out of employment requires a finding of some causal relationship between the injury and the employment. While the connection does not require a direct or physical connection, it requires something in the nature of a material contribution.[55] The appellant further referred to Smith v Australian Woollen Mills Limited,[56] which was applied in Badawi, where Starke J observed that the first question to be answered in a consideration of the causal nexus was whether “it was part of the injured person’s employment to hazard, or to suffer or to do that thing which caused the injury.” The appellant submits that in reality, the question is whether the injury was the product of a risk created by that employment.
[55] Badawi, [73].
[56] [1933] HCA 60; 50 CLR 504 (Smith).
The appellant cites as relevant Telstra Corporation Ltd v Bowden[57] and Murphy J’s analysis in that authority of cases involving the assault of a worker by a co-worker. The appellant says that it is plain that an injury received as a consequence of an altercation with a co-worker where the altercation related in some way to their employment during work hours can be an injury arising out of the injured worker’s employment. The appellant says that it is not necessary that the altercation arose out of the injured worker’s duties.
[57] [2012] FCA 576 (Bowden), [69]–[72].
The appellant submits that Murphy J’s analysis does not assist in this case because the involvement of the work relationship (and the other factors) was no more than a product of the first respondent’s mental illness, which was the cause of the delusions, the first respondent’s distress and the attack on Ms Carroll causing her death.
The appellant identifies the Arbitrator’s error as being encapsulated in [264] of reasons, which appears as follows:
“The question to be addressed is not whether his work aggravated Mr Hill’s condition but whether the fact of Ms Carroll being employed in the particular job caused, or to some material extent contributed to, the injury. This involves a consideration of whether his paranoid beliefs about the way Ms Carroll performed her work duties led him to assault her on 16 June 2010.”
The appellant says that while the first sentence in the above is correct, the second demonstrates that the Arbitrator fell into error in her approach to the question of causation.
The appellant says that the first respondent’s paranoid beliefs, which led him to assault Ms Carroll, were not a product of any risk created by Ms Carroll’s employment. The appellant contends that it is plain from the reports of Dr Roberts, and in particular the primary report dated 25 October 2017,[58] that the causal pathway was that:
(a)    the first respondent suffered from schizophrenia;
(b)    the first respondent’s illness caused paranoid delusional ideation;
(c)    the first respondent’s delusional ideation led to his distress, and
(d)    that distress led to his attack on Ms Carroll.
[58] Appellant’s AALD dated 13 November 2017, pp 22–35.
The appellant submits that in his supplementary report dated 17 November 2017, Dr Roberts opined that the beliefs that caused the first respondent’s distress were the product of his psychosis and did not come from reality. Further, Dr Roberts rejected Dr Furst’s opinion that the work stressors caused the delusions, because in his view, the substantial stressors would have been the result of the psychotic symptomology, and the beliefs arising out of that symptomology, rather than circumstances relating to matters of fact. The appellant asserts that the relationship to the first respondent’s employment was incidental and the causative factor was the illness itself.
The appellant refers to all of Dr Roberts’ comments in the report of 17 November 2017.

The appellant concludes that the Arbitrator was in error in finding that Ms Carroll’s employment was a substantial contributing factor to her injury, and this ground of appeal should be upheld.

The second respondent’s submissions

The second respondent also refers to Badawi. He submits that the causal connection must be real and of substance, but the term should not be confused with expressions such as “large”, “weighty” or “predominant”. The second respondent submits that whether s 9A of the 1987 Act is satisfied is a question of impression and degree and involves a consideration of all of the evidence, not just the medical evidence. It is a finding of fact, providing a broad error of personal judgment for the trial judge to consider.
The second respondent says that a common sense approach is required, citing March v Stramare (E & MH) Pty Ltd.[70]
[70] [1991] HCA 12; 171 CLR 506.
The second respondent observes that the Arbitrator took into account the factors set out in s 9A(2) where they were relevant.
The second respondent submits that the Arbitrator’s finding is a finding of fact, again relying on Whiteley Muir.
The second respondent points out that the appellant does not criticise the sufficiency of the Arbitrator’s reasons. The second respondent contends that the Arbitrator engaged with the medical and lay evidence before reaching her conclusion that s 9A of the 1987 Act was satisfied.
The second respondent repeats its earlier submissions in relation to the causal connection between the first respondent’s psychiatric state and the employment. In particular, the second respondent says that the medical evidence establishes that employment related matters played a role in the aetiology of the first respondent’s psychiatric state. That is, the first respondent’s beliefs regarding Ms Carroll and her involvement in a conspiracy against him, were a dominant theme of the first respondent’s paranoia.
The second respondent submits that while the personal relationship brought the first respondent and Ms Carroll together, so did the business relationship, and given the hours they worked in the business, that contact was substantial. The respondent maintains that, in accordance with Mercer, there can be more than one substantial contributing factor to the injury.
The second respondent contends that despite the other issues of conflict that existed between the first respondent and Ms Carroll, and that they cohabitated, it was open to the Arbitrator to find that work related factors were a substantial contributing factor to the injury.
The second respondent summarises its submissions as follows:
(a)    if it is accepted that Ms Carroll was either in the course of her employment or on call, at the time of her injury, it must follow that she was engaged in work at the time;
(b)    while there was no specific evidence as to whether the attack would have occurred had Ms Carroll been away from home, it is a matter of common sense that Ms Carroll was a more vulnerable target if she was working alone at home, without the opportunity to escape from the first respondent’s assault. This is especially so because the attack occurred after the second respondent left for school, and points to the fact that her place of employment contributed to her injury, and
(c)    in respect of the appellant’s submission as to the probability that the assault would have occurred in any event, Ms Carroll’s employment need only be “a” substantial contributing factor.

The third respondent’s submissions

The third respondent also expresses reliance on Badawi, and the principles enunciated in that case, which were referred to by the Arbitrator in her reasons, and the appellant and the second respondent in their submissions, recorded above.
The third respondent submits that there are several substantial contributing factors to the circumstances relating to Ms Carroll’s death. He says that those factors include the matters that were operating on the first respondent’s mind, namely that:
(a)    Ms Carroll was undermining the first respondent’s relationship with AMP and ASIC;
(b)    ASIC and AMP were using Ms Carroll to conspire against him;
(c)    Ms Carroll was accessing his computer;
(d)    the difficulties the business was experiencing was because of the manner in which Ms Carroll was performing her role;
(e)    Ms Carroll and the second respondent were taking documents and keeping them on their laptops, and
(f)    Ms Carroll was spying for ASIC against him.
The third respondent refers to the lie detector test, which he says was implemented principally because of the first respondent’s concerns about the conduct of Ms Carroll in her business role, and those matters raised were ‘real’ and of substance. The third respondent contends that the matters do not have to be ‘real’ in the sense that they were true, when it was those matters that the first respondent acted upon in administering the lie detector test and in finally assaulting and killing Ms Carroll.
The third respondent submits that Ms Carroll was at her place of work, the matters that were occupying the first respondent’s mind were substantially work related and when putting those matters together, they satisfy the test in Badawi.
The third respondent cites Da Ros v Qantas Airways Limited,[71] in which the worker was injured while riding a bicycle (which was provided by the employer), and quotes the following passage from the judgment of Basten JA (with whom Tobias JA and McColl JA agreed):
“In the present case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed. Because it was one of two contributing factors (the other being the presence of the courier at the same place at the same time) it is difficult to understand why it would not be a substantial contributing factor. No satisfactory alternative having been proffered on behalf of Qantas, and in accordance with the reasoning in Badawi, there was only one conclusion reasonably open on the findings of primary fact.”[72]
[71] [2010] NSWCA 89 (Da Ros).
[72] Da Ros, [24].
The third respondent says that the Arbitrator observed in her reasons that the first respondent’s delusions about how Ms Carroll was conducting herself in relation to her duties were delusions about Ms Carroll’s work. He submits that although the first respondent had delusions related to personal matters, the overwhelming concerns were matters pertaining to the business.
The third respondent submits that on the above basis, ground three of the appeal should be dismissed.
The appellant makes no submissions in reply to the respondents’ submissions on this ground of appeal.

DISCUSSION

The appellant contends that the Arbitrator erred in her factual determinations that she was satisfied that:
(a)    Ms Carroll’s employment materially contributed to the injuries resulting in death;
(b)    Ms Carroll was either actually performing her duties at the time of the assault, or otherwise was on call at the relevant time, and
(c)    Ms Carroll’s employment was a substantial contributing factor to her injuries causing death.
As the second respondent submits, in order for the Arbitrator’s decision to be disturbed on appeal, it must be shown that the Arbitrator overlooked material facts, gave too little weight to the evidence in deciding the inference to be drawn, or the available opposite inference was so preponderant that, in the views of the appellate court, the decision must be wrong.[73] Those principles are well established, and have been considered and applied frequently in Presidential decisions in the Commission, as well as in other appellate courts.
[73] Whiteley Muir, 506.

Ground One

The first ground of appeal alleges that the Arbitrator’s conclusion that Ms Carroll’s employment materially contributed to the injuries was wrong, which led to the Arbitrator falling into error in her determination that Ms Carroll’s injuries and death arose out of her employment.
The appellant does not point to any material evidence which the Arbitrator overlooked. Rather, the appellant alleges:
(a)    error in that the Arbitrator looked to the first respondent’s motive for the assault;
(b)    error as to how the Arbitrator characterised Ms Carroll’s employment, and
(c)    error by failing to accept the evidence of Dr Roberts.
The appellant contends that the Arbitrator erred in looking to the motivation behind the assault, and that the sole reason for the assault was the first respondent’s disordered mind. The appellant submits that the involvement of the work relationship between the first respondent and Ms Carroll was no more than a figment of the first respondent’s delusions, which resulted in the assault and Ms Carroll’s death. The appellant refers to the opinion of Dr Roberts, which was that the beliefs that caused the first respondent’s distress were the product of a diseased psychotic mind and did not originate in reality. He was of the view that other stressors were so minimal that they could not be considered sufficiently causative. The appellant submits that the view of Dr Roberts ought to have been preferred over the medical evidence which was accepted by the Arbitrator.
The Arbitrator approached the task before her by giving consideration to various relevant authorities. Relying on Badawi, Nunan v Cockatoo Docks and Engineering Co Ltd,[74] and Ryan v Regional Imaging Pty Ltd,[75] the Arbitrator identified that she was required to determine whether the fact of Ms Carroll’s employment in her particular job caused, or to some material degree, contributed to the injuries resulting in her death.[76] That observation was correct.
[74] (1941) 41 SR (NSW) 119.
[75] [2017] NSWWCCPD 48.
[76] Reasons, [224]–[229].
The Arbitrator proceeded to consider the first respondent’s motivation for the attack. She did so on the basis of the principles established in a long list of authorities, discussed by Neilson CCJ in Stojkovic v Telford Management Pty Ltd,[77] in which his Honour discussed the distinction between an altercation arising from employment related matters and one that arose from personal issues.
[77] [1998] NSWCC 8; 16 NSWCCR 165 (Stojkovic).
In her consideration of the evidence, the Arbitrator referred to the first respondent’s statement evidence. Although she excluded the evidence contained in the police interview of the first respondent, there was no criticism of the first respondent’s evidence contained in his statement dated 11 January 2016. The Arbitrator reviewed that evidence, which was not challenged, and which squarely put employment related matters as being the predominant basis of the first respondent’s concerns about the way Ms Carroll was conducting herself in that employment and his mistrust of her. The Arbitrator noted the evidence that the first respondent’s beliefs about Ms Carroll’s disloyalty in her employment formed the basis of his subsequent mistrust of Ms Carroll in personal matters.
The Arbitrator also drew support from the medical evidence in reaching her conclusion that employment related matters, including the downturn of the business, and the first respondent’s distrust of Ms Carroll in the performance of her role, were key factors influencing the first respondent’s delusional beliefs. The Arbitrator gave clear and evidence based reasons for accepting the opinion provided by Dr Furst as to the motivation for the assault, and took into account Dr Roberts’ view that “the delusional belief system would inevitably incorporate the experience of the person in whom the delusional belief system is occurring.”[78] That view imports into the first respondent’s delusions an influence from circumstances in which the first respondent found himself, that is, the spiralling downturn in his business, in which, he believed, Ms Carroll played a significant part.
[78] Reasons, [268]–[270].
A review of the authorities, which can loosely be referred to as the “assault” cases, shows that the motivation for the assault is, in circumstances such as this case, a relevant factor in determining the causal connection in an altercation between co-workers. The Arbitrator recognised this in her discussion of the relevant authorities of Stojkovic and Tarry. The Arbitrator quoted from Stojkovic, where Neilson CCJ said:
“The authorities to which I have referred … do not support any contention that a worker who instigates an altercation, either oral or physical for reasons unconnected with his employment and in the course of doing that, sustains injury, suffers injury arising out of or in the course of employment …”
The Arbitrator also quoted from Tarry as follows (citations omitted):
“Hutley JA said:
‘… the injury from which the deceased died arose out of his employment. It arose out of an altercation between two employees of Warringah Shire Council about a matter which concerned their respective authorities and duties; it arose in a work situation. It does not follow that the injury did not arise out of employment because … the deceased was doing acts which were not in accordance with his duties as a foreman. …
The facts … show that the injury from which he died was directly and unbrokenly connected with his employment’.[79]
Glass JA noted the “unbroken sequence of events occurring in the space of about 10 minutes” and said:
‘The proper test for determining whether the injury arose out of the employment has been stated by Jordan, C.J. in Nunan v. Cockatoo Docks & Engineering Co Ltd at 125, when he describes the employment as causing or contributing to the injury; by Fullagar, J. in the passage to which I have referred, when he states the need for a causal connection between the employment and the injury and by Starke, J. in South Maitland Railways Pty Limited v. James, when he says ‘the words ‘out of’ require that the injury had its origin in the employment’.”[80]
[79] Tarry, p 6.
[80] Tarry, p 9.
The identification of the motive for the assault was just one step in the Arbitrator’s endeavour to determine whether there was a causal connection between the assault causing Ms Carroll’s death, and the fact of Ms Carroll’s employment.
Both the appellant and the third respondent refer to Bowden, which the appellant submits is not relevant because the assault arose as a result of the first respondent’s mental state, which was not based on reality. The third respondent identifies that authority (and Smith and Stewart) as relevant because Ms Carroll’s employment brought to her to the place where the particular risk arose.
Bowden is relevant, but not, in my view, for the reasons put forward by the parties, noting that the premises were also where the first respondent and Ms Carroll lived. In Bowden, Murphy J made the following observation:
“I note though that the concept of ‘employment’ is common to both the test of whether an injury ‘arises out of’ or ‘arises in the course of’ that employment. While the test under each limb is different, the word ‘employment’ must have the same meaning in both tests. It does not relate to just the performance of duties and includes things belonging to or arising from it including its nature, conditions, obligations and incidents.”[81]
[81] Bowden, [57].
Justice Murphy cited with approval the reasoning of Madgwick J in Military Rehabilitation and Compensation Commission v Roberts,[82] where Madgwick J said at [55] that the test for “injury arising out of employment” provides that:
“... it is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal ...”.
[82] [2007] FCA 1, [55].
Justice Murphy also referred to the following passage from the decision in Repatriation Commission v Law,[83] where the Full Court of the Federal Court said:
“It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause.
...
The expression ‘arisen out of’ is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description ‘arising out of’.”[84]
[83] [1980] FCA 92; 47 FLR 57 (Law).
[84] Law, [68].
Applying those authorities, and the authorities exhaustively reviewed by Neilson CCJ in Stojkovic, it is clear that the motive behind the assault is a relevant consideration. As the Arbitrator pointed out, it is erroneous to isolate the assault from the employment relationship between Ms Carroll and the first respondent. It is also clear that the fact of Ms Carroll’s employment, in circumstances where she was increasingly involved in the business, was privy to matters pertaining to the business, and was required to liaise with AMP and the clients, as well as provide paraplanning support, put her in circumstances where the first respondent attributed the problems in the business to her conduct. According to the first respondent and the histories he provided to the various medical experts, those facts were matters that were playing on his mind immediately before the assault.
The fact that the beliefs were irrational, and the product of a disordered mind, does not mean that the connection between Ms Carroll’s employment and the assault that was motivated by those beliefs was “fanciful” or even “tenuous”, as considered by the Full Federal Court in Law.
The medical and lay evidence in this case provides a basis upon which it could be concluded that the first respondent’s delusional beliefs were founded upon his perception as to how Ms Carroll was conducting her employment activities, which was part of the causal link. The Arbitrator clearly identified that she needed to consider the fact of Ms Carroll’s employment, which included that Ms Carroll’s role was to deal with AMP, and that Ms Carroll was answerable to, and needed to deal with, the first respondent, who was also the appellant’s employee.
Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[85]
[85] Shellharbour City Council v Rigby [2006] NSWCA 308, [144].
The Arbitrator considered the evidence from Dr Roberts in the context of the opinion of Dr Furst, the histories taken by Dr Chan, Dr Furst and Dr Greenberg of the prominence of concerns related to the business. She also took into account the lay evidence of the family and friends, as well as the evidence of the first respondent as to his recollection of the motive for the assault. It cannot be said that the opinion of Dr Roberts so outweighed that evidence that the Arbitrator arrived at an erroneous conclusion.
It was appropriate for the Arbitrator to consider the motive for the assault. The Arbitrator’s acceptance of the evidence that there was a causal connection between the assault and Ms Carroll’s employment, that is the nature of her employment, the conditions of that employment, as well as its obligations, to which she clearly referred, was a factual determination based on the evidence before her. While an appellate court might form a different view, that is insufficient reason to disturb a factual finding.[86]
[86] Northern NSW Local Health Network v Heggie [2013] NSWCA 255, [72].
The appellant does not point to any error of the kind required in order to disturb the Arbitrator’s factual conclusion that Ms Carroll’s employment was a substantial contributing factor in the cause of her injury and subsequent death, so that Ms Carroll’s injury and death arose out of her employment.
The first ground of appeal fails.

Ground two

The second ground of appeal alleges error on the part of the Arbitrator in respect of her conclusions that Ms Carroll was either in the course of her employment or on call when the assault occurred.

The appellant refers to the Arbitrator’s determination that the assault occurred between 8 am and 10 am. The appellant says that the time frame incorporates a period which was outside of Ms Carroll’s usual working day, and the respondents therefore bore the onus of proving that Ms Carroll was in the course of her employment. The appellant says that there was no evidence that Ms Carroll had commenced work that day, or that she was engaged in work activities when the assault occurred. The appellant further contends that there was no evidence Ms Carroll was on call on 16 June 2010, or was required at fixed times to be on call “in the relevant sense”. The appellant says that the fact that Ms Carroll sometimes commenced work at 7.30 am did not mean that she was always on call from that time. The appellant submits that the flexible working arrangement was not part of a contractual arrangement as in Van Wessem, but was a matter of Ms Carroll’s choice as to how she conducted her activities.
The appellant relies on PVYW as authority to say that the essential enquiry is whether either the employer encouraged the “activity” Ms Carroll was undertaking or the “place” where Ms Carroll was at the time of the assault.
The Arbitrator observed that in order to determine whether Ms Carroll was in the course of her employment when the assault occurred, there were a number of matters that needed to be considered. The Arbitrator accepted that Ms Carroll would, at times, commence performing her employment duties from 7.30 am, and in the past was available to take calls from clients outside of work hours.
The Arbitrator referred to Badawi, in which the majority of the Court of Appeal noted that in determining whether a worker was in the course of employment, in accordance with the principle in Hatzimanolis, difficulty arises not because of any uncertainty in the principle, but because of the fluidity of employment arrangements.
Based on the evidence given by the first and second respondent that Ms Carroll commenced work at 9 am from Monday to Friday, the Arbitrator determined that if the assault occurred between 9 am and 10 am, then it could be inferred that Ms Carroll was in the course of her employment at that time.
The Arbitrator accepted that Ms Carroll, at times, worked as early as 7.30 am and sometimes on weekends and evenings. The Arbitrator reviewed the telephone records which showed that on the day prior to the assault, Ms Carroll had telephone conversations with the first respondent from as early as 7.30 am in which work matters were likely discussed. There was also evidence that AMP contacted the first respondent at 8.21 am on 15 June 2010. The Arbitrator concluded that Ms Carroll worked throughout the house, including the bedroom, from as early as 7.30 am, and was expected to take work calls from 7.30 am. On that basis, the Arbitrator determined that Ms Carroll was either in the course of her employment or else was on call, and there was a sufficient temporal connection between the assault and Ms Carroll’s employment, so that s 4 of the 1987 Act was satisfied.
An evaluation of the causal link requires an assessment of the proven facts that are referrable to each particular case. The facts in this case are that Ms Carroll and the first respondent co-habited in the same premises from which the business was run and they were both employed in the business. Particularly after the birth of the third respondent, Ms Carroll’s working arrangements became more fluid, so that she undertook her work duties around the needs of her child.
In those circumstances, the passages quoted by the Arbitrator from Hatzimanolis and PVYW, which were both “interval” cases where the worker was required to be away from his or her usual abode, have little relevance to the facts of this case. The appellant’s reliance on PVYW that the appropriate test in this case was either that the employer encouraged the “activity” Ms Carroll was undertaking or the “place” where Ms Carroll was at the time of the assault is misplaced.
The general discussion of the phrase “in the course of employment” undertaken in the majority joint judgment of Mason CJ, Deane, Dawson, and McHugh JJ in Hatzimanolis is, however, relevant authority. After a discussion of earlier cases, their Honours observed that:
“For the purposes of s.4, the course of employment is not identical with the period of employment of a worker or with the work which that person performs. From a very early stage in the history of the law of workers’ compensation, it was recognised that the course of employment covered not only the actual work which a person was employed to do but also ‘the natural incidents connected with the class of work’ (1) Charles R. Davidson and Company v. M’Robb (1918) AC 304, at p 321. In 1931 in Whittingham v. Commissioner of Railways (W.A) (2) [1931] HCA 49; (1931) 46 CLR 22, at p 29, Dixon J. said that there can ‘no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service’. But his Honour went on to say that it was ‘another matter to be sure what is included within this conception’. He thought that, 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.”[87]
[87] Hatzimanolis, [7].
Their Honours also quoted from Danvers v Commissioner for Railways (NSW),[88] where Barwick CJ said that, in determining the course of employment, regard had to be had “to the general nature and circumstances of the employment and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.
[88] [1969] HCA 64; 22 CLR 529, at 537 (Danvers).
The appellant’s submissions that there was no evidence that Ms Carroll was engaged in work activities when the assault occurred is a factor that the Arbitrator took into account. That fact, however, was not determinative in the circumstances where Ms Carroll’s practice was to perform her duties in a fluid arrangement that accommodated the needs of the third respondent. The Arbitrator also took into account the evidence that Ms Carroll clearly made herself available to respond to telephone calls or discussions about work from as early as 7.30 am, and without any apparent exception, commenced her usual work duties at 9 am on any weekday.
Despite the Arbitrator’s misplaced references to passages in Hatzimanolis and PVYW, she did not apply those passages in her reasoning process, and her reasoning process was not, therefore, infected by legal error. The Arbitrator approached the question of whether Ms Carroll was in the course of her employment by concluding that she was in the course of her employment either because the assault occurred after the time she always commenced work, or because it occurred during a time that she was expected to be available to take calls or perform other duties as required. The Arbitrator arrived at her determination by looking at what were the natural incidents of what Ms Carroll usually did, what she was reasonably expected to do in the context of a family run business, and what she made herself available to do in the weeks leading up to the day of the assault. The totality of the evidence in such a fluid working arrangement at least supported that at the time of the assault, Ms Carroll was available to attend to calls or work matters arising, putting her “on call” and therefore in the course of her employment.
The Arbitrator’s approach was consistent with the High Court’s general observations of the principles in Danvers and Hatzimanolis (quoted at [277]–[278] above) that the course of employment covers not only the actual work which a person was employed to do, or the circumstances of the particular occasion out of which the injury arose, but the general nature and circumstances of the injured worker’s employment.
I have discussed the requirements necessary to establish the type of error in the fact-finding process that warrants appellate intervention in a factual decision made by a primary decision maker. I am not satisfied that the appellant has established relevant error in the Arbitrator’s finding of fact, reasoning, or determination that Ms Carroll was in the course of her employment by either having commenced work or at least being on call when the assault occurred.
It follows that the appellant’s second ground of appeal fails.

Ground three

The third ground of appeal alleges that the Arbitrator erred in her determination that Ms Carroll’s employment was a substantial contributing factor to her injury, within the meaning of s 9A of the 1987 Act.
The appellant submits that what is required to satisfy s 9A is that the connection to employment must be more than merely “arising out of the employment,” and factors that are of little substance are to be excluded (citing Badawi). The appellant submits that the causal nexus was that Ms Carroll was in a personal relationship with the first respondent, the first respondent suffered from schizophrenia causing paranoid delusions, and those delusions were the cause of Ms Carroll’s death.
The appellant criticises the Arbitrator’s consideration of the factors required to be taken into account in s 9A(2). The appellant says that the time and place was inconclusive. There was nothing in the nature of Ms Carroll’s role or her tasks that gave rise to a causal nexus, and it was not part of Ms Carroll’s role to work with a schizophrenic with paranoid delusions. The appellant says that the Arbitrator’s observation that there was a “slight chance” the assault occasioned by the first respondent’s delusions related to personal matters would have occurred was not based on the evidence. The appellant submits that the personal relationship between the first respondent and Ms Carroll was of great significance.
The Arbitrator reviewed the relevant authorities and the principles set down in Badawi, and proceeded to consider the matters identified in s 9A(2), which she was required to do.
The Arbitrator observed that the assault occurred in the bedroom, which was both her home and a place within which she often worked. She further observed that Ms Carroll was killed by her de facto partner, who was also an employee and a director of the appellant. Applying Badawi, the Arbitrator considered the nature of the work and particular tasks Ms Carroll was required to perform, and not what Ms Carroll was actually doing at the time of the assault. She reviewed in detail all of Ms Carroll’s employment duties, which included having to work with the first respondent, who was mentally ill. She concluded that the delusions upon which the first respondent acted included delusions that Ms Carroll was conspiring against him with ASIC and AMP, which related to Ms Carroll’s employment.
It is very relevant, as the Arbitrator observed, that the relationship between the first respondent and Ms Carroll was not simply a personal relationship, and that their employment relationship, which required Ms Carroll to work with the first respondent and under his direction, was of significance in the context of their working week. The appellant’s submission that Ms Carroll’s employment was of little significance in the chain of causation cannot be accepted.
The Arbitrator based her conclusion that there was a “slight” probability that the assault would have occurred in any event on:
(a) her finding that the delusions related to Ms Carroll’s work performance, and
(b) Dr Furst’s view that it was unlikely that those delusions would have existed without the first respondent and Ms Carroll being in that employment and their mutual involvement with AMP.
Given the view of Dr Furst that the delusions about Ms Carroll’s work performance were unlikely to have existed without the employment relationship, it cannot be said that there was no basis upon which the Arbitrator could attribute the likelihood of an assault as “slight”.
The Arbitrator determined the question of whether Ms Carroll’s employment was a substantial contributing factor to the injuries resulting in death by considering the facts in this case, applying the principles set out in Badawi, and applying the terms of the legislation. The Arbitrator took into account other factors that played a part in the assault, and reading her reasons as a whole, appropriately accounted for those factors when ultimately deciding that Ms Carroll’s employment was a substantial contributing factor to her injuries and death.
The appellant has not established error of the kind required to disturb the Arbitrator’s factual finding, which was open to her on the evidence, and this ground of appeal also fails.
The appellant has failed to establish error on the part of the Arbitrator, and this appeal fails.

DECISION

The Certificate of Determination dated 19 December 2018 is amended at [2] to read:
“Liam Charles Christy Carroll and Charles Steven Leslie Hill were wholly dependent for support upon the deceased at the date of death. There were no other persons dependent.”
The Certificate of Determination dated 19 December 2018 is otherwise confirmed.
The matter is remitted pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for determination of the remaining issues by the same Arbitrator.

Elizabeth Wood

DEPUTY PRESIDENT

22 July 2019