Saunders v Mundoora Pastoral Company Pty Ltd
[2005] NSWWCCPD 61
•5 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Saunders v Mundoora Pastoral Company Pty Ltd [2005] NSW WCC PD 61
APPELLANT: John Peter Saunders
RESPONDENT: Mundoora Pastoral Company Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC17130-03
DATE OF ARBITRATOR’S DECISION: 23 February 2004
DATE OF APPEAL DECISION: 5 July 2005
SUBJECT MATTER OF DECISION: In the course of employment; Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473; whether employer “induced or encouraged” an employee to spend an interval in an overall period of work in a particular place or particular way.
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: Long Howland Lawyers
Respondent: Diana Benk, In house Legal Department for QBE Workers Compensation (NSW) Limited
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order as to costs of the appeal
BACKGROUND TO THE APPEAL
The appellant is Mr John Saunders (‘the Appellant’). He seeks leave to appeal the decision of an arbitrator (‘the Arbitrator’) made 23 February 2004. The Arbitrator dismissed Mr Saunders’ application for weekly compensation and medical expenses in relation to burns he suffered in a house fire in November 2002. The respondent to the appeal is the Mundoora Pastoral Company Pty Ltd (‘the Respondent’). At the time of the fire, the Appellant was living in a house on property owned by the Respondent and undertaking timber work on that property. The insurer is QBE Workers Compensation (NSW) Limited (‘the Insurer’).
The issues considered by the Arbitrator were whether the Appellant was a deemed ‘worker’ within Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and, if he was, whether or not the injury arose “out of or in the course of [that] employment” within section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator found for the Appellant on the first point, but against him on the second.
The Appellant filed his appeal on 18 March 2004. The Commission issued a direction on 19 May 2004 that required the Appellant to serve the Respondent with the appeal and the direction by 27 May 2004 and, inter alia, required the Respondent to file and serve its submissions in reply by 10 June 2004. The Appellant subsequently filed proof of service on the Insurer by the due date but the Respondent has not filed any submissions in reply. It is nevertheless clear that the Insurer was aware of the appeal, because by letter dated 16 June 2004 (after the due date for the Respondent’s submissions) the Insurer requested a copy of the sound recording of the Arbitrator’s reasons. The heading to the letter containing the request was “Appeal against decision of arbitrator”. The Commission provided a transcript of those reasons to each party by letter dated 28 June 2004. Nothing further was received from the Respondent or Insurer. Accordingly, the appeal is undefended.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 23 February 2004 records the Arbitrator’s orders as follows:
“1. Award in favour of respondent in respect of the applicant’s claims for:
a. weekly payments of compensation; and
b. medical expenses under section 60 of the Workers Compensation Act 1987.
2. No order as to costs.
3. Pursuant to Item 4.10 of Schedule 6 to the Workers Compensation Regulation 2003 the matter is certified as complex.”
The Arbitrator found that the Appellant was deemed to be a worker employed by the Respondent within the first three sub-clauses of clause 3(1) of Schedule 1 of the 1998 Act. These sub-clauses deal with timber work of various kinds. He then considered whether the Appellant’s injuries arose out of or in the course of the deemed employment, within section 4 of the 1987 Act. The Appellant suffered his injuries at night, after he had finished work for the day, when he attempted to quell a fire in cooking oil on his stove in a house he rented from the Respondent.
The Appellant’s submission before the Arbitrator was that the facts fell within the High Court case of Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473, as applied by the Court of Appeal in the New South Wales cases of McCurry v Lamb (1992) 8 NSWCCR 556 and Inverell Shire Council v Lewis (1992) 8 NSWCCR 562, which deal with the liability of an employer for injuries suffered in an interval in an overall period of work. The parties were in agreement that the liability of the Respondent deemed employer in this instance turned on the circumstances in which the Appellant came to be living in a house owned by the Respondent on the property. The Arbitrator found against the Appellant on this point. He found that “(living in that accommodation) was not something that was required by Mr Aull (the managing director of the Respondent) as a condition of Mr Saunders’ doing the work” (transcript of oral reasons p41). In response to the suggestion from the Appellant that the test was whether the employer allowed the accommodation, the Arbitrator found “In my view, that’s not what the tests say. There has to be an inducement or encouragement to take that up or to take up the activity such as the accommodation which was provided, and on Mr Saunders’ evidence, both written and given orally, I’m unable to find any evidence of actual inducement or encouraging by Mr Aull” (transcript p42).
The Arbitrator expressed his decision thus: “That means that the finding is that the injuries did not arise out of- notwithstanding that I find that there was an employment relationship, those injuries did not arise out of the employment. So that means there will be an award for the respondent on that claim” (transcript p42).
ISSUE
The Appellant submits that the Arbitrator erred in his interpretation of the Hatzimanolis test and, further, in his finding that the Respondent did not encourage or induce the Appellant to live in the house. The Appellant seeks that the Arbitrator’s decision be revoked and a decision in favour of the Appellant be made in its place.
As set out earlier, the Respondent has not filed any submissions in opposition to the appeal. That does not automatically mean, however, that the appeal will succeed. Section 352(5) of the 1998 Act states that “An appeal under this section is to be by way of review of the decision appealed against.” The section does not otherwise specify the basis or permitted grounds of appeal. Case law has established that the basis of appeal to the Commission from the decision of an Arbitrator is that the Arbitrator erred, whether by way of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Appellant must establish such an error to succeed, even though the appeal is undefended.
ON THE PAPERS REVIEW
The Commission is empowered to determine proceedings, including appeals, on the papers, without oral hearing. Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant seeks that his application for leave to appeal and the appeal be conducted by way of oral hearing. The basis for this submission is that the Appellant’s injuries are very significant and the legal issues are complex and require thorough examination of the authorities. The factors that the Commission will take into account in determining whether or not to proceed on the papers are set out in Practice Direction Number 1. The factors relied on by the Appellant are included in that list, and favour oral determination. I have come to the conclusion, however, that it is appropriate to deal with the matter on the papers for the following reasons.
First, the Appellant has had the opportunity of making written submissions, and has done so, and the appeal is undefended. There is no utility in giving the parties the opportunity for oral exchange when the Respondent has not sought to participate to date. Further, despite the suggestion from the Appellant that the legal issues are complex, I consider that the claimed error of law is readily capable of determination on the papers. In his appeal the Appellant asserts that the Arbitrator’s reading of Hatzimanolis is “incorrectly narrow”. Whether or not that is correct is ascertainable by comparing the transcript of the Arbitrator’s reasons with the case itself. The Appellant’s submissions go on to assert that the Arbitrator reached the wrong conclusion in applying this test to the facts. In some circumstances an appeal on the facts would require an oral hearing. However in this case the evidence before the Arbitrator is readily ascertainable. It is contained in the documents attached to the application and reply, together with the oral evidence of the Appellant, which is transcribed. The Appellant does not seek to rely on any fresh evidence. Accordingly, I consider that it is possible without oral hearing to determine whether or not the Arbitrator made an error in the inference or conclusion he drew from his findings of facts.
For these reasons, and having regard to Practice Directions Numbers 1 and 6, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
In his application the Appellant sought the sum of $534.40 per week from 25 November 2002 and continuing, together with unquantified medical expenses. The weekly compensation in issue to the date of the arbitration was accordingly well in excess of the $5000 minimum required by sub-section 2(a). In relation to paragraph (b), no amount was awarded on the application. A number of Commission decisions by Presidential members, commencing with Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5, have held that paragraph (b) is not applicable to appeals against decisions in which no award is made.
I find that the appeal satisfies the threshold requirements of section 352 and grant leave to appeal.
EVIDENCE AND SUBMISSIONS
The material before me consists of the following:
· the application and attached documents
· the reply and attached documents
· transcript of the arbitration, including the Appellant’s oral evidence and the Arbitrator’s oral reasons
· the Appellant’s submissions in support of the appeal
DISCUSSION AND FINDINGS
Was the Arbitrator correct in his statement of the Hatzimanolis test?
In Hatzimanolis the appellant was employed by the respondent at a remote work site in Western Australia. He was injured while undertaking a sightseeing expedition on a non-working day. The High Court reviewed the law to that date on liability for injuries suffered while not undertaking actual work duties and considered the test, known as the ‘Henderson-Speechley test’ first laid down by Dixon J. in Henderson v Commissioner of Railways (1937) 58 CLR 281, at p294. That test provided that the injury occurred “in the course of employment”, although not in the carrying out of actual duties, where the worker was doing something that he was “reasonably required, expected or authorised to do in order to carry out his actual duties.” In Hatzimanolis the High Court by majority (Mason C.J., Deane, Dawson, and McHugh JJ.) determined that that test was no longer appropriate. They replaced it with the principle that “it should now be accepted that an interval or interlude within an overall period or episode or work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.” (paragraph 16 of the majority judgment). In Hatzimanolis itself the Court held that the employer was liable, because the appellant’s injuries occurred during an interval in an overall period of work and on a sightseeing expedition organised by the employer, which the appellant was encouraged by the employer to attend.
Hatzimanolis was applied by the New South Wales Court of Appeal in McCurry v Lamb and Inverell Shire Council v Lewis (see earlier citations). In both cases workers were injured out of work hours as a consequence of criminal violence by others. In both cases, the injury was found to have occurred “in the course of employment”. In McCurry v Lamb the worker was a shearer living in accommodation provided by the employer on a sheep station. He was shot while sleeping. The Court held that the time spent by him away from his home on the sheep station constituted one overall period or episode of work, and that the employer had induced or encouraged him to reside on the station during the week. In Lewis the worker was shot while socialising in a caravan park where he was residing while attending a training course required by his employer. Sheller J.A. stressed that the employer’s attitude to the way in which the worker was spending intervals away from work was important, and that it was relevant whether the employer “encouraged, induced or merely permitted” the worker to reside at the caravan park and take part in social activities there (page 571).
In this case the Arbitrator held that the test was whether the Respondent had provided any inducement or encouragement to the Appellant to live in the house in which he was injured. It was apparently conceded that the Appellant’s injuries occurred during an interval or interlude in an overall period of work, being the anticipated duration of the whole of the timber work on the Respondent’s property. The Appellant says stating the test in that way was “incorrectly narrow”. In a document headed “Solicitor’s Submission” attached to the originating application, the Appellant’s solicitor asserted that the principle established in Hatzimanolis, McCurry v Lamb, and Lewis was that “where a worker sustains his injuries at a particular place where the employer had allowed, induced or encouraged the worker to stay, and while he was doing something reasonably incidental to his temporary residence there, the worker received his injuries in the course of his employment” (emphasis added). The Arbitrator rejected the submission that it was sufficient if the Respondent had “allowed” the Appellant to live in the house.
I consider that the Arbitrator was correct in this view. It is true that early in the discussion by the majority judges in Hatzimanolis they used a broader formulation in commenting that “A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way” (paragraph 14, emphasis added). However, the judges then rejected this as being a sufficient requirement to ground liability. After further discussion the judges formulated the test in paragraph 16 exclusively in terms of inducement or encouragement, although without specifically addressing the deletion of mere permission.
In McCurry v Lamb the trial judge, who found for the worker, found both that the employer had permitted the worker to sleep in the camp, and that he had encouraged him to do so by the provision of free accommodation and meals. The trial judge did not make a distinction between permission and encouragement, and nor does it appear the distinction was argued in the Court of Appeal. In upholding the trial judge’s decision, however, Handley J.A. affirmed the decision on the basis that the injuries occurred at a camp where employer had “induced or encouraged (the worker) to stay”. Sheller J.A. also upheld the decision on the basis that the worker was injured “in sleeping accommodation at the worksite where he had been encouraged to stay.” Thus the Court of Appeal decision does not confirm the Appellant’s view that mere permission is sufficient.
In Lewis the accommodation at the caravan park was arranged by the employer. The worker was injured in the caravan of another resident in the caravan park. Handley J.A. (with whom Clarke J.A. agreed) held that “The employer had induced or encouraged the worker to reside in the caravan park during his course and the injury occurred in that place….Social visits to other caravans in the park…were a reasonable and foreseeable incident of (the worker’s) residence in the park” (page 566). Accordingly, he found no error of law in the primary judge’s finding that the injury arose in the course of the worker’s employment. Thus there was no suggestion in the judgment of Handley J.A. of any broader principle than inducement or encouragement. The only reference to permission is contained, as set out earlier, in the concurring decision of Sheller J.A., and the comparison drawn to encouragement and inducement suggests that he would not consider mere permission to be sufficient.
For these reasons I do not consider that the Appellant has established any error of law by the Arbitrator in his statement of the Hatzimanolis principle.
Did the Arbitrator err in finding that there was no inducement or encouragement?
The Appellant next submits that the Arbitrator erred in that on the evidence accepted by the Arbitrator “at the very least the respondent encouraged the Applicant and his family to live in the house” (paragraph 3 of the Appellant’s submissions). The Appellant submits that the Arbitrator said in his decision that he accepted the Appellant’s evidence over the Respondent’s “where they differ”, and submits that “the Arbitrator cannot accept the Applicant’s version of events over the Respondent’s and then say there was no inducement” (paragraph 5 of the Appellant’s submissions).
In considering the evidence in the Respondent’s case, the Arbitrator relied solely on the evidence of Mr Aull, the managing director of the Respondent. The Respondent’s reply also contained an unsigned record of interview with a Mr Rutherford, the Livestock Manager of the Respondent, and a report from an investigation company. I consider the Arbitrator was entitled to disregard these reports, as they were not signed statements giving direct evidence. The evidence of the Appellant and that of Mr Aull, the managing director of the Respondent, in relation to how it came about that the Appellant was living in a house owned by the Respondent on the property is contained in the written statements of each and the oral evidence given by the Appellant at the arbitration.
The Arbitrator did not specifically identify the differences between the evidence of the Appellant to that of Mr Aull in relation to the provision of accommodation, but it is clear that he preferred the Appellant’s evidence on this issue. He made the general statement early in his reasons, before setting out any of the facts, that:
“There is some conflict over timing issues between the statements of Mr Aull and Mr Saunders, and I doubt that anything turns on them, but to the extent that it may, I have preferred Mr Saunders because I consider it is more likely that he would have a recollection of this particular incident and Mr Aull had a much larger enterprise to run and this was merely one facet of running that larger enterprise” (transcript, page 39).
In setting out the facts as he found them the Arbitrator then set out the Appellant’s version of events in relation to the house. I consider that he was entitled to prefer the Appellant’s recollection to that of Mr Aull.
Analysis of the evidence shows, however, that the parties agreed on two significant matters- it was the Appellant who first raised the issue of accommodation, and the Appellant paid rent for the house on the property. There were only two points in respect of which the parties differed in their evidence in relation to the provision of accommodation. The first point of difference is as to which of them first raised the possibility of the Appellant living in the specific cottage he subsequently occupied. The Appellant’s evidence was that after their initial conversation about accommodation Mr Aull volunteered “I’ve got a house but one of my workmen is in it at the moment. I’m working on moving him to another house on the place which is too small for you but would suit him fine” (page 3 of the Appellant’s written statement). Mr Aull’s evidence was that it was the Appellant who noticed this cottage, became aware that the current resident was moving on, and then asked him, Mr Aull, if he could rent it. On the Appellant’s account the Respondent took the active step of identifying the house and ensuring it became available, on the Respondent’s account it merely responded to the Appellant’s request. The Arbitrator accepted the Appellant’s version and found that the Respondent took this active step.
The second difference is as to the point in time when a requirement to pay rent was raised. The Appellant’s recollection was that rent was not raised until he and his family were already living in the house (written statement page 3 and oral evidence page 19 of the transcript), although he may have conceded in cross examination that he knew from the outset he would be required to pay rent (page 22 of the transcript). Mr Aull’s recollection was that in asking about the house the Appellant referred to renting it. Again, the Arbitrator preferred the Appellant’s account and found that the requirement of rent was not raised until the Appellant had moved into the house.
Was the Arbitrator in error in concluding that notwithstanding these matters there was no inducement or encouragement? In my view no, for the following reasons. First, the parties agreed that it was the Appellant who had first raised the question of accommodation at all, and after the parties had already reached agreement about the terms of the timber work. The Appellant’s representative in the submissions on the appeal correctly quotes the Appellant’s evidence that Mr Aull said “I might be able to supply you with a house” (Appellant’s written statement page 2) but fails to put this in context. On the Appellant’s own evidence this statement was on a day subsequent to the day they settled the terms of work (which was the first day they met) and in response to the Appellant saying he was looking for accommodation.
The Appellant’s evidence on this issue (contained in his written statement page 2-3) was as follows:
“On a different day, David (Mr Aull) and I had a conversation about living arrangements. I said:
‘We’ve been living on the place where we’re cutting firewood at the moment at Morundah but the wood’s run out. We have until late July to move out of where we are. I am looking for somewhere else to live in the district. We’re looking for places to stay around Morundah, but with a wife and two kids, it’s difficult to find a place big enough.’David said:
‘I might be able to supply you with a house.’
I said:
‘Oh that’d be great. To be able to live on the place where I’m working would suit me fine.’”
In his oral evidence, the Appellant said this conversation was a few days, or a couple of days, after he had met Mr Aull (transcript page 19). Given this evidence, the Arbitrator was correct in declining to find that the Respondent initiated the conversation about accommodation (page 41 transcript).
Secondly, although the Appellant had originally thought that he could occupy the house rent free, when it became clear that rent was a requirement he gladly paid it. For these reasons I do not consider the Arbitrator erred in finding there was no inducement. The house was not provided by the employer as part of the employment arrangement as an incentive to the worker to undertake the work, or as a benefit of undertaking that work. The facts are distinguishable from those in Hatzimanolis, McCurry v Lamb, Lewis and Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529, on which the Appellant also relies. In all those cases the accommodation was provided rent free by the employer and as part of the employment arrangement. Here I consider the Arbitrator was entitled to find that “it was a commercial arrangement for renting the premises. It is not a situation which was incidental to the employment arrangement” (transcript page 41).
The Appellant submits that an inducement should have been found because of the benefit to the Respondent in the Appellant living in the house. I think this is confusing two different issues. A perceived benefit may be a reason for an employer offering an “inducement” or “encouragement” to a worker to undertake a particular activity, but the inducement or encouragement to the worker to undertake that activity, here to live on the property, must still be proved, not merely assumed from the gaining of a benefit to the employer in him living there. The test from Hatzimanolis refers to encouragement or inducement to the worker to spend the interval from work in a particular way, not to benefit to the employer in the worker doing so. Further, in this case the claimed benefits to the Respondent, other than the payment of rent, are not proved by any direct evidence in either the Appellant’s or the Respondent’s case, and can only be supported by inferences drawn from the facts. The Arbitrator rejected the submission that there was a benefit to the Respondent in the Appellant living on the property, other than rent (transcript page 41), and I consider he was at liberty to do so on the evidence before him.
I turn now to the alternative requirement of “encouragement”. Certainly on the facts as found by the Arbitrator the Respondent facilitated the Appellant’s search for accommodation. Mr Aull offered the prospect of living on the property itself (the Appellant’s enquiry had been about accommodation in the area in general) and took the active step of identifying a suitable house and ensuring it became vacant. The question on this appeal is whether the inference or conclusion the Arbitrator then drew from the facts as he found them, that this did not constitute “encouragement”, was an error. The Appellant must establish “error”, in this instance error of fact, to be successful. If error is established, for the reasons set out shortly in relation to section 9A of the 1987 Act, the appropriate result would be to remit the matter to the Arbitrator, or another arbitrator, for determination in accordance with this decision, rather than to substitute a decision in favour of the Appellant.
In a general sense I consider that the Respondent encouraged the Appellant to take up the accommodation on the property in which he was subsequently injured. However, I do not consider that the Arbitrator’s conclusion that this was not “encouragement” for the purposes of the test in Hatzimanolis was incorrect. I rely again on the facts that the Appellant was paying rent for his accommodation and that the issue of accommodation was raised after the terms of the Appellant’s work were agreed. On the facts as found by the Arbitrator, I consider the correct inference is that the Respondent encouraged him to take up that accommodation in the capacity of potential landlord, rather than employer, or deemed employer. This situation did not arise in the authorities relied on by the Appellant. In all of those cases, where a worker was injured while residing in accommodation provided by the employer, the accommodation was provided rent free, either directly by the employer or at his cost, and as part and parcel of the employment agreement. There was no relationship of landlord and tenant in addition to the employment relationship.
In Hatzimanolis the majority judges drew a distinction between cases where injury occurs to an employee “after a daily period of work has been completed and the employee has returned to his or her home” (emphasis added) and cases such as Danvers where “an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed” (emphasis added) (paragraph 15 joint judgement of Mason C.J., Deane, Dawson, and McHugh JJ.). In the latter case, they said that “the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work.” In my view, the facts in this case fall into the first category in that the Appellant was living in the house on the property because it was his home for the time being, not because it was an incident of his deemed employment by the Respondent.
For these reasons I do not consider that the Appellant has established any error by the Arbitrator and I dismiss the appeal.
Section 9A of the 1987 Act: employment a substantial contributing factor to the injury
I pause to add that had the Arbitrator found in favour of the Appellant on the question of encouragement, the Appellant would then have been required to establish that the employment was a substantial contributing factor to the injury as required by section 9A of the 1987 Act before he could have succeeded. Section 9A(1) states “No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.” It is unclear if either of the parties turned their minds to this issue. It was not raised in the initiating application, reply, arbitration or on appeal. Section 9A was also not referred to by the Arbitrator, but it was not of course necessary for him to consider this issue given his finding that the injury did not occur in the course of employment under section 4. Had I concluded that the Arbitrator was in error on the issue of “encouragement” the appropriate course would have been to remit the matter to the Arbitrator, or a different arbitrator, to enable the section 9A issue to be considered.
Section 9A was inserted into the 1987 Act in 1996 and applies to injuries received after 12 January 1997. The section was first considered by the Court of Appeal in Mercer v ANZ Banking Group [2000] NSWCA 138, and has been considered by the Court of Appeal in two appeals from Presidential members of the Commission (McMahon v Lagana & Anor [2004] NSWCA 164 and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). The facts in McMahon v Lagana bear some similarity to the facts in this case, in that the worker in that case was injured while living on the fishing vessel on which he worked, but the injury was unrelated to his work activities. The arbitrator held that the injury did not arise in the course of his employment. Deputy President Fleming on appeal held that the injury did arise in the course of employment, applying Hatzimanolis. However, she then considered section 9A and held that the employment was not a “substantial contributing factor” to the injury and for that reason affirmed the arbitrator’s decision, notwithstanding his error in relation to course of employment.
The Court of Appeal confirmed that section 9A is an additional requirement to section 4 of the 1987 Act. This means that while a temporal connection between employment and injury is sufficient under section 4 (“in the course of employment”), it is not sufficient under section 9A. A causal connection must be established as well. The Court discussed the application of the factors set out in section 9A(2) to a situation where a worker is injured in an interval from work while living in accommodation provided by the employer, but not while undertaking any employment duties, and then dismissed the appeal against Deputy President Fleming’s decision.
DECISION
I dismiss the appeal and confirm the decision of the Arbitrator.
COSTS
The Appellant has been unsuccessful and accordingly under section 345 of the 1998 Act the Commission cannot order payment of the Appellant’s costs. The Respondent has not participated in the appeal and accordingly I make no order for the payment of the Respondent’s costs.
Robyn Lansdowne
Acting Deputy President
5 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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