SB v XFPL
[2022] NSWPICPD 7
•1 March 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | SB v XFPL [2022] NSWPICPD 7 |
| FIRST APPELLANT: | SB |
| SECOND APPELLANT: | JB |
| THIRD APPELLANT: | LA |
| FOURTH APPELLANT: | RB |
| RESPONDENT: | XFPL |
| INSURER: | AAI Limited trading as GIO |
| FILE NUMBER: | A1-5199/20 |
| A2-5199/20 | |
| A3-5199/20 | |
| A4-5199/20 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| DATE OF APPEAL DECISION: | 1 March 2022 |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 14 May 2021 is revoked. 2. There is a finding that MMB (the deceased) suffered injury on 7 March 2016, arising out of his employment with the respondent, that resulted in his death. 3. The matter is remitted to a different Member for determination of those issues that remain, consistent with these reasons. Those issues involve the satisfaction of s 9A of the Workers Compensation Act 1987, interest, apportionment between the dependants and the entitlement of any of the dependants to weekly payments pursuant to s 25(1)(b) of the Workers Compensation Act 1987. |
| CATCHWORDS: | WORKERS COMPENSATION – Section 4 of the Workers Compensation Act 1987 – injury arising out of employment |
| HEARING: | On the papers |
| REPRESENTATION: | First Appellant: |
| Mr Andrew Parker, counsel | |
| Carroll & O’Dea Lawyers | |
| Second Appellant: | |
| Mr W Loukas, counsel | |
| Lionheart Lawyers | |
| Third Appellant: | |
| Mr B McManamey, counsel | |
| Turner Freeman Lawyers | |
| Fourth Appellant: | |
| Mr D Adhikary, counsel | |
| Acorn Lawyers | |
| Respondent: | |
| Mr F Doak, counsel HWL Ebsworth Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr N Read |
| DATE OF MEMBER’S DECISION: | 14 May 2021 |
INTRODUCTION AND BACKGROUND
These proceedings are brought pursuant to ss 25 and 26 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the death on 7 March 2016 of MMB (the deceased). SB, JB and RB (the first, second and fourth appellants respectively) are children of the deceased. LA (the third appellant) is the widow of the deceased. The deceased was employed by XFPL (the respondent) as a sales representative and business development manager. MKB (the deceased’s brother) was the “owner/director” of the respondent, together with other associated companies.[1]
[1] Statement of MKB 12/4/16 (MKB statement), [16], [19], [26] and [29], Application in Respect of Death of Worker (ARD), p 98.
The respondent contracted with ISPL to supply “signage and restorations” to a service station site in country New South Wales that was owned by the respondent. There were delays in the completion of this work which led to friction between the respondent and ISPL. The deceased had dealings with CS, the “manager and owner” of ISPL, relating to these delays.[2] MKB stated that the quotation for the work was provided by ISPL on 1 September 2015 and that the deceased was regularly contacting CS and her staff from the beginning of 2016 chasing up completion.[3]
[2] AALD 25/2/21, p 178.
[3] MKB statement, [32], [35], ARD, p 99.
MKB stated that on Friday 4 March 2016 Mr WT, who was employed by ISPL as a project manager, hung up during a telephone call from the deceased, who was chasing up the works. The deceased attended ISPL’s premises that day. ISPL’s premises, like the respondent’s, were at Ingleburn in the Sydney Metropolitan area. On his return to the respondent’s premises the deceased told MKB that a sign, which was part of the outstanding works, would be delivered on the following Monday, 7 March 2016.
On 7 March 2016 CS telephoned the deceased and requested that he attend ISPL’s premises. The deceased did so and then telephoned MKB to say a gun had been pulled on him and a shot fired when he was at ISPL’s premises. MKB left the respondent’s premises by car to attend ISPL. He was accompanied by SE (operations manager at the respondent). TB (who did not work for the respondent and was a brother of the deceased) also attended. The deceased returned to ISPL’s premises. WW, CS’s partner, and PW (WW’s father) were present with CS.[4]
[4] MKB statement, [36], ARD, p 100.
Words were exchanged. WW opened fire with a firearm. The deceased was killed and MKB and TB were wounded. Police attended and there was a siege situation, during which WW took his own life with the gun.[5]
[5] MKB statement, [43]–[44], [55]–[57], ARD, pp 103–105.
The respondent’s insurer declined a claim pursuant to ss 25 and 26 of the 1987 Act in a dispute notice which does not appear to be dated.[6] It denied that the deceased was carrying out “work duties” at the time of his death and that s 9A of the 1987 Act was satisfied. It denied that the death resulted from an injury within the meaning of s 4 of the 1987 Act. It alleged that the deceased subjected himself to an abnormal risk of injury during an ordinary recess or authorised absence within the meaning of s 11(b) of the 1987 Act.
[6] ARD, pp 17–24.
The current proceedings were commenced on 10 September 2020. The matter was listed for hearing on 8 March 2021. All parties were represented by the counsel who appear for them on this appeal. The issues were identified as whether the deceased’s death resulted from ‘injury’ within the meaning of s 4 of the 1987 Act, and whether employment was a substantial contributing factor to injury. The application was formally amended to add a claim for interest. It was noted that a claim for weekly compensation was also being brought in respect of the infant dependants, and that apportionment between the claimed dependants was agreed.[7] The Member heard addresses from all counsel and reserved.
[7] Transcript of hearing 8/3/21 (T), T 3.26–5.2.
The Commission issued a Certificate of Determination dated 14 May 2021.[8] There was an award for the employer, the respondent in this appeal.
[8] SB v XFPL (5199/20, 14 May 2021) (the reasons).
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE MEMBER’S REASONS
The Member made a finding of dependency consistent with the parties’ agreement and found there were no other persons dependent at the time of death.[9] He summarised the background[10] and the witness statements.[11] He noted the appellants brought the claim on the basis that the death of the deceased resulted from injury arising out of or in the course of employment.[12]
[9] Reasons, [10]–[13].
[10] Reasons, [16]–[28].
[11] Reasons, [29]–[77].
[12] Reasons, [78]–[79].
The Member dealt initially with the allegation of injury in the course of employment. He noted that a finding of injury in the course of employment involves a temporal relationship, which “includes all the time that the worker is engaged in the performance of the duties of employment or things that are reasonably incidental to the employment”. He summarised a number of authorities dealing with the course of employment, including Bill Williams Pty Ltd v Williams.[13] The Member said that in the case of an injury caused by a deliberate assault “the critical issue is whether the assaulted worker was doing something that was in the course of or was reasonably incidental to his or her employment”, citing Inverell Shire Council v Lewis.[14] The Member cited Wheeler v Commissioner for Railways[15] and Davidson v Mould,[16] saying:
“Doing something that is not part of a worker’s duties or is reasonably incidental to a worker’s duties, or going to a place where it is not part of, or reasonably incidental to the worker’s duties, will interrupt the course of employment. An injury sustained in such circumstances will not be one sustained in the course of employment.”
[13] [1972] HCA 23 (Williams).
[14] (1992) 8 NSWCCR 562.
[15] [1969] 2 NSWR 474 (Wheeler).
[16] (1944) 69 CLR 96 (Davidson).
The Member also referred to Schinnerl v Commissioner of Police,[17] saying:
“Performing an activity which is not reasonably required, expected or authorised to do in order to carry out one’s duties may also take a worker outside the course of employment ...”.[18]
[17] [1995] NSWCC 12.
[18] Reasons, [80]–[86].
The Member said there was no dispute that the deceased was in the course of his employment on the first occasion he attended ISPL on 7 March 2016. CS requested his attendance, there was a legitimate work-related purpose for the attendance. The Member noted the respondent’s submission that when WW fired a shot on the first attendance that day, “the character of the dispute changed, and what followed had no factual connection or association with the employment”. The Member noted the respondent’s submission that what followed “was retaliation from the … brothers over [WW’s] earlier conduct and was not connected to any employment purpose”.[19]
[19] Reasons, [88]–[89].
The Member said there was “little evidence identifying the nature and terms of the deceased’s employment” other than that from MKB. The deceased worked for a branch of the business called “Fuel and Go”, which “supplied mobile fuel distribution services to local businesses and construction sites”. He also became involved in the country New South Wales development. His injury occurred during work hours at the premises of a business that was undertaking work for his employer. It was necessary to consider the adequacy of the association between the injury and the employment. The Member referred to the need to consider “whether the first respondent authorised, induced or encouraged the deceased to be at ISPL and to engage in the activity in which he was engaged at the time of his death”. The Member said that the deceased’s second visit to ISPL on 7 March 2016 “was related to retaliation for the earlier conduct of [WW] during the first visit and/or to support his brothers in the confrontation”.[20] The Member referred to the deceased’s statement to CS when he was leaving ISPL on the first occasion. This is apparently a reference to the deceased leaving ISPL following the first visit on 7 March 2016. CS said the deceased said “he would be back: ‘... told us that we fucked up, we’ve got death wishes and that he’ll be back’”.[21]
[20] Reasons, [90]–[93].
[21] Reasons, [73], quoted from AALD 25/2/21, p 225.
The Member described “another matter” that weakened the connection between the deceased’s fatal injury and his employment, as “the earlier events of 4 June 2016 [sic, 4 March 2016], which did not appear to have a sufficient connection to the employment”. It is said:
“The deceased and his associate appear to have attended [ISPL] for the purpose of dealing with perceived disrespect shown by Mr [WT] during the telephone call. On one view, this confrontation was the genesis of the escalation of the dispute, not the matters concerning delay in production of the sign.”[22]
[22] Reasons, [95].
The reasons also said:
“A further factor that disconnects the fatal injury from the employment was the lack of reporting of the serious criminal action of [WW] against the deceased. Neither the deceased nor [MKB] reported the matter to the police. This factor, in conjunction with the deceased and [TB’s] threats of retaliation to [CS], supports that the deceased elected to take the matter of dealing with [WW] into his own hands.”[23]
[23] Reasons, [96].
The passage quoted immediately above appears to refer to CS’s police interview. The Member said that “[s]hortly afterwards, [TB] turned up to the factory and was yelling”. CS said she informed TB that the shot had not been fired in the deceased’s direction. CS said that TB then got into his car, would not engage her in conversation, and “told her he was going to come back for her, that she had a ‘death wish’ and she had caused problems for [WW]”. The Member said that TB then left the factory and CS told WW about this conversation.[24] The Member had noted that TB “stopped being involved in the family business from around 2010 or 2011”, and that TB attended ISPL solely to confront WW about WW’s earlier “threatening conduct towards the deceased”. The Member said “[t]he involvement of [TB] strongly supports the matter was no longer connected to the employment but about dealing with [WW’s] conduct”.[25]
[24] Reasons, [74]–[75], quoted from AALD 25/2/21, pp 199, 228.
[25] Reasons, [94].
The Member said that when MKB and SE attended ISPL on 7 March 2016 they were not attending for any work-related purpose. He made a finding that when MKB and SE attended ISPL it was to check the safety of TB and the deceased, in the knowledge that WW had a gun that he had discharged earlier on 7 March 2016. The Member said this purpose was not connected to the respondent’s business or the deceased’s employment.[26]
[26] Reasons, [97]–[98].
The Member rejected a submission that the language used during the confrontation was consistent with an adequate work connection. He said that although the words “money” and “sign” may have been used, “[i]n essence the [brothers] had returned to [ISPL] as a group to make [WW] account for his earlier conduct in discharging a firearm in the presence of the deceased”. The Member accepted that the brothers pulled into the driveway at [ISPL] at “around the same time”. The Member said this was consistent with the evidence of CS and SE. The Member said it was not plausible that the deceased happened to be driving past ISPL and saw his brothers’ cars.[27] He accepted that when the brothers turned up at ISPL they started shouting for WW to come down and talk like a man. The Member said the purpose was “in no way connected to employment”.[28] The Member made a factual finding regarding whether the fatal injury occurred in the course of employment:
“105. I find that it is more likely than not that the deceased attended [ISPL] on the second occasion for the purpose of confronting [WW] about his earlier conduct and/or to support his brothers in the confrontation. I am not satisfied there was any reason for the deceased’s second attendance at [ISPL] that was connected to his employment. The deceased was not engaged in the activities of his employment at the time of his fatal injury. Whilst it was not expressly argued by the dependants, I am also not satisfied that the deceased was doing anything incidental the activities of his employment. In my view, the deceased’s action in returning to [ISPL] was outside of the scope of his employment.
106. Therefore, I find there is no adequate temporal connection between the circumstances of the fatal injury and the deceased’s employment. I am not satisfied on the balance of probabilities that the deceased was doing something that was part of his duties as a sales representative or something that was reasonably incidental to those duties. I am not satisfied that the deceased was reasonably required, expected or authorised to attend [ISPL] on the second occasion to carry out his employment duties.”[29]
[27] Reasons, [100], [103].
[28] Reasons, [104].
[29] Reasons, [105]–[106].
The Member then dealt with whether the fatal shooting involved injury arising out of the deceased’s employment. He referred to Zinc Corporation Ltd v Scarce[30] as authority that the phrase involves a causal relationship between the employment and the injury. He said that an injury falls within the test if “the fact of his [or her] being employed in the particular job caused, or to some material extent contributed to, the injury ...”, citing Nunan v Cockatoo Docks & Engineering Co Ltd.[31] He said it was sufficient if the fact of being employed in the particular job caused or contributed to the injury, referring to Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd.[32] The Member referred to Kasim v Busways Blacktown Pty Ltd,[33] an ‘assault’ case in which Neilson J found the injury to be one arising out of the employment, as the relevant assault resulted from a disagreement about the worker’s work duties.[34]
[30] (1995) 12 NSWCCR 566 (Scarce).
[31] (1941) SR (NSW) 119 (Nunan).
[32] [2009] NSWCA 324 (Badawi).
[33] [2003] NSWCC 6 (Kasim).
[34] Reasons, [107]–[113].
The Member said that, for reasons already given, he did not accept that the deceased’s employment required him to attend ISPL on the second occasion on 7 March 2016. It was not coincidental or reasonably connected to the deceased’s employment. He said that while the genesis of the dispute was originally about an employment matter, there was not an unbroken chain of causation. Attendance at ISPL on the second occasion on 7 March 2016 was not work related, and this severed the causal connection. The deceased working in the particular job did not cause or materially contribute to the fatal injury. The Member said that the dependants carried the onus of establishing injury in the course of or arising out of the employment.[35] It followed that the claim failed. It was unnecessary for the Member to deal with whether s 9A of the 1987 Act was satisfied.
[35] Reasons, [114]–[117].
LEGISLATION
Section 4 of the 1987 Act relevantly provides:
“In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …”.
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
GROUNDS OF APPEAL
Each of the four appellants was a separate party at first instance, being the applicant (SB), the second respondent (JB), the third respondent (LA) and the fourth respondent (RB). The employer was the first respondent at first instance. The employer is the only respondent on the appeal. SB, a daughter of the deceased, was the applicant at first instance, and is the first appellant in this appeal. Her submissions in support of the appeal state that, at first instance, the parties agreed that LA (the deceased’s widow) was entitled to the most significant portion of any death benefit and it was appropriate that she “lead the case and make primary submissions on behalf of the beneficiaries”. The first appellant states it is agreed the same approach be adopted on the appeal. LA will provide “lead submissions”. The other parties will provide further submissions following receipt of LA’s submissions and the transcript. SB submits this is to avoid repetition in the submissions on appeal.[36]
[36] First appellant’s submissions, Pt B, 2.1, [2]–[5].
This approach is a sensible one. Ultimately, most of the appellants put on at least some submissions of their own, which resulted in multiple responses by the respondent being included in its Notices of Opposition. I will outline the grounds relied on by the third appellant, LA, followed by any further grounds raised by the other appellants.
The third appellant’s grounds of appeal
LA, the third appellant, raises the following grounds:
(a) The Member erred in fact and law when he found that the injury did not occur in the course of employment. (Ground No. 1)
(b) The Member erred in fact and law when he failed to properly consider whether there was a causal connection between the deceased’s visit to ISPL on 7 March 2013 (sic, 7 March 2016) and his subsequent visit to the premises of ISPL. (Ground No. 2)
(c) The Member erred in law when he failed to give proper reasons for finding that the purpose of the second attendance at ISPL was in no way connected to the employment having found that the deceased’s purpose in attending was a result of the conduct of WW during the earlier work-related visit. (Ground No. 3)
(d) The Member erred in law when he failed to give proper reasons why there was no chain of causation between the work-related activities on 4 March 2016 and the morning of 7 March 2016 with the fatal shooting on the afternoon of 7 March 2016. (Ground No. 4)
(e) The Member erred in fact and law when he found that the injury causing death did not arise out of employment. (Ground No. 5)
(f) Such other grounds as become apparent when the transcript is available. (Ground No. 6). (No such ground was ultimately relied on.)
The other appellants’ grounds
SB, the first appellant, does not raise additional grounds. She submits the Member made an error of law, including in his application of s 4 of the 1987 Act.
JB, the second appellant, relies on the grounds and submissions lodged on the third appellant’s behalf. The second appellant subsequently lodged written submissions, undated, which repeat the grounds raised by the third appellant.
RB, the fourth appellant, raises three grounds.[37] These are:
(a) The Member erred in law in determining that the deceased worker did not sustain an injury “arising out of” employment with the respondent.
(b) The Member committed an error of law when he determined there was no connection between the deceased worker’s employment and his injury.
(c) The Member committed an error of fact when he determined there was no connection between the deceased worker’s employment and his injury.
[37] Fourth appellant’s submissions, [29].
These grounds raise error in the findings on injury ‘in the course of’ and ‘arising out of’ employment and in the associated findings on causation. The fourth appellant makes submissions in her Application to Appeal lodged on 11 June 2021. In her “further and amended” submissions dated 9 July 2021 the fourth appellant adopts the grounds and submissions lodged by the other appellants. She additionally amends her earlier submissions to correct “administrative errors”.[38] References below to the fourth appellant’s submissions are to those dated 9 July 2021.
THIRD APPELLANT’S SUBMISSIONS
[38] Fourth appellant’s further and amended submissions, [1]–[3].
Grounds Nos. 1 to 4
The third appellant submits there is no dispute that the deceased was acting in the course of his employment when he attended ISPL on Friday, 4 March 2016. There was a heated conversation involving the deceased and CS. There was no dispute that the deceased was in the course of his employment when he attended ISPL, at the request of CS, on the first occasion on Monday, 7 March 2016. On this occasion the deceased was threatened by WW, including WW firing a shot towards the ceiling. The Member accepted this attendance was in the course of the deceased’s employment. The first two of the relevant attendances at ISPL were to perform work duties. It was in this context that the deceased came into contact with WW and was threatened. The dispute with WW was work-related. The deceased was exposed to the dispute in the course of his employment. He would not otherwise have been exposed in this way. The third appellant submits that if there was a causal connection between the events on the morning of 7 March, and those later in the day, the deceased would have remained in the course of his employment.[39]
[39] Third appellant’s submissions, [14]–[22].
The submissions quote from the reasons of Hutley JA in Tarry v Warringah Shire Council:[40]
“In my opinion, it is quite clear on the evidence that the injury from which the deceased died arose out of his employment. It arose out of an altercation between two employees of the 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 in the course of what he was doing, the deceased was doing acts which were not in accordance with his duties as a foreman. It is, of course, misconduct in a foreman to settle matters of responsibility by engaging in fisticuffs with a man under him. That, however, has really nothing to do with the question.”
[40] (1974) 48 WCR 1 (Tarry).
The third appellant says the Member sought to distinguish Tarry on the basis that the worker in that case was involved in work duties at the time of the assault. She submits this was not the position, the Court of Appeal expressly proceeded on the basis that the worker was not in the course of employment when the incident happened. The third appellant’s submissions also quote from Priestley JA in Davis v Mobil Oil Australia Limited[41] where his Honour said:
“… In my opinion, the judge at first instance was wrong in point of law in holding, on the facts as he found them, that at the time of the injury the applicant was no longer in the course of his employment and that, therefore, the injury did not arise out of the employment; the second conclusion does not necessarily follow from the other.”
[41] [1988] 4 NSWCCR 8 (Davis).
The third appellant submits there was a clear line of causation. It commenced with a dispute about the signage, clearly a work matter. It is submitted the deceased was in the course of his employment when he attended ISPL on 4 March 2016 and on the first occasion on 7 March 2016. “Anything that is causally connected with that meeting is causally connected with his employment.”[42]
[42] Third appellant’s submissions, [24].
The third appellant also quotes from Secretary, New South Wales Department of Education v Johnson:
“In common law contexts, an injury or incapacity may be attributable, in the legal sense, to more than one cause operating concurrently. There is no difference between the legal view of causation in tort and causation in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. That is to say, the question of foreseeability does not arise. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens.”[43]
[43] [2019] NSWCA 321 (Johnson), (per Emmett AJA, Macfarlan JA and Simpson AJA agreeing), [53].
The third appellant identifies aspects of the causal chain which she submits were not considered by the Member:
(a) There was a clear chain of causation between the work-related events, of 4 March 2016 and the morning of 7 March 2017, and the events of the afternoon of 7 March 2016. There was a dispute about the work contract. This caused the intervention of WW and the threatening of the deceased. The actions of the deceased and his employer in then attending ISPL on the afternoon of 7 March 2016 were causally related to the work dispute. The Member did not consider this line of causation.[44]
[44] Third appellant’s submissions, [34]–[36], [38].
(b) The Member considered it was sufficient to find that MKB and SE attended ISPL to check the safety of TB. He did not consider whether there was any other purpose. He did not consider whether the actions of TB in attending ISPL on 7 March 2016, although he was not an employee of the respondent, were actions in the furtherance of the respondent’s interests. The third appellant submits that, given the nature of the dispute, resolution of WW’s threats was a necessary step in resolving the overall dispute about the work contract.[45]
[45] Third appellant’s submissions, [27].
(c) WW’s actions on the morning of 7 March 2016 impacted the respondent’s ability to insist on compliance by ISPL with the contract for supply of the sign. It was necessary to resolve the dispute with WW in resolving the dispute about the sign. The actions of the deceased and the respondent involved an employment purpose which the Member failed to consider. The Member looked for a sole purpose for the deceased’s presence. This was inconsistent with authorities such as Johnson which establish there can be multiple purposes.[46]
[46] Third appellant’s submissions, [28].
(d) In the reasons at [104], the Member said that the brothers pulled up together on the visit on the afternoon of 7 March 2016. The Member said:
“… this supports the purpose of the second attendance was to deal with [WW’s] earlier conduct and was in no way connected to the employment.”
The third appellant submits that the Member does not explain why that would follow.
The third appellant submits the Member failed to consider that, when the brothers pulled up together, the deceased was:
“… accompanied by his immediate boss [and] was engaged in an activity which had been implicitly if not expressly authorised by the [r]espondent. The deceased was within his work hours and was attending at a place with his boss and where he had attended because of the dispute about the sign …The [M]ember fails to consider the fact that the confrontation was merely a continuation of the dispute which had arisen earlier in the day. The [M]ember did not find that the deceased was engaged in any activity which had been prohibited by his employer and did not find that there was any misconduct on the part of the deceased. He also did not make any finding that there was a novus actus breaking the chain of causation.”
The third appellant submits the Member found, in his reasons at [105], that the deceased was not doing anything incidental to his employment activities. He did not give reasons for why this was so. The third appellant submits that, if properly considered, the only conclusion available was that the deceased was engaged in an activity that was incidental to his employment. The third appellant submits it is irrelevant that there may also have been other reasons for his presence, citing Hook v Rolfe.[47]
[47] (1986) 7 NSWLR 40; third appellant’s submissions, [29]–[31].
Ground No. 5
The third appellant submits the Member correctly quoted the test from Nunan dealing with whether an injury arises out of employment. The Member then sought to distinguish Tarry on the basis that the workers in that matter were involved in work duties at the time of the assault causing injury. The third appellant submits there was not a valid basis for distinguishing Tarry (and Davis), for reasons recited above. Those authorities, correctly applied, would have led to the conclusion there was an ongoing dispute regarding work matters, that the deceased was present at ISPL as a consequence of that dispute, and that the fatal injury arose out of employment.[48]
[48] Third appellant’s submissions, [48].
The third appellant submits the Member applied the wrong test, in the reasons at [114], where he said:
“For the reasons stated above I do not accept that the terms of the deceased’s employment required him to attend [ISPL] on the second occasion during which he suffered the fatal injury. I am not satisfied the attendance by the deceased at [ISPL] was coincidental or reasonably connected to his employment. These facts differ substantially from the facts in Tarry and Kasim because the workers in those cases were involved in work duties at the time of the assaults.”
The third appellant submits the above is not the test. The test is whether there is a causal connection between the employment and the injury. So long as the chain of causation arises out of the employment then so does the injury. It does not depend on the further links in the chain being “coincidental or reasonably connected” to employment. The third appellant submits that, consistent with what was said by Emmett AJA in Johnson, it is “merely a matter of whether there is a causal link”.[49]
[49] Third appellant’s submissions, [49].
The third appellant submits the Member found the dispute, which commenced on 4 March 2016 and continued on 7 March 2016, was work related. This, it is submitted, was the only conclusion available on the evidence. The question then was whether there was a causal link to the fatal shooting. The link was “clear and obvious”. Whether or not the attendance by the “deceased and his boss” on the afternoon of 7 March 2016 was “provoked or motivated by a desire to respond or retaliate to WW’s actions”, there was no doubt there was a causal link between the visit to ISPL on the morning of 7 March 2016 and the fatal shooting that afternoon. The reason given by the Member for concluding the causal chain was broken was that the return to ISPL on the second occasion on 7 March 2016 was not work related. This was not a valid basis for finding a break in the chain. The third appellant submits the “conclusion must be that the chain of causation had been established and the deceased’s death arose out of his employment”.[50]
[50] Third appellant’s submissions, [49]–[54].
FOURTH APPELLANT’S SUBMISSIONS
The fourth appellant relies on “Further and Amended Submissions” dated 9 July 2021. The references to the fourth appellant’s submissions will be relatively brief, given that the third appellant has dealt at length with similar (although not identical) material.
Ground No. 1
The fourth appellant refers to the reasons at [114] to [115], submitting that the finding that the deceased’s injury did not arise out of employment was erroneous. She submits the Member focussed on the deceased’s reasons for attending ISPL’s premises, rather than whether the injury arose as a result of the deceased’s employment. She refers to Smith v The Australian Woollen Mills Limited where the majority said: “The precise question is not whether the fall arose out of the employment, but rather, whether the injury sustained in falling arose out of the employment.”[51]
[51] [1933] HCA 60 (Smith).
The fourth appellant refers to Nunan and Ryan v Regional Imaging Pty Ltd.[52] She submits the Member did not consider whether “employment was, to a material extent, a contributing factor to his injury as he was required to do”. She submits this is evident from the Member’s finding that the first attendance on 7 March 2016 was employment related, the second attendance on that date in which the deceased was killed was not so related, and a finding of injury did not follow.[53] The Member found that the “genesis of the dispute was originally the employment matter”. The Member then focussed on the reason for the second attendance on 7 March 2016. The fourth appellant submits:
“The facts of this matter are unusual. However, the totality of the evidence before the Member indicated that the dispute pertaining to the sign which the [r]espondent had contracted [ISPL] to create and which the [d]eceased [w]orker, as part of his employment duties, was liaising with [ISPL] about, had never subsided and had a material contribution to the [d]eceased worker’s ultimate injury and passing.”
[52] [2017] NSWWCCPD 48 at [78].
[53] Fourth appellant’s submissions, [38]–[46].
The fourth appellant submits the fact that there may have been other reasons for the deceased’s injury does not detract from the fact that employment was, to a material extent, a contributing factor. [54]
[54] Fourth appellant’s submissions, [47]–[51].
Ground No. 2
The fourth appellant refers to the test on ‘arising out of’ in Badawi, applied in Secretary, Department of Communities and Justice v Galea.[55] Was the employment, to a material extent, a contributing factor to the injury? Rather, it is submitted, the Member focussed on the deceased’s attendance at ISPL’s premises. The fourth appellant also refers to the reasons at [100], [105], [114] and [116] in support of this submission. Employment did not need to be “a substantial” or “main contributing factor” or the “only contributing factor to the injury, but rather “to a material extent, a contributing factor”. It is submitted the test applied by the Member was “more stringent”, the Member erroneously focussed on the reason for attendance, and failed to consider whether there was a material contribution between the employment and the injury.[56]
[55] [2021] NSWWCCPD 1, [80].
[56] Fourth appellant’s submissions, [53]–[57].
The fourth appellant refers to the reasons at [93] to [104]. The Member considered the deceased’s motivation to retaliate and/or support his brothers was why he attended ISPL on the second occasion on 7 March 2016 and why he was killed. The Member considered that ‘but for’ those matters, the deceased would not have attended ISPL on that occasion and been killed. It is submitted this amounted to a consideration of the ‘but for’ test which was erroneous. The fourth appellant submits the Member did not correctly consider whether the employment, on a commonsense evaluation, was a contributing factor to the injury. The fourth appellant refers to Tran v Vo,[57] in which Payne JA, referring to the judgment of Starke J in Smith said:
“Starke J’s reference to Stewart v Metropolitan Water, Sewerage and Drainage Board (1932) 48 CLR 216; [1932] HCA 45 was a reference to his own judgment in that case. In Stewart, his Honour explained, by reference to six English decisions, that to show that an injury was one ‘arising out of’ employment it was not sufficient merely to show that but for the employment, the worker would not have been at the scene of the accident.”
[57] [2017] NSWCA 134, [98] and [104].
Ground No. 3
The fourth appellant refers to the evidence from MKB, TB and CS. She submits it supports the proposition that there was no break in the causal chain in that it demonstrates:
(a) the cause of the dispute pertained to the deceased’s employment;
(b) the dispute led to the incident when the deceased first attended ISPL on 7 March 2016;
(c) the employment was a material contributing factor to the injury causing the deceased’s death, as the cause of the dispute was “birthed by the dispute pertaining to the sign”, and
(d) there was no other cause which led to any dispute between the deceased, ISPL and WW.
The fourth appellant refers to the reasons at [100], and submits that even having regard to these matters, the dispute causally related to the deceased’s employment, being his liaising with ISPL in relation to the sign. It is submitted the findings were factually erroneous and, individually or as a whole, made a difference to the decision.[58] The fourth appellant submits the decision should be revoked. She submits that no findings were made regarding s 9A of the 1987 Act, and the matter should be remitted to a different member for further hearing.[59]
[58] Fourth appellant’s submissions, [61]–[65], referring to Stead v State Government Insurance Commission [1986] HCA 54.
[59] Fourth appellant’s submissions, [66]–[69].
FIRST APPELLANT’S FURTHER SUBMISSIONS
The first appellant lodged further submissions on this appeal on 19 July 2021. She adopts the grounds and submissions made by the other appellants. She raises three additional grounds which are submitted to constitute errors of law:
(a) Deciding the matter on bases not raised, that is, exceeding jurisdiction. (Ground No. 1)
(b) Denying the first appellant procedural fairness by:
(i)ruling against her when objecting to the way in which the case was run by the employer;
(ii)failing to provide lawful reasons for rejecting the objection;
(iii)failing to invite further submissions or evidence from the first appellant when rejecting the objection, (Ground No. 2) and
(iv)failing to deal with the matter in accordance with the disputes raised.
(c) Failing to provide lawful reasons concerning the objection raised. (Ground No. 3)[60]
[60] First appellant’s further submissions, [9]–[11].
Ground No. 1
The first appellant submits the respondent’s conduct of the case “went far beyond the s 78 notice”. It refers to the reasons at [23], [88], [93], [96], [100], [105] and [115]. These matters included that the deceased “left [ISPL] vowing to return and cause trouble”, that his second visit on 7 March 2016 “was related to retaliation for the earlier conduct of [WW]”, that he “elected to take the matter of dealing with [WW] into his own hands”, that “the [brothers] had returned to [ISPL] as a group to make [WW] account for his earlier conduct”, and that “[t]he purpose of the deceased returning to [ISPL] on the second occasion was not work-related … his attendance was a factor that severed the causal connection”. The first appellant submits the finding was that the deceased returned to ISPL “focussed on revenge, vengeance and potentially to undertake criminal activity (i.e by causing trouble)”, this was not stated in plain language in the s 78 notice (reference is made to Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services[61]). She submits the finding was not available on the pleadings and no application to rely on the additional matter was made pursuant to s 289A of the 1998 Act. It is submitted the matter was determined on the basis of disputes that were not notified. This was submitted to be an error in the exercise of jurisdiction.[62]
[61] [2007] NSWWCCPD 227.
[62] First appellant’s further submissions, [25]–[39].
Ground No. 2
The first appellant refers to an objection taken at the hearing by its counsel, on the basis that the case being run by the respondent was outside the s 78 notice.[63] She submits the Member failed to rule on the objection. If it is assumed the objection was rejected, the Member gave no lawful reasons. The first appellant was deprived of the opportunity to obtain further evidence. She submits the Member, having decided to allow the respondent to run the case in this way, denied the first appellant procedural fairness, in not seeking submissions on how the case should proceed in the circumstances. She submits this failure changed the result.[64]
[63] T 29.1–17.
[64] First appellant’s further submissions, [40]–[46].
Ground No. 3
The first appellant submits the failure to give reasons described in Ground No. 2 immediately above constituted an error of law. It is submitted the first appellant was denied a fair trial
The first appellant submits there should be a finding that the deceased’s death resulted from injury in the course of or arising out of employment. There should be appropriate orders for the lump sum death benefit of $750,000, apportionment, interest and weekly compensation in respect of the dependents.
RESPONDENT’S SUBMISSIONS
The respondent has made separate submissions in respect of the various grounds and submissions put on by the different appellant interests. These will be summarised below in the same order as that in which the appellant’s submissions are summarised above.
Respondent’s response to third appellant’s submissions
The respondent submits the third appellant does not challenge the Member’s factual finding regarding the circumstances surrounding the deceased’s death, rather she challenges the findings regarding whether the circumstances fell within s 4 of the 1987 Act.[65] The respondent summarises the factual findings.[66] The summary is interspersed with commentary from the respondent. By way of example, referring to the way in which the deceased returned to ISPL on the last occasion, there is comment regarding the “somewhat contradictory evidence”. There is comment that TB was not an employee of the respondent and that there is no evidence he was authorised to undertake business negotiations with ISPL. The respondent refers to findings by the Member, in the reasons at [93]–[98], that are said to have “significantly weakened any connection” between the deceased’s employment and his attendance at ISPL for the second time on 7 March 2016. It describes these findings as “clearly open” and disclosing “no error”.[67]
[65] Respondent’s submissions, [3].
[66] Respondent’s submissions, [8].
[67] Respondent’s submissions, [9].
The respondent describes Grounds Nos. 1 to 4 as going to injury ‘in the course of employment’ and Ground No. 5 as going to injury ‘arising out of employment’.[68] It deals initially with Grounds Nos. 1 to 4.
[68] Respondent’s submissions, [10].
The respondent describes the third appellant’s submissions on Grounds Nos. 1 to 4 as contending that the dispute with WW was “work related”. The respondent refers to the third appellant’s reliance on Federal Broom Co Pty Ltd v Semlitch,[69] an argument the injury “was something to which the deceased was exposed in the course of his employment to which he was not otherwise exposed”. The respondent submits the usefulness of Semlitch is “limited”, as that case dealt with whether employment was a contributing factor to the aggravation of a disease. The respondent describes the third appellant’s submission that the deceased would have remained in the course of his employment at the time of the fatal injury as “a gross oversimplification of the test”. The respondent submits this submission seeks to gloss over or avoid the principles in authorities such as Williams, Wheeler and Davidson, to which the Member referred in the reasons at [82] to [84].[70]
[69] [1964] HCA 34 (Semlitch).
[70] Respondent’s submissions, [11]–[12].
The respondent refers to Tarry and Davis, on which the third appellant relied. The respondent refers to these decisions as “readily factually distinguishable”. It submits each of these cases involved dispute about the scope of a worker’s duties which escalated into a confrontation, which did not take the events outside the course of employment. It submits neither case supports the third appellant. It submits it is not a matter of simply concluding that anything that is causally connected with the meeting on the morning on 7 March 2016 is causally connected with the employment.[71]
[71] Respondent’s submissions, [13]–[16].
The respondent submits the Member correctly identified the principles in Williams and his analysis at [92] to [110] of the reasons discloses no error. The respondent submits the “proper approach to the determination of the question is whether the deceased was engaged in his work or something reasonably incidental to it at the time of the injury”, citing Williams and Whittingham v Commissioner of Railways (WA).[72] It quotes from Williams:
“That which is incidental to a worker’s work ‘depends upon the sufficiency of the connection between the employment and the thing done by the employee’ which is ‘a matter of degree in which time, place and circumstances, as well as practice must be considered together with the conditions of employment.’”
[72] [1931] HCA 49.
The respondent submits the Member’s factual findings clearly support his conclusion that there was “an insufficient degree of connection”. There was no evidence that the deceased was directed by his employer, MKB, to return to ISPL on the later occasion on 7 March 2016 for a purpose connected with the respondent’s business. To the contrary, the evidence was that the deceased returned to ISPL with TB, who was not an employee or representative of the respondent, and who had no involvement in any commercial dealings with ISPL. The confrontation was not in furtherance of the respondent’s commercial interests. The evidence of Mr G, a machine operator at ISPL, strongly supports the finding that the nature of the confrontation, and the language used by the brothers and WW, did not relate to the respondent’s business dealings with ISPL.[73]
[73] Respondent’s submissions, [17]–[19].
The respondent submits the third appellant failed to identify, at the hearing or on appeal, any way in which TB’s attendance was in furtherance of the respondent’s business interests. It is not open to the third appellant to challenge the decision on that basis. It refers to the third appellant’s submissions at [31] to [32] and submits this involves only speculation unsupported by evidence. The respondent refers to the submission that the Member failed to give reasons for finding that the deceased was not doing anything incidental to his employment. The respondent submits this overlooks the analysis at [88] to [100] of the reasons. It is submitted the third appellant fails to identify in what way the Member misdirected himself regarding the proper test. The respondent submits the Member applied the proper legal test and the findings he made were open to him on the evidence.[74]
[74] Respondent’s submissions, [20]–[22].
The respondent refers to Ground No. 5. It submits the third appellant proceeds on the basis that the test of whether an injury arises out of employment is “whether there is a causal connection between the employment and the injury.” So long as the genesis of the chain of causation arises out of the employment, so does the injury. The respondent describes this as an “over simplification”. What is required is a commonsense approach and “an unbroken causal connection to the employment” (emphasis in original). The respondent refers to a number of Presidential decisions.[75] The respondent submits the reasons at [107] to [116] identify why there was no unbroken chain of causation. It submits the appeal should be dismissed.[76]
[75] Bartter Enterprises Pty Ltd v Haworth [2006] NSWWCCPD 62, Garcia v Sydcon Pty Ltd [2008] NSWWCCPD 4, Qantas Airways Ltd v Watson (No 2) [2010] NSWWCCPD 38.
[76] Respondent’s submissions, [23]–[25].
Third appellant’s submissions in reply
The third appellant lodged submissions in reply to those of the respondent, dated 6 September 2021. It is convenient to summarise those here, keeping the exchange of submissions between the third appellant and the respondent together.
The third appellant refers to the respondent’s submission that TB was not an employee of the respondent nor was he authorised to negotiate on the respondent’s behalf. It is submitted this misses the point. The issue is whether the deceased was in the course of his employment, or whether the fatal injury arose out of the deceased’s employment. This is separate to any connection between the respondent and TB. The Member should have focussed on the actions of the deceased, not TB. The matter should have been considered from the perspective of the deceased. The deceased attended at ISPL to chase up the order for signage and was threatened as part of that exchange while in the course of his employment. His involvement was work related.[77]
[77] Third appellant’s submissions in reply, [1]–[3].
The third appellant submits the Member found that the deceased arrived at the scene at ISPL, on the final occasion, at the same time as his brothers, one of whom was his employer. The Member rejected the proposition that the deceased “just happened to be passing by”. The Member did not make a finding regarding why the deceased arrived at that time. The Member found the deceased had been on the telephone to MKB just before the confrontation but made no finding regarding the content of that conversation. The Member did not find the deceased went to the site with TB, which would have been contrary to the evidence. The inference that could be drawn is that the deceased attended the scene because his boss told him to. It is submitted the Member clearly drew that inference. Once it is accepted that the deceased attended after discussing the matter with his boss, MKB, the question is whether his presence was expressly or impliedly authorised by his employer. “Having rejected the idea that the deceased was just passing by the only inference left is that he attended at the direction or request of his employer.” This places the deceased in the course of his employment at the time of his death. The third appellant submits the Member made no other finding that would put the deceased outside the course of his employment.[78]
[78] Third appellant’s submissions in reply, [4]–[9].
The third appellant reiterates its submission that employment does not have to be the sole reason that places the deceased at the scene, it is enough if it is one of the purposes. It is submitted the Member erred in approaching the matter on the basis there could only be one reason for the deceased’s attendance at the scene for the second occasion on 7 March 2016. The third appellant submits the Member failed to consider what would have happened if the brothers had been successful in their attendance on the afternoon of 7 March 2016. They did not attend for a shootout, they were unarmed. A successful confrontation would have involved WW ceasing to threaten them, and further discussion about the unfulfilled contract. The confrontation, by its very nature, had the possibility of producing a work-related outcome. There was no finding that a successful resolution would have any other purpose.[79]
[79] Third appellant’s submissions in reply, [10]–[12].
The third appellant submits the Member stopped his deliberations once he decided the purpose of the visit was to deal with WW’s conduct. The Member did not explain why that was unrelated to employment. He ignored the elements that caused the confrontation. He found the deceased’s attendance at the scene broke the causal connection, despite the deceased having attended after a conversation with his employer. He gave no reason for why attendance at the scene did not constitute a chain of causation, or why the deceased’s mere attendance at the scene could constitute a novus actus interveniens.[80]
[80] Third appellant’s submissions in reply, [13]–[16].
Respondent’s response to fourth appellant’s submissions
The respondent relies on its submissions in response to Ground No. 5 of the third appellant’s appeal. It additionally deals with Grounds Nos. 1, 2 and 3 of the fourth appellant’s submissions. It refers to the fourth appellant’s submissions in respect of Ground No. 1. It submits the fourth appellant fails to properly articulate the alleged error it asserts in the reasons at [114] to [115]. It refers to the fourth appellant’s argument that the Member failed to consider whether employment was a material contributing factor to the fatal injury. It submits the Member set out the relevant legal principles at [107] to [116] of the reasons. It submits the Member had regard to the correct legal test. The respondent refers to a statement by the Member that the “genesis of the dispute may have been a work related matter”. The respondent again submits that the submission is not properly articulated, nor is the asserted error demonstrated.[81]
[81] Respondent’s submissions, [2]–[5].
The respondent refers to the Member’s reliance on Wheeler in the reasons at [112], as authority that where the sphere or scope of the employment did not include the particular acts being performed by the worker at the time when he was injured, the injury cannot arise out of employment (referring to reasons at [112]).[82]
[82] Respondent’s submissions, [6].
The respondent refers to Ground No. 2 of the fourth appellant’s submissions. It submits there is overlap between Grounds Nos. 1 and 2, the only difference appears to be that Ground No. 2 refers to a commonsense test. The respondent submits the Member clearly engaged in a commonsense analysis of the connection between injury and employment, referring to the reasons at [116]. The respondent submits the balance of the submissions “merely restate the points made in support of ground 1”, without identifying the basis of any asserted error. The respondent submits the Member set out in detail why he found there was not a sufficient connection between the second attendance of the deceased at ISPL and the fatal injury. The respondent submits that Ground No. 2 does not demonstrate error. [83]
[83] Respondent’s submissions, [7]–[10].
The respondent submits that Ground No. 3 provides no basis for a finding of error.[84]
[84] Respondent’s submissions, [12].
Respondent’s response to first appellant’s submissions
The respondent says the first appellant’s argument is that the case run by the respondent fell outside its s 78 notice. It submits the respondent’s case was based on an allegation of gross misconduct by the deceased as a disentitling factor, criminal conduct that took the deceased outside the scope of his employment. The respondent submits this was not how its case was argued. Its case was that the criminal conduct of WW, and the absence of sufficient connection between the deceased’s employment and his second attendance at ISPL on 7 March 2016, meant the requirements of s 4 of the 1987 Act were not satisfied. The respondent submits this was clear from the Member’s analysis at [89], [94] and [117] of the reasons. The respondent submits that if Ground No. 1 of the first appellant’s grounds fail, so do Grounds Nos. 2 and 3.[85]
[85] Respondent’s submissions, [3]–[7].
CONSIDERATION
The third appellant’s pleaded grounds, on which the various appellants, with the exception of the fourth appellant, rely, are set out at [28] above. Ground No. 1 specifically relates to the issue of whether the fatal injury occurred in the course of the deceased’s employment. The respondent submits that Grounds Nos. 1 to 4 relate to the issue of injury ‘in the course of employment’ and that Ground No. 5 relates to the issue of injury ‘arising out of employment’.[86] In my view Grounds Nos. 2 to 4 are not restricted in this way. These grounds do not confine themselves only to the issue regarding injury in the course of employment. These grounds, and the submissions in support of these grounds, contain multiple references to causation issues, and alleged errors, which are relevant to whether the fatal injury arose out of the deceased’s employment.[87] The third appellant does not restrict these grounds and submissions in the way the respondent suggests. The third appellant’s grounds Nos. 2, 3 and 4, and the supporting submissions, are relevant to the issues regarding both whether the fatal injury was one ‘arising out of employment’ and whether it occurred ‘in the course of employment’.
[86] Respondent’s submissions, [10].
[87] See third appellant’s submissions, [22]–[26], [28]–[29], [34]–[35], [40], [43], [45]–[46], [38] (where it appears under Ground No. 4 in the submissions dated 21 June 2021).
The fourth appellant’s grounds relate to the issue of whether the injury was one ‘arising out of’ the employment. The additional submissions made by the first appellant (over and above joining in the third appellant’s submissions) go to a discrete issue of whether the case was run by the respondent in a fashion outside the dispute notice.
It is convenient to deal initially with the issue of whether the fatal injury occurred in circumstances such that it ‘arose out of’ the employment’
THE TEST OF ‘ARISING OUT OF’ EMPLOYMENT
The Court of Appeal dealt with the test in Badawi, where their Honours said:
“73. The meaning of ‘arising out of ... employment’ is settled. In Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119 in what is sometimes still referred to as the authoritative decision on the phrase the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a common sense approach to the application of the phrase, noting that it involved a causative element. In doing so, their Honours, at 123, endorsed the comments of Lord Wright in Dover Navigation Co v Craig [1940] AC 190 at 199 that the Act was a remedial Act intended to give rights to workers that were more extensive than common law rights and which used non-technical language in doing so. As Lord Wright said:
‘Nothing could be simpler than the words ‘arising out of and in the course of employment.’ It is clear that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.’
74. Their Honours also endorsed the comments of Lord Maugham at 193 in the same case in considering whether the death in that case arose out of applicant’s employment:
‘The authorities show, if authorities are needed on that point, that the words connote a certain degree of causal relation between the accident and the employment. It is impossible to define in positive terms the degree of that causal connection ...’
75. Their Honours concluded, at 124, that a worker would have established that an injury arose out of employment:
‘... if it appears ... that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury ...’
76. In Nunan, the applicant employee was assaulted by a fellow employee in circumstances where he had ignored a request by the fellow employee to clean some paint brushes in another area after the applicant had inadvertently splashed paint on to the enamel work that the fellow employee was undertaking. There was no dispute that the injury thus sustained was sustained in the course of the employment. Jordan CJ and Roper J held that the applicant’s injury arose out of the employment. In doing so, they noted that the question whether a particular injury arose out of the employment was a matter to be inferred from the facts as a matter of common sense. In doing so, they rejected the need for the employment to expose the worker to some special danger. Whether that was a necessary circumstance or not depended on the particular facts of the case. Their Honour’s views, expressed by reference to circumstances in which an employee might be assaulted at work is found in the following passage, at 124:
‘We have been referred to a number of cases in which there have been claims arising out of assaults on workers. These do not stand in a class by themselves, but are all instances of applications of the language of the Act to the facts of particular cases.’[88]
[88] Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd [2009] NSWCA 324, [73]–[76].
In Tarry Glass JA referred to Nunan saying:
“... the injury may arise out of the employment, even though at the time it is sustained the deceased or the [worker] is no longer in the course of his employment ... the proper test for determining whether the injury arose out of employment has been stated by Jordan CJ in [Nunan], when he describes the employment as causing or contributing to the injury; by Fullagar J ... when he states the need for a causal connection between the employment and the injury and by Starke J in South Maitland Railways Pty Ltd v James [1943] HCA 5; (1943) 67 CLR 496 at 502, when he says ‘the words ‘out of’ require that the injury had its origin in the employment.’” (emphasis added)
In Scarce Clarke JA said:
“It is now well established at common law that the test of causation is a common sense one. Any controversy on the question has been laid to rest by the decision of the High Court in March v E and M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 [March]. What needs to be established is that the event which is sought to be linked with injury ‘was so connected with the loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it’. (see Halverson Boats Pty Ltd v Robinson, [1993] 31 NSWLR at 7). The question is, of course, a question of fact which ‘must be determined by applying common sense to the facts of each particular case’ (see, March at 15). In my opinion there is no reason to adopt a different approach in relation to the test of causation posed by the words ‘arising out of’. The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In deciding that question my preferred view is that the test laid down by Jordan CJ in Nunan v Cockatoo Docks and Engineering Co Ltd [1941] NSWStRp 23; 41 SR (NSW) 119 at 124 - that the fact of his being employed in the particular job caused, or to some material extent contributed to the injury - should be applied. At the very least the test requires that the employment was a contributing factor to the injury”.[89]
[89] Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566, 570G–571B.
In The Star Pty Ltd v Mitchison the Court of Appeal said that it is insufficient, to show that an injury arose out of employment, “merely to show that but for the employment, the worker would not have been at the scene of the accident”.[90]
[90] [2017] NSWCA 149, [82].
DISCUSSION
The Member said there was “no dispute that the deceased was in the course of his employment on the first occasion he attended [ISPL] on 7 March 2013 [sic, 2016]”. He said this was at the request of CS and there appeared to be “a legitimate work-related purpose … related to procurement of the sign”, although this “was not specified by [CS]”.[91] Dealing with the issue of whether the fatal injury occurred in the course of employment, the Member said:
“Whilst the deceased’s earlier visit was probably connected to following up on the sign, in my view his subsequent visit was related to retaliation for the earlier conduct of [WW] during the first visit and/or to support his brothers in the confrontation. This is supported by the deceased’s statement to [CS] when departing [ISPL] on the first occasion and [TB’s] statement to [CS] when leaving [ISPL] to meet the deceased.”[92]
[91] Reasons, [88].
[92] Reasons, [93].
The Member referred to a number of factual matters, in the reasons at [94]–[100], that he said were inconsistent with “a purpose connected to the business of the first respondent or the deceased’s employment with same”[93] (see [16]–[18] above). The Member said:
“I accept the first respondent’s submission that the focus of the dispute had shifted to something different that was no longer connected to the deceased’s employment. In essence the [brothers] had returned to [ISPL] as a group to make [WW] account for his earlier conduct in discharging a firearm in the presence of the deceased.[94]
[93] Reasons, [98].
[94] Reasons, [100].
The Member made findings relating to whether the deceased was in the course of his employment:
“I find that it is more likely than not that the deceased attended [ISPL] on the second occasion for the purpose of confronting [WW] about his earlier conduct and/or to support his brothers in the confrontation. I am not satisfied there was any reason for the deceased’s second attendance at [ISPL] that was connected to his employment. The deceased was not engaged in the activities of his employment at the time of his fatal injury. Whilst it was not expressly argued by the dependants, I am also not satisfied that the deceased was doing anything incidental the activities of his employment. In my view, the deceased’s action in returning to [ISPL] was outside of the scope of his employment.
Therefore, I find there is no adequate temporal connection between the circumstances of the fatal injury and the deceased’s employment. I am not satisfied on the balance of probabilities that the deceased was doing something that was part of his duties as a sales representative or something that was reasonably incidental to those duties. I am not satisfied that the deceased was reasonably required, expected or authorised to attend [ISPL] on the second occasion to carry out his employment duties.”[95]
[95] Reasons, [105]–[106].
The Member then turned to whether the fatal injury arose out of the employment. He quoted from Scarce, Nunan and Badawi. He referred to a decision of Martin v Bailey, where he said the Victorian Court of Appeal found an injury arose out of the employment, as it “was directly and unbrokenly connected with his employment, that is, things he was doing properly within the scope of his employment”.[96] The Member said:
“Where it is found that the sphere or scope of the employment of a worker did not include the particular acts which he was doing at the time when he was injured, the injury cannot arise out of the employment (Wheeler v Commissioner for Railways [1970] WCR (NSW) 34).”[97]
[96] [2009] VSCA 263, [31].
[97] Reasons, [112].
The Member referred to Tarry. He referred to Kassim, which he described as an authority “in which Neilson CCJ held that an injury occasioned by an assault arose from the worker’s employment because the disagreement had arisen from his role as a bus driver”. The Member distinguished those cases, saying that the facts in the current matter “differ substantially from the facts in Tarry and Kasim because the workers in those cases were involved in work duties at the time of the assaults”.[98] The Member made findings that led to his rejection of the allegation that the fatal injury arose out of the deceased’s employment:
“Further, whilst the genesis of the dispute was originally an employment matter, for the reasons stated above I am not satisfied on the balance of probabilities there was any connection to the employment on the second occasion. Whilst the genesis of the dispute may have been a work-related matter, this does not translate to a direct and unbroken chain of causation. The purpose of the deceased returning to [ISPL] on the second occasion was not work-related and, in my view, his attendance was a factor that severed the causal connection.
I find there was no clear connection on a common-sense analysis between the requirements of the deceased’s employment and the circumstances in which he was fatally injured. I am not satisfied that it was the fact of the deceased being in his particular job that caused or materially contributed to the injury.”[99]
[98] Reasons, [113]–[114].
[99] Reasons, [115]–[116].
The nature of the appeal
The appeal is one brought pursuant to s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Northern NSW Local Health Network v Heggie,[100] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.
[100] [2013] NSWCA 255, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[101]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[102] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”
[101] [2020] NSWCA 54.
[102] (1966) 39 ALJR 505 (Whiteley Muir), 506.
In Raulston v Toll Pty Ltd Roche DP applied Whiteley Muir to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[103]
[103] [2011] NSWWCCPD 25, [19].
Was there error in the finding that the causal chain was severed?
The Member said it was common ground that the deceased was in the course of his employment when he initially attended ISPL on 7 March 2016.[104] In dealing with whether the fatal injury occurred in the course of employment, the Member noted a submission by the respondent, the employer, that “when [WW] fired the shot during the deceased’s first visit to [ISPL] on 7 March 2013 [sic, 2016], the character of the dispute changed, and what followed had no factual connection or association with the employment”. The Member found:
“Whilst the deceased’s earlier visit was probably connected to following up on the sign, in my view his subsequent visit was related to retaliation for the earlier conduct of [WW] during the first visit and/or to support his brothers in the confrontation. This is supported by the deceased’s statement to [CS] when departing [ISPL] on the first occasion and [TB’s] statement to [CS] when leaving [ISPL] to meet the deceased.”[105]
[104] Reasons, [88].
[105] Reasons, [93].
The Member made the factual findings quoted at [84] above.
The Member dealt with whether the injury arose out of the employment. He said:
“Where it is found that the sphere or scope of the employment of a worker did not include the particular acts which he was doing at the time when he was injured, the injury cannot arise out of the employment (Wheeler v Commissioner for Railways [1970] WCR (NSW) 34).”[106]
[106] Reasons, [112].
The Member concluded that the fatal injury did not arise out of the employment:
“114. For the reasons stated above I do not accept that the terms of the deceased’s employment required him to attend [ISPL] on the second occasion during which he suffered the fatal injury. I am not satisfied the attendance by the deceased at [ISPL] was coincidental or reasonably connected to his employment. These facts differ substantially from the facts in Tarry and Kasim because the workers in those cases were involved in work duties at the time of the assaults.
115. Further, whilst the genesis of the dispute was originally an employment matter, for the reasons stated above I am not satisfied on the balance of probabilities there was any connection to the employment on the second occasion. Whilst the genesis of the dispute may have been a work-related matter, this does not translate to a direct and unbroken chain of causation. The purpose of the deceased returning to [ISPL] on the second occasion was not work-related and, in my view, his attendance was a factor that severed the causal connection.
116. I find there was no clear connection on a common-sense analysis between the requirements of the deceased’s employment and the circumstances in which he was fatally injured. I am not satisfied that it was the fact of the deceased being in his particular job that caused or materially contributed to the injury.”
Wheeler was a case involving whether a “fireman acting engine-driver” in the employ of the NSW Railways was acting in the course of his employment, when he was acting as a guide to a guard (also an employee) who was reversing engines on a railway line. The Commissioner who decided the matter at first instance concluded the worker was not acting in the course of his employment when he was guiding a guard, who was backing a van and two engines on a line. Jacobs JA (Holmes and Mason JJA agreeing) said the Commissioner had neglected to mention whether the activity involved actions arising out of the employment. His Honour said this was not a specific ground of appeal, nor referred to in detail in the submissions, “it was mentioned and it is desirable to deal with it”. His Honour said “what was not part of the employment to hazard to suffer, or to do cannot well be the cause of an accident arising out of the employment”. His Honour described the question as “one of fact for the Commission”.[107]
[107] Wheeler v Commissioner for Railways [1969] 2 NSWR 474, 475–476.
I cannot see that the decision goes further than saying that the employment activities, that represent the ‘genesis’ of the causal chain, need to fall within the “sphere or scope of the employment”. The approach taken in the reasons in the current matter, to the application of Wheeler, would tend to restrict the ‘arising out of’ test to circumstances where each step in the causal chain also occurred ‘in the course of employment’. Such an approach is too restrictive and is inconsistent with the authorities referred to above. The decision in Wheeler should be considered in concert with those authorities.
The “reasons stated above” in [114] and [115] of the reasons are, in context, a reference to the reasons given for concluding that the injury did not occur in the course of employment (see the passage quoted at [84] above). On the Member’s findings, the chain of causation was broken when the deceased attended at [ISPL] on the afternoon of 7 March 2016, when he was found to be not in the course of his employment. This is inconsistent with the decision in Tarry. The passage from Tarry quoted at [79] above make it clear that an injury can arise out of employment, notwithstanding that the worker was not in the course of employment when the injury was sustained. This is not restricted to ‘assault cases’ but is an application of settled principles (see the passage from Nunan quoted in Badawi in the passage at [78] above).
The Member sought to distinguish Tarry and Kasim[108] on the basis that the workers in those cases “were involved in work duties at the time of the assaults”.[109] In both of those cases it was found that, prior to the injury associated with the assaults occurring, the workers had removed themselves from the course of employment. This is clear in Tarry, having regard to the passage quoted at [79] above. Kasim was a case in which the worker was a bus driver. It was found that he assaulted a passenger who had been rude to him, as he was performing his work as a bus driver. Neilson CCJ said: “when the [worker] stood up and vehemently slapped the young man on the head he interrupted the course of his employment”. His Honour said:
“… in my view the only inference I can draw is that this injury arose out of the employment because the only inference I can draw is that the reason for the young man’s conversation with the [worker] which clearly provoked him was something that arise out of the relationship of driver and passenger.”[110]
His Honour referred to Tarry and continued:
“If this young man upbraided the [worker] because of the route he had taken or the way he had driven his bus then that appears to me to [a]rise out of the [worker’s] employment. That is, it is causally related to it.”[111]
[108] See also Davis v Mobil Oil Australia Limited [1988] 4 NSWCCR 8.
[109] Reasons, [114].
[110] Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6, [38].
[111] Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6, [40].
Having made the above finding, his Honour found that the injury resulted from serious and wilful misconduct pursuant to s 14(2) of the 1987 Act, and that the worker had not as a result suffered serious and permanent disablement. On this basis the worker failed.[112] Section 14(2) was not relied on by the respondent in the current matter, given the death of the deceased.
[112] Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6, [43]–[44], [56].
It follows from the above that an injury can arise out of employment notwithstanding that a worker has removed him or herself from the course of employment. I accept the third appellant’s submission that it is not necessary that each link in the causal chain be work-related.[113]
[113] Third appellant’s submissions, [54].
It is appropriate to also have regard to what the deceased did on the second attendance at ISPL on 7 March 2016. He entered ISPL’s premises, which he had already attended twice before in connection with the matter of following up the works, including the sign. The Member properly accepted that the two previous attendances were work-related. The deceased did so in the company of his immediate superior at work (who was also his brother) together with another employee of the respondent, during regular working hours.
In the current matter, the question of whether there was injury arising out of employment involves a consideration of whether, adopting a commonsense approach, there was a causative element to the relationship between the deceased’s employment and the fatal injury. Did the employment cause or to some material extent contribute to the fatal injury? As the third appellant correctly submits, an injury may have more than one cause. In asking the question which he did, in the reasons at [112] (see [93] above) the Member asked the wrong question. This constituted error. The attempt to distinguish the decisions in Tarry and Kassim (and Davis) for the reasons given also constituted error. The identified errors affected the result. The appeal in respect of the finding relating to ‘injury’ is upheld. The ‘injury’ issue can, in the circumstances, be dealt with by reference to the allegation of injury ‘arising out of’ employment. It is not necessary to further deal with the allegation that there was error in the Member’s finding regarding injury ‘in the course of’ employment.
DISPOSITION OF THE APPEAL
Subsections (6A) and (7) of s 352 of the 1998 Act provide:
“(6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(7) Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).”
The identified errors affected the result. They constitute appealable error. It is necessary that the decision of the Member be revoked. The decision of the Member dealt only with the contested ‘injury’ issue. It did not deal with whether s 9A of the 1987 Act was satisfied, nor with the issues of interest, apportionment, and any weekly entitlement in respect of the children of the deceased. It is appropriate to re-determine the issue of whether the deceased’s death resulted from injury arising out of the employment. It is appropriate that the other outstanding issues be remitted for determination by a Member. It is unnecessary at this point to deal with the issue raised by the first appellant, regarding whether the case presented by the respondent went beyond its s 78 notice. The parties should be able, prior to a further hearing date, to agree on the matters that were placed in issue. If the respondent seeks to rely on any matters beyond its dispute notice, it should give prompt notice of any application pursuant to s 289A of the 1998 Act.
RE-DETERMINATION OF THE ‘INJURY’ ISSUE
The Member described the occasion when the deceased suffered the fatal injury as “the second occasion” (when he attended ISPL on the second occasion on 7 March 2016 – see reasons at [114]). The Member found that “the genesis of the dispute was originally an employment matter”, but “the purpose of the deceased returning to ISPL on the second occasion was not work-related and, in my view, his attendance was a factor that severed the causal connection”.
The third appellant’s submissions identify the following facts that were relatively uncontroversial or found by the Member (and not the subject of attack on appeal):
(a) There was a commercial contract in place between the respondent and ISPL for works in country New South Wales including a sign;
(b) the deceased attended ISPL on Friday 4 March 2016, where there was a heated conversation involving he and CS (the owner of ISPL) regarding the works;
(c) on the morning of Monday 7 March 2016 CS telephoned the deceased and asked him to attend ISPL, which he did;
(d) on 7 March 2016 the deceased was threatened, whilst at ISPL, by CS’s partner (WW), who discharged a shot into the ceiling, and
(e) later on 7 March 2016 the deceased, MKB (the owner of the respondent and a brother of the deceased), TB (another brother of the deceased) and SE (operations manager of the respondent) attended ISPL. There was an argument. WW shot and wounded the deceased, MKB and TB, the deceased fatally.
The third appellant submits the only reason the deceased attended ISPL on 4 March 2016 and 7 March 2016 (initially) was to chase up the works. This brought the deceased into contact with WW. There was no evidence of any other dispute between the deceased and his brothers, and WW. In this context the deceased was threatened by WW. The dispute was work-related.[114] The third appellant submits there is a “clear line of causation” commencing on 4 March 2016 and leading to the visit at which the deceased was killed. The actions of the deceased and his employer in attending ISPL on the later occasion on 7 March 2016 were causally related to the work dispute.[115] It is submitted that the deceased attended accompanied by his immediate boss and within his working hours. This suggested the activity had been “implicitly if not expressly authorised by the [r]espondent”. It is submitted the confrontation was a continuation of the dispute which had arisen earlier.[116] The third appellant submits that, whatever the motivation of the deceased and MKB in attending ISPL on the afternoon of 7 March 2016, “there is no doubt that there is a causal link between WW’s actions on the morning of 7 March and the deceased’s presence at ISPL and the fatal shooting on the afternoon of 7 March.”[117] The third appellant submits, and there is no evidence to the contrary, that the deceased (and the others who attended with him) were not armed.
[114] Third appellant’s submissions, [3]–[5], [14]–[21].
[115] Third appellant’s submissions, [24].
[116] Third appellant’s submissions, [29].
[117] Third appellant’s submissions, [53].
The fourth appellant refers to the following matters that it submits demonstrate that there is no break in the causal chain:
(a) the cause of the dispute pertained to the deceased’s employment;
(b) the employment related dispute led to the incident which occurred when the deceased attended ISPL on the initial occasion on 7 March 2016;
(c) employment was a material contributing factor to the fatal injury to the deceased as the dispute that led to that injury “were birthed by the dispute pertaining to the sign”, and
(d) there was no other cause which led to any dispute between the deceased and WW.
The fourth appellant submits the evidence demonstrates that the dispute was causally related to the deceased’s employment, being his relations with ISPL in relation to the sign that was to be created.[118]
[118] Fourth appellant’s submissions, [59]–[60].
The third appellant submits that the factual sequence supports the conclusion that there is a “clear line of causation”. The fourth appellant submits that there is no break in the causal chain. These submissions are correct. I accept that, even if there were other reasons (such as dissatisfaction with the behaviour of WW) that motivated the deceased’s attendance at ISPL, these do not break the clear causal chain that exists from the attendance on 4 March 2016 to the injury suffered by the deceased on 7 March 2016, which resulted in his death. The sequence of events is properly viewed as a continuum. On a commonsense consideration of the causal chain, each of the events materially contributed to the next.
CONCLUSION
There is a finding that the deceased suffered injury on 7 March 2016, arising out of his employment with the respondent, that resulted in his death. It is necessary that the Certificate of Determination dated 14 May 2021 be revoked. The matter should be remitted to a different Member for determination of those issues that remain, consistent with these reasons.
ORDERS MADE ON APPEAL
The Certificate of Determination dated 14 May 2021 is revoked.
There is a finding that MMB (the deceased) suffered injury on 7 March 2016, arising out of his employment with the respondent, that resulted in his death.
The matter is remitted to a different Member for determination of those issues that remain, consistent with these reasons. Those issues involve the satisfaction of s 9A of the 1987 Act, interest, apportionment between the dependants and the entitlement of any of the dependants to weekly payments pursuant to s 25(1)(b) of the 1987 Act.
Michael Snell
DEPUTY PRESIDENT
1 March 2022
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