Shaw v Spotless Facility Services (incorrectly sued as Spotless Gutter Cleaning Pty Ltd)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Shaw v Spotless Facility Services (incorrectly sued as Spotless Gutter Cleaning Pty Ltd) [2023] NSWPIC 499
APPLICANT:	Wayne Shaw
RESPONDENT:	Spotless Facility Services Pty Ltd (incorrectly sued as Spotless Gutter Cleaning Pty Limited)
MEMBER:	Jacqueline Snell
DATE OF DECISION:	26 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims weekly compensation payable under section 37 and permanent impairment compensation payable under section 66 for multiple injury sustained in a motor vehicle accident; the applicant’s claim is declined; in essence the respondent argued the applicant was on a journey between his place of employment and place of abode when he sustained injury and had failed to satisfy requirement of section 10(3A); Held – the applicant sustained injury in the course of his employment with the respondent; the applicant has entitlement to weekly compensation payable under section 37 and the applicant’s claim for permanent impairment compensation payable under section 66 is remitted to the President for referral to a Medical Assessment for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. By consent, the name of the respondent is amended to Spotless Facility Services Pty Ltd. 2. The applicant sustained injury in the course of his employment with the respondent on 15 January 2020. 3. The applicant has had no current capacity for work since 20 February 2022 resulting the injury. 4. The applicant has entitlement to weekly compensation payable under s 37 of the Workers Compensation Act 1987 from 20 February 2022 ongoing in accordance with the Workers Compensation Act 1987. The applicant’s pre-injury average weekly earnings are agreed at $867.04, and the applicant has entitlement to weekly benefits payable at the rate of $693.63 per week (subject to indexation). 5. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) Date of injury: 15 January 2020. (b) Body systems/parts: left upper extremity (left shoulder), and lumbar spine. (c) Method of assessment: whole person impairment. 6. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents dated 7 July 2023 and attached documents, and (d) Application to Admit Late Documents dated 14 August 2023 and attached documents.

STATEMENT OF REASONS

BACKGROUND

Wayne Shaw (Mr Shaw), the applicant is currently 65 years of age. Mr Shaw commenced employment with Spotless Facility Services Pty Ltd (Spotless) in February 2017, working as a school site manager. Mr Shaw was employed on a full-time basis. Mr Shaw suffered multiple injury in a motor vehicle accident occurring on 15 January 2020 (MVA) and has not returned to work since that time.
Following the MVA Mr Shaw made a claim under the Motor Accident Injuries Act 2017, which was accepted by QBE Motor Accidents CTP (QBE) with Mr Shaw receiving weekly benefits for two years and Mr Shaw receiving reasonable and necessary medical or related treatment expenses for life.
In these proceedings the circumstances of injury are described in the following terms:
“Claimant was travelling between work sites in the course of his employment in a motor vehicle when he had to take evasive action to avoid hitting a cyclist who veered into his path. Claimant’s motor vehicle left the road and struck a tree at speed causing injury to the lumbar spine, left shoulder, lower extremity and left ribs. As a consequence of the lumbar spine injury the claimant has cauda equina syndrome with bowel and sexual dysfunction.”
Mr Shaw claims weekly compensation payable under s 37 of the Workers Compensation Act 1987 (1987 Act) from 20 February 2022 ongoing on the basis of a total incapacity for work resulting from injury sustained in the MVA and Mr Shaw claims permanent impairment compensation payable under s 66 of the 1987 Act for 38% whole person impairment resulting from injury sustained in the MVA to his left upper extremity (left shoulder) and lumbar spine.
Mr Shaw’s claim is declined, and he has been issued with notices in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) in which he has been advised of the decision to decline his claim. In essence there is determination by Spotless that at the time Mr Shaw sustained injury in the MVA, such injury being the subject of his claim for compensation payable under the 1987 Act, Mr Shaw was on a periodic journey between his place of abode and his place of employment and as there was no ‘real and substantial connection’ between Mr Shaw’s employment and the MVA, Mr Shaw has no entitlement to compensation payable under the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree Mr Shaw’s pre-injury average weekly earnings (PIAWE) are $867.04.
The parties agree that the following issues remain in dispute:
(a) whether the injury sustained by Mr Shaw in the MVA is a personal injury arising out of or in the course of his employment with Spotless, and if so;
(b) whether Mr Shaw has entitlement to weekly compensation payable under s 37 of the 1987 Act from 20 February 2022 ongoing resulting from the injury, and
(c) percentage permanent impairment sustained by Mr Shaw resulting from the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

These proceedings came before me for preliminary conference on 21 June 2023 and with
Mr Shaw’s claim unresolved, these proceedings came before me for conciliation conference/arbitration hearing on 17 August 2023. On this occasion Mr Loukas of counsel appeared for Mr Shaw and Mr Hart of counsel appeared for Spotless. Counsel’s instructing solicitors were present. Mr Shaw was present. Ms Hadfield, a representative from the insurer was also present.
Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 7 July 2023 lodged on behalf of
Mr Shaw and attached documents, and
(d)    Application to Admit Late Documents dated 14 August 2023 and lodged on behalf of Spotless, including letters from Slater and Gordon dated 2 April 2020 and
1 December 2020 addressed to Mr Shaw.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.

FINDINGS AND REASONS

A brief review of evidence follows.

Statements of Mr Shaw

Mr Shaw has provided statements dated 1 May 2021, 12 May 2023 and 5 July 2023. He has also provided an undated statement.
In his initial statement Mr Shaw explained he resides at Horsley. Mr Shaw said he was employed as the site manager at Tullimbar Primary School (TPS) which is located in Albion Park. He said of his duties as site manager that he was responsible for managing cleaners, completing orders and managing tradesmen coming to TPS. He said he was employed on a full time basis, working Monday to Friday between 7am and 3.10pm with a 30 minute lunch break and a 10 minute morning tea break. He said occasionally he would work past his normal finishing time of 3.10pm if tradesmen or engineers remained at TPS after this time.
Mr Shaw said he really enjoyed his job and described his supervisor, Cheryl Knight, as “a lovely manager” and described Ms Knight’s manager, Brendan Borjarski, as “great”.
Mr Shaw also relevantly explained:
“In around mid-2019 it was becoming quite common for me to assist at Dapto Primary School. At this time there was Site Manager there named Teddy Farugia. Teddy would quite often require assistance with larger gardening jobs, and I would also relieve him when he was sick or on holidays. If he was sick or on leave I would open the school for him in the morning… During late 2019 Teddy had some health issues and was taking quite a bit of time off work. I would go to Dapto Primary School in the morning before I moved onto my allocated school at Tullimbar. When I would arrive at Dapto Primary School I would be required to open the gates and unlock his office, along with opening all the toilets and giving the grounds a blower vac. I would then return to my allocated school, Tullimbar Primary School, and perform the same duties. At the end of the day I would close up Tullimbar Primary School and then pop past Dapto Primary School to perform the same duties.
In late 2019, Teddy retired and the employer employed another site manager at Dapto Primary School. I recall meeting him once or twice, his name was Andrew. I am not sure of his surname. He did not stay there long.”
Mr Shaw relevantly explained the circumstances of injury the subject of his claim:
“On Wednesday 15 January 2020 I was involved in a serious motor vehicle accident when I was travelling by car between Tullimbar Primary School and Dapto Primary School. I had returned from leave 13 January 2020. It was a regular day. I started work at 7.00am. The school children were still on holidays. There was a lot of work to be done around the school grounds. During the day I worked on the grounds and water blasted the paths. At approximately 2.20pm I left Tullimbar to travel to Dapto Primary School. I was visiting Dapto Primary School to pick up some tools that I required at Tullimbar the following day. Not every school has the same amount of tools and sometimes we share these tools between schools. I had the keys to Dapto Primary School. I recall I spoke with the site manager at the time, Andrew, and told him I would be attending the site to collect the required tools. Andrew was not going to be present at the site when I arrived as he often left the site early as he lived near Nowra. The items I had planned on collecting from Dapto Primary were a Hole Saw Kit, Petrol Garden hedger, Bark Pitchfork and a five litre Floor Cleaner.
… the trip between the schools takes approximately 15 minutes and covers around 14 kilometres. Sometime between 2.35 and 2.40pm I was only two to three minutes away from Dapto Primary School and had nearly completed the trip. I was very familiar with the roads as I travel the same route to get to and from work every day.
… I had made contact with my wife Lorraine whilst waiting for the ambulance… Lorraine arrived on site whilst I was in the ambulance… Lorraine called my workplace straight after the accident. She did not get through to anyone at first. I understand she called Brendan Bojarski, Cheryl Knight and James Adrichem. I think it was James that called my wife back…
As I was involved in a car accident on my way between Tullimbar Primary School and Dapto Primary School I did not sign off from work for the day. The usual procedure would have been for me to sign off using the Automatic Time Capture, by calling in, which I would have done when I finished collecting the tools I required from Dapto Primary School. I do not know who would have recorded my sign off time as 2.36pm. This is not correct. I never reported a sign off verbally to my manager at any time following the accident. I have never completed any time sheets to indicate what time I finished work on 15 January 2020. My wife, Lorraine, contacted management from hospital following my accident to inform them of my accident.”
In a subsequent undated statement Mr Shaw said of his employment with Spotless:
“I was employed by the company Spotless Facility Services Pty Ltd on 15 February 2017 in the position of a handyperson. My role was to work as a handyman at various primary schools including Dapto Primary School, Shellharbour Primary School and Tullimbar Primary School.”
He said of the MVA:
“On 15 January 2020, I sustained serious injuries in a motor vehicle accident whilst travelling between Tullimbar Primary School and Dapto Primary School. The accident occurred on Marshall Street, Dapto when I had to take immediate evasive action to avoid a collision with a bicycle rider turning into my path causing me to strike a tree at considerable speed.”
Mr Shaw went on to explain:
“Shortly following my accident when I was sufficiently in a mental state to be able to do so, I lodged a claim for compensation in regard to my injury with QBE insurance, the motor vehicle third party insurer for my vehicle. My claim with QBE was accepted and they began to pay for my treatment expenses and for rehabilitation expenses.
I did not consider bringing a workers compensation claim at that time as my injuries occurred in a motor vehicle accident and I did not consider that I could also have rights pursuant to the workers compensation legislation.
I first made contact with lawyer Emma Bussoletti of Slater & Gordon Lawyers, via Internet on 23 March 2020 and I had a face to face consultation with Ms Bussoletti on 24 March 2020. At this consultation I explained the circumstances of my accident and Ms Bussoletti offered to provide legal assistance in relation to my motor accident claim including some assistance in dealing with the third party insurer and to assist with a potential claim for damages pursuant to the motor vehicle accident legislation in due course.
At no stage did Ms Bussoletti advise me that I may have potential rights pursuant to the workers compensation or inform me that I may bring a workers compensation claim.
I had some ongoing dealings with Ms Bussoletti which mainly involved questions regarding the conduct of the third party insurer in payment treatment and rehabilitation expenses.
I did not receive any further substantive advice from Ms Bussoletti until I received a letter from her on 1 December 2020 … in the letter from Ms Bussoletti she advised me that in her opinion I did not have the right to pursue a damages claim pursuant to the relevant motor vehicle accident legislation and on that basis, Slater & Gordon were going to close my file and no longer represent me in relation to my matter.
On 31 March 2021, I had a telephone conference with Mr Tim Gauci of Carroll & O’Dea Lawyers. At this teleconference I explained to Mr Gauci the circumstances of my accident. At this time, Mr Gauci informed me that as I was travelling between two placed of work during the course of my work day when my motor vehicle accident occurred that I had rights and entitlements pursuant to the workers compensation legislation and that I should make a workers compensation claim as soon as possible.”
Annexed to Mr Shaw’s most recent statement is the “travel log book” detailing his travel for the period between 14 January 2019 and 12 April 2019. Mr Shaw said he prepared this document in or about June 2019 to assist with the filing of his income tax returns for the financial year ended 30 June 2019. Mr Shaw said, “as apparent from the travel log, I travelled between Tullimbar and Dapto schools on most days that I worked for Spotless”.
It is fair to observe that during the period between 14 January 2019 and 12 April 2019
Mr Shaw travelled to Dapto Primary School (DPS) from time to time during his working day, and it was not uncommon for him to travel to DPS on at least three occasions during his working week.
In his statement dated 12 May 2023 Mr Shaw confirmed that he has not worked in any capacity since the MVA.

Statement of Teddy Farugia

Mr Farugia provided a statement dated 13 May 2021. Mr Farugia explained he commenced employment with Spotless in or about 2012 and was employed as a handyman working at DPS until his retirement in late 2019. Mr Farugia relevantly said:
“I would like to provide some information about how things operated on the ground at Dapto Primary School and Tullimbar Primary School. When Wayne was working at Tullimbar Primary School we would cover for one another if we were off sick or on leave. Even the staff at the school would know when I was not going to be working at Dapto. I would let them know that Wayne was on call. Spotless Management knew about this arrangement. James Adrichem would have been aware of the arrangement. Cheryl Knight would have also been aware, as would Brendon Bojarski, the Operations Manager. We would cover for one another on a need’s basis. In my absence, Wayne would come to Dapto Primary School and open the school for the day and do any work that was required. He had a set of keys to the school. I also had keys to Tullimbar Primary School. We also had codes to access each of the schools. I would also fill in at Shell Cove Primary School if required. The principals from all schools knew all of us. At one stage, I became the senior of the three schools, and if there was an incident, I would be on call. Management regularly requested us to take care of each other’s school and to help out as required. Requests for assistance would either come direct from the school administration staff, one of the principals or from Spotless management, such as Cheryl or Brendan.
It was normal operating procedure for the three schools to share equipment. We would share equipment such as mulching forks extendable pruning shears, line marking equipment and water pumps. There was a multitude of items we would share across the three schools. If one of us was running low on supplies such as toilet paper, we would borrow from another school and replace the stock when we received our order. I had an arrangement with Spotless to start work at 6.00am and finish work at 2.00pm. Wayne had access to my office with his keys even if I was not present at the site. Because Wayne lived close by to Dapto Primary School, he would often drop past to get supplies either on his way home from work or on his way to work of a morning. He did this quite regularly… We were told by management if another school had an item, we were to share that item, just like we shared labour.
In terms of procedures for signing on and off for duty; we did it by phone. This arrangement was in place for the last two years of my employment… We were not required to record trips between schools during the day. Due to where I live, if I needed to visit Tullimbar Primary School or Shell Cove Primary School, I would make these visits during the day and then return to Dapto Primary School to finish my shift. As Wayne lives right near Dapto Primary School, it would not make sense for him to do this. It would make sense for him to drop past Dapto Primary School on the way to or from Tullimbar Primary School. If Wayne was collecting tools from Dapto Primary School he would have clocked off for the day when he reached Dapto Primary School… When Wayne would borrow tools from Dapto Primary School he would then return the tools a day or two later. When he dropped off these tools he was still at work. Once he left Dapto Primary School, he would have finished for the day.
I find it very offensive that Wayne is being questioned about his honesty. Wayne is a very honest man.”

Statement of Bill Ingram

Mr Ingham provided a statement dated 23 September 2021. Mr Ingham explained he commenced employment with Spotless on 16 September 2016 and is employed as site manager/handman at Shellharbour Primary School. Mr Ingham explained:
“I was very much aware that Wayne Shaw was doing extra work time in the morning and afternoons at Dapto Primary School and who was also on call by the Dapto Principal and Senior acting manager leading up to Wayne’s accident, Wayne lives no more than two minutes from Dapto Primary School. It is normal operating procedure for the three south coast schools (Dapto Primary School 2530/Shellharbour Primary School 2529/Tullimbar Primary School 2527) to cover for each other while being off sick or on leave, we also share equipment such as gardening tools, line marking equipment, high pressure water blasters and tools in general between the three schools also cleaning supplies… My work hours are Monday to Friday 7.00am to 3.10pm, we clock on and off each working day by phone… I am shocked that Wayne Shaw is being questioned about his honesty, Wayne is a very honest and hardworking man, and who was looking forward to working at the school until his retirement …”

Statement of Lorraine Shaw

Mrs Shaw has provided a statement dated 4 July 2023.
Mrs Shaw confirmed that Mr Shaw regularly travelled between Tullimbar School and Dapto School “to pick up materials for work before then coming home”. She said:
“Wayne would regularly call me and say words to the effect of:
‘Lorraine, I am just leaving the Tullimbar school and heading to the Dapto school to pick up some tools for work and then I will be coming home.’”
Mrs Shaw said that on the day of the MVA she received a telephone call from Mr Shaw. She said,
“Wayne said words to me to the effect of:
‘Lorraine, I have just been in a bac accident on Marshall Street near the Dapto School when I was on my way there to pick up tools for work. A bicycle rider came out in front of me, and I had to avoid the bike and I hit a tree.’”

Voice message

It is not disputed that on 15 January 2020 Mrs Shaw left a voice message with James Adrichem which said:
“Good afternoon James, its Lorraine, Wayne Shaw’s wife. Just wondering if you could return my call on this number. It’s just regarding Wayne having a motor vehicle accident on his way home this afternoon. Thank you. Bye.”
The audio file dated 15 January 202 is not in evidence and I am unable to ascertain at what time Mrs Shaw left her voice message with Mr Adrichem.

Text message

However, there was the following text exchange between Mrs Shaw and Mr Adrichem on
15 January 2020:
“5.09: Hi James, this is Lorraine Wayne Shaw’s wife. Could you please call me on this number asap. Thank you.
5.18: Hi Lorraine, seems to be going direct to message bank when I call. Please call me back when free.”
There were further text message from Mrs Shaw and Mr Adrichem on 18 January 2020 in which she provides Mr Adrichem with an update of Mr Shaw’s condition.

Incident report

An incident report is in evidence in which the MVA is noted as having occurred on 15 January 2020 at 2.40pm and reported by Mr Shaw to Mr Adrichem at 6pm the same day. The incident is classified as a non-work injury with the description:
“driving home from work (in a private vehicle) employee swerved to avoid hitting a push bike rider that drove in front of him from between two parked cars. Vehicle hit a tree and worker was hospitalised with multiple injuries (spinal injuries, rib fractures, shoulder injuries).”
No shift start time or shift end time is noted in the form.

Documents produced by Slater and Gordon

In her letter of advice dated 2 April 2020 addressed to Mr Shaw, Ms Bussoletti referred to her telephone conversation with Mr Shaw that particular day and also to her telephone conversation with him on 26 March 2020. Ms Bussoletti confirmed Mr Shaw had sought her advice “in relation to a claim for personal injury compensation arising from injuries sustained by you in a motor vehicle accident on 15 January 2020”. Ms Bussoletti cautioned her advice was based on Mr Shaw’s instructions which she summarised in her letter with the request “if any assumption is incorrect please let me know immediately as it may alter my advice to you”.
Ms Bussoletti’s summary of instructions in part read:
“I confirm your instructions that on 15 January 2020 at about 2.30pm you were driving your car home from work. You approached a set of traffic lights at Marshall Street, Dapto, and were slowing your car down, when a teenager on a pushbike suddenly swerved in front of your car, causing you to quickly swerve your car (in attempt to avoid colliding with the teenager), and collide with a tree.”
Ms Bussoletti’s advice in part read:
“Your injuries have arisen out of a motor vehicle accident in New South Wales. This means that your rights to claim compensation are governed by the Motor Accident Injuries Act 2017 (the MAI Act) and the new Motor Accidents Guidelines 2017 (MAG)… I have formed the preliminary view that you will be entitled to statutory benefits and may have a viable claim for common law damages depending on what is revealed during liability investigations.
…
After 104 weeks, or, 2 years, your weekly payments will cease unless pending a claim for common law damages.”
In her subsequent letter of advice dated 1 December 2020 addressed to Mr Shaw
Ms Bussoletti referred to her telephone conversation with Mr Shaw that day and relevantly wrote:
“We note that we have obtained preliminary advice from Senior Counsel in relation to the viability of your common law damages claim.
Senior counsel has advised that because your motor vehicle accident was a single vehicle accident and what is known as a ‘blameless accident’, you are not able to pursue a common law damage claim pursuant to the Motor Accident Injuries Act 2017.
Accordingly you will only be entitled to Statutory Benefits for up to 2 years post-accident… thereafter the insurer will no longer be responsible for covering your wage loss.
We note that you will, however, continue to be entitled to recovery of your treatment expenses via iCare for life.”
Ms Bussoletti advised Mr Shaw in her letter that Slater and Gordon would no longer represent him relevant to his MVA claim and his file was now closed.

NSW Police

The Event Ref No E73197036 dated 30 April 2020 in part provided the following narrative:
“Driver was travelling North bound on Marshall St Dapto and states a bicycle has swerved onto the road from the footpath. Driver has then crossed to the incorrect side of the road and continued onto the opposite nature strip where the VOI has collided with a tree coming to an abrupt halt with extensive front side damage and all air bags deployed…”
The date and time the incident is noted as 15 January 2020 at 2.25pm.

CTP claim form.

In his CTP claim form dated 5 February 2020 Mr Shaw described the MVA occurring on 15 January 2020 at 2.40pm:
“I was driving north on Marshall St, Dapto when a push bike rider came out between two parked cars in front of my vehicle causing me to swerve hitting a tree.”

Claim form.

In a claim form dated 14 April 2021, which was forwarded to EML by the injury management officer for Spotless under cover of an email dated 21 April 2021, in response to specific questioning Mr Shaw recorded:
(a) the tasks he was doing when he was injured were in terms of “travelling from Tullimbar Primary School to Dapto Primary School”, and
(b) the area of the worksite where he was working when he was injured in terms of “traveling from Tullimbar Primary School 2527 to Dapto Primary School 2530”.
In his claim form Mr Shaw confirmed he stopped work that day at 2.40pm being the time of the MVA.

Medical evidence
Treating medical evidence
Dapto Healthcare

Mr Shaw has been under the general medical care of the doctors practicing out of Dapto Healthcare for many years. The clinical records of the practice are in evidence. Mr Shaw’s occupation is noted as “school handyman”.
While the clinical records refer on a number of occasions to the MVA, with the earliest reference being made on the day of the MVA as Mr Shaw had been “booked to see Dr Bird for scripts”, there is no record taken anywhere in the clinical records as to the purpose of Mr Shaw’s travel at the time of the MVA.
At consultation on 19 January 2022 Dr De Havilland noted “he is to have the Workcover cut off on 17/2”, which I assume is reference the date Mr Shaw’s benefits payable under the motor accident scheme were to cease.

Ambulance Service

The Ambulance Electronic Medical Record noted the call regarding Mr Shaw’s MVA was received on 15 January 2020 at 2.27pm with the ambulance being on the scene at 2.39pm.

Wollongong Hospital

The emergency documentation entered on 15 January 2020 record triage presenting information:
“BIBA driver MVA, 40km/hr served to miss a bike …”
However, both the hospital progress notes and the discharge hospital notes relevant to
Mr Shaw’s inpatient stay record a history of presenting complaint on 15 January 2020:
“MVA driving in car on way home from work, swerved to avoid cyclist …”

South Coast Urology

Mr Shaw has come under the care of Dr Rutledge. Dr Rutledge is a urology registrar.
Dr Rutledge’s report dated 16 March 2020 is in evidence. While Dr Rutledge refers to the MVA in her report, she provides no information as to the purpose of
Mr Shaw’s travel at the time of the MVA.

Wollongong Private Hospital

50. The consultant’s report dated 30 April 2020 merely noted:

“15/1/20 hit tree swerving to miss teenager on push bike.”

Dr Davies

Mr Shaw has been under the long-term care of Dr Davies. Dr Davies is a neurosurgeon and pain management specialist. A number of Dr Davies’ reports are in evidence, which both pre-date and postdate the MVA. While Dr Davies refers to the MVA in his reporting, he provides no information as to the purpose of Mr Shaw’s travel at the time of the MVA.

Dr Cherukuri

Mr Shaw has come under the care of Dr Cherukuri. Dr Cherukuri is a neurosurgeon. A report of Dr Cherukuri dated 4 March 2020 is in evidence. While Dr Cherukuri refers to the MVA in his reporting, he provides no information as to the purpose of Mr Shaw’s travel at the time of the MVA.

Dr Pitham

Mr Shaw has also come under the care of Dr Pitham. Dr Pitham is a neurosurgeon. A number of Dr Pitham’s reports are in evidence, which both pre-date and postdate the MVA. While Dr Pitham refers to the MVAin his reporting, he provides no information as to the purpose of Mr Shaw’s travel at the time of the MVA.

Dr Jansen

Mr Shaw has come under the orthopaedic care of Dr Jansen. A number of Dr Jansen’s reports are in evidence. While in his initial report dated 11 August 2020 Dr Jansen refers to the MVA, he provides no information as the purpose of Mr Shaw’s travel at the time of the MVA.

Illawarra Physiotherapy

Mr Shaw has come under the Illawarra Physiotherapy for treatment. A report dated
3 August 2020 is in evidence which Beraldo Lili recorded:
“Wayne reported a history of serving to avoid a cyclist whilst driving on the way home.”

Life Connexions

Mr Shaw has come under the psychological care of Life Connexions and clinical records of Life Connexions are in evidence. It is evident elsewhere that Mr Shaw consults with Ross Backen, clinical psychologist, at Life Connexions.
While the handwritten clinical records are a little difficult to read at times, it is of significance that on 27 October 2020 the psychologist with whom Mr Shaw consulted recorded:
“On the way home …
School Tullimbar – site manager
Cyclist pulled out in front of him.
On his way home – Dapto school to call in.
Served to miss – hit the tree – up footpath …”
On review on 7 December 2020 the psychologist recorded the advice given to Mr Shaw by Slater and Gordon that the MVA was “a blameless accident” with “no ability for legal action” and it evident at that point in time Mr Shaw was aware that his weekly benefits payable under the motor accidents scheme would cease in 2022. On 2 January 2022 a note is made by the psychologist that Mr Shaw’s weekly benefits will cease on 17 February 2022.

Rehabilitation evidence

Recovre

An activities of daily living report dated 16 March 2020 was prepared for QBE following assessment of Mr Shaw on 2 March 2020. The history of injury relevantly recorded:
“Mr Shaw is a 61 year old male who sustained injuries to his lower back and ribs in an MVA on 15 January 2020.
Mr Shaw said that he was driving home from work, travelling around 40kmph when a cyclist pulled out in front of him.”

Independent medical evidence

Dr Gothelf

Mr Shaw was orthopaedically assessed by Dr Gothelf in his capacity as independent medical examiner. Mr Shaw attended assessment on 2 March 2022 and Dr Gothelf provided a report dated 9 March 2022. Dr Gothelf relevantly recorded the MVA:
“Wayne was travelling between Tullimbar Primary School and Dapto Primary School in his vehicle and was involved in a motor accident.”
Dr Gothelf noted Mr Shaw has not returned to work since the MVA and accepted that he remains with an “almost total incapacity” for work due to the disabilities and pain levels he is experiencing.

Dr Granot

Mr Shaw was neurologically assessed by Dr Granot in his capacity as independent medical examiner. Mr Shaw attended assessment on 25 March 2022 and Dr Granot provided a report dated 30 March 2022. Dr Granot relevantly recorded the MVA:
“… he was involved in a motor vehicle accident travelling between Tullimbar Primary School and Dapto Primary School.”
Dr Granot provided opinion “given the weakness and level of pain, I do not believe he is capable of a return to work at this stage.”

Dr Walker

Mr Shaw was neurologically assessed by Dr Walker in his capacity as independent medical examiner. Mr Shaw attended assessment on 30 August 2022 and Dr Walker provided a report dated 12 September 2022. Dr Walker relevantly recorded the MVA:
“On 15 January 2020 Mr Shaw was driving between two primary schools where he was working as a handyman.”
Dr Walker provided opinion “there is no fitness for employment.”

Submissions

Mr Loukas and Mr Hart made oral submissions, which I have carefully considered. As a recording of counsel’s submissions is available to the parties on request I have not reproduced them here. I am grateful to counsel for the assistance afforded me on this occasion as this matter is not without complexity.

Determination

I am required to determine whether the multiple injury sustained by Mr Shaw in the MVA is a personal injury arising out of in the course of his employment with Spotless, and if so, I am also required to determine whether Mr Shaw has entitlement to weekly compensation payable under s 37 of the 1987 Act from 20 February 2022 ongoing resulting from the injury.
Mr Shaw has the onus of proving these matters and I am required to carefully consider the factual and medical evidence admitted in these proceedings. In Nguyen v Cosmopolitan Homes (NSW) Limited[1] the court stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the actual existence of that fact.”
[1] [2008] NSWCA 246.
I consider it is also helpful to note that in Malec v JC Hutton Pty Limited[2] the court stated:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain, if the probability of it having occurred is less that it not having occurred, it is treated as not having occurred.”
[2] (1990) 169 CLR 638.
Section 4 of the 1987 Act relevantly defines injury to mean a personal injury arising out of or in the course of employment and it is sufficient that the injury is either “arising out of” or “in the course of employment”.
Section 10(1) of the 1987 Act relevantly provides that a personal injury received by a worker on any journey (as defined) is, for the purposes of the 1987 Act, an injury arising out of or in the course of employment and compensation is payable. The journeys covered by s 10 of the 1987 Act are set out in s 10(3) and while such journeys include a journey between a worker’s place of employment and place of abode, s 10(3A) provides s 10(1) only has application if there is a real and substantial connection between the worker’s employment and the accident or incident out of which the personal injury arose.
Characterising a journey is a question of fact there is no doubt that the intention of a worker when he or she embarks on a journey is a critically important factor.
It is evident from the documents prepared relevantly close in time to the MVA that at the time of the MVA Mr Shaw was in fact on his way home. However, the fact that Mr Shaw was on his way home at the time of the MVA is not inconsistent with the fact that Mr Shaw was travelling between TPS and DPS at the time of the MVA with the intention of collecting the tools he needed for work the following day at TPS before going home.
Mrs Shaw refers to Mr Shaw being on his way home at the time of the MVA in the voice message she left with Mr Adrichem on 15 January 2020. The incident report relevant to the MVA refers to Mr Shaw being on his way home at the time of the MVA. In her letter of advice dated 2 April 2020 following her two telephone conversations with Mr Shaw, Ms Bussoletti refers to Mr Shaw being on his way home at the time of the MVA The hospital progress notes and discharge notes record a presenting history of Mr Shaw being on his way home at the time of the MVA. Mr Shaw’s rehabilitation provider reports that at assessment on 2 March 2020 Mr Shaw was on his way home at the time of the MVA. Mr Shaw’s treating physiotherapist reports on 3 August 2020 that Mr Shaw was on his way home at the time of the MVA.
However, while Mr Shaw’s treating psychologist, Mr Backen, records on 27 October 2020 that Mr Shaw was on his way home at the time of the MVA I believe it to be of significance that Mr Backen also notes at that time “On his way home – Dapto school to call in”, particularly so when Mr Backen subsequently records on 7 December 2020 that
Mr Shaw’s former solicitors had now advised Mr Shaw that the MVA was considered to be a blameless accident and his entitlement to weekly benefits will cease in 2022.
It is common ground Mr Shaw’s entitlement’s weekly benefits payable under the Motor Accidents’ scheme ceased as of 20 February 2022 and it is apparent from the letter of advice that Mr Shaw received from his former solicitors that he was advised of this on or about
1 December 2020, being a date after which Mr Shaw had told Mr Backen that it had been his intention to call in at DPS while on his way home from work on 15 January 2020.
It is evident form his statement dated 1 May 2021 that Mr Shaw told his current solicitors on 31 March 2021 he was in fact travelling between TPS and DPS at the time of the MVA and that the purpose of his trip (with DPS being on his way home from TPS) was to collect tools that he required for work at TPS the following day. Mr Shaw explained in his statement referred that since mid-2019 it had become quite common for him to assist at DPS and Mr Shaw also explained that tools were shared between the schools. The “travel log book” that details Mr Shaw’s travel during the period 14 January 2019 and 12 April 2019 demonstrated that it was not uncommon for Mr Shaw to travel between TPS and DPS during his working week. In his statement dated 13 May 2021 Mr Farugia also confirmed tools were shared between the schools and it was common for Mr Shaw to travel between TPS and DPs during his working week. In his statement dated 23 September 2021 Mr Ingram likewise confirmed tools were shared between the schools and it was common for Mr Shaw to travel between TPS and DPs during his working week.
In his claim form dated 14 April 2021 Mr Shaw refers to travelling between TPS and DPS at the time of the MVA. At assessment on 2 March 2022 Mr Shaw told
Dr Gothelf that he was travelling between TPS and DPS at the time of the MVA. At assessment on 25 March 2022 Mr Shaw told Dr Granot that that he was travelling between TPS and DPS at the time of the MVA. At the time of assessment on 30 August 2022 Mr Shaw told Dr Walker that he was driving between two primary schools at the time of the MVA.
I have reviewed the evidence as a whole and I have carefully considered counsel’s submissions. I accept Mr Shaw has discharged the onus of proof required of him and on the balance of probability I am satisfied that the multiple injury Mr Shaw sustained in the MVA is a personal injury sustained in the course of his employment with Spotless.
In his statement dated 1 May 2021 Mr Shaw said his usual hours of work were between 7am and 3.10pm and that it he did not compete his sign off from work at 2.36pm on the day of the MVA. Mr Shaw explained he would have signed off from work after he had collected the tools from DPS by “calling in”. Mr Farugia confirmed that a sign off from work occurred by telephone and that Mr Shaw would have signed off from work when he had collected tools from DPS. Mr Ingham likewise confirmed that a sign off from work occurred by telephone.

The MVA is noted by NSW Police to have occurred at approximately 2.25pm, with the call regarding the MVA recorded as received by the Ambulance Service at 2.27pm. In circumstances where Mr Shaw’s sign off is reported to have occurred at 2.36pm I accept
Mr Shaw had not signed off from work at the time the MVA occurred and I have no reason not to accept Mr Shaw’s stated intention of signing off from work after he had collected tools from DPS, a time which I note would have been close to his usual sign off time of 3.10pm.
While it is evident Mr Shaw was on his way home at the time of the MVA, such travel is not inconsistent with Mr Shaw calling into DPS on his way in order to collect the tools he needed for work the following day at TPS. With particular reference to Mr Shaw not having signed off from work prior to the MVA and the fact that he told his treating psychologist prior to receipt of legal advice that his entitlement to weekly benefits would cease in February 2022 of his intention to call into DPS on his way home (being an occurrence that was not uncommon during his working week) as required by Nguyen I feel an “actual persuasion” Mr Shaw was travelling between TPS and DPS at the time of the MVA, which means of course that Mr Shaw was in the course of his employment with Spotless at the time he sustained multiple injury in the MVA.

Capacity

Mr Hart offered no submission regarding Mr Shaw’s current capacity for work and having reviewed the evidence as a whole I again accept Mr Shaw has discharged the onus required of him and I accept Mr Shaw has had no current capacity for work since 20 February 2022 resulting from multiple injury sustained in the MVA. Mr Shaw has stated that he has not returned to work since the MVA and following assessment on 2 March 2022 Dr Gothelf in essence accepted Mr Shaw had no current capacity for work, following assessment on 25 March 2022 Dr Granot accepted Mr Shaw had no current capacity for work, and following assessment on 30 August 2022 Dr Walker accepted Mr Shaw had no current capacity for work.

Quantification of entitlement to weekly compensation

Mr Shaw’s PIAWE is agreed at $867.04. I have determined Mr Shaw has had no current capacity for work since 20 February 2022 ongoing resulting from multiple injury sustained in the MVA occurring in the course of his employment with Spotless. Mr Shaw has entitlement to weekly compensation payable under s 37(1) of the 1987 Act from 20 February 2022 ongoing at the rate of $693.60 per week (subject to indexation).

Permanent impairment

As I have determined Mr Shaw sustained multiple injury in the MVA occurring in the course of his employment with Spotless, with the date of injury being 15 January 2020 it is appropriate Mr Shaw’s claim for permanent impairment compensation payable under s 66 of the 1987 Act resulting from his multiple injury be remitted to the President for referral to a Medical assessor for assessment of whole person impairment resulting from his injuries.

SUMMARY

Mr Shaw sustained injury in the MVA in the course of his employment with Spotless.
Mr Shaw has had no current capacity for work since 20 February 2022 resulting from injury sustained in the MVA. Mr Shaw has entitlement to weekly compensation payable under s 37 of the 1987 Act from 20 February 2022 ongoing in accordance with the 1987 Act. Mr Shaw’s PIAWE is agreed at $867.04. Mr Shaw has entitlement to weekly benefits payable at the rate of $693.63 per week (subject to indexation).
Mr Shaw’s claim for permanent impairment compensation payable under s 66 of the 1987 Act is to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows:
(a)    Date of injury  15 January 2020.
(b)    Body systems/parts           left upper extremity (left shoulder), and
lumbar spine.
(c)    Method of assessment      whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 7 July 2023 and attached documents, and
(d)   Application to Admit Late Documents dated 14 August 2023 and attached documents.

[2023] NSWPIC 499

26 September 2023