State of New South Wales (Western NSW Local Health District) v Knight
[2023] NSWPICPD 63
•10 October 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | State of New South Wales (Western NSW Local Health District) v Knight [2023] NSWPICPD 63 |
APPELLANT: | State of New South Wales (Western NSW Local Health District) |
RESPONDENT: | Jessica Knight |
INSURER: | QBE TMF |
FILE NUMBER: | A1-W4441/22 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 10 October 2023 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 24 October 2022 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – injury sustained in dog attack while working from home – whether the injury in the course of employment – s 4 of the Workers Compensation Act 1987 – whether employment was a substantial contributing factor to the injury – s 9A of the Workers Compensation Act 1987 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr P Perry, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr A J Parker, counsel | |
| Carroll & O'Dea Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms R Homan |
DATE OF MEMBER’S DECISION: | 24 October 2022 |
INTRODUCTION AND BACKGROUND
Ms Jessica Knight (the respondent) was employed as a case worker for the State of New South Wales (Western NSW Local Health District) (the appellant) in a court diversion program. Her role involved counselling persons prior to sentencing and was based in Orange NSW, with outreach to Parkes and Forbes.
During the COVID-19 pandemic, the respondent worked from home as a result of the stay-at-home orders issued by the NSW Government between July 2021 to October 2021 and as she was immunocompromised. The respondent therefore conducted her duties, at home, through phone calls and video calls. This was with the knowledge and consent of the appellant.
While working from home on the morning of 8 October 2021, the respondent was bitten by a dog on her right hand as she attempted to intervene in a dog attack on her daughter’s puppy outside her front door. The respondent suffered severe lacerations on her right hand and was treated at Orange Hospital for her wounds. She has not worked since the incident and has sought treatment from various medical providers, not only for her right hand, but also for post-traumatic stress disorder.
The respondent made a claim for workers compensation shortly after the incident, which was disputed by way of notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 October 2021.[1] Liability was disputed on the basis that the injury did not arise out of, or in the course of, employment and that employment was not a substantial contributing factor to the injury, pursuant to ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act). It was asserted that intervening in a dog attack did not form part of, or was not incidental to, the respondent’s duties, nor was she directed or expected by her employer to intervene.
[1] ARD, p 4.
This dispute was maintained following a review pursuant to s 287A of the 1998 Act, in a notice dated 24 May 2022.[2] In support of the request for review, the respondent argued that she would not have been home at the time of the incident if not for work, and, as a result of her duties, she was required to keep her household pet outside to keep the environment quiet.[3] The insurer argued that the respondent’s employment was interrupted when she attended the dog attack and maintained there to be no causal connection with her employment.
[2] ARD, p 16.
[3] ARD, p 13.
No issue was taken before the Member with respect to the respondent’s incapacity for work.[4]
[4] Transcript (T) of proceedings, 19 September 2023, T19.7–15.
The respondent commenced proceedings in the Personal Injury Commission, and the Application to Resolve a Dispute describes the injury as follows:
“The [respondent] suffers from an autoimmune disorder, which is pre existing and unrelated to her employment. Consistent with the stay at home orders issues [sic] by the NSW Government at the time relating to the COVID-19 lockdown, the [respondent] was required to work from home.
The [respondent] was invited to go into the office if necessary, however was reluctant to do so, given her autoimmune disorder, and her observation that people within the workplace were not complying with the COVID-19 restrictions, including wearing a mask in complying with social distancing requirements.
As a result of the above, the [respondent] was required to work from home, given she was immune [sic] compromised.
The [respondent] was working from home on 8 October 2021. Her daughter had recently purchased a puppy, which the [respondent] was required to care for.
The [respondent’s] employment duties require her to constantly be on the phone and take video calls and therefore the puppy had to be left outside so he was quiet and did not disturb any of the phone calls.
While working from home and during work hours, the [respondent] heard the puppy in distress, went to the front door, and saw the puppy being attacked by another stray dog. She intervened, and the stray dog latched onto her right hand, causing severe lacerations and a psychological injury.”[5]
[5] ARD Form, p 7.
The dispute proceeded to hearing before Member Homan, who awarded the respondent compensation for weekly payments and medical expenses, finding that the physical and psychological injuries sustained by the respondent on 8 October 2021 arose in the course of employment as defined by s 4 of the 1987 Act, and being satisfied that employment was a substantial contributing factor to her injuries pursuant to s 9A of the 1987 Act. It is against these findings that the appellant alleges error in this appeal.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 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 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; 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. I would also remark that neither party has requested an oral hearing for this appeal.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
It is necessary to consider the evidence pertaining to the circumstances surrounding the incident on 8 October 2021 due to the nature of the issue on appeal, being whether the Member erred in her finding that what occurred on this day arose in the course of employment, and whether employment was a substantial contributing factor to the injuries sustained.
In the days following the dog bite, on 11 October 2021, an “IMS” report (which appears to be an incident report) was completed by the respondent. It details the incident as follows:
“[at] 8.45 am on Friday 8th October 2021, whilst working from home … I heard dogs fighting on my front porch. As I opened my front door, a stray Blue Cattle Dog had ahold of my daughters pup and woudlnt let go [sic]. I attempted to pick up my daughters [sic] pup to protect it and as I did this, the cattle dog let go of the pup, latched onto my hand and wouldnt [sic] let go. I screamed out to my daughter and when she came running out the front the cattle dog let go of my hand …”.[6]
[6] Reply to ARD (Reply), p 2.
The respondent’s lay evidence is further set out in her written statement of 30 April 2022. In this statement, the respondent gave evidence that during the July to October 2021 COVID‑19 “lockdown” in NSW, she was required to work from home. On the date of the subject incident, the respondent was looking after her daughter’s puppy which she kept tied to a post outside, about one metre from her front door, so as not to be disturbed during work. It was tied to this post as she did not have adequate fencing in her backyard.[7]
[7] ARD, p 1.
The respondent says she had just gotten off a phone call with her boss at around 8.45 am, and sat down at her desk to check emails, when she heard the puppy crying. The respondent opened her front door and discovered a “stray blue heeler cattle dog” attacking the puppy, and when she tried to pull it away, the stray dog latched onto her right hand, causing severe lacerations and post-traumatic stress disorder. The respondent was taken to Molong Hospital and then to Orange Hospital for surgery. The Orange Hospital discharge summary of 9 October 2021 reports that the respondent was admitted on the day of the incident and required an operative washout due to being “bitten by cattle dog in street while working from home”.[8]
[8] ARD, p 67.
The respondent asserts in her statement that if the appellant had “complied with stay-at-home orders and COVID-19 restrictions”, she would have been able to work in the office and would not have been in the situation. She says she was required to therefore keep the puppy outside to take work calls and attend video conferences without disruption.[9]
[9] Respondent’s statement, ARD, p 2, [19]–[20].
The respondent claims that since the injury she has experienced pain in her right hand and psychological symptoms, including anxiety, panic attacks and night sweats. She has become reliant on pain medication and is taking antidepressants. As a result of these injuries and psychological trauma, she has difficulty returning to work as her duties involve counselling difficult clients with traumatic backgrounds.[10]
[10] ARD, p 2.
In a letter to her general practitioner, Dr Madhukar Kumar (undated), the respondent details the incident of being attacked by a stray dog at “my front door”. She notes she could possibly be suffering from PTSD, describing the event as ‘horrific’ and claims that her daughter is also experiencing flashbacks of the event.[11]
[11] ARD, p 63.
Dr Kumar provided a certificate of capacity on 14 October 2021 which described a history that the respondent was “working from home, ventured out to save her pet dog [at] the front door and got attacked by the dog”.[12] The same was noted in certificates of capacity dated 7 December 2021 and 16 December 2021, wherein the doctor found the respondent to have limited capacity for some type of work, three days per week.[13]
[12] ARD, p 40.
[13] ARD, pp 43–50.
The respondent also utilised counselling provided by the Employee Assistance Program, from 14 October 2021.[14] In terms of the history provided, the records indicate that the respondent was “attached [sic, attacked] by a dog at the front door … The dog latched onto her hand”, resulting in psychological symptoms, including panic attacks, insomnia, fear, visions of the attack and inability to work.
[14] ARD, p 104.
The respondent was independently medically examined by Dr Frank Chow, psychiatrist, who reported on 29 January 2022. The doctor opined that the respondent sustained post-traumatic stress disorder as a result of the incident.[15]
[15] ARD, pp 20–27.
In terms of the history of the incident, the respondent advised Dr Chow that she was working from home and her daughter’s dog was attacked by a neighbour’s dog at the front door. She stepped out of the door and was subsequently attacked, suffering injury to her right hand.
On the issue of causation, Dr Chow accepts that the respondent’s physical and psychological injuries were sustained as a result of the dog attack at the front door of her house. He notes that this occurred while undertaking work duties in her “home environment” and thus believes her employment to be the “main contributing factor to her current psychological injury”.[16]
[16] ARD, p 25.
Dr Todd Gothelf, orthopaedic surgeon, also independently medically examined the respondent, and prepared a report dated 12 April 2022.[17] In describing the incident to the doctor, the respondent confirmed the account provided in her written statement, reporting that the puppy was kept tied to a “post outside the front door” so as to not disturb work phone and video calls while working from home.[18] The doctor considers employment to be a main contributing factor to her right hand injury and complex regional pain syndrome, specifically noting the injury “occurred during work hours while working from home”.[19]
[17] ARD, pp 28–35.
[18] ARD, p 30.
[19] ARD, p 33.
THE MEMBER’S REASONS
The Member considered lengthy submissions from the parties, outlined at paragraphs [29] to [67] of her reasons. The respondent submitted that at the time of the injury, her workplace was her home, like many Australians during the pandemic, and the High Court decisions of Weston v Great Boulder Gold Mines Ltd[20] and Commonwealth v Oliver[21] were authority that anything that happens to a worker at work happens in the course of employment (with some exceptions). The respondent submitted that the appellant had a significant degree of control over the workplace, with reference to a Request to Work from Home document[22] which indicated that her work from home would be monitored, and placed requirements on the respondent in order to work from home, for example, access to a first aid-kit and fire extinguisher, having a clean and tidy workplace, an ergonomic set up, and controlled noise levels to facilitate concentration.[23]
[20] [1964] HCA 59 (Weston).
[21] [1962] HCA 38.
[22] Application to Admit Late Documents, p 1.
[23] Knight v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 587 (reasons), [29]–[34].
It was submitted that the requirement for a quiet workspace was significant as the respondent was required to take the puppy outside in order to perform her duties of taking constant phone and video calls. She was required to conduct herself with a degree of professionalism, which, it was submitted, would be “inconsistent with a puppy running around in the background”, thus, justifying why the respondent did not want the dog in the house. This was required by her employer, whether specifically articulated or not.[24]
[24] Reasons, [36]–[37].
The respondent submitted that the evidence established that she was undertaking work duties when the attack occurred, and she had not taken herself out of employment. There was an “obvious expectation” that when working from home, she may be required to go out the front door, and it was entirely expected and reasonable for her to do this to see what was transpiring in the circumstances. With reference to the Presidential decision in SB v XFPL,[25] the respondent argued that she did not take herself out of employment, nor was she injured during an interlude. The respondent submitted that the appellant had misconceived the law on s 4 of the 1987 Act, and that the injury satisfied s 4.[26]
[25] [2022] NSWPICPD 7.
[26] Reasons, [40]–[42].
Regarding s 9A, with reference to the time and place of the injury, the respondent relied on the decisions in Kelly v Secretary, Department of Family and Community Services,[27] Department of Corrective Services v Clifton[28] and Smith v Australian Woollen Mills Ltd.[29] It was argued that she was in her workplace which just happened to be her home. Had it not been for her employment, the dog would not have been outside, unattended, and the attack would not have occurred. This occurred in her work environment, her home, and the employer would have expected any worker to protect the puppy. It was argued that the incident would not have occurred if she was at her usual workplace.[30]
[27] [2014] NSWCA 102 (Kelly).
[28] [2006] NSWWCCPD 310.
[29] [1933] HCA 60.
[30] Reasons, [43]–[46].
In response, the appellant argued the respondent’s job had nothing to do with dogs. The dog bite was “remote” from the nature of her duties, and the connection to employment was not clear given it was a dog bite “suffered in a suburban street”. The appellant referred to inconsistences in the respondent’s evidence, noting she referred to the dog either being a “stray” in her statement but belonging to her neighbour when describing the incident to Dr Chow. She told EAP the dog first attempted to attack her own dog, then her daughter’s dog, while the discharge summary from Orange Hospital referred to the bite occurring in the “street”. These inconsistencies could not be raised on cross-examination as the respondent had objected to giving oral evidence, and this was upheld by the Member.[31] In reply, the respondent argued that any inconsistencies in evidence were immaterial, nor did it matter how many dogs were on the property, or who they belonged to.
[31] Reasons, [51]–[56].
The appellant submitted that the dog attack was a noisy event which took the respondent away from her employment. What occurred outside, and the rescue, had nothing to do with her employment. She ceased employment and left her place of work by attending to the attack. The appellant referred to Carthew v Badger & Ors[32] as guiding authority on when the link to employment is broken, as well as Bill Williams Pty Ltd v Williams[33] and Van Wessem v Entertainment Outlet Pty Ltd[34].[35]
[32] [2004] NSWCA 317.
[33] [1972] HCA 23 (Williams).
[34] [2010] NSWWCCPD 97.
[35] Reasons, [60].
The appellant argued that even if the respondent established injury for the purposes of s 4, s 9A could not be established, noting Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited[36] and Mercer v ANZ Banking Group.[37] There were two dogs in the home, but there was no evidence that the other had to be put outside to facilitate a quiet work environment. The connection to employment was required to be real and of substance, and the connection in this circumstance was tenuous, and while the respondent had a right to be concerned as to what was occurring, the circumstances had nothing to do with employment. Rather, the appellant argued that what transpired with the dogs was a domestic issue, noting the respondent was now building a fence to prevent the dog from coming back. Employment was thus, not a factor to the injury.[38]
[36] [2009] NSWCA 324; 7 DDCR 75 (Badawi).
[37] [2000] NSWCA 138.
[38] Reasons, [61]–[67].
As to the issue of inconsistencies in the evidence, the Member accepted the respondent’s argument that inconsistencies in the factual evidence were ultimately immaterial when having regard to the evidence as a whole. The Member was satisfied that the account of events contained in the respondent’s statement and medicine was consistent, in that she was working when she heard the dogs outside, went to investigate, intervened in the attack and got bitten herself.[39]
[39] Reasons, [79].
In coming to this finding, the Member noted that it was not disputed that the respondent was working from home, nor was there suggestion that she was unauthorised to do so. Nor was it disputed that immediately prior to injury, she was performing work duties, when drawn outside by the sound of dogs resulting in the dog bite causing her injuries. The Member considered that clinical records are “not typically prepared in contemplation of litigation and are susceptible to error, particularly in relation to finer factual detail” and may be interpreted differently. For example, the Orange Hospital records which referred to being “bitten in the street” could mean either the location of the bite, or a bite from a dog living in the same street. The same could be said for the EAP records which referred to an attack on her dog as well as her daughter’s; but this might mean an attack in the same incident or a different incident.[40]
[40] Reasons, [73]–[78].
The Member was also satisfied that the respondent was in the course of her employment at the time of her injury, satisfying s 4. In coming to this conclusion, the Member referred to various authority, including Carroll v SL Hill and Associates Pty Limited,[41] Williams, Weston, Blacktown City Council v Smith[42] and Kavanagh v Commonwealth.[43]
[41] [2018] NSWWCCPD 17.
[42] [1996] NSWSC 613; 14 NSWCCR 132 (Smith).
[43] [1960] HCA 25; 103 CLR 547 (Kavanagh).
The Member noted Williams involved an incident wherein employment was interrupted by a quarrel between a worker and an assailant, who shot the worker who had run away from the premises. This was distinguishable from the present case, as the respondent had not left her property (her workplace) to attend to the dog attack, unlike the worker in Williams.[44]
[44] Reasons, [81], [89].
The Member also contrasted Williams with Weston where an assault conducted by another employee, over something unrelated to employment, was found to be in the course of employment. The Member noted that matter referred to Kavanagh, wherein the High Court held that “injury in the course of employment” meant an injury sustained while a worker is engaged in the work which they were employed to do, or in something incidental to work.[45]
[45] Reasons, [82]–[83].
The Member applied the authority in Smith, where a worker was found to be in the course of employment when injured after investigating a noise from outside the employer’s office space and assisting a victim of assault. The Member referred specifically to observations of Mahoney P, that the term “in the course of employment” did not require a causal relationship between employment and the injury, with it normally being sufficient for the injury to occur during and at the place of employment, but with consideration of the relevant expectations of the employer as to what the worker did at the time of injury. It was held to be proper, in that case, to find the worker to be in the course of her employment “in the absence of the employer and so without being able to seek permission, going to attend to a cry for help a few paces away”.[46] This could be distinguished from the situation in Williams.
[46] Reasons, [84]–[86].
In applying Smith, the Member noted the respondent had ceased performing her duties to investigate and intervene in the attack, finding this action to be “a reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances”. The Member did “not accept that the employer would have expected the [respondent] to disregard the distress of the puppy and continue on with her work” and was “not satisfied that this conduct took the [respondent] outside the ordinary course of her employment”.[47]
[47] Reasons, [90].
In finding that employment was a substantial contributing factor to the injury, the Member relied on Kelly and Badawi.[48] Although the Member accepted that the respondent’s work did not have anything to do with dogs as argued by the appellant, and that ownership/care of the dog was a personal matter; the respondent was “permitted to work from home and there is no suggestion in the evidence that the [respondent] was not permitted by her employer to have a dog at home while working”.[49]
[48] Reasons, [94]–[95].
[49] Reasons, [97]–[98].
The Member considered it relevant that the respondent was required to “constantly” take calls and accepted that she was required to perform duties professionally and in a quiet environment, and the evidence confirms she placed the puppy outside to perform her duties in this manner. In considering the assertion of there being another dog at home at the time of the attack, the Member found that the respondent’s evidence did not touch upon this, but was not satisfied that such omissions rendered the respondent’s evidence unreliable as to the fact the “puppy was placed outside in order to facilitate the performance of her work”. The Member accepted that a puppy is likely to be noisy or a distraction.
The Member also found there to be no evidence to suggest that the puppy would have been tied up outside, and prone to attack, if the respondent had not been working. Although there was a possibility that the injury would have happened anyway, this probability was substantially increased by the presence of the puppy tied at the front of her home. The Member thus accepted that the circumstances arose due to the respondent “being at work and the nature of her employment”.[50] The Member did not consider the remaining s 9A factors to be of assistance in determining whether employment was a substantial contributing factor.[51]
[50] Reasons, [99]–[105].
[51] Reasons, [106].
Accordingly, the Member awarded the respondent with weekly compensation and s 60 expenses in a Certificate of Determination issued on 24 October 2022, which records as follows:
“The Commission determines:
1. The [respondent] sustained an injury in the course of her employment with the [appellant] on 8 October 2021 pursuant to s 4(a) of the Workers Compensation Act 1987.
2. The employment concerned was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987.
The Commission orders:
3. The [appellant] to pay the [respondent] weekly compensation from 8 October 2021 to date and continuing, pursuant to ss 36 and 37 of the Workers Compensation Act 1987, based on the agreed pre-injury average weekly earnings rate of $1,433.39, as periodically indexed.
4. The [appellant] to pay the [respondent’s] reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts, and/or valid Medicare Notice of Charge.”
GROUNDS OF APPEAL
The appellant relies on the following grounds of appeal:
Ground One: The Member erred in concluding that the [respondent] sustained injury in the course of employment.
Ground Two: The Member failed to make a comparative assessment of competing factors.
Ground Three: The Member failed to consider “of substance”.
Ground Four: The Member failed to take into account relevant matters, as mandated by the legislation.
A fifth ground of appeal alleging error in respect of the Member’s assessment of the respondent’s capacity to earn was withdrawn. It is therefore not necessary to decide this ground.
LEGISLATION
Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’ (cf former s 6 (1))
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.”
DISCUSSION
As to Ground One: The Member erred in concluding that the [respondent] sustained injury in the course of employment
Submissions
The appellant asserts that “it had been submitted on behalf of the employer that in leaving her workstation and leaving her house to attend to her daughter’s puppy, the [respondent] had taken herself out of employment.”[52] The appellant submits that the Member rejected this submission at reasons [89] and in so doing fell into error of both fact and law.
[52] Appellant’s submissions dated 21 November 2022, [15].
The appellant asserts that the error of fact was the Member’s finding at reasons [89] that the dog attack took place on the respondent’s property. The appellant asserts that the respondent had left the property.[53] This submission is supported by reference to an entry in the Orange Hospital notes which took the following history: “Bitten by cattle dog in street while working from home”.[54] The appellant asserts that there was no evidence that the injury had occurred on the respondent’s property[55] and that in failing to observe that the respondent had left the premises, the Member made an error of fact.
[53] Appellant’s submissions dated 21 November 2022, [18].
[54] ARD, p 67.
[55] Appellant’s submissions dated 21 November 2022, [24].
In terms of the error of law asserted, the appellant argues that the Member failed “to note that in the course of employment is a temporal concept”,[56] as follows:
“The error of law lay in the [M]ember’s drawing a conclusion that the place at which the injury had occurred was determinative of the question of whether the injury had occurred in the course of employment. Even if the worker had been on the premises, which is not the case, that fact does not imply that the worker’s injury was sustained in the course of employment. In the course of employment is a temporal concept, as the [M]ember herself acknowledged by her reference at [82] to [Kavanagh].”[57]
[56] Appellant’s submissions dated 21 November 2022, [28].
[57] Appellant’s submissions dated 21 November 2022, [25].
The appellant makes reference to the following observation made by the Member at reasons [90]:
“I do not accept that the employer would have expected the [respondent] to disregard the distress of the puppy and continue on with her work”.[58]
[58] Appellant’s submissions dated 21 November 2022, [29].
The appellant states that this submission about the employer’s expectation had not been put to the Member and accordingly for the Member to reject a proposition that had not been put was an error. The appellant also asserts that this was a misdirection with respect to the employer’s expectation.[59]
[59] Appellant’s submissions dated 21 November 2022, [31].
The respondent submits that the appellant’s argument is difficult to follow, submitting that it is the Member’s conclusion that has been challenged rather than properly articulating the error said to have been made by the Member. The respondent submits that this submission appears to be grounded in an acceptance of selected clinical records and a rejection of the respondent’s statement evidence to the extent of any inconsistency, which argument had already been run at first instance and rejected, and failed to deal with the principles in Fox v Percy[60].[61] The respondent states that the appellant’s submission on appeal that the respondent had “left the premises” when the accident occurred should be rejected. The respondent also submits that this argument was not put to the Member.
[60] (2003) 214 CLR 118.
[61] Respondent’s submissions dated 28 November 2022, [26]–[29].
The respondent argues that the appellant is reading the Member’s decision narrowly. The respondent states that the Member provided detailed reasons for making the finding that injury occurred in the course of employment, based upon facts most of which are unchallenged on appeal. In particular, the respondent points to the acceptance of her lay evidence by the Member.[62] The respondent points to reasons [89] and [90] in support of this submission.
[62] Respondent’s submissions dated 28 November 2022, [37].
In reply, the appellant repeats the submission that the proposition that the injury took place on the respondent’s property is nowhere supported in the evidence and that the finding to the contrary was a factual error. The appellant says that the facts of this case do not support a finding of injury in the course of employment taking place without error, citing Hatzimanolis v ANI Corporation Ltd[63] and Comcare v PVYW[64].[65]
[63] [1992] HCA 21; 173 CLR 473, 484.
[64] [2013] HCA 41 (PVYW).
[65] Appellant’s submissions in reply dated 23 December 2022, [15].
Consideration
I will firstly deal with the appellant’s submission that the Member was in error when she found that the injury took place on the respondent’s property. This finding, the appellant argues, was factually incorrect and is nowhere supported in the evidence.
For the reasons set out below, this submission is without merit.
In the respondent’s statement, the following appears: “[The puppy] was tied up about one metre from my front door.”[66]
[66] Respondent’s statement, ARD, p 1, [12].
The respondent reported the injury to the appellant on 11 October 2021. The details of this report are recorded in the IMS incident report form attached to the appellant’s Reply and relevantly provides as follows:
“@ 8.45 on Friday 8th October 2021, whilst working from home at [address redacted], I heard dogs fighting on my front porch.”[67] (emphasis added)
[67] Reply, p 2.
Three days later the respondent was referred by the appellant’s EAP to a psychologist, Ms Lisa Cunial, who records on 14 October 2021: “attached [sic, attacked] by a dog at the front door”.[68] (emphasis added)
[68] ARD, p 104.
In other parts of the evidence, the injury is described as occurring “in the street”. I would remark though that in oral submissions to the Member, counsel for the appellant said:
“It’s not suggested for a moment that the home opened onto the street such that the puppy was in the street at all, the [respondent] doesn’t say that for a moment.”[69]
[69] T25.10–13.
The appellant’s assertion that the attack occurred away from the respondent’s home, being her place of work, was based upon a number of entries in medical records which record the attack as taking place in the “street”. The Member quite appropriately directed herself to view such records with caution.[70] This is consistent with settled authority.[71]
[70] Reasons, [77].
[71] Mason v Demasi [2009] NSWCA 227, [2] per Basten JA.
So contrary to the appellant’s submission, there was evidence within the material that supported the Member’s finding that the injury occurred on the respondent’s property. The finding made by the Member at reasons [89] to the effect that the injury took place on the respondent’s property was comfortably made within the Member’s fact-finding discretion and was made without error. Indeed, it was made in conformity with the submission put to the Member by the appellant, set out above, that the puppy was not in the street.
Additionally, I have carefully reviewed the transcript of the hearing on 19 September 2022. Whilst there was argument raised as to the inconsistencies in the evidence, at no stage was it specifically put on behalf of the appellant that the injury did not occur on the respondent’s property. Indeed, the s 78 notice dated 25 October 2021 itself records that: “You heard dogs fight on your front porch”[72] before going on to decline the claim as not being sustained in the course of her employment (s 4) and that employment was not a substantial contributing factor (s 9A) to the injury. It is not an error for the Member not to deal with an argument that was not put.[73]
[72] ARD, p 5.
[73] Metwally v University of Wollongong [1985] HCA 28; Brambles Industries Ltd v Bell [2010] NSWCA 162, per McColl JA.
I reject the appellant’s assertion that the error of fact, as alleged, was made.
Before turning to the error of law asserted by the appellant, it is necessary to deal with the submission which appears in the appellant’s written submissions of 21 November 2022 at paragraphs [31] and [32]:
“31. It had not been put to the [M]ember that the employer would have had that expectation [to disregard the distress of the puppy and continue on with her work]. Accordingly, it was incorrect for the [M]ember to state that she did not accept a proposition that had never been made. However, and perhaps more importantly, the [M]ember has misdirected herself in regarding as significant or determinative a conclusion that the employer would not have had that expectation.
32. An employer might not oppose a worker ceasing his or her employment to attend to a personal requirement. But it does not follow from that acquiescent [sic] that, while attending to that personal requirement, the worker was in the course of his or her employment. In [PVYW] the High Court at [55] and elsewhere stressed the importance of there being an inducement or encouragement on the part of the employer in the determination of whether an injury was or was not suffered in the course of employment.”
At hearing, counsel for the respondent addressed the Member thus:
“True it is that the [respondent] then goes out to see the attack firsthand and tries to separate the dogs but the attack’s already happening. This is - you can’t just segment it and say this is still within the course of her employment that that’s not. In any event, there can’t be any real dispute that it’s obviously an expectation when you’re working from home that employers have that from time to time you will go out to the front door and you will see things that are going on.
Now, this [respondent’s] also a counsellor so particularly in her situation working for the health department, albeit in a curial-type function, that is as a merit program officer, she’s otherwise expected to be caring and to show some form of compassion as anyone would expect and just like anyone would expect she went upon this dog that was attacking the puppy.”[74]
[74] T9.15–33.
This submission was not answered or responded to by the appellant in terms. Rather the appellant’s case was that the dog attack was unrelated to employment, counsel for the appellant stating: “She was right to be so concerned, it’s got nothing to do with the employment.”[75]
[75] T32.4–5.
The submission about the employer’s expectation was put to the Member by the respondent’s counsel, as noted at [41] of her reasons, and was neither responded to nor challenged by the appellant. I do not therefore accept that the “misdirection” asserted by the appellant in its submissions at paragraph [31] (set out above) took place. This submission was put, no issue was taken with it, and it was accepted by the Member. The Member discussed the relevant authority of Smith at reasons [84]–[85] and in particular the “mutual expectation of the parties” as per Mahoney P. No issue was taken with this formulation or application of principle. The appellant’s reliance on PVYW needs to be looked at in light of the manner in which the case was conducted before the Member. Given the submission was put about the employer’s expectation and not challenged, PVYW is of little assistance to the appellant’s argument. There is no error in this approach by the Member.
Having regard to my rejection of the appellant’s allegation relating to an asserted mistake of fact, the facts as found by the Member stand. However, in terms of the error of law asserted by the appellant, I do not read that assertion as being predicated upon the establishment of the error of fact. In the appellant’s submissions of 21 November 2022, the following is submitted:
“25. The error of law lay in the [M]ember’s drawing a conclusion that the place at which the injury had occurred was determinative of the question of whether the injury had occurred in the course of employment. Even if the worker had been on the premises, which is not the case, that fact does not imply that the worker's injury was sustained in the course of employment. In the course of employment is a temporal concept, as the [M]ember herself acknowledged by her reference at [82] to [Kavanagh].
26. The worker heard the sound of a dog-fight. She ceased her work. She left the premises. The [M]ember should have considered whether the attack took place at a time when the worker was in her employment and whether the dog-fight and her perceived need to protect her daughter's puppy had taken her away from her employment. It had been pressed upon the [M]ember that the perceived need arose out of
• the worker’s gift of a puppy to her daughter,
• her daughter’s illness,
• the worker’s undertaking to care for the puppy and
• the presence in the vicinity of the worker’s home of an aggressive dog.
27. In summary, in failing to observe that the worker had left the premises, the [M]ember fell into error of fact.
28. In failing to note that in the course of employment is a temporal concept, the [M]ember fell into error of law. It is to be noted that the [M]ember did not make a finding, it is submitted correctly, that the worker’s injury arose out of her employment.”
As I have described above, the appellant has disavowed having any “expectation” as referred to by the Member at reasons [90]. I have rejected this submission for the reasons I have set out above. The evidence was that the respondent was working from home with the appellant’s knowledge and consent. The evidence was, and this was not disputed by the appellant, relevantly as follows:
“On 8 October 2021, the [respondent] was working from home. The [respondent’s] job required her to constantly be on the phone and take video calls. The [respondent] was looking after her daughter’s puppy on the date of the accident and had to keep the puppy outside so he did not disturb her calls.
The [respondent] did not have adequate fencing in her backyard and so had tied the puppy up to a post about a metre from her front door.”[76]
[76] Reasons, [14]–[15].
No issue was taken with this evidence by the appellant. The only reason that the puppy was placed outside of the respondent’s house was to facilitate the respondent’s work for the appellant in a proper manner. The key findings of the Member are found at reasons [90] and [91], which provide as follows:
“90. Furthermore, the dog attack commenced while the [respondent] was in the performance of her actual work duties. Although she ceased performing those duties to investigate and then intervene in the attack, as was the case in Smith, I am satisfied that this was a reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances. I do not accept that the employer would have expected the [respondent] to disregard the distress of the puppy and continue on with her work. I am not satisfied that this conduct took the [respondent] outside the ordinary course of her employment.
91. I am satisfied in all the circumstances, that the [respondent] sustained an injury ‘in the course of employment’ pursuant to s 4(a) of the 1987 Act.”
Apart from the assertion that the attack did not take place on the respondent’s property, which I have rejected, and the submission that the Member was not entitled to assert the appellant’s expectation described in reasons [90], which I have also rejected, the appellant has not asserted in terms precisely what the Member’s error was in reaching the conclusion at reasons [90] and [91]. The Member’s reasons on this question commenced at [71]. The Member described the relevant facts[77] before dealing with what the appellant described as “inconsistencies” in the evidence. The Member found these inconsistencies were “ultimately immaterial”[78] and no issue is taken with this finding on appeal. This finding, I should say, was plainly available to the Member to make on the evidence. From reasons [81] onwards the Member reviewed the relevant authorities, before applying them to the circumstances of this case at reasons [89] onwards.
[77] Reasons, [73]–[74].
[78] Reasons, [79].
I do not accept the submission made by the appellant that the Member failed to note that the phrase “in the course of employment” is a temporal concept. The Member was clearly aware of this[79] and applied this concept at reasons [89] and [90].
[79] Reasons, [82].
The asserted error of law has not been established. I am fortified in this view by the manner in which the application was argued before the Member by the appellant, which had the result that the Member was able to make the findings she did on this issue, without error.
Ground One is dismissed.
As to Ground Two: The Member failed to make a comparative assessment of competing factors
Submissions
The appellant advances two points in this ground. The first argument relates to Ground One, namely that if the finding made by the Member that injury occurred in the course of employment was flawed, it follows that the respondent has failed to establish injury.[80]
[80] Appellant’s submissions dated 22 November 2022, [38].
The second argument, which is the principal argument advanced under this ground, is as follows:
“39. In determining, favourably to the worker, that employment was a substantial contributing factor to the worker’s injury, the [M]ember failed to evaluate the factors to the injury which were non-work related prior to determining whether or not the work-related factor was ‘substantial’.
40. In Dayton v Coles Supermarkets Pty Limited [2001] NSWCA153, Giles J said at [29]:
‘The finding as to relative contributing factors is a finding of fact. As his Honour (Burke J, in the Court below) said, it is a question of impression and degree; see also the recognition in Mercer v ANZ Banking Group Ltd that there is ‘a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative’ (at 748–9). Whether or not ‘substantial’ in s 9A(1) calls for something more, in my opinion his Honour was correct in regarding the stresses, as a contributing factor which was minor in comparison with two other factors each of which is found to be substantial, as not substantial. On the findings of fact made by his Honour, his conclusion was correct. Accordingly, it does not matter whether or not his Honour's early statement of what the word conveyed was an overstatement. If it were regarded as an error of law, it was not an error directing the outcome in the proceedings.’
41. Dayton was referred to add some length in [Badawi], including the decision of Giles J, for example in Badawi at [60], without criticism of the passage cited above.
42. It follows that when there are multiple factors to an injury, some of which are non-work related, it is imperative for the tribunal of fact to consider those factors and make the comparison made by Burke J and approved by Justice Giles.
43. In this case, the primary cause, in the employer’s submission to the [M]ember …, was the purchase by the worker of a puppy for her daughter. A further cause was the daughter’s illness. A further cause was the worker’s undertaking to care for the puppy. A further cause again was the presence in the vicinity of the worker’s home of a dog which the worker knew to be aggressive.
44. In order to determine whether work was a substantial contributing factor, it was imperative that the [M]ember weigh the contribution of each these factors. She considered none of them. That failure was an error of law. A determination a contribution is substantial is a flawed determination unless it is made after an assessment of the contribution of other factors.” (emphasis added)
In reply, the respondent asserts that the appellant did not make the submission before the Member which now appears in paragraph [43] of the appellant’s submissions (set out above). The respondent argues that it is not an error for a decision-maker not to deal with a submission which was not made. The respondent submits that the substance of the argument conducted by the appellant was to the effect that when the respondent went outside of the house to intervene in the dogfight, that she had taken herself outside of employment and, as a consequence, outside of s 9A of the 1987 Act. The respondent says that the Member did deal with this argument.
In response, the appellant says that the Member was required to consider the factors contributing to the injury, and this she did not do. The appellant points to the s 78 notice in which it is said that the respondent fails to meet the requirements of s 9A of the 1987 Act.
Consideration
The first argument in this ground can be dealt with relatively shortly. This argument relies upon acceptance that the Member’s finding that injury occurred in the course of employment was flawed. In dismissing Ground One, no such flaw was identified and, as a consequence, this argument cannot be sustained. This aspect of Ground Two is dismissed.
The second argument is the appellant’s central complaint in Ground Two. In the appellant’s submissions in chief, the appellant makes a very specific allegation at [43] (set out above) of four factors that the Member failed to have regard to. In light of the respondent’s submission that these factors were not argued, I have carefully reviewed the transcript of the proceedings on 19 September 2022. Nowhere did the appellant draw the Member’s attention, in terms, to the four factors appearing at [43] of those submissions. I accept the respondent’s submission that these matters were not argued. So, I do not accept that it was an error for the Member not to deal with those four specific matters.
Nonetheless, the Member was required to consider and apply the authorities relied upon by the appellant[81] and others (which the Member referred to) which require an assessment of all the factors, both work and non-work related. I would remark that other than the submission at [43], which I have dealt with, the appellant has not in any particularity identified relevant sections of the Member’s decision where any other error is said to have occurred touching upon this ground.
[81] Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153 (Dayton).
The appellant’s response submission says the Member was required to consider all factors contributing to injury. I accept this is a non-controversial statement of principle when dealing with such a s 9A case.
The Member approached the consideration of this question from reasons [92]. At [94] and [95] the Member referred to both Kelly and Badawi. These passages record the Court of Appeal’s direction to assess the various contributing factors in deciding whether employment is a substantial contributing factor in s 9A cases. Having recounted relevant authority, and I note that no issue is taken with the Member’s formulation of her task, she then proceeded to apply these authorities to the circumstances of this matter. The Member recorded the following:
“97. As submitted by the [appellant], the nature of the [respondent’s] work and her work tasks had nothing to do with dogs, whether her own or not. The [respondent] was not required as part of her employment to care for or protect either her dog or that belonging to her daughter. The ownership of the dog or any obligation to care for her daughter’s dog were personal matters.
98. The [respondent] was, however, permitted to work from home and there is no suggestion in the evidence that the [respondent] was not permitted by her employer to have a dog at home while working.
99. It is relevant to note that the [respondent] was required as part of her work duties to ‘constantly’ take phone and video calls. I accept that the [respondent’s] employer expected her to perform these duties in a professional manner and in an environment within the home that was sufficiently quiet and amenable to her being able to concentrate. The [respondent’s] evidence, both in her statement and in the accounts provided to her treating practitioners and medicolegal experts, is that she placed the puppy outside in order to be able to perform her work duties in this manner.”
And:
“105. The factual material before me does suggest that the cattle dog which bit the [respondent] had, both before and after the incident which is the subject of these proceedings, demonstrated aggression. This suggests that there was some possibility that the injury or a similar injury would have happened anyway, had the [respondent] not been at work or had not worked in that employment. The probability of the injury was substantially or materially increased, however, by the unsupervised presence of the puppy tied up at the front of the [respondent’s] home. I accept that this circumstance arose due to the [respondent] being at work and the nature of her employment.
106. I am not satisfied that consideration of the duration of the [respondent’s] employment, her state of health, hereditary risks, lifestyle or her activities outside the workplace are of assistance in determining whether employment was a substantial contributing factor to the injury.
107. Weighing all of the circumstances, I am satisfied that employment was a substantial contributing factor to the injury and the requirements of s 9A are met.”
It is clear that in the passages I have set out, the Member is undertaking precisely the assessment that Kelly and Badawi require of the various factors existent in the particular matter. No error in this particular assessment that was undertaken has been identified by the appellant. In any event, I am satisfied that the Member has assessed the various work and non-work related factors in undertaking the evaluative exercise required of her by these authorities. This is evident from the passages in the decision I have extracted above. This evaluative exercise, as Kelly says, involves “a broad area for the personal judgement of the fact finder”.[82] This is the task the Member has undertaken.
[82] Kelly, [46].
No error has been established. Ground Two is dismissed.
As to Ground Three – The Member failed to consider “of substance”
Submissions
The appellant asserts that the Member “failed to consider, whether employment in the present case was more than a real contributing factor. It was imperative for her to consider whether employment was, in addition, of substance in the sense use[d] by Justice Meagher. She did not there so [sic] and that failure has affected the result of the case.”[83] In support of this submission the appellant relies upon extracts from Badawi and Dayton (per Meagher JA) and the principle of employment being “real and of substance” to satisfy substantial contributing factor under s 9A of the 1987 Act.
[83] Appellant’s submissions dated 21 November 2022, [48].
The respondent says that this ground has not been made out and that this submission appearing in the appellant’s submissions at [48] is incorrect; rather the Member’s task was to interrogate the statute. Namely it was the Member’s job to apply s 9A of the 1987 Act in its terms, and this was what the Member did at reasons [96] to [107].
In reply, the appellant disagrees with the respondent’s submission, putting the argument in the following terms:
“With respect to the author of the worker’s submissions, this was not the task confronting Member Homan. Her task was to determine whether or [not] the worker had established on balance that her employment had made a substantial contribution to her injury. For this task, she was required to consider whether the cause was one which met the definition of substantial provided by binding authority (Badawi). This again meant that the [M]ember was required to consider each of the matters referred to in the joint judgement in Badawi provided in principal submissions at [36]. Was the contribution a real one? Was it of substance?
The [M]ember was required to consider whether the contribution of employment, in addition to being real was also of substance in the sentence [sic, sense] used by Justice Meagher. That she failed to do so was an error, as was contended in principle submissions at [38].”[84]
[84] Appellant’s submissions in reply dated 23 December 2022, [23]–[24].
Consideration
Unhelpfully, the appellant has made a broad allegation of error without specifying the sections of the Member’s decision said to be infected with the alleged error, specifically how they fail to address whether the connection to employment was of “substance”. However, the complaint is sufficiently set out to enable me to decide it.
The ultimate finding that employment was a substantial contributing factor appears at reasons [107], which paragraph appears in full (above). Needless to say, the Member’s decision needs to be read as a whole when assessing the criticism contained in this ground.[85] Reasons [107] is the terminus of the Member’s reasoning process on precisely this question, which commenced at reasons [92]. This section of the decision is entitled “Substantial Contributing Factor”. The Member set out the relevant provision (s 9A of the 1987 Act) and then cited relevant authorities (Kelly and Badawi) before applying these to the present case from reasons [96] onwards. It is apparent that when the Member says at [107] “[w]eighing all these circumstances ...”, she is referring to her reasoning process and to her findings in the paragraphs of her decision immediately preceding [107]. In particular, the relevant factual findings are at [97], [99], [104] and [105]. No issue has been taken on appeal that these findings were relevantly wrong. These passages were what led to the finding of substantial contributing factor in [107].
[85] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
The appellant had argued before the Member that having a dog or indeed anything to do with the dog was completely unrelated to the respondent’s employment. The appellant said that any connection between the dog bite injury and employment was “tenuous”. The Member found that due to the COVID-19 pandemic the respondent had to work from home. The attributes of how the respondent worked from home appear at reasons [99]. No issue was taken with the explanation that the dog was placed outside so as not to disturb the respondent’s work. Critically, at [104] the Member remarks that there was no evidence that had the respondent not been working at home, the dog would have been placed outside the house, making it susceptible to attack. The Member then ties this together in [105] where she says: “The probability of the injury was substantially or materially increased, however, by the unsupervised presence of the puppy tied up at the front of the [respondent’s] home. I accept that this circumstance arose due to the [respondent] being at work and the nature of her employment.” I would note that this critical finding at [105] also has not been challenged. This finding is the basis of how the Member made her finding that “substantial contributing factor” had been established. No error has been established in this process; the relevant authorities central to deciding this question have been applied to the facts of the case. This finding also has the effect of disposing of the appellant’s argument that the Member failed to address the concept “of substance”.
Ground Three has not been made out. Ground Three is dismissed.
As to Ground Four – The Member failed to take into account relevant matters, as mandated by the legislation
Submissions
The appellant’s essential argument under this ground is that the Member failed to consider the mandatory provisions of s 9A(2). The particular issues said to have not been dealt with are set out in the appellant’s submissions dated 21 November 2022 at [51]. This paragraph says as follows:
“It is clear that in regarding the worker’s non-employment activities as of no assistance, the [M]ember had given no consideration to the worker’s purchasing for her daughter and maintaining in her property a domestic animal in addition to her own domestic animal. These were work activities outside the workplace. The [M]ember gave no indication that she had recognised these activities as highly relevant to the comparative weight to be given to employment as opposed to pet ownership and maintenance as comparative factors.”
The respondent says that she does not recall the matters asserted at [51] as being put by the appellant to the Member. However the respondent says that even if they were put, it is not the Member’s function to “deliberate on every submission made”.[86] The respondent says it is the Member’s duty to deal with the substance of the argument and this the Member did.
[86] Respondent’s submissions dated 28 November 2022, [61].
Consideration
The matters raised in this appeal ground are a derivation of those raised in Ground Two. As I found in Ground Two, the particular matters relied on by the appellant as having not been considered by the Member were not put to the Member. To the extent this ground relies upon what appears in [51] of the appellant’s submissions, this ground fails for the same reason that I dismissed this argument in Ground Two.
However, I do accept that the complaint in this ground is wider than the four factual assertions that were not put to the Member. In this ground the appellant complains that the Member failed to undertake the mandatory task set by s 9A(2) of the 1987 Act. One problem in considering this ground is that apart from that which was submitted at [51], the appellant has only particularised its complaint in broad, general terms without specifying where the precise error is said to exist in the decision. I will therefore review what the Member did and whether this was sufficient to satisfy the obligation under s 9A(2). I would also remark that the authorities warn that the consideration of s 9A is not a box ticking exercise. As Emmett JA said in Kelly “the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder.”[87] Nevertheless, s 9A(2) must be taken into account.[88]
[87] Kelly, [46].
[88] Badawi, [89].
In the Consideration section of Ground Two above, I have set out the dispositive paragraphs of the Member’s reasons on this issue, being [97]–[99] and [105]–[107]. Applying these paragraphs (and some other paragraphs which I identify in relation to non-controversial factual issues) to s 9A(2) reveals the following.
Section 9A(2)(a), the time and place of injury, was not in dispute (although I accept that it was hotly disputed that the injury was not work related) and is non-controversially stated at reasons [16], [73], [74], [79] and [89]. There was no issue argued about the time and place of injury other than the appellant’s assertion that the injury took place outside the respondent’s property. The Member, for the reasons I have outlined above, found that the injury did take place on the respondent’s property. This sub-paragraph has been dealt with by the Member.
Section 9A(2)(b), the nature of the work and the particular tasks of that work, was covered by the Member at reasons [97] and [99].
Section 9A(2)(c), the duration of the employment, was dealt with at reasons [106]. I would note that no issue has been taken with the sufficiency of the Member’s reasons in this paragraph and no allegation made that the conclusions reached at reasons [106] were wrong. This applies to all matters covered by the Member at [106].
Section 9A(2)(d), the probability that the injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if she had not been at work or had not worked in that employment, was dealt with by the Member at reasons [105]. No issue was taken on appeal with the Member’s finding in this paragraph.
Section 9A(2)(e), the worker’s state of health before the injury and the existence of any hereditary risks, was dealt with at reasons [106].
Section 9A(2)(f), the worker’s lifestyle and her activities outside the workplace, was also dealt with at reasons [106].
I would consider that a fair reading of the Member’s decision in these paragraphs reveals the Member undertaking precisely the tasks that s 9A(2) of the 1987 Act requires and as stated in the authorities (and in particular Badawi).
Ground Four has not been established. Ground Four is dismissed.
DECISION
The Certificate of Determination dated 24 October 2022 is confirmed.
Judge Phillips
PRESIDENT
10 October 2023
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