State Super Financial Services Australia Limited v McCoy - [2018] NSWWCCPD 26

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26
APPELLANT:	State Super Financial Services Australia Limited
RESPONDENT:	Suzanne Elizabeth McCoy
INSURER:	GIO General Limited
FILE NUMBER:	A1-5455/17
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	21 March 2018
DATE OF APPEAL DECISION:	3 July 2018
SUBJECT MATTER OF DECISION:	Journey claim; s 10(3A) of the Workers Compensation Act 1987; meaning of real and substantial connection between employment and the accident or incident out of which the personal injury arose
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	BBW Lawyers
Respondent:	Stacks The Law Firm
ORDERS MADE ON APPEAL:	1. Paragraphs [1] and [3] of the Arbitrator’s Certificate of Determination of 21 March 2018 are confirmed. 2. The matter is remitted to the Arbitrator to deal with any outstanding issues.

INTRODUCTION

The worker sustained an injury to her right ankle when she tripped and fell on uneven ground on her way from her hotel, where she was spending the night, to a venue where she was to attend a work Christmas party. She claimed that she tripped and fell because she was walking hurriedly to get to the party on time and because she was tired.
This appeal concerns the application of s 10(3A) of the Workers Compensation Act 1987 (the 1987 Act) and an Arbitrator’s finding that there was a “real and substantial connection” between the worker’s employment and the incident out of which the personal injury arose.

BACKGROUND

On 5 December 2013, the appellant arranged and hosted a staff Christmas party at the Sails Resort, Port Macquarie. Suzanne McCoy, the appellant’s client services officer, planned to attend the Christmas party with her husband. However, on her way to the party she sustained an injury to her right ankle when she tripped and fell on the pavement.
On 24 February 2015, Ms McCoy underwent surgery to repair the damage to the right ankle. The right ankle injury led to significant complications, which included the presentation of symptoms suggestive of complex regional pain syndrome.
On 1 November 2015, Ms McCoy lodged a claim for compensation in respect of the injury sustained to her right ankle.
On 20 January 2016, the appellant’s insurer, GIO Limited, issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed the claim on the basis it was not made within 6 months after the injury. It also disputed that Ms McCoy sustained an injury arising out of or in the course of employment under s 4 of the 1987 Act and, amongst other things, that there was no real and substantial connection between the employment and the accident or incident out of which the injury arose pursuant to s 10(3A) of the 1987 Act.
On 17 August 2016, Ms McCoy lodged a permanent impairment claim in respect of the injury sustained to her right ankle. She claimed 31% whole person impairment, relying on the reports of Dr Murray Hyde Page, orthopaedic surgeon, and Dr Rao, orthopaedic surgeon.
On 6 September 2016, GIO issued a further s 74 notice to Ms McCoy. GIO conducted an internal review of the claim and confirmed the previous s 74 notice.
On 22 November 2016, GIO issued a third s 74 notice to Ms McCoy. This notice was issued in response to the claim for lump sum compensation. GIO conducted a further internal review of the claim and declined the claim for the reasons set out in the previous s 74 notices.
On 26 October 2017, Ms McCoy lodged an Application to Resolve a Dispute (the Application) in the Commission. Ms McCoy sought weekly benefits, medical expenses and lump sum compensation in respect of injury on 5 December 2013 when she tripped and fell on her way from work to a work function (the Christmas party). She claimed acute inversion injury of the right ankle and foot, together with complex regional pain syndrome. In particular, she sought weekly compensation from 9 December 2013 to date and continuing and $88,513.86 in respect of past medical expenses. She also claimed 31% whole person impairment of the right lower extremity, relying on the report of Dr Hyde Page, dated 19 July 2016.
On 16 November 2017, the appellant lodged a reply to the Application relying on the s 74 notices.
On 19 January 2018, the matter proceeded to a conciliation/arbitration hearing before Arbitrator Egan. Following the conciliation/arbitration proceeding, the Arbitrator directed the parties to file written submissions.
On 21 March 2018, the Arbitrator issued a Certificate of Determination. The Arbitrator accepted Ms McCoy’s evidence that she was ignorant of her rights to claim compensation until 2015, and therefore was not prevented from pursuing her claim (s 261(4) of the 1998 Act). However, the Arbitrator was not satisfied that Ms McCoy discharged her onus to establish that the injury arose out of or in the course of her employment with the appellant.
The Arbitrator found that Ms McCoy was on a journey to which s 10 of the 1987 Act applied. He found that there was a real and substantial connection between Ms McCoy’s employment and the incident.
The Certificate of Determination issued is in the following terms:
“The Commission determines:
1.     Findings:
(a)The applicant suffered injury to her right ankle on 5 December 2013 whilst on a journey for the purpose of s 10 of the Workers Compensation Act 1987.
(b)The applicant is entitled to weekly payments of compensation as a result of injury to the right ankle on 5 December 2013.
2.     Orders:
(a)By 30 March 2018, the parties are to file proposed orders in relation to the respondent’s liability to pay weekly payments of compensation.
(b)By 30 March 2018 the parties are to file proposed orders in relation to the respondent’s liability to pay medical expenses.
3.     The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment [of] whole person impairment according to the following:
(a)As a result of injuries to the right ankle on 5 December 2013 (including, if present, Complex Regional Pain Syndrome).
(b)Documents to be provided to AMS (with attachments unless excluded):
(i)Application to Resolve a Dispute;
(ii)The Reply.
A brief statement is attached setting out the Commission’s reasons for the determination.”
The appellant appeals the Arbitrator’s decision.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Ms McCoy

In evidence are two statements by Ms McCoy, the first dated 27 November 2015, prepared by interview conducted on behalf of GIO, and the second dated 23 October 2017.
Ms McCoy states that on 5 December 2013 the appellant hosted a staff Christmas party at the Sails Resort, Port Macquarie. She states that she “was encouraged to attend, with [her] husband, by [her] employer.” The Christmas party commenced at 6 pm for drinks and then dinner. The Christmas party was expected to finish reasonably late in the evening and alcohol was to be served. She reserved a room at a hotel in Port Macquarie, because she and her husband resided approximately 40 kilometres from Port Macquarie and had intended to drink alcohol at the party. Ms McCoy and her husband paid for the accommodation. She added that:
“Staying at the hotel enable[d] me and my husband to be ready for the function on time and avoided a long trip home afterwards in circumstances where we had both worked a full day before attending the function and both expected to consume some alcohol.”[1]
[1] Ms McCoy’s statement dated 23 October 2017, [10].
On 5 December 2013, her husband picked her up from work at around 5.15 pm and they drove to the hotel at 5.30 pm. They showered and changed in preparation for the Christmas party. They left the hotel at around 5.45 pm. They crossed Clarence street and stepped onto the concrete and paver footpath to be picked up by a work colleague to be taken to the Christmas party. It was a fine day and the footpath was dry. Ms McCoy took a couple of steps and tripped over a raised concrete paver injuring her right ankle. Her husband helped her up and back to the hotel which was only across the road. They did not attend the Christmas party.
Ms McCoy states:
“I was not only tired at the time as I had completed a full day at work, it having been at the end of a busy year, but I was also hurrying to be on time for the start of the function which was due to commence at 6 p.m. I felt that this significantly contributed to my tripping and falling.”[2]
[2] Ms McCoy’s statement dated 23 October 2017, [14].
The next morning her husband drove her to a medical centre. She underwent some radiological investigations and was given a medical certificate for two weeks of leave from work. She later returned to work on suitable duties, and returned to full duties on 5 June 2015.
Ms McCoy underwent right ankle arthroscopy, peroneal tendon tendoscopy and repair on 24 February 2015 at the hand of Dr Rao. In May 2015, Dr Rao diagnosed her with symptoms of complex regional pain syndrome. She was referred to Dr Tame, pain management specialist, for treatment.

Peter Hogg

In evidence is a statement by Mr Hogg, the respondent’s regional manager, dated 1 December 2015, prepared by interview conducted by GIO.
Mr Hogg recalls that the staff Christmas party on 5 December 2013 was held at Sails Restaurant, Port Macquarie. He states that Ms McCoy and her husband went to the hotel to get ready. They had paid for the room privately as the company did not make any offer for accommodation. Mr Hogg states that it was “completely their choice to stay at the hotel and it was not encouraged or endorsed by the company and no other employees had booked accommodation that [he was] aware of.”
Mr Hogg also recalls that when he arrived at the Christmas party he was informed by someone that Ms McCoy was unable to attend because she had “tripped or fallen and had hurt herself upon leaving the hotel”.
Mr Hogg did not recall Ms McCoy reporting the injury to him but recalled she had a period of leave from work because of the injury.

ISSUES IN DISPUTE ON APPEAL

In a very comprehensive decision, the Arbitrator dealt with a range of issues raised by the appellant’s s 74 notice, including whether the injuries sustained by Ms McCoy arose out of or in the course of her employment. Those issues were determined adversely to Ms McCoy and have not been challenged.
The Arbitrator held that at the time of sustaining the injuries complained of, Ms McCoy was on a journey to which s 10 of the 1987 Act applied, namely, a periodic journey between her place of abode and her place of employment. The Arbitrator further held that s 10(3A) of the 1987 Act was satisfied, finding that there was a real and substantial connection between the employment and the incident out of which the injury arose, namely that the accident occurred whilst Ms McCoy was tired and was hurrying to arrive at the party on time.
There is only one issue on appeal, and that concerns the Arbitrator’s finding that there was a real and substantial connection between the accident and the employment.

GROUND OF APPEAL

The appellant alleges that the Arbitrator erred in law by finding that there was a “real and substantial connection” between Ms McCoy’s employment and the accident or incident out of which the personal injury arose (s 10(3A) of the 1987 Act).

LEGISLATION

Section 10 of the 1987 Act relevantly provides:
“10 Journey Claims
(1)    A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
…
(3)     The journeys to which this section applies are as follows:
(a)the daily or other periodic journeys between the worker's place of abode and place of employment,
…
(3A)   A journey referred to in subsection (3) to or from the worker's place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
…
(6)     In this section:
…
‘place of abode’ includes:
(a)the place where the worker has spent the night preceding a journey and from which the worker is journeying, and
(b)the place to which the worker is journeying with the intention of there spending the night following a journey.”

THE ARBITRATOR’S REASONS

The Arbitrator proceeded on the basis that the mere fact that Ms McCoy was on her way to the party (a workplace) was not sufficient of itself to establish a real and substantial connection to her employment.[3] He held that the word “connection” in s 10(3A) of the 1987 Act, may, but does not necessarily, convey the notion of a causal relationship.[4]
[3] Citing Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina).
[4] Citing Bina;Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (Wickenden), [38].
The Arbitrator observed that in Wickenden, the fact that the worker had been required to travel in darkness was sufficient to establish a connection with employment that was real and of substance.
The Arbitrator also observed that a real and substantial connection was found in Field[5] because the worker was rushing to commence work on time in circumstances where he had been given short notice to attend the workplace.
[5] Citing Field v Department of Education and Communities [2014] NSWWCCPD 16 (Field).
The Arbitrator rejected the appellant’s submission that there are no relevant contemporary materials or objectively established facts to suggest the appellant demanded Ms McCoy’s attendance at the party at 6.00 pm. He held that it was unnecessary to establish such a demand or requirement to satisfy the real and substantial connection test.
He found that Ms McCoy stated in her evidence that she was tired after a full day’s work and a busy year. She testified that she was hurrying to get to the party or her pick-up point. That evidence, the Arbitrator found, was “not persuasively challenged”. The Arbitrator held:
“Although there may be cases where a worker’s behaviour is so unreasonable so as to negate any real connection to employment, the above authorities do not impose a test of reasonableness on the motives of the applicant. Otherwise, the connection merely has to be to the employment.”[6]
[6] McCoy v State Super Financial Services Australia Limited [2018] NSWWCC 77 (Reasons), [107].
The Arbitrator accepted that Ms McCoy’s own analysis of the contributing factors to her accident may not be conclusive but they were not to be disregarded. The factors that she implicates as the cause of her accident were the raised paver and the fact that she was tired and hurrying.
The Arbitrator found that the fact that Ms McCoy was hurrying and/or was tired was not in dispute. Whether or not those employment factors had any connection to “the accident or incident out of which the personal injury arose” is a question of fact. Ms McCoy said that those circumstances “significantly contributed to her tripping and falling”. As in Field, it was the applicant’s perception that a prompt arrival was required or desirable. That is so even though, objectively, there may not have been a need for Ms McCoy to have that perception, or other circumstances may suggest that hurrying was unnecessary. He found that, as in Field, in the absence of any evidence which challenged Ms McCoy’s perception, there was a real and substantial connection between the employment and the fall.
The Arbitrator accepted that Ms McCoy had a level of fatigue due to the work that day and over the year. He held:
“Common sense suggests that fatigue reduces awareness and reaction times, even though I do not accept that it did so to the level required for the injury to arise out of employment.”[7]
[7] Reasons, [110].
The Arbitrator concluded that in combination, the tiredness and hurrying may not have been the sole cause of the accident but the connection between the employment and the accident was real and of substance.[8] He concluded that there was a real and substantial connection between Ms McCoy’s employment and the fall causing injury.

SUBMISSIONS

[8] Wickenden.

The appellant’s submissions

The Arbitrator drew an inference of a substantial connection between the employment (the tiredness due to work and hurrying due to a need to attend a work Christmas party on time – the work connected factors) and the incident (tripping and falling on uneven ground). The appellant submits that the inferences could not be drawn as there was no evidence that there was a strict timeframe (to attend the party) or that Ms McCoy was fatigued.

The appellant submits:
“The Appellant draws attention to Deputy President Bill Roche[’s] comments in Field that virtually all evidence from a witness (apart from things or real evidence) is based on the witness's perception of the particular event or situation he or she is describing. That does not mean that, for that reason alone, it cannot or should not be accepted. It is for the tribunal of fact to assess the reliability of the evidence against the ‘contemporary materials, objectively established facts and the apparent logic of events’ (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]).” (emphasis in original)
The appellant submits that, as in Field, there are no relevant contemporary materials or objectively established facts. However, so it is submitted, it was found that the logic of Mr Field’s evidence was compelling. He explained the basis for his assertion that staff were required to be at school by 8.30 am, namely, his past experiences. He also explained why staff had to be present by that time. His reasons were logical and plausible. In that matter, the respondent called no evidence to rebut Mr Field’s evidence and did not challenge it in cross-examination. His evidence was not “inherently illogical or unreliable”,[9] or defective in some other material way.
[9] Citing Hamod v State of New South Wales [2011] NSWCA 375 (Hamod), [338].
The appellant submits that in the current matter, Ms McCoy has not explained the basis or logic of her perception that she needed to hurry, other than the fact that the Christmas party was due to commence at 6.00 pm. The Arbitrator held that there was no evidence that punctuality was important to the employer and that whilst Ms McCoy may have been hurrying, taking an evaluative approach of impression and degree, the reasons for the hurrying were her own. In those circumstances, it is submitted that the reliability of the evidence was not assessed against contemporary materials, objectively established facts and the apparent logic of events.
With respect to Ms McCoy’s alleged “tiredness”, the appellant submits that she did not logically explain the basis for it. The Arbitrator dismissed a submission from the appellant that Ms McCoy had merely performed her normal daily hours of work from 8.45 am to 5.15 pm and had not performed any additional tasks in her role as a client services officer. The appellant submitted at the arbitration that there was no contemporaneous evidence that Ms McCoy was fatigued other than in her own statement made four years post-accident.

Having regard to the above, the appellant submits that it was not open to the Arbitrator to infer that Ms McCoy was tired without any logical or plausible reasons submitted. Again, the reliability of the evidence was not assessed against the contemporary materials, objectively established facts and apparent logic of events. Further, it was contradictory for the Arbitrator to find that common sense suggests that fatigue reduces awareness and reaction times, even though he did not accept that it did so to the level required for the injury to arise out of the employment.
The appellant submits that the Arbitrator did not consider the submissions made at arbitration, or at least has not given the submission proper consideration, particularly in light of the decision in Field.
For these reasons, the appellant submits that there was no real and substantial connection between Ms McCoy’s employment and the accident or incident out of which the injury arose.

Ms McCoy’s submissions

It is submitted that it is unnecessary for Ms McCoy to prove that the accident she suffered was caused by her employment.
Whether there is a “real and substantial connection with employment is a question of fact applying a normal meaning to the phrase and reading it in conjunction with the rest of the section.”[10]
[10] Citing Bina.
An accident resulting from a teacher hurrying to school and a worker killed as a result of tiredness associated with long working hours have both been accepted as events to which the phrase was successfully applied to overcome the impediment in s 10(3A) of the 1987 Act.[11]
[11] Citing Field and Namoi Cotton Cooperative Ltd v Stephen Easterman (as administrator of the estate of Zara Lee Easterman) [2015] NSWWCCPD 29.
Ms McCoy’s evidence was that the accident happened at the end of the year and after a full day in the office at the end of a busy week. She said that she was tired and was hurrying to be in time to be picked up by a colleague, given that she had very little time between finishing work, travelling to the hotel, showering and changing.
It was reasonable, so it is submitted, for the Arbitrator to find that her tiredness and her hurrying resulted from her employment and therefore it is arguable that there was a “real and substantial connection” between her employment and the fall that she suffered.
The Arbitrator’s findings that Ms McCoy was on a journey covered by s 10 of the 1987 Act are primarily findings of fact.[12]
[12] Reasons, [82]-[94].
The Arbitrator’s findings concerning the question of whether there was a real and substantial connection to the employment are also findings of fact.[13]
[13] Reasons, [100]-[113].
The finding of “tiredness” is a matter of fact and acceptance of Ms McCoy’s evidence. Evidence which was not challenged by the appellant. There was an absence of evidence by the appellant to challenge Ms McCoy’s perception that she was hurrying and/or tired.
There was no dispute at arbitration that Ms McCoy was hurrying and/or was tired at the time of the injury.
The appellant has failed to identify any authority that the Arbitrator has failed to consider or apply or any evidence that the Arbitrator should have preferred.
There is no basis for the appellant’s submission that Ms McCoy did not logically explain her “tiredness”.
Accordingly, it is submitted that Ms McCoy suffered an injury while on a journey contemplated by s 10 of the 1987 Act and that there was a “real and substantial connection” between the party and her employment. Therefore, the injuries suffered by Ms McCoy during the course of the journey were compensable.

DISCUSSION

This is an appeal pursuant to s 352 of the 1998 Act. An appeal under s 352 is characterised by the identification and correction of error. It is not a review or re-hearing.
The onus lies on the appellant to show that the Arbitrator’s findings were not open. That is, they were not supported by the evidence or the evidence, properly evaluated, demonstrated a contrary view to that adopted by the Arbitrator.
This appeal involves a challenge to the Arbitrator’s factual findings concerning the connection between the employment and the incident out of which the personal injury arose. The relevant principles to be applied in dealing with challenges to factual findings on appeal are identified in Raulston v Toll Pty Ltd[14] where Deputy President Roche held:
[14] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”[15]
[15] Raulston, [19]-[20].
For the reasons discussed below, I do not accept the appellant’s submissions.
A journey claim under s 10(3A) of the 1987 Act will only arise if a worker’s journey otherwise satisfies the requirements of s 10 of the 1987 Act. If those requirements are satisfied, s 10(3A) will be satisfied if it can be established that there was a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
The test to be applied under s 10(3A) is a different and less demanding test to that applied to establish that an injury arose out of or in the course of employment pursuant to s 4 of the 1987 Act. The test under s 4 requires a causative element which is to be inferred from the facts as a matter of commonsense.[16] The test under s 10(3A) of a “real and substantial connection” may, but does not necessarily, convey the notion of a causal connection.[17] It requires an association or relationship between the employment and the accident or incident, which may be provided by establishing that the employment caused the accident or incident.[18] However, employment does not have to be the only, or even the main cause.
[16] Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSWStRp 23; 41 SR (NSW) 119; March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506.
[17] Bina, [102], [114].
[18] Wickenden, [38], [41].
I reject the appellant’s submission that the Arbitrator’s finding that fatigue reduces awareness and reaction times was contradictory to his finding that the injury did not arise out of the employment (s 4). The Arbitrator’s findings on injury under s 4, which are not disputed on appeal, are of no consequence. The Arbitrator’s findings on s 10(3A) did not depend on a favourable finding that Ms McCoy discharged her onus of establishing that the injury arose out of or in the course of her employment.
The Arbitrator correctly observed that the only factors identified from the evidence as contributing to the fall were “the raised paver, and the fact that she was tired and hurrying.”[19] The Arbitrator observed that whether any of these factors were connected to the accident or incident out of which the personal injury arose was a question of fact. That is also correct.
[19] Reasons, [108].
The appellant did not contest Ms McCoy’s evidence that she was hurrying and tired at the time of the incident. The issue in dispute was whether those factors established a real and substantial connection between the employment and the injury. The Arbitrator found that those factors, in combination, did. That required the drawing of an inference.
The drawing of an inference is “an exercise of the ordinary powers of human reason in the light of human experience”.[20] In a civil case, “you need only circumstances raising a more probable inference in favour of what is alleged”.[21] Error is unlikely to be established where all that is shown is that the trial judge (or arbitrator) made a choice between competing inferences, being a choice that the appellate court might not have made but not a choice the trial judge (or arbitrator) should not have made.[22]
[20] G v H [1994] HCA 48; 181 CLR 387, 390 (G v H).
[21] Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5.
[22] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359, 369.
The only evidence regarding the issue of tiredness and hurrying is found in Ms McCoy’s uncontested evidence. Relevantly, Ms McCoy stated:
“I was not only tired at the time as I had completed a full day at work, it having been at the end of a busy year, but I was also hurrying to be on time for the start of the function which was due to commence at 6 p.m. I felt that this significantly contributed to my tripping and falling.”
I accept that as a general rule when assessing the weight to be attached to evidence in drawing a factual conclusion “[i]t is for the tribunal of fact to assess the reliability of the evidence against the ‘contemporary materials, objectively established facts and the apparent logic of events’”.[23] In this case there were no contemporaneous materials of relevance. However, there were objectively established facts and an apparent logic of events.
[23] Fox v Percy [2003] HCA 22; 214 CLR 118, [31].
The Arbitrator accepted that Ms McCoy had a level of fatigue due to work that day and over the year. He found that fatigue reduces awareness and reaction times, even though he did not accept that it was at the level required for the injury to arise out of the employment, for the reasons discussed above.
I do not accept the appellant’s submission that Ms McCoy was required to produce contemporaneous evidence that she was fatigued in order for her evidence to be accepted. As I have said, that evidence was not challenged. In any event, I have not been directed to any evidence to the contrary.
Contrary to the appellant’s submissions it was unnecessary for Ms McCoy to establish that she had performed any additional tasks in her role as a client services officer in order for her evidence that she was tired, to be accepted.
I accept that there was no evidence that Ms McCoy’s tiredness reduced her reaction time and therefore contributed to her fall. The Arbitrator’s conclusion that the tiredness reduced Ms McCoy’s reaction time which contributed to the fall required the drawing of an inference.[24]
[24] Wickenden.
Ms McCoy’s unchallenged evidence provided a logical explanation, which the Arbitrator accepted, for her belief as to the cause of her fall and its connection with employment. Namely, she was tired; it being the end of the year and the end of a day’s work in combination with the unchallenged fact that she was hurrying to get to the party on time and the presence of a raised paver on the pathway.
Even if evidence is unchallenged, a party may be able to demonstrate that the evidence is inherently illogical or unreliable, or that the evidence is based on an incorrect or incomplete history or on unproven assumptions.[25] For the following reasons, Ms McCoy’s evidence regarding tiredness and hurrying was not “inherently illogical or unreliable” or defective in some other material way.[26] The Arbitrator did not err in accepting it.
[25] Hamod, [338]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 (Thompson), [21].
[26] Hamod, [338]; Thompson, [21].
The Arbitrator’s finding that common sense suggested that fatigue reduces awareness and reaction time and therefore was a contributing factor to Ms McCoy tripping on the raised paver was an appropriate exercise in the ordinary powers of human reason in light of human experience.[27] It was an inference that was reasonably open to be drawn, from the established facts, and did not involve error.
[27] G v H, 390.
Further, I reject the appellant’s submission that there was no logical basis for Ms McCoy to have perceived that she needed to hurry to get to the Christmas party. The uncontested evidence is that she finished work at 5.15 pm. She arrived at the hotel where she was to spend the night at about 5.30 pm. To be at the Christmas party on time, that provided a window of only 30 minutes to shower and dress, meet with her colleague Ms Richards and proceed to the Christmas party venue.
Whilst I accept that there was no evidence that Ms McCoy was required to be at the party by 6.00 pm, her unchallenged evidence, which the Arbitrator accepted, was that she perceived a need to be at the Christmas party on time and therefore was in a hurry to get there by 6.00 pm. She stated that staying at the hotel enabled her and her husband “to be ready for the function on time and avoided a long trip home afterwards in circumstances where [she and her husband] had both worked a full day before attending the function and both expected to consume some alcohol.” It was that perception, in part, which Ms McCoy said substantially contributed to her fall. In those circumstances, it was open to the Arbitrator to conclude that Ms McCoy had adequately explained her perception that she needed to hurry to reach the party on time.
It is accepted that Ms McCoy was undertaking a journey between her place of abode and her place of employment when she sustained the injuries to her ankle. The Arbitrator accepted Ms McCoy’s evidence that at the time of the accident she was both tired and hurrying. Ms McCoy said, and the Arbitrator accepted, that she considered those factors “significantly contributed” to her tripping and falling. She provided a logical explanation for that perception, as discussed above. The Arbitrator was satisfied that those factors, in combination, established a connection between the employment and the accident that was real and substantial pursuant to s 10(3A) of the 1987 Act. That was a finding of fact that was open to the Arbitrator on the uncontested evidence presented. Such a finding may not be disturbed on appeal unless an error of the kind discussed in Whiteley Muir[28] is identified. I am not satisfied that such an error has been identified.
[28] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505
For the above reasons, the appeal fails.

CONCLUSION

Ms McCoy was in the course of a journey from a hotel, where she was staying the night, to another venue to attend her office Christmas party when she tripped and fell on a raised paver injuring her right ankle. The journey was a periodic journey between Ms McCoy’s place of abode and place of employment. Ms McCoy discharged her onus of establishing that at the time of the accident she was both tired and hurrying because of her employment. The Arbitrator was correct to conclude that the combination of those factors was sufficient to satisfy the requirements of s 10(3A) of the 1987 Act, in that there was a real and substantial connection between the employment and the accident.

ORDERS

Paragraphs [1] and [3] of the Arbitrator’s Certificate of Determination of 21 March 2018 are confirmed.
The matter is remitted to the Arbitrator to deal with any outstanding issues.

Judge Keating

President

3 July 2018