Stuart v G Maroun and J Maroun and Workers Compensation Nominal Insurer
[2024] NSWPICPD 30
•21 May 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Stuart v G Maroun and J Maroun and Workers Compensation Nominal Insurer [2024] NSWPICPD 30 |
APPELLANT: | Diane Joy Stuart |
FIRST RESPONDENT: | G Maroun and J Maroun |
FIRST RESPONDENT’S INSURER: | Uninsured |
SECOND RESPONDENT: | Workers Compensation Nominal Insurer |
FILE NUMBER: | A1-W598/22 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 21 May 2024 |
ORDERS MADE ON APPEAL: | 1. Order No. 1 of the Certificate of Determination dated 12 May 2023 is confirmed. 2. Order No. 2 of the Certificate of Determination dated 12 May 2023 is revoked. 3. There are findings that: (a) The deceased suffered employment injury on 5 March 2017 while in the course of his employment with G Maroun and J Maroun, which resulted in the death of the deceased on that date. (b) The deceased’s employment was a ‘substantial contributing factor’ to the injury which resulted in his death. 4. The matter is remitted to Senior Member Beilby to deal with those issues that remain, consistent with these reasons. Those issues potentially include any claim in respect of interest, funeral expenses, recovery on the part of the Workers Compensation Nominal Insurer and any necessary orders for the payment out of the compensation to be awarded. |
CATCHWORDS: | WORKERS COMPENSATION – Section 9A of the Workers Compensation Act 1987; application of Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; ‘worker’ – contract of employment: Harris v Cudgegong Soaring Pty Ltd (1995) 11 NSWCCR 678, Mooney v White [2022] NSWPICPD 13; intention to enter legal relations: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95; failing to respond to a substantial, clearly articulated argument relying upon established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389, Day v SAS Trustee Corporation [2021] NSWCA 71, Wang v State of New South Wales [2019] NSWCA 263; drawing of inferences – Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, Luxton v Vines [1952] HCA 19; 85 CLR 352, Fuller-Lyons v New South Wales [2015] HCA 31, Chen v State of New South Wales (No. 2) [2016] NSWCA 292; ‘in the course of employment’, WorkCover Authority of NSW v Walsh [2004] NSWCA 186, Dew v Maher [1996] NSWCA 154; 14 NSWCCR 56, Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36; section 14 of the 1987 Act, Scharrer v Redrock Co Pty Ltd [2010] NSWCA 365; 8 DDCR 243; re-determination pursuant to s 352 of the 1998 Act, Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1, Secretary, Department of Planning and Environment v Lyons [2024] NSWPICPD 25 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Ms E Grotte, counsel Hennessy Dowd Lawyers | |
| First Respondent: | |
| Mr P Macken, solicitor Leigh Virtue & Associates | |
| Respondent: | |
| Mr S Grant, counsel HWL Ebsworth Lawyers | |
DECISION UNDER APPEAL: | Stuart v Workers Compensation Nominal Insurer & Ors [2023] NSWPIC 219 |
SENIOR MEMBER: | Ms E Beilby |
DATE OF MEMBER’S DECISION: | 12 May 2023 |
INTRODUCTION AND BACKGROUND
Diane Stuart (the appellant/Mrs Stuart) is the widow of the late Douglas Stuart (the deceased/Mr Stuart). G and J Maroun (the first respondents/the Marouns) owned two adjoining rural properties in the Sofala district. There was an old house on one of these properties. From about late 2015[1] there was an arrangement that the late Mr Stuart would live in the house and would help with some farm work. G and J Maroun were not insured for the purposes of the workers compensation legislation. Mr Stuart owned a 4-wheel quadbike which he used on the property. Mr Stuart had previously suffered a serious work injury (unconnected to the Marouns) in 1994, which led to a left below knee amputation in 2010, in respect of which he received ongoing compensation payments. He also had a problem with the excessive use of alcohol.[2]
[1] Appellant’s statement 31/3/21, Amended Application in Respect of Death of Worker (ARD), pp 12–15, [5], [15], [24].
[2] Stuart v Workers Compensation Nominal Insurer & Ors [2023] NSWPIC (reasons), [1]–[5], [11]–[18], [27]–[31].
The reasons described it as undisputed that Mr Stuart occupied the old house rent-free on the understanding that he would be present when the Marouns were not in attendance. The reasons described the evidence as indicating that “Mr Stuart was an experienced farmhand who had the skills necessary to carry out fencing, mustering cattle and sheep, spot spraying and tractor work”.[3]
[3] Reasons, [191].
Mr Stuart died on 5 March 2017 due to a head injury, sustained in an accident when his quadbike rolled while he was using it on one of these properties at Sofala. The location of the accident was 600 metres from the house where the deceased lived, at the base of a dry creek bed about 100 metres off the property track.[4] The Coroner’s report dated 21 June 2017 identified a contributing factor, being “acute alcohol intoxication” with a blood alcohol level of 0.306 g/100ml (on the lowest of the readings in the Coroner’s report). There were also non-toxic levels of benzodiazepines and an antidepressant detected on blood analysis.[5]
[4] SafeWork NSW WSMS Incident Notification Report, 24/4/17, ARD, p 97.
[5] Reasons, [178]–[180].
Mrs Stuart, through her solicitors, gave notice on 26 September 2019 that she sought to make a claim in respect of Mr Stuart’s death.[6] On 6 February 2020 she lodged a claim on icare workers insurance (the insurer).[7] The insurer issued a dispute notice dated 10 March 2020.[8] The notice denied that the late Mr Stuart was a worker or a deemed worker in the employ of the Marouns. It denied that death resulted from injury in the course of employment. It denied liability for the lump sum death benefit and funeral expenses. The notice also referred to the deceased’s intoxication. The insurer said there was “no evidence, other than speculation of Mr Wells [who had been with the late Mr Stuart at the house on the date of death] that [the deceased] was doing anything associated with work on the property at the time he went for a ride on his quad bike and died”.
[6] ARD, p 11.
[7] ARD, pp 6–9.
[8] ARD, pp 1–5.
The current proceedings were commenced on 2 February 2022. They claimed the ‘lump sum death benefit’ pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act), the correct figure for which, as at the date of death, was the sum of $765,650. Mrs Stuart was the only nominated dependant. Mrs Stuart had taken steps to inform the (adult) children and stepchildren of the late Mr Stuart of the claim pursuant to s 25. None indicated a wish to make a claim in respect of the late Mr Stuart’s death. The matter was listed for hearing on 4 November 2022. Ms Grotte appeared for Mrs Stuart, Mr Saul appeared for the Marouns and Mr Grant appeared for the Workers Compensation Nominal Insurer. Ms Grotte, without objection, amended the allegation of injury to read: “The deceased worker was checking on sheep on a quadbike in the course of his employment, the quadbike rolled and the worker was killed”.[9]
[9] Transcript of hearing, 4/11/22 (T), T 2.24–3.32.
The course adopted at the hearing, without objection, was that the admission of late documents was dealt with.[10] It was agreed that Mr Saul, who appeared for the Marouns, would make his submissions orally at the hearing and the submissions of the other parties would be made in writing.[11] The Commission issued a Certificate of Determination dated 12 May 2023 accompanied by the reasons. The Senior Member found that the deceased was a ‘worker’ within the meaning of the workers compensation legislation. She found that s 9A of the 1987 Act was not satisfied, employment was not a ‘substantial contributing factor’ to the fatal injury. The effect of this finding was that Mrs Stuart’s claim failed. This appeal is brought against that decision.
[10] T 7.15–11.29.
[11] T 4.2–17, 11.29–12.2.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The decision is not interlocutory.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both Mrs Stuart and the insurer submit the matter can be dealt with ‘on the papers’ without an oral hearing. The Marouns submit the matter requires an oral hearing. They give three reasons in support of this submission. The first is that, at the time they lodged their Notice of Opposition, transcript was not available. The second is that they rely on a Notice of Contention. The third is that there is a large volume of material and the matter is relatively complex.[12]
[12] First respondent’s submissions, [3].
The Commission file indicates that the only relevant transcript was from the hearing held on 4 November 2022, and this was issued to the parties during the course of the proceedings at first instance. The first of these submissions is without merit. The Notice of Contention relates to the issues of ‘worker’ and ‘injury’, on which Mrs Stuart succeeded at first instance. The parties’ written submissions on the appeal deal with these topics.[13] There is no indication of what other submissions the Marouns seek to make or why these could not be included in their written material. The Marouns do not identify, even in a general sense, what submissions they are unable to make in writing due to the complexity and/or bulk of the material. They do not indicate why an oral hearing is appropriate on this basis.
[13] First respondent’s submissions, [17]–[21].
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by two of 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.
THE SENIOR MEMBER’S REASONS
The Senior Member noted the Marouns did not hold a valid workers compensation policy of insurance as at the date of Mr Stuart’s death. She said the parties agreed there were two issues remaining in dispute:
(a) Was Mr Stuart a worker within s 4 of the 1987 Act?
(b) Was employment a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act?[14] (I note that additionally the first respondent, in its oral submissions at first instance, denied that the deceased, on the date of his death, was in the course of his employment.)[15]
[14] Reasons, [4]–[5].
[15] T 12.23–30.
The Senior Member summarised a significant body of evidence[16] (which I will not repeat in these reasons) from Mrs Stuart, Senior Constable Alan Tull, George Maroun, John Maroun, Edward Garth Wells, Jason Stuart, Joseph Maroun, Joseph Boutros, George Boutros, Botros Botros, Bradley Tannous, Youssef Gerges, Trevor Gillett, David Campbell, Chasca Kilby, Robert Miller, Wayne Crow, Marianne Kimm, Matthew Martin, Edward Pillotto, Paul Williams and Michael Brennan. The Senior Member also summarised material from the Coroner’s report and from Mr Stuart’s taxation returns from the years 2015 to 2018.[17]
[16] Reasons, [10]–[177].
[17] Reasons, [178]–[183].
The Senior Member dealt with the issue of ‘worker’. She said:
“[Mrs Stuart’s] case is essentially that Mr Stuart was employed as a farm manager initially working two to three days per week and for which he anticipated being paid for his efforts and was also given the opportunity to occupy a house on the property rent-free however was liable to pay for electricity and telephone expenses.”[18]
[18] Reasons, [186].
The Senior Member noted there was a dispute about how Mr Stuart began living at the Maroun family property. She said:
“What is not disputed however is that Mr Stuart occupied an old house on the family’s property rent-free on the understanding that he would be present when the Marouns were not in attendance.”[19]
[19] Reasons, [187].
The Senior Member referred to a statement by Michael Brennan,[20] which described such arrangements as “regular practice for landowners around Sofala in circumstances because of theft of stock”. She referred also to a statement by Mr G Maroun dated 9 March 2017, given to Senior Constable Isler, which referred to Mr Stuart occasionally checking on stock. She said this statement also referred to Mr Stuart living “at the house rent-free as a caretaker of the property”. The Senior Member said there was evidence of other people living in the community who saw Mr Stuart performing various tasks on the Marouns’ property. The Senior Member referred to evidence from Mrs Stuart, that she and the late Mr Stuart had to obtain feed for cattle on the Marouns’ property which were distressed by lack of food, and damaged the Stuarts’ motor vehicle when food was given to them. The Senior Member said she found this “most persuasive as to the existence of this work”.[21] The Senior Member also said:
“What is also not in dispute is that George Maroun provided the deceased with fuel for his quadbike to use on the property. It seems inconsistent that George Maroun would provide free fuel for Mr Stuart in circumstances where there wasn’t some mutual benefit for the Maroun farm.”[22]
And:
“… it is to my mind, obvious that Mr Stuart was provided with a place to live in exchange for at the very least, minding the family farm while the Marouns were not present. It was of some advantage to the Marouns to have someone residing on the property permanently to keep an eye on it. To an even greater advantage, they had someone living there who had extensive farming skills and knowledge.”[23]
[20] Summarised at [166]–[177] of the reasons.
[21] Reasons, [189]–[192].
[22] Reasons, [193].
[23] Reasons, [194].
The Senior Member referred to the following passage from the decision of Neilson J in Harris v Cudgegong Soaring Pty Ltd:
“… there is one further consideration that was extremely relevant to this case. A caretaker’s job is to live on site and keep an eye on things. His mere presence is a deterrent to the thief and the vandal. His job is to keep his eyes and ears open – to respond to any unusual activity, any suspicious noise, to act in an emergency”.[24]
[24] (1995) 11 NSWCCR 678 (Harris), [31].
The Senior Member also referred to Mooney v White,[25] in which Harris was applied.[26] She accepted the submission, made on Mrs Stuart’s behalf, that “when the deceased was on site, he was in effect acting in the interests of the Marouns and to their benefit, that is, that he was able to act as a deterrent to [thieves] and to vandals”.[27] The Senior Member referred to the issue of whether there was an intention to create legal relations between the deceased and the Marouns. She referred to her factual finding that Mr Stuart acted as a caretaker and in consideration for this was provided with free accommodation and at times fuel and food. She found that Mr Stuart was a ‘worker’.[28]
[25] [2022] NSWPICPD 13 (Mooney).
[26] Reasons, [195]–[196].
[27] Reasons, [197].
[28] Reasons, [198]–[199].
The Senior Member dealt with whether s 9A of the 1987 Act was satisfied. She referred to the evidence of Mr Wells, which had placed the time of Mr Stuart leaving the house on the date of injury as 5.30 pm and then as 7.15 pm. She said Mr Wells had not explained this inconsistency. She referred to the evidence of Mr Williams, who owned the property next to the Marouns. Mr Williams described attending the Sofala Hotel on the date of accident at 5 pm. He said he spoke to Mr Stuart and another man who were both intoxicated. Mr Wells said that after this encounter Mr Stuart returned to the property, had a further sleep and consumed two stubbies of beer. The Senior Member said this was consistent with Mr Stuart leaving the property on his quadbike at approximately 7.15 pm.[29]
[29] Reasons, [202]–[204].
The Senior Member said Mr Wells assumed the deceased was “checking on the stock”. She said that if stock were in the general area this assumption “might be one that the Commission would accept”. The Senior Member said that uncontradicted evidence showed the accident site, where the deceased was located, “did not appear to be any part of the farm where stock were located”. She said:
“… there is no evidence before me that leads me to make a comfortable finding that the deceased was travelling on his quadbike in connection with an activity on the farm.”[30]
[30] Reasons, [205].
The Senior Member dealt with the specific subclauses in s 9A(2) of the 1987 Act:[31]
[31] Reasons, [206].
“(a) the time and place of the injury:
There is no direct evidence that [Mr Stuart] was actively engaged in employment activities at the time of his death. The unchallenged evidence is that there was no stock near the location that Mr Stuart was found, nor any paths. Rather the stock were three paddocks away.[32]
[32] Statement of G Maroun, 4/7/22, Application to Admit Late Documents (AALD) dated 5/7/22, p 11, [34].
Whilst I accept that the nature of farming in Sofala meant that at time stock strayed onto neighbouring properties, there is no evidence that this had occurred on 15 March 2017 requiring Mr Stuart to leave on his quadbike and contain them.
I am left in a position where I am not persuaded that there was any work-related reason for Mr Stuart to be on his quadbike on the evening of 15 March 2017 in the area that he was.
(b) the nature of the work performed and the particular tasks of that work:
I have found that Mr Stuart was employed as a caretaker on the Marouns’ property. I also accept given his extensive experience on farms that he would assist at times in running the property.
I cannot identify any particular task that would have required Mr Stuart to be on his quadbike at that time in that place. My findings may have been different if the quadbike was found in an area where stock were. Unfortunately for [Mrs Stuart], no such evidence has been placed before me.
(c) the duration of the employment:
Mr Stuart had been living on the Maroun property for some time, this factor does not have any significance in my determination.
(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:
Mr Stuart was heavily intoxicated at the time of his death. The Coroner’s report indicated that [Mr Stuart] would have been significantly impaired. It is difficult to say that the injury would have occurred at the same time or at the same stage in his life.
(e) the worker’s state of health before the injury and the existence of any hereditary risks:
Mr Stuart was heavily intoxicated at the time of death such [that] his judgment was likely to have been impaired. He also suffered from a prior disability though there is no evidence that this contributed to the accident.
(f) the worker’s lifestyle and his or her activities outside the workplace:
Mr Stuart was heavily intoxicated at the time of his death.”
The Senior Member said Mrs Stuart carried the onus “to prove what activity the deceased was engaged in at the time of the accident”. The Senior Member rejected the argument that the deceased was “traversing the property to check on the Maroun[s’] sheep”; she said the undisputed evidence was that “there were no sheep in the area that Mr Stuart was found”. She referred to a submission that Mr Stuart may, at the time of the accident, have been returning to the dwelling after checking the sheep. The Senior Member said the evidence did not support such a finding. She said there was no explanation as to the route he may have taken to support such a finding.[33]
[33] Reasons, [207]–[209].
The Senior Member said there was a “significant dispute” regarding whether Mr Stuart and Mr Wells assisted the Marouns on the morning of the accident. She said she was not required to determine that dispute as she focussed on the events of the evening which did not establish an employment activity at the time of the accident. She commented that “if Mr Stuart had assisted that day, he would have known that the sheep were not in the locale that he was riding his bike”. She said this did not assist Mrs Stuart’s case on ‘substantial contributing factor’. She said Mrs Stuart had not established that employment was a substantial contributing factor to the injury.[34]
[34] Reasons, [210]–[211].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:[35]
(a) The Senior Member misconstrued the provisions of s 9A of the 1987 Act thereby leading her into error in respect of her determination in respect of ‘substantial contributing factor’. (Ground No. 1)
(b) The Senior Member erred in law by erroneously omitting to deal with the submission made on behalf of the appellant that whenever the deceased was on the property he was ‘clocked on’ the job as a caretaker and that, as such, his employment was a substantial contributing factor to the fatal injury because he more than likely would have been using his quadbike for the benefit of the Marouns, thereby denying procedural fairness to the appellant. (Ground No. 2)
(c) The Senior Member erred in fact and law by failing to draw the compelling inference that the deceased was carrying out some work-related activity or returning from having carried out some work-related activity at the time of his death. (Ground No. 3)
[35] Appellant’s submissions, [6]–[8].
NOTICE OF CONTENTION
The first respondent raises a Notice of Contention, for which provision is made in r 125 of the Personal Injury Commission Rules 2021 (the Rules). It does so by incorporating the relevant grounds and submissions (which are brief) into its Notice of Opposition.[36] The document clearly identifies that part of its contents which constitute the Notice of Contention and associated submissions. No other party has objected to the form of the document. Rule 125 requires that the Notice of Contention be lodged and served at the same time as the Notice of Opposition (emphasis added). This envisages that the Notice of Contention will be a separate document. I note r 3 of the Rules and s 42 of the 2022 Act. In compliance with s 42 I have had regard to the Notice of Contention as if it were in appropriate form. Practitioners should note that a Notice of Contention should ordinarily be a document separate to the Notice of Opposition. The grounds raised are described as follows:
“[The Senior Member] was in error in determining that the deceased was a worker and in determining that the circumstances of his death satisfied section 4.”[37]
[36] First respondent’s submissions, [17]–[21].
[37] First respondent’s submissions, [17].
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[38] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[39](cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[40]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) A [Member], 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 [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’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 [Member] was wrong.
(c) It may be shown that [a Member] 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 [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[41]
[38] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[39] (1966) 39 ALJR 505 (Whitely Muir), 506.
[40] [1996] HCA 140; 140 ALR 227.
[41] Raulston, [19].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[42]Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[43]
[42] [2020] NSWCA 54 (Hill).
[43] Hill, [20].
In Northern NSW Local Health Network v Heggie[44] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519”.
[44] [2013] NSWCA 255; 12 DDCR 95, [72].
GROUNDS NOS. 1 AND 2
No. 1: The Senior Member misconstrued the provisions of s 9A of the 1987 Act thereby leading her into error in respect of her determination in respect of ‘substantial contributing factor’.
No. 2: The Senior Member erred in law by erroneously omitting to deal with the submission made on behalf of the appellant that whenever the deceased was on the property he was ‘clocked on’ the job as a caretaker and that, as such, his employment was a substantial contributing factor to the fatal injury because he more than likely would have been using his quadbike for the benefit of the Marouns, thereby denying procedural fairness to the appellant.
There is overlap between Grounds Nos. 1 and 2. This point is made by both respondents, each of which seeks to rely on its submissions dealing with Ground No. 1, as part of its response to Ground No. 2. It is convenient to deal with the two grounds together.
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.”
Appellant’s submissions
The appellant refers to the requirement “under s 9A to determine whether the employment concerned was a substantial contributing factor to the fatal injury” (emphasis in original). The Senior Member was required to take into account the matters specified in s 9A(2), but “may take into account other factors that are relevant to the determination of the question in issue: viz whether the employment concerned was a substantial contributing factor [to] the injury”.
The ‘employment’ for the purposes of s 4 of the 1987 Act is the same ‘employment’ that is under consideration in s 9A of the 1987 Act.[45] The Senior Member found the deceased was a caretaker and a ‘worker’ and that s 4 was established, that is, the deceased was a caretaker residing on the Marouns’ property to “keep an eye on it”. She also found the deceased was an experienced farm hand, skilled to carry out fencing, mustering cattle and sheep, spot spraying and tractor work. The employment included the use of his quadbike, the Senior Member accepted the Marouns provided him with fuel.[46]
[45] Appellant’s submissions, [9]–[10].
[46] Appellant’s submissions, [11]–[12].
The appellant submits that, in considering s 9A, the Senior Member directed her attention entirely to whether the deceased was carrying out a specific work activity such as checking sheep, this enquiry being limited to the location where the quadbike was found. The appellant submits this narrow focus led the Senior Member into error; the deceased was a caretaker whose job could involve moving around the property on his quadbike. The appellant refers to Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd.[47] Section 9A(2)(a) directs attention in part to what the employee was doing at the time of injury, as it requires identification of the time and place of injury. Section 9A(2)(b) requires consideration of the “nature of the work being performed and the particular tasks of that work” and the work performed as part of the employment concerned. The appellant quotes from the reasons in Badawi at [101] to [102] of that decision, which include the following:
“101. … Section 9A(1) requires a determination as to whether the employment is a substantial contributing factor to the injury. The determination so called for is not performed in a case such as this by looking at the recreational activity and then seeing whether any aspect of the employment concerned might have strengthened the linkage with that employment. Rather, a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account.
102. However, to approach the question in s 9A from the perspective of the non-employment activity undertaken during an interval in the employment, rather than from the perspective of the employment concerned, was to misunderstand the statutory test.”
[47] [2009] NSWCA 324; 75 NSWLR 503 (Badawi).
The appellant submits the Senior Member made the same error identified in Badawi, focussing on the actual activity the deceased was engaged in at the time of the fatal injury.[48] The appellant submits it was necessary that the Senior Member direct attention to the employment concerned, a caretaker, and the particular tasks of that work. The deceased not only caried out sheep dipping and mustering, he was expected to “keep an eye on the place”. The Senior Member did not consider whether this is what he was doing at the time of the fatal injury. The appellant notes the ARD described the deceased’s activity as “checking sheep”, based on the evidence of Mr Wells. The appellant submits that, once the Senior Member found the deceased was a caretaker, “those work duties ought to have formed part of the consideration of s 9A”.[49]
[48] Badawi, [96], [100]–[102], appellant’s submissions, [13]–[16].
[49] Appellant’s submissions, [17]–[18].
The appellant refers to Dranichnikov v Minister for Immigration and Multicultural Affairs.[50] The appellant refers to her allegation that the deceased was a caretaker and acting as such. She submits the Senior Member’s analysis failed to have regard to this submission, “the activities of ‘caretaking’ which were not limited to checking on stock”. The appellant refers to the decisions in Harris and Mooney No. 3 from which the Senior Member quoted. The appellant submits there was no evidence the deceased was on a joyride. She submits the deceased was “acting as a caretaker when he ventured out on his [quadbike] and died”. The appellant submits the failure to have regard to the activities of “caretaking” (beyond checking on stock) constituted a denial of procedural fairness, which denied the appellant “the opportunity of a positive outcome in relation to s 9A”.[51]
[50] [2003] HCA 26; 197 ALR 389 (Dranichnikov), [24] (per Gummow and Callinan JJ).
[51] Appellant’s submissions, [20]–[30].
First respondent’s submissions
The first respondent submits the Senior Member, in the reasons at [206] to [211], did not misconstrue s 9A. The first respondent refers to the ARD which pleaded that the deceased was “checking sheep” at the time of death. The first respondent submits the Senior Member engaged in a careful analysis and reached the only conclusion that was available. There was no evidence the deceased was engaged in any employment activity, and in particular “no evidence that he was checking sheep or anything vaguely relating to it”.
The first respondent submits that, if the deceased passed away in his sleep due to extreme intoxication it would be suggested on the appellant’s argument that employment was a substantial contributing factor to injury, which is clearly wrong. The first respondent submits there was no evidence to suggest that “the activity in which the deceased was engaged at the time of his death had any connection to any employment activity of any kind”. The evidence was to the contrary.[52]
[52] First respondent’s submissions, [8]–[11].
The first respondent submits the case advanced by the appellant was that the deceased was likely engaged in checking stock. It submits the Senior Member correctly found there was no evidence the deceased was engaged in the checking of stock or in any employment-related activity. It submits the deceased was heavily intoxicated and forbidden from entering the farm when intoxicated.
Second respondent’s submissions
The second respondent states it relies on the submissions of the first respondent. The second respondent disputes that the Senior Member misconstrued s 9A of the 1987 Act. It submits there is a two-step process, establishing injury in the course of or arising out of employment under s 4, and then satisfaction of the requirement under s 9A that employment be a ‘substantial contributing factor’. Section 9A involves a causative element, did the employment contribute to the injury “in a real and substantial way” (reference is made to Badawi). The Senior Member found the deceased was a caretaker. This was insufficient to satisfy s 9A. The appellant carried the onus.[53]
[53] Second respondent’s submissions, [16]–[26]
The second respondent submits:
“The thrust of the [a]ppellant’s submissions in this ground is a complaint that the [Senior] Member focussed upon whether she could be satisfied that at the time of the injury the [d]eceased was carrying out a specific work activity such as mustering sheep and was limited to where the quad-bike was found”.[54]
[54] Second respondent’s submissions, [27].
The second respondent submits the Senior Member “needed to look carefully at what [the deceased] was doing when injured … she focussed on what employment activity if any the [d]eceased was attending to on his quad-bike when injured”. It was necessary that the deceased “was doing something connected to his employment which was a real or substantial factor leading to him suffering the injury … [The appellant] was unable to [satisfy the Senior Member of] this”. The second respondent refers by analogy to circumstances where the worker may suffer a stroke while riding his quadbike. This may constitute injury in the course of employment but, “without additional evidence it could not be said that his employment was a substantial contributing factor to the cause of his injury”.[55]
[55] Second respondent’s submissions, [27]–[32].
The second respondent submits the Senior Member’s conclusion on the issue was available to her, and error is not established simply because an appellate tribunal might arrive at a different conclusion.[56]
[56] Second respondent’s submissions, [33]–[34].
The second respondent identifies the appellant’s argument as one that the Senior Member should have inferred, from the fact that the deceased was riding his quadbike on the property, that employment was a substantial contributing factor to the injury. The Senior Member considered there was no plausible explanation for why the deceased was riding the quadbike in the area where he was found. She was “not able to infer that [the deceased] was doing something connected to his employment sufficient to raise his employment to being a substantial contributing factor to his injury occurring”.
The second respondent submits the deceased had a very high level of alcohol in his bloodstream when he died, sufficient to influence his coordination and decision making. It submits the first respondents forbade the deceased from being outside the fence to the house when under the influence of alcohol.
The second respondent submits that, even if an appellate tribunal might come to a different conclusion to that of the Senior Member, it could not be said she was in error in not drawing the inference for which the appellant argued.[57]
[57] Second respondent’s submissions, [35]–[42].
Appellant’s submissions in reply
The appellant says it is not submitted that if the deceased were sleeping he would be engaged in an activity related to being a caretaker. Rather, the submission is that while he was on the farm he was ‘clocked on’; the fact that he went out on his quadbike on the date of his death “must have been related to the farm, because there was no evidence at all of the deceased joy-riding on his quad bike”. Mr Wells believed the deceased was carrying out an activity relating to the farm (checking sheep).[58]
[58] Appellant’s submissions in reply, [1]–[3].
The appellant submits that, even if the deceased was prohibited from entering the farm when intoxicated, the injury resulted in death. Section 14 of the 1987 Act provides that compensation is payable even if the deceased was acting without instructions.
Consideration
The parties have referred to the decision in Harris, which involved a caretaker who was allowed to live without charge on the grounds of a gliding club, the putative employer. Neilson J in that case said that there was consideration and an intention to enter legal relations. His Honour concluded the caretaker was a worker, saying:
“However, there is one further consideration which is extremely relevant to this case. A caretaker’s job is to live on site and keep an eye on things. His mere presence is a deterrent to the thief and to the vandal. His job is to keep his eyes and his ears open - to respond to an unusual activity, any suspicious noise, to act in an emergency.
Whilst ever he is on site, he can so act. It appears to me that, absent misconduct or a frolic of his own, he would be in the course of his employment whenever he was on site.”[59]
[59] Harris, 702G–703A.
The decision in Harris was not disturbed in the Court of Appeal (the appeal dealing with a different issue).[60] Section 9A of the 1987 Act initially commenced on 12 January 1997 and did not have application in Harris.
[60] Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 (per Sheller JA, Cole JA agreeing).
Some principles from Badawi
In Badawi the joint reasons of Allsop P, and Beazley and McColl JJA (as their Honours then were) described the following propositions, “distilled” from Mercer v ANZ Banking Group Ltd,[61] as “uncontroversial” (excluding citations):
“(1) The strength of the causal linkage between the employment concerned and the injury is the question in issue.
(2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself.
(3) Both s 4 and s 9A require independent satisfaction.
(4) Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors.
(5) Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge.
(6) Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact.
(7) The phrase ‘employment concerned’ in s 9A(1) bears the same meaning as ‘employment’ in the phrase ‘arising out of or in the course of employment’.”[62] (emphasis in original)
[61] [2000] NSWCA 138; 48 NSWLR 740 (Mercer).
[62] Badawi, [48].
Their Honours said “[i]t was not disputed that the requirement imposed by s 9A that the ‘employment concerned’ was a ‘substantial contributing factor’ involves a causative element”.[63] They said:
“The words of the statute should be adhered to: ‘a substantial contributing factor’. The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance.”[64] (emphasis in original)
[63] Badawi, [80].
[64] Badawi, [82].
Their Honours disagreed with the observation of Mason P in Mercer that “the causal requirement in s 9A is less stringent than that in s 9 (as read with s 4)”. In this regard their Honours said:
“… there may be circumstances where the factors considered necessary and sufficient to satisfy the test ‘arising out of employment’ for the purposes of s 9, are sufficient to satisfy the test in s 9A. Whether that is so will depend on the facts. Both are factual questions. The question under each section is differently expressed and must be considered separately. It is not sufficient to find that injury arose out of ‘employment’ and to thereby be able to conclude that the employment concerned was a ‘substantial contributing factor’. Such a reasoning process is expressly proscribed by s 9A(3).[65] (emphasis in original)
[65] Badawi, [83], [85].
The worker in Badawi attended a ski resort on a business trip. “She was required to attend to her employment as and when required by her supervisor. During the course of those employment activities, [she] was also entitled to engage in personal activities: eating, sleeping, shopping, relaxing, and recreational activities such as skiing.” She was injured when leaving the ski slopes, at her supervisor’s request, to return to the resort, where business was being conducted.[66] The Presidential member concluded that s 9A was not satisfied. He made a factual finding (dealing with paragraph (b) of s 9A(2)) that when injured the worker “was not performing any work activity … but was skiing with her partner because they had ‘time on [their] hands’”.[67] Their Honours considered this an error that was factual (potentially immune from appellate review pursuant to s 353 of the 1998 Act). However, their Honours said:
“… s 9A(2)(b) directs attention not to what the employee was doing when the injury occurred, but to ‘the nature of the work performed and the particular tasks of that work’, that is, of the employment concerned.”[68] (emphasis in original)
And:
“In our opinion, the President did not have regard to the nature of the work performed or the particular tasks of that work in determining whether the employment concerned was a substantial contributing factor to the injury for the purposes of s 9A. Rather, he had regard to the recreational skiing activity … skiing was not ‘the employment concerned’. Nor was it an aspect of the work that the appellant performed, or a particular task of her work within the meaning of para (b).”[69]
And:
“Section 9A requires a consideration of ‘the employment concerned’ to ascertain whether it was a substantial contributing factor to the injury given the relevant circumstances in which the injury occurred, including the matters in s 9A(2).”[70] (emphasis in original)
[66] Badawi, [92]–[93].
[67] Badawi, [95].
[68] Badawi, [96].
[69] Badawi, [99].
[70] Badawi, [105].
The approach taken by the Senior Member
The Senior Member set out s 9A. She made a factual finding, for which she gave reasons, that on the evening of the fatal accident the deceased left the house on the property at approximately 7.15 pm. That finding is not challenged.[71] She made a finding that “the place where the deceased was located did not appear to be any part of the farm where stock were located”. She described this evidence as “uncontradicted” notwithstanding the assumption by Mr Wells that the deceased was checking on stock. That finding is not challenged.[72] This led to the following finding:
“However, there is no evidence before me that leads me to make a comfortable finding that the deceased was travelling on his quadbike in connection with an activity on the farm.”[73]
[71] Reasons, [201]–[204].
[72] Reasons, [205].
[73] Reasons, [205].
The basis of this finding was that the place where the deceased was found was inconsistent with him being on a journey either to or from a place where stock were located.
It is necessary that the reasons be read as a whole.[74] The Senior Member’s findings going to the contract between the late Mr Stuart and the Marouns clearly involved an acceptance of the appellant’s argument that one basis on which the deceased was engaged was to act as a caretaker. In her reasons at [194], the Senior Member described it as “obvious that Mr Stuart was provided with a place to live in for at the very least, minding the family farm while the Marouns were not present. It was to some advantage to the Marouns to have someone residing on the property permanently to keep an eye on it”. In the reasons at [195], the Senior Member quoted part of the passage (set out at [49] above) from the decision of Neilson J in Harris. She described the passage as “very apt to the present circumstances”.
[74] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
The Senior Member also quoted with apparent approval from a decision of Member Young in Mooney v White.[75] Mooney No. 3 was a matter where the worker acted as a caretaker on a rural property and was allowed to live in a farmhouse on the property rent free. The decision of Member Young was given on remitter from a Presidential appeal in that case.[76] The quoted passage from Member Young’s decision includes the following:
“It is sufficient in this jurisdiction if the [worker] establishes that his injury arose out of or in the course of his employment and accepting (as I do) that the [worker] would be expected to respond to any event potentially adversely affecting the property, it’s premises and livestock whatever the time of day, that brings the [worker’s] employment into the umbrella of a caretaker role who is in the course of his employment whilst ever he is present at the property.”[77]
[75] [2022] NSWPIC 378 (Mooney No. 3).
[76] [2022] NSWPICPD 13 (Mooney).
[77] Mooney No. 3, [32].
Immediately after quoting the above, the Senior Member in her reasons said:
“197. I agree with [Mrs Stuart’s] submissions that when the deceased was on site, he was in effect acting in the interests of the Marouns and to their benefit, that is that he was able to act as a deterrent to the theft [sic, thief] and to vandals.
198. So far as the submissions are concerned regarding ‘an intention to create legal relations’ between the deceased and the first respondent, I find in favour of [Mrs Stuart]. I have made a factual finding that the [deceased] acted as a caretaker and in consideration for this was [sic] role was provided with free accommodation and at time fuel and food.
199. I therefor accept and make a finding that Mr Stuart’s circumstances fall with [sic] the ambit of s 4 of the 1987 Act.”
When the findings at [197] to [199] of the reasons are read together with the passages she quoted with apparent approval from Harris and Mooney No. 3, it is apparent the Senior Member accepted that the deceased acted as a caretaker and that he was in the course of his employment while he was on site at the Marouns’ properties. This also gives context to the relatively brief finding of ‘injury’ at [199] of the reasons.
Was there error?
In Badawi the majority said:
“The starting point for the President’s determination was that the appellant had sustained injury in the course of her employment. That was a matter that had been conceded, but its relevance remained fundamental to the task that the President was required to undertake under s 9A. It remained fundamental because, as we have already explained, ‘employment’ for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A.”[78] (emphasis in original)
[78] Badawi, [91].
The injury was that in the deceased’s fatal accident involving the quadbike on the Marouns’ property. Section 9A required a consideration of ‘the employment concerned’ to ascertain whether it was a substantial contributing factor to the injury, given the relevant circumstances in which the injury occurred, including the matters in s 9A(2) (see [31] above). The findings going to the deceased’s employment included a finding that the deceased acted as a caretaker in consideration for the accommodation, fuel and food supplied to him by the first respondents.[79] It was necessary that there be a consideration of the strength of the causal linkage between the employment concerned and the injury. The ‘employment concerned’ included the work of a caretaker. The passages quoted by the Senior Member, in making her finding on ‘worker’, referred to such employment as involving:
“… to live on site and keep an eye on things. His mere presence is a deterrent to the thief and to the vandal. His job is to keep his eyes and his ears open - to respond to an unusual activity, any suspicious noise, to act in an emergency” (Harris), and
“… to respond to any event potentially adversely affecting the property, [its] premises and livestock whatever the time of day, that brings the [worker’s] employment into the umbrella of a caretaker role who is in the course of his employment whilst ever he is present at the property” (Mooney No. 3).
[79] Reasons, [197]–[198].
It follows that a consideration of whether the employment concerned was a ‘substantial contributing factor’ to the deceased’s fatal injury should have been made on the basis that the employment included the nature and tasks of employment as a caretaker. Mrs Stuart’s submissions at first instance were framed on the basis that the deceased was “a ‘caretaker’ of the property” and that he was “always in the course of his employment 24/7 whilst ever he was on the property, including when he got on his quadbike on the evening of 5 March 2017”.[80] The Senior Member said that the assumption made by Mr Wells, that the deceased was checking on stock, might be acceptable if the place where the deceased was located was in a general area where stock were located. Stock were not located in the part of the farm where the deceased was found. The Senior Member said there was no evidence to lead to a comfortable finding that the deceased’s travel on his quadbike was connected with an activity on the farm.[81]
[80] Appellant’s submissions at first instance, 29/12/22, [56].
[81] Reasons, [205].
I note the Senior Member’s reasons, dealing with the specific matters set out in subparagraphs (a) to (f) of s 9A(2), are set out in the summary of the Senior Member’s reasons above. I particularly note the consideration of subparagraphs (a) and (b). In respect of (a), “the time and place of injury”, the following was said:
“There is no direct evidence that the [deceased] was actively engaged in employment activities at the time of his death. The unchallenged evidence is that there was no stock near the location that [the deceased] was found, nor any paths. Rather the stock were three paddocks away.
Whilst I accept that the nature of farming in Sofala meant that at time[s] stock strayed onto neighbouring properties, there is no evidence that this had occurred on 15 March 2017 requiring [the deceased] to leave on his quadbike and contain them.
I am left in a position where I am not persuaded that there was any work-related reason for [the deceased] to be on his quadbike on the evening of 15 March 2017 in the area that he was.”
In respect of subparagraph (b), “the nature of the work performed and the particular tasks of that work”, the reasons said:
“I have found that Mr Stuart was employed as a caretaker on the Maroun[s’] property. I also accept given his extensive experience on farms that he would assist at times in running the property.
I cannot identify any particular task that would have required Mr Stuart to be on his quad bike at that time in that place. My findings may have been different if the quad bike was found in an area where stock were. Unfortunately for [Mrs Stuart], no such evidence has been placed before me.”
There is no direct evidence of the activity in which the deceased was engaged on the evening of his death. The only person with the deceased, when he departed on the quadbike, was Mr Wells, who mistakenly assumed the deceased was “going to check on the sheep or get them penned up”.[82] The Senior Member found “there were no sheep in the area that Mr Stuart was found”.[83] This factual finding is not challenged.
[82] Reasons, [103].
[83] Reasons, [208].
The Senior Member dealt with subparagraph (a) of s 9A(2) by making a finding of what was not present. She said there was no evidence of active engagement in employment activities. There were no stock or paths near where the deceased was found. There was no evidence of stock straying on the night in question. I accept the appellant’s submission that the Senior Member’s focus was on whether the deceased was carrying out a specific work activity such as checking sheep, with specific attention to the location where the quadbike was found. I accept the submission that this “narrow focus” had the capacity to result in error.[84]
[84] Appellant’s submissions, [11]–[14].
The Senior Member found that the deceased left on the quadbike at approximately 7.15 pm.[85] In early March, with daylight saving in place, it would have been light at that time. I note the lights of the quadbike were illuminated when Mr Wells came upon it and the body of the deceased. The Marouns’ farming property, the location of the accident, was the deceased’s usual place of work pursuant to the contract of service identified by the Senior Member.
[85] Reasons, [204]. See also Mr Wells’ statement to the police dated 6/3/17, AALD 11/8/22, [9].
The time of the accident is not known with any precision. It was obviously after 7.15 pm. Mr Wells stated that he rang the deceased’s mobile telephone at about 8.30 to 8.45 pm and it “went to voicemail”. Mr Wells stated he left the house in his Ute about 15 minutes thereafter and, after driving for a “couple of minutes”, saw the lights of the quadbike at the bottom of a hill. He walked about 40 metres. The quadbike was in a dry creek bed and the deceased (who had no pulse at that time) was under the quadbike. The Coroner’s report dated 23 November 2017 described the body of the deceased, when found, as having been “cold and stiff, with no signs of life”.[86] The evidence does not identify a time of death on the basis of this information.
[86] ARD, p 86.
There was evidence that the deceased used his quadbike to carry out work activities on the property and that from time to time the first respondent supplied him with fuel for the quadbike. The first respondent’s submissions take issue with the proposition that it supplied fuel to the deceased for his quadbike. It submits the fuel it provided to the deceased (requested on the day of the deceased’s death) was for the deceased’s motor vehicle, not the quadbike.[87] The Senior Member acknowledged this evidence in her reasons at [68]. In the reasons at [30], the Senior Member referred to the deceased’s use of both the quadbike and one of the available Utes for various tasks. The reasons record Mrs Stuart’s evidence that “[t]he Marouns paid for his fuel”. The Senior Member’s reasons at [43] refer to George Maroun’s statement in which he said the diesel fuel was provided for the deceased’s Ute. The Senior Member notes Mrs Stuart’s statement, in response to this evidence, that “her husband’s Ute did not take diesel but rather unleaded fuel”. This evidence from Mrs Stuart was not contradicted. The evidence of being given money for fuel (although it was not specific to the type) was not, in any event, restricted to that supplied shortly prior to the fatal accident.[88]
[87] First respondent’s submissions, Notice of Contention, [20].
[88] Reasons, [24], [30].
The finding on ‘worker’ was that the deceased acted as a caretaker. In reaching that finding the Senior Member quoted a passage from Harris that referred to such a role involving the need to “keep an eye on things”. The evidence does not suggest the deceased used the quadbike for non-work activities. The deceased left the residence in the early evening, while it was still light, alone on his quadbike, which he rode on the farming property. Mrs Stuart’s submissions at first instance, after quoting from Harris, were that “the deceased would be in the course of his employment whenever he was onsite, acting as a caretaker”.[89] There was an available inference that the deceased’s actions, in riding the quadbike on the evening of his death, involved keeping an eye on the property.
[89] Appellant’s submissions at first instance, 29/12/22, [55].
The satisfaction of s 9A was described in Badawi as “an evaluative matter” (see [51] above). In Australian Air Express Pty Ltd v Langford McColl JA referred to factual findings “whose resolution is one of ‘fact and degree’ in respect of which views might legitimately differ”. Her Honour said these were matters where error on the part of the primary judge must be shown; it is “not enough that an appellate court might have come to a different conclusion”.[90]
[90] [2005] NSWCA 96, [15].
The second respondent characterises the appellant’s argument, on this point, as one that the Senior Member should have drawn an inference: that by virtue of the deceased being on the quadbike on the property, it should have been inferred that ‘substantial contributing factor’ was satisfied. The second respondent submits the Senior Member’s conclusion was available and error is not established on the basis that an appellate tribunal might arrive at a different conclusion. The difficulty with this submission is that it was not a matter where the decision-maker decided that the inference should not be drawn. Rather, the submission (that it should be inferred the deceased was acting as a caretaker keeping an eye on the property on the evening of the accident) was not dealt with.
There was a failure to engage with the case the appellant brought on the issue of s 9A, relating to ‘the employment concerned’ and the work as a caretaker. The Senior Member dealt with the argument based on Mr Wells’ mistaken assumption that the deceased went to “check on the sheep or get them penned up”. There was a failure to then consider the submission that the deceased was performing duties consistent with his employment as a caretaker when he sustained the fatal injury. This submission was not dependent on the presence or location of stock. This constituted error.
The appellant refers to the decision of Dranichnikov. Justices Gummow and Callinan in that case said that “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice”.[91] The Court of Appeal in Wang v State of New South Wales cautioned that Dranichnikov was “not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings”.[92] The Court of Appeal discussed the relevant principles in in Day v SAS Trustee Corporation[93] where Meagher JA (Payne and White JJA agreeing) said:
“… a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his ‘three key issues’ were not stated and determined discretely. What he must show is that they raised ‘substantial’ (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address …”.[94]
[91] Dranichnikov, [24].
[92] [2019] NSWCA 263, [63] (per McCallum JA, Macfarlan and Meagher JJA agreeing).
[93] [2021] NSWCA 71 (Day),
[94] Day, [37].
The appellant’s argument, regarding whether the deceased was engaged in the duties of a caretaker at the relevant time, and whether this constituted the ‘employment concerned’ for the purposes of s 9A, could be validly characterised as a central or critical element of the case, sufficient to engage the principles in Dranichnikov. However, it would not constitute appealable error if a retrial could not possibly produce a different result.[95] The issue regarding s 9A cannot be dealt with in isolation from the first respondent’s Notice of Contention, which raises issues regarding whether the deceased was a ‘worker’ and whether he was in the course of his employment when the fatal injury occurred. Whether the error identified in Grounds Nos. 1 and 2 constitutes appealable error in the circumstances is subject to the resolution of these issues. For reasons that appear below, I have not accepted the first respondent’s challenge to the Senior Member’s findings on ‘worker’, nor the argument that the deceased was not in the course of his employment when the injury occurred. In those circumstances, the Notice of Contention fails. The errors identified in Grounds Nos. 1 and 2 constitute appealable error.
GROUND NO. 3
The Senior Member erred in fact and law by failing to draw the compelling inference that the deceased was carrying out some work-related activity or returning from having carried out some work-related activity at the time of his death.
[95] Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, [16]–[19], Toll Pty Ltd v Morrissey [2008] NSWCA 197, [10].
Appellant’s submissions
The appellant refers to the following factual findings as being unchallenged:
(a)the deceased was a caretaker and a worker whose fatal injury occurred in the course of and arising out of his employment with the first respondent;
(b)he was an experienced farmhand with skills and expertise in fencing, mustering, spot spraying and tractor work;
(c)he used his quadbike on the property for the benefit of the Maroun family;
(d)the Marouns provided fuel for the quadbike because the deceased used it for their benefit;
(e)his rent-free accommodation was provided on the basis that he would at the very least mind/keep an eye on the property because there was theft of stock;
(f)the deceased did some work for the Marouns on their family farm, and
(g)the terrain in the Sofala area was hilly and rugged and stock could and would escape and wander off.
The appellant submits the Senior Member appeared to ignore other evidence, “such as that the deceased had been engaged in sheep drenching the day before with the Marouns … evidence provided by George Maroun to the police close in time to the injury”. The appellant submits the findings, referred to above, “result compellingly in the only reasonable inference available, which is that at the time of the fatal injury, the deceased was carrying out some work activity in relation to his employment”. The appellant submits the deceased’s “employment as a caretaker encompassed a variety of activities that [were] simply ignored by the [Senior Member] in her determination of s 9A”.[96]
[96] Appellant’s submissions, [31]–[32].
First respondent’s submissions
The first respondent submits that the time at which the deceased departed on the quadbike, and the location where he was found, were inconsistent with him being engaged in checking stock. It submits the appellant carried the onus to establish both ‘injury’ within the meaning of s 4 of the 1987 Act (which it submits was not discharged) and the satisfaction of s 9A. It submits the Senior Member’s determination was “not only correct but the only one that was open on the evidence”.[97]
[97] First respondent’s submissions, [15]–[16].
Second respondent’s submissions
The second respondent submits the complaint raised in Ground No. 3 is similar to the matters raised in the first two grounds, and the second respondent repeats its submissions on the earlier grounds. It submits the Senior Member did not ignore evidence of the deceased engaging in drenching sheep on the morning of his death, this was contested, and was referred to in the reasons at [210]. The second respondent submits the findings referred to by the appellant do not assist in satisfying the onus to establish the satisfaction of s 9A. At best they go to establishing that the deceased was a caretaker.[98]
[98] Second respondent’s submissions, [43]–[45].
The second respondent submits the appellant’s “real complaint” is the Senior Member’s failure to draw the inference for which the appellant argues. The second respondent submits it is not known what the deceased was doing when he met with his fatal accident. The evidence of Mr Wells was unreliable, there were no stock in the paddock where the deceased was found and no sheep in that direction, to establish that he may have been coming or going from where sheep were. The deceased was intoxicated, with a very high level of alcohol in his blood stream after being found. It cannot be said there was no evidence to support the decision that was reached on ‘substantial contributing factor’. It could not be said the evidence against the course taken by the Senior Member was so preponderant that her decision was wrong.[99]
[99] Second respondent’s submissions, [46]–[49].
The appellant does not make submissions in reply in respect of Ground No. 3.
Consideration
There can be no direct evidence from the deceased regarding what he was doing at the time of his fatal accident. Having regard to the Senior Member’s findings, Mr Wells’ assumption, regarding the deceased’s activities when the deceased departed the house at 7.15 pm, was mistaken. The Senior Member’s finding in that regard was supported by reasons and was open on the evidence.
Bradshaw v McEwans Pty Ltd[100] involved a claim by a plaintiff in respect of the death of her husband, who was killed in a motor accident when he was riding a bicycle home. The High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”[101]
And:
“All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”[102]
[100] (1951) 217 ALR 1 (Bradshaw).
[101] Bradshaw, 5.
[102] Bradshaw, 6.
In Luxton v Vines[103] the above passage was described by the plurality as the “test to be applied”. In the circumstances of Luxton (a motor accident) their Honours rejected the availability of inferences which the plaintiff argued should be drawn:
“Any answer that you give to such questions is a guess. All lies in conjecture. The fact is that whatever reasons you can find for one explanation of the accident, reasons of equal sufficiency or insufficiency exist for other explanations.
The circumstances give rise to nothing but conflicting conjectures of equal degrees of probability and no affirmative inference of fault on the part of a driver of a motor car can reasonably be made.”[104]
[103] [1952] HCA 19; 85 CLR 352 (Luxton).
[104] Luxton, [10]–[11].
The High Court, in Fuller-Lyons v New South Wales referred to the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts.”[105] In Chen v State of New South Wales (No. 2)[106] the Court of Appeal said:
“It is not necessary, in order to make a finding on the civil standard, to exclude other possible explanations. Authority is scarcely necessary for that proposition. However, that was precisely the point made – by reference to Bradshaw v McEwans Pty Ltd – by a unanimous High Court in Fuller-Lyons v New South Wales [2015] HCA 31 at [47]. It was also the point made by French CJ, Gummow, Crennan and Bell JJ in Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [34]:
‘[I]t is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open.’”[107]
[105] [2015] HCA 31, [46].
[106] [2016] NSWCA 292 (Chen).
[107] Chen, (per Leeming JA, McColl JA and Emmett AJA agreeing), [34].
The appellant submits the factual findings in the appellant’s submissions on this ground (referred to above) would be sufficient to support an inference that “at the time of the fatal injury, the deceased was carrying out some work activity in relation to his employment”.
The deceased had a blood alcohol level (on the lowest of the measures in the Coroner’s report) of 0.306 g/100 ml (blood). The report said “[t]his level of alcohol would be expected to cause significant impairment to judgement and coordination” and that “Benzodiazepines and alcohol have similar depressant effects and concurrent use may enhance their effects.” It stated “[t]he cause of death is subsequently given as head injuries. Acute alcohol intoxication has most likely contributed to the mechanism of death.”[108]
[108] ARD, p 87.
The Senior Member found that the deceased’s employment duties involved, at least in part, those of a caretaker, with responsibility for keeping an eye on the property. This was a finding that was open and is one with which I agree.
There was no direct evidence of what the deceased was doing at the time of the fatal accident and in the lead up to it, save for the fact that he was riding the quadbike on the farming property. The Senior Member said the onus was clearly on Mrs Stuart “to prove what activity the deceased was engaged in at the time of the accident”. It was concluded Mrs Stuart had not established that employment was a substantial contributing factor to the injury.[109]
[109] Reasons, [207]–[211].
I have above, dealing with Grounds Nos. 1 and 2, discussed the appellant’s submission (which I accepted) that there was a failure to deal with the case the appellant brought, specifically regarding s 9A (‘substantial contributing factor’) and the deceased’s work as a caretaker. Ground No. 3 raises similar issues, but in the context of arguing that a positive inference should be drawn, that the deceased “was carrying out some work-related activity or returning from having carried out some work-related activity at the time of his death”. The first respondent’s Notice of Contention is discussed below, including the issue of whether the deceased was in the course of his employment when he ventured out on the quadbike on the evening of his death. For reasons given at [152] to [158] below, I accept that the positive inference, for which the appellant argues in Ground No. 3, was available and should have been drawn. The drawing of such an inference was consistent with the authorities discussed above in relation to Ground No. 3.
For reasons which follow, dealing with the Notice of Contention, I have concluded that the deceased was in the course of his employment when he sustained injury. That being so, the identified error in Grounds Nos. 1, 2 and 3 is appealable error and those grounds succeed. It is necessary that the question of whether s 9A of the 1987 Act is satisfied be re-determined. Badawi makes it clear that the “fact of the injury arising out of or in the course of employment is relevant but not determinative of itself” in considering whether s 9A is satisfied.[110]
[110] Badawi, [48].
THE NOTICE OF CONTENTION
The Notice of Contention raises issues regarding ‘worker’ and whether there was error in the Senior Member’s finding on ‘injury’ within the meaning of s 4 of the 1987 Act. The Notice of Contention is (inappropriately) expressed as a single ground, although it raises two separate and distinct matters. The first is that there was error in determining that the deceased was a worker. The second is that there was error in determining that the circumstances of the injury that resulted in the deceased’s death were such that ‘injury’ was established within the meaning of s 4 of the 1987 Act.[111]
[111] First respondent’s submissions, [17].
The first respondent’s submissions
The first respondent submits the question regarding the ‘worker’ issue was “whether there was an intention to enter into legal relations”. It refers to Maatta v Dwyer[112] at [90] to [96] of that decision. It states that it repeats its submissions in reply, at first instance, at [2]–[3]. These submissions, which the first respondent seeks to incorporate into its submissions on appeal, refer to the following matters:
(a)no payment was made to the deceased except for a specific job involving fencing paid on a contract basis;
(b)the deceased was permitted to live in the cottage but not compelled to do so;
(c)the deceased was given no direction regarding particular activities on the farm nor were obligations imposed on him by reason of occupying the cottage;
(d)the deceased carried out activities on the farm away from the first respondent’s property;
(e)the deceased was prevented from entering the property when intoxicated or when the first respondents were not present, and
(f)the uncontradicted evidence is that the deceased was never instructed to engage in work activities on the farm, excluding the ‘one off’ fencing job.
[112] [2022] NSWPICPD 18 (Maatta).
The first respondent submits there was no intention to enter into legal relations and no contract, either of service or to perform any work.[113] It submits the Senior Member failed to engage with these submissions and that her reasons were inadequate. The first respondent submits the reasons dealing with these submissions consisted only of those at [198]. The first respondent submits its kindly actions towards the deceased were not a basis to determine that he was a worker. There is a submission regarding whether the evidence supported a suggestion relied on by the appellant, that fuel had been provided to the deceased for use in his quadbike. The first respondent submits the deceased was heavily intoxicated at the time of his death and there was “uncontracted [sic, uncontradicted] evidence that he was specifically forbidden from entering the farm (his cottage being separate from the farm) if he had been drinking”.[114]
[113] First respondent’s submissions in reply at first instance, 23/1/23, [2]–[3].
[114] First respondent’s submissions, [18]–[21].
The appellant’s submissions
The appellant submits there was “mutuality of obligation”. The deceased “was provided with a place to live rent-free in exchange for, at the very least, minding the farm on behalf of the Marouns”. This was a reward for the deceased’s services as a caretaker and in attending to stock while the Marouns were not there. There was no evidence of other people attending to stock in the Marouns’ absence. The Senior Member had accepted that, if an emergency arose in respect of the farm, the deceased would have been expected “to respond to any event potentially adverse affecting the property, its premises and livestock whatever the time of day”.
The appellant submits the Senior Member, in the reasons at [198], dealt with the first respondent’s submission regarding whether there was an intention to enter legal relations. She explained her reasons for rejecting this submission.
The second respondent’s submissions
The second respondent does not make submissions in respect of the Notice of Contention.
Consideration
The finding on intention to enter legal relations
An intention to enter legal relations is necessary for the formation of a contract.[115] Mrs Stuart carried the onus of establishing a contract. In Ermogenous v Greek Orthodox Community of SA Inc, the plurality referred to “the search for the ‘intention to create contractual relations’”, saying:
“Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”[116]
[115] Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 (Teen Ranch), 201B.
[116] [2002] HCA 8; 209 CLR 95 (Ermogenous), [25]. See also Cudgegong Soaring Pty Ltd v Harris (1996) 13 NSWCCR 92 (per Sheller JA, Cole JA agreeing), 101C.
It is also necessary to have regard to the circumstances attending the misconduct. The deceased’s misconduct is constituted essentially in the fact that he went out on the quadbike, into the Marouns’ farming property, with a high concentration of alcohol, sufficient to “cause significant impairment to judgement and coordination”. He did so in contravention of a direction from the first respondent that he should not go into the farming property if he had consumed alcohol.
The test applied by Tobias JA in Walsh, in deciding whether misconduct was such as to take a worker outside the course of his employment, was whether, in all the circumstances, the misconduct was “entirely foreign or repugnant to his employment”. In Walsh it was concluded that the misconduct, ingesting methamphetamines in the course of employment, did not satisfy this test. In Walsh, a purpose of ingesting the methamphetamines was for the worker to complete his journey, that is, it retained a connection with the employment.
Whilst it constituted misconduct for the deceased to operate the quadbike in the circumstances, it was otherwise consistent with the deceased’s obligation to keep an eye on the property. There is no other plausible hypothesis for why the deceased was riding the quadbike on the property on the night of his death. His conduct in travelling on the quadbike retained a connection with the employment, it was not “entirely foreign or repugnant to his employment”. This is consistent with the approach taken in Walsh. I do not accept that the deceased had removed himself from the course of his employment prior to the fatal accident.
The effect of the above is that the Notice of Contention fails.
The respondents do not make an independent argument that the appellant should fail because of s 14(2) of the 1987 Act.
RE-DETERMINATION
I have found error in respect of the Grounds of Appeal Nos. 1, 2 and 3. It is necessary that Order No. 2 of the Senior Member’s orders dated 12 May 2023 be revoked. The Notice of Contention having failed, Order No. 1 of the Senior Member’s orders dated 12 May 2023 is confirmed.
Subsections (5), (6A) and (7) of s 352 of the 1998 Act provide:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
“(6A) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.”
“(7) Alternatively, the matter may be remitted back to the non-presidential member concerned, or to another non-presidential member, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by a medical assessor under Part 7).”
It is desirable that I correct the relevant error if this is appropriate. This is consistent with Chubb Security Australia Pty Ltd v Trevarrow,[178] which was dealt with under an earlier form of s 352. It is consistent with the objects in s 3 of the 2020 Act and with the ‘guiding principle’ in s 42 of that Act. It is consistent with the recent decision of Phillips P in Secretary, Department of Planning and Environment v Lyons, in which his Honour said:
“Whilst Trevarrow was decided under the former Workers Compensation Commission, that authority continues to apply to this Commission. The statutory mandate of the 2020 Act requires ‘the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible’ and that decisions are ‘timely. These objects are supported by the ‘guiding principle’ found in s 42(1) of the 2020 Act.”[179]
[178] [2004] NSWCA 344; 5 DDCR 1 (Trevarrow), [28]–[29].
[179] [2024] NSWPICPD 25, [44]–[48].
Was s 9A satisfied?
Factual matters and issues going to s 9A of the 1987 Act are extensively discussed above. These reasons on the re-determination should be read in conjunction with that discussion. In Badawi the satisfaction of s 9A was described in the joint judgment as “an evaluative matter”, “leaving a broad area for the personal judgment of the trial judge”.[180] The joint judgment described the assessment of the strength of the causal linkage, between the employment and the injury, as a finding of fact. In the current appeal the finding of factual error made above, in respect of the consideration of Grounds Nos. 1, 2 and 3, satisfies the principles identified in Raulston (see [26] to [29] above).
[180] Badawi, [48].
Mr Saul made oral submissions on behalf of the first respondent on 4 November 2022. He referred to the Coroner’s Report and the description of “Acute alcohol intoxication”. He referred to other drugs which were not at toxic levels. Mr Saul referred to a statement in the report that “Benzodiazepines and alcohol had similar depressant effects and concurrent use may enhance their effects”.[181] He submitted:
“… even if you found he’s in the course of employment you wouldn’t find that the employment itself is a substantial contributing factor. What has clearly caused this accident and death is him driving with such high levels of alcohol in his system together with drugs, both of which had produced high toxic levels that have caused severe impairment of judgement; therefore, the fatal accident.”[182]
[181] T 45.10–46.30.
[182] T 47.1-9.
The first respondent also made written submissions in reply before the Senior Member. It submitted:
(a)there is no evidence, bar speculation, that the deceased was involved in an employment activity at the time of his death;
(b)the place of injury had no connection with an employment activity, the deceased had been forbidden to attend in these circumstances;
(c)the time of injury is inconsistent with an employment activity;
(d)there is no evidence of any work task being performed;
(e)the deceased was heavily intoxicated and his state of health was compromised by his prior disability, and
(f)the deceased’s lifestyle and activities outside the workplace resulted in acute alcohol intoxication which contributed to the death.[183]
[183] First respondent’s submissions at first instance, 23/1/23, [9].
The second respondent’s written submissions at first instance were moderately lengthy and dealt in a single paragraph with evidence relating to multiple topics. I have read and considered them in their entirety. Points raised that were of specific relevance to s 9A were:
(a)the deceased was intoxicated when he died, and was on the property contrary to the instructions of the first respondent;
(b)there is no logical explanation of why the deceased was riding in the hilly country, “at best in dim light”;
(c)the deceased was found approximately 600 metres away from the house, and
(d)there is no evidence that he was performing work under instruction, or under any obligation, under any agreement with the first respondents.[184]
[184] Second respondent’s submissions at first instance, 15/1/23, pp 11–14.
The parties’ submissions on this appeal are summarised above.
The appellant’s submissions on appeal referred to the Senior Member’s finding that the deceased was a caretaker and a worker who resided on the Marouns’ property to “keep an eye on it”. This included “keeping his eyes and ears open to deter thieves or to deal with an emergency”. The appellant referred to Mooney and Mooney No. 3, in submitting the deceased’s employment came within “the umbrella of a caretaker role which is in the course of his employment whilst ever he is at the property”. His employment included the use of his quadbike on the property, which could involve moving around the property.[185]
[185] Appellant’s submissions, [11]–[14], [17], [22]–[23].
It is necessary to consider the matters set out in a 9A(2) of the 1987 Act.
(a) The time and place of the injury.
The injury occurred on 5 March 2017 at a time between approximately 7.15 pm (when the deceased left the farmhouse where he resided) and about 9.00 pm (when Mr Wells located the accident site, the deceased was already dead) (see [69] above). I do not accept the first respondent’s submission that the time of injury was inconsistent with employment activity. The deceased did not have regular working hours. The time of 7.15 pm when the deceased departed was consistent with it still being daylight (in daylight saving time) for some period after the deceased left the residence. It is known the lights on the quadbike were turned on at some point before the accident.
The place of injury was on the property which was the deceased’s usual place of work. The location was about 600 metres from the farmhouse where the deceased lived.[186] This was generally consistent with the deceased keeping an eye on the property, consistent with the Senior Member’s findings regarding the employment duties of a caretaker.
[186] Mr Wells’ statement, ARD, p 65, [9].
(b) The nature of the work performed and the particular tasks of that work.
The Senior Member described the deceased as “an experienced farm hand”.[187] The deceased additionally worked as a caretaker, he was to live on site in the supplied accommodation, keep his eyes and ears open, respond to an unusual activity, a suspicious noise, act in an emergency (see [62] above). The appellant stated that the deceased “watched over the place for the Maroun[s]”.[188] The deceased would “assist at times in running the property” (see [65] above). The deceased used the quadbike when “going around his business on the farm”. He used it in activities on the property such as mustering (see [156] above). The deceased’s employment did not have fixed hours, time was flexible (see [155] above). The deceased resided in the farmhouse on the property. The Senior Member found there was a “significant amount of evidence to suggest that [the deceased] was doing some work” on the property, although not as much as two to three days per week.[189]
[187] Reasons, [191].
[188] Appellant’s statement 31/3/21, ARD, p 15, [25].
[189] Reasons, [190].
The Senior Member found:
“… it is to my mind, obvious that Mr Stuart was provided with a place to live in exchange for at the very least, minding the family farm while the Marouns were not present. It was of some advantage to the Marouns to have someone residing on the property permanently to keep an eye on it. To an even greater advantage, they had someone living there who had extensive farming skills and knowledge.”[190]
(c) The duration of the employment.
The above position commenced in about late 2015 and continued until the deceased’s death on 5 March 2017 (see [1] above).
(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.
There is no evidence to suggest 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 had not been at work or had not worked in that employment. The “Cause of Death” and “Duration of last illness” in the death certificate[191] were given as “Head injuries” and “Quad bike roll over” respectively. The Coroner’s report stated that “Acute alcohol intoxication has most likely contributed to the mechanism of death” (see [88] above). Consistent with the Coroner’s report, I accept that the deceased’s acute intoxication was a contributing factor to the fatal accident on 5 March 2017. This is not inconsistent with employment being a substantial contributing factor to the injury.
(e) The worker’s state of health before the injury and the existence of any hereditary risks.
The evidence does not indicate any hereditary risks. The deceased underwent a below knee amputation of the left leg in 2010, having developed osteomyelitis following a work injury in 1994.[192] The deceased had a pre-existing problem with excessive use of alcohol (see [1] above).
(f) The worker’s lifestyle and his or her activities outside the workplace.
There was a pre-existing problem with excessive use of alcohol.
[190] Reasons, [194].
[191] ARD, p 106.
[192] ARD, p 12.
Dealing with the matters raised in the first respondent’s written submissions, set out at [169] above, it is noted:
(a) The Senior Member’s findings on ‘worker’ extended to include the duties of a caretaker, which included “to live on site in the supplied accommodation, keep his eyes and ears open, respond to an unusual activity, a suspicious noise, act in an emergency”. I have concluded, dealing with Grounds Nos. 1 and 2, that the deceased’s use of the quadbike, on the evening of his death, was consistent with his duties as a caretaker. I have concluded, dealing with Ground No. 3, that an inference could properly be drawn, that the deceased “was carrying out some work-related activity or returning from having carried out some work-related activity at the time of his death”. It is inherent in this that this proposition was not mere speculation. (See [91] above.)
(b) The place of injury, the Marouns’ property, was the deceased’s usual place of work.
(c) I do not accept that the time of injury was inconsistent with an employment activity. This is referred to at [173(a)] above.
(d) For reasons discussed at length above, the activity of the deceased on the evening of his death was consistent with his duties as a caretaker.
(e) There is no evidence that the deceased’s “prior disability”, a below knee amputation of the left leg, had any causal role in the fatal accident.
(f) Consistent with the evidence in the Coroner’s report, it is accepted that Acute alcohol intoxication was a contributing factor to the fatal accident.
Dealing with the matters set out at [170] above, it is noted:
(a) The deceased was intoxicated and was on the property contrary to the instructions of the first respondent.
(b) The deceased’s action in riding the quadbike in the conditions (in hilly country and in dim light) was consistent with keeping an eye on the property, as part of his duties as a caretaker. It may not have been wise but it retained its character as part of the employment concerned.
(c) The site of the accident, about 600 metres from the farmhouse, was consistent with the deceased having traversed the property for some distance before the accident occurred. This was consistent with keeping an eye on the property. There is no other plausible explanation for why he would have been riding the quadbike 600 metres from the farmhouse in which he lived.
(d) The submission that there was no evidence he was performing work under any instruction, obligation or agreement with the first respondent ignores the Senior Member’s findings regarding the duties of a caretaker.
I have concluded, dealing with the Notice of Contention, that the deceased was in the course of his employment when he suffered the fatal injury. This is described in Badawi as relevant, but not determinative of itself. The use of the indefinite article in s 9A “admits of the possibility of other and possibly non-employment related substantial contributing factors” (see [51] above). In Badawi the joint judgment describes the “strength of the linkage between the employment and the injury” as the question in issue.
The ‘employment concerned’ was not well defined. It clearly included duties on the property, general duties as a farm hand, tending to stock and the like. It included the duties of a caretaker, to “keep an eye on things … His job is to keep his eyes and ears open – to respond to any unusual activity, any suspicious noise, to act in an emergency”.[193] I have accepted that the deceased’s actions, in venturing out on the quadbike on the evening of his death, involved this facet of his employment as a caretaker, it was part of the ‘employment concerned’. While performing these duties there was a “Quad bike rollover” in which the deceased sustained “Head injuries” which were fatal. It is, in my view, clear that “the employment concerned was a substantial contributing factor to the injury”, it was “real and of substance” (see [173(d)] above). The deceased died in an accident involving the quadbike that he was using to perform an aspect of his duties. This not inconsistent with acknowledging, having regard to the Coroner’s report, that acute alcohol intoxication also constituted a contributing factor to the injury. If the intoxication constituted a substantial contributing factor this would not be inconsistent with a finding that s 9A was satisfied.[194]
[193] Reasons, [195], quoting from Harris, [31].
[194] Badawi, [48(4)].
Section 9A of the 1987 Act was satisfied. The deceased was in the course of his employment when he sustained injury, to which employment was a substantial contributing factor, and which resulted in the death of the deceased. It follows that compensation is payable to Mrs Stuart pursuant to s 25 of the 1987 Act in respect of the death of the deceased.
The potential application of section 14 of the 1987 Act and the further ground
The further ground was added by leave (see [137] to [145] above) and is in the following terms:
“The Senior Member failed to engage with the provisions of s 14 [of the 1987 Act] and in particular with s 14(1) or s 14(2), and its applicability.”
The ground is expressed in general terms. By way of background, the first respondent’s submissions included the following:
“13. … the [Senior] Member found, correctly, that the deceased was heavily intoxicated at the time of his death, was in a location where there was no stock (and they were in fact three paddocks away) and there was no other evidence of any other employment-related activity. While the Commission Member has not referred to this consideration it should also be noted that the uncontradicted evidence was that the deceased had been specifically forbidden from entering the farm when he was intoxicated.”[195]
[195] First respondent’s submissions, [13].
The appellant’s submissions in reply put the following:
“Section 14 of the [1987 Act] makes the submission at [13] unmeritorious. Even if it is accepted that the deceased had been prohibited from entering the farm while intoxicated, his injury resulted in his death. Compensation is payable even if the deceased were acting without instructions.”[196]
[196] Appellant’s submissions in reply, [4].
The way in which the submission is framed makes it apparent that it is subcl (1) of s 14 that is relied on:
“(1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received—
(a) acting in contravention of any statutory or other regulation applicable to the worker’s employment, or of any orders given by or on behalf of the employer, or
(b) acting without instructions from the worker’s employer,
if the act was done by the worker for the purposes of and in connection with the employer’s trade or business.”
In Scharrer Basten JA dealt with s 14(1) saying:
“The findings of the Arbitrator, which the Deputy President had set out at [77] of his own reasons, included the fact that her blood alcohol reading meant that she was driving in contravention of a statute applicable to her employment and also that she was driving in contravention of orders given by her employer. However, those were the matters which were to be disregarded in considering an entitlement under s 14(1). Section 14(1) would be internally incoherent if the very matters which were to be disregarded were to lead to the conclusion that the act was not done by the worker ‘for the purposes of and in connection with the employer’s trade or business’. That test, as noted above, was deliberately adopted to avoid any question as to whether disobedience to instructions or statutory regulation resulted in the action of the worker falling outside the course of his or her employment.”[197]
[197] Scharrer, [182].
In the factual circumstances at issue in Scharrer, s 14(1) did not apply in any event, as the worker’s actions were found not to have been done “for the purposes of and in connection with the employer’s trade or business”.[198] Basten JA left open the question of whether s 14(1) provided “an independent basis of claim”. In the current matter, the Senior Member did not deal with the appellant’s submission regarding s 14. This involved error, it is appropriate that the further ground be upheld and this error be corrected. Having regard to the factual findings regarding the deceased’s performance of the duties of a caretaker, it can be readily concluded that the deceased’s actions were “done by the worker for the purposes of and in connection with the employer’s trade or business”. I have concluded above, in dealing with the Notice of Contention, that the deceased remained in the course of his employment at the time of injury. If I am wrong in this, in the context of the re-determination, compensation in any event is payable due to the application of s 14(1).
[198] Scharrer, [183]–[184].
DECISION
The following formal orders are made:
1. Order No. 1 of the Certificate of Determination dated 12 May 2023 is confirmed.
2. Order No. 2 of the Certificate of Determination dated 12 May 2023 is revoked.
3. There are findings that:
(a) The deceased suffered employment injury on 5 March 2017 while in the course of his employment with the first respondent, G Maroun and J Maroun, which resulted in the death of the deceased on that date.
(b) The deceased’s employment was a ‘substantial contributing factor’ to the injury which resulted in his death.
4. The matter is remitted to Senior Member Beilby to deal with those issues that remain, consistent with these reasons. Those issues potentially include any claim in respect of interest, funeral expenses, recovery on the part of the Workers Compensation Nominal Insurer and any necessary orders for the payment out of compensation awarded.
Michael Snell
DEPUTY PRESIDENT
21 May 2024
0
25
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