Sydney's American Imports Pty Ltd (Deregistered) v Ljubic

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sydney’s American Imports Pty Ltd (Deregistered) v Ljubic [2014] NSWWCCPD 56
APPELLANT:	Sydney’s American Imports Pty Ltd (Deregistered)
RESPONDENT:	Natasha Ljubic
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-1441/13
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	7 May 2014
DATE OF APPEAL HEARING: DATE OF APPEAL DECISION:	21 August 2014 3 September 2014
SUBJECT MATTER OF DECISION:	Claim for lump sum death benefit; whether employment was a substantial contributing factor to the deceased’s injury; s 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr I Roberts SC instructed by Stephen Lee Legal
Respondent:	Mr S Hickey instructed by Shine Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 7 May 2014 is confirmed. 2. The appellant employer is to pay the respondent’s costs of the appeal.

INTRODUCTION

The deceased worker was a motor vehicle dealer who was lured to a remote location by three co-conspirators with the intention of kidnap and extortion. In the course of the bungled extortion attempt, the deceased was murdered. It is not disputed that the deceased was in the course of his employment at the time of the injury which led to his death. The issue on appeal concerns whether there was sufficient evidence to support the Arbitrator’s finding that the deceased’s employment was a substantial contributing factor to his injury and subsequent death.

BACKGROUND

Robert (Bob) Ljubic (the deceased) and his wife, Mrs Natasha Ljubic, were directors and employees of Sydney’s American Imports Pty Ltd (Deregistered) (the appellant).
The appellant company has been deregistered. The Arbitrator in these proceedings made a declaration pursuant to s 162 of the Workers Compensation Act 1987 (the 1987Act) that the appellant had entered into a contract of insurance with Employers Mutual NSW Ltd (Employers Mutual) in respect of any liability under that Act to Ms Ljubic and that the appellant had ceased to exist. A declaration in these terms permits the Commission to make an award of compensation which shall, for the purpose of s 159, be deemed to be an award against an employer of the worker, with whom the insurer referred to in the declaration entered into a contract with respect to any liability under the 1987 Act to that worker (s 162(2)).
The appellant was involved in the purchase, repair and resale of prestige used vehicles until it ceased to trade as a business at the end of August in 2005. The deceased and Mrs Ljubic worked at the appellant’s Silverwater premises.
On 23 March 2005, at approximately 8.45 pm, the deceased received a call on his mobile phone inviting him to inspect a Ferrari motor vehicle at Wollstonecraft, New South Wales, with a view to his purchase of the vehicle. It was not uncommon for the deceased to inspect motor vehicles, at irregular hours and often at night. After leaving his home that night the deceased did not return.
It transpired that the deceased had been lured to the location at Wollstonecraft by three co-conspirators, which included one Jason Clive McCall, a person described in a subsequent prosecution of Mr McCall as “X” and another man known as “Petrou”. It was the co-conspirators’ intention to abduct the deceased and extort money. In the bungled extortion attempt the deceased was taken to The Gap at Watsons Bay in New South Wales and was murdered.
On 28 March 2005, the deceased’s body was discovered in the ocean off Kurnell. The New South Wales Police Force then commenced an investigation into the circumstances surrounding the deceased’s death.
On 8 August 2005, Mr McCall was charged with the murder of the deceased. In exchange for immunity from prosecution, X gave evidence at the trial of Mr McCall.
On 18 October 2005, Ms Ljubic claimed the lump sum death benefit and weekly payment provided for by s 25 of the 1987 Act.
On 4 January 2006, Employers Mutual issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying the claim. The insurer was at that time unable to ascertain whether the deceased’s death occurred in the course of his employment due to the ongoing police investigation.
On 17 September 2007, Mr McCall was found guilty by a jury of the deceased’s murder.
On 16 November 2007, in the Supreme Court of New South Wales, Justice Barr sentenced Mr McCall to life imprisonment, with a non-parole period of 22 years. Justice Barr’s remarks on sentence illuminated some of the circumstances leading up to the deceased’s murder (R v Jason Clive McCall [2007] NSWSC 1269 (McCall)).
On 25 September 2008, Employers Mutual issued a further notice under s 74 declining the respondent’s claim for death benefits. The insurer disputed that the deceased’s death arose out of or in the course of his employment with the appellant or that his employment was a substantial contributing factor to the injuries causing his death. It further disputed that the deceased was on a periodic journey within the meaning of s 10 of the 1987 Act when he suffered injury causing his death.
On 19 December 2013, Ms Ljubic lodged an Application to Resolve a Dispute (the Application) in the Commission. She claimed the lump sum death benefit and weekly payment pursuant to s 25. The alleged injury was pleaded as “[m]urder due to a workplace issue”.
As to how the injury occurred, Ms Ljubic pleaded:
“The deceased received a phone call on the evening of 23 March 2005 to meet someone to view a car at Wollstonecraft and was not seen again. The deceased’s body was found five days after the disappearance. There was a Police murder investigation and 6 months following the date of death a person was convicted [sic, charged] of [sic, with] murdering the deceased.”
There is no issue that Mrs Ljubic and the deceased’s son, Robert, were dependent upon the deceased.
On 28 February 2013, under cover of an Application to Admit Late Documents, the appellant filed a Reply to the Application. It disputed liability for the reasons stated in the s 74 notices. In addition it disputed that the deceased was a “worker” within the meaning of s 4 of the 1998 Act.
On 27 March 2014, the matter was listed for an arbitration hearing before a Commission Arbitrator. Ultimately the “worker” issue was not pressed. After hearing submissions by the parties, the Arbitrator reserved his decision.
On 7 May 2014, the Arbitrator issued a Certificate of Determination and a Statement of Reasons (Reasons). The Arbitrator found in favour of Ms Ljubic. He found that the deceased died on 23 March 2005 as a result of injury arising out of and in the course of his employment to which his employment was a substantial contributing factor. The Arbitrator entered an award against the appellant for payment of the lump sum death benefit and weekly benefits pursuant to s 25.

PRELIMINARY ISSUSES

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.
The quantum in issue on the appeal is in excess of $5,000 and therefore the threshold in s 352(3)(a) of the 1998 Act is satisfied. The appeal is in respect of the whole of the sum awarded and therefore s 352(3)(b) is satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with s 352(4) of the 1998 Act.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 7 May 2014, records the Arbitrator’s orders as follows:
“The Commission determines:
1.       That Bob Ljubic (the deceased) died on 23 March 2005 as a result of injury arising out of the [sic] and in the course of his employment to which his employment was a substantial contributing factor.
2. Pursuant to section 162 of the Workers Compensation Act 1987 declare that at the time the deceased suffered injury resulting in his death the respondent had entered into a contract with Employers Mutual Indemnity (Workers Compensation) Ltd in respect of any liability under the Act to the applicant and that the respondent has ceased to exist.
3.       That the deceased left his wife, the applicant, and his son, Robert Ljubic dependent upon him for support.
4.       There was no other person dependent upon the deceased for support.
5. That the compensation payable pursuant to section 25 of the Workers Compensation Act 1987 for the death of a worker on 23 March 2005 was the sum of $296,250.
6.       Liberty to apply, if necessary, in relation to the apportionment of the sum of $296,250.
7. Order that the respondent pay Robert Ljubic the weekly payment provided for by section 25(2) from 24 March 2005 until 2 August 2013.
8.       Respondent to pay the applicant’s costs as agreed or assessed.
9.       Certify the matter as complex and order an uplift of 30 per cent on the costs of each party.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

EVIDENCE

The deceased’s role and duties in the appellant’s business and the circumstances of his disappearance and death was drawn from Mrs Ljubic’s evidence (her police statement dated 14 April 2005, her statement dated 22 November 2005 and her unsigned and undated statement prepared by her then solicitor in December 2005) and Justice Barr’s remarks on the sentencing in McCall.
It is not disputed that Mrs Ljubic and the deceased were the sole directors of the appellant. The deceased was involved in running the panel shop, purchasing prestige vehicles (damaged and undamaged) and then organising the sale of the vehicles. He worked from 7.00 am until 7.00 pm and often later (at [11] of Mrs Ljubic’s statement dated 22 November 2005). Mrs Ljubic said (at [11]):
“The deceased was at the business during trading hours and outside of trading hours. He would regularly [sic, work] outside of work hours, depending on client demands, visit clients looking at vehicles to purchase or sell. For example, he would go to the Pickles Prestige Auction which is held at Darling Harbour regularly starting at 7.00 pm and not get home until after midnight. Almost on a nightly basis during the week after hours he would be off looking at vehicles to buy or sell. Not all his work after hours was to buy or sell a car; it could be to look at a car for a client, or to look at a car to bring in on consignment to sell through Mosman Automobiles.”
Mrs Ljubic said that “it was not uncommon for [the deceased] to go out at night to see cars. If he got a call in relation to a car he was interested in and had carried out some background checks he would go and see the car” (at [63] of Mrs Ljubic’s police statement dated 14 April 2005).
Mrs Ljubic also worked at the appellant’s Silverwater premises Monday to Friday. She performed the paperwork aspects of the business such as payroll, registering vehicles, some accounting work and general office work (at [8] of Mrs Ljubic’s statement dated 22 November 2005).
On 23 March 2005, Mrs Ljubic, the deceased and their son, had dinner at Mrs Ljubic’s mother’s home. They left just before 8.30 pm, arriving at their own home shortly after. The two homes are located only two blocks apart.
At approximately 8.45 pm the deceased received a call on his mobile phone. Mrs Ljubic overhead him say “oh your [sic] there now okay I’ll be there soon” (at [22] of Mrs Ljubic’s statement dated 22 November 2005). Mrs Ljubic said that the deceased then grabbed his keys and said “I am just going to see a Ferrari at Wollstonecraft. I won’t be long.” ([22]). She didn’t think anything unusual about the deceased leaving home to look at a motor vehicle “as this was his normal practise. He fitted in with the client” ([22]).
According to Justice Barr’s remarks on sentence, this was the final call in a sequence of calls to the deceased to gain his confidence with respect to the purchase of the Ferrari. In fact it was part of a ploy designed by Mr McCall and the person known as “X” to entice the deceased to Wollstonecraft where he was to be kidnapped. Apparently X had stolen two motor vehicles from the appellant’s premises. According to X, the deceased discovered that X had stolen the two motor vehicles from him and in retaliation the deceased had arranged for X to be kidnapped. X managed to escape the kidnappers but there continued to be “bad blood” between him and the deceased.
The evidence at the trial of Mr McCall established that by early 2005, X was chronically short of money. X and Mr McCall believed that they would be able to extort money from the deceased through kidnapping him. Both Mr McCall and X wanted to profit in the scheme. X also thought that by the intended kidnap and extortion he could demonstrate to the deceased that he was not a man to be trifled with and so bring an end to the bad blood between them.
Mr McCall bought a mobile phone on which he made several calls to the deceased on the pretext of selling him a Ferrari motor vehicle. X arranged to meet the deceased outside a block of home units at Wollstonecraft where X said that the Ferrari was kept. X had stolen a swipe card that would grant them access to the car park of the building.
Once the deceased had arrived at Wollstonecraft, he met McCall in the street and again on the pretext that Mr McCall was carrying an injury and could not walk into the car park, Mr McCall drove himself and the deceased into the car park ostensibly to inspect the Ferrari. X and Petrou were waiting. X drew a pistol and ordered the deceased not to move. The deceased was then restrained with cable ties to his hands, wrists and knees and he was assaulted.
Subsequently sunglasses which had been painted on the inside had been placed on the deceased and X then drove himself, Mr McCall and the deceased to the Gap at Watsons Bay. At that point Petrou withdrew and took no further part. During the journey to the Gap the assault on the deceased continued and Mr McCall told the deceased that he wanted money.
Once they had stopped at Watsons Bay, the deceased’s bonds were cut off, except for those binding his wrists. The striking and threats continued. In response to continued demands for money, the deceased asked, a number of times, “how much”.
Mr McCall and X then lifted the deceased over the fence at the Gap. According to X, Mr McCall then became very angry. Mr McCall then took hold of the deceased and threw him over the edge of the cliff. Justice Barr said, in his remarks on sentencing, that prior to this point it was unlikely that both Mr McCall or X had formed a clear intention to push the deceased over the edge. Justice Barr said (at [15]) “as they [X and Mr McCall] took the deceased to the rail their intention was to instil fear into him so as to extract from him money or something worth money. I think that the offender lost his temper while they were there and decided to kill the deceased”.
In an attempt to make the deceased’s death appear to be a suicide, Mr McCall and X returned to Wollstonecraft where Mr McCall entered the deceased’s vehicle and drove it to a place near the Gap.

THE ARBITRATOR’S REASONS

The Arbitrator identified the issues in dispute as:
(a) whether the death of the deceased occurred in the course of his employment?;
(b) whether it arose out of his employment? and
(c) if it occurred either in the course of, or arising out of his employment, whether the employment was a substantial contributing factor in accordance with s 9A of the 1987 Act?

In the course of employment

The Arbitrator found that when the deceased left home on the evening of 23 March 2005, he was in the course of his employment. He found (at [35]) that it followed “inexorably from this finding that the deceased remained in the course of his employment up until the time he was set upon, kidnapped and assaulted by McCall and his accomplices”.
The Arbitrator concluded that once the deceased was seized, he was no longer capable of engaging in conduct that might take him outside the course of his employment and “his future was entirely in the hands of his conspirators” ([37]).
Counsel for the appellant, Mr Roberts SC, argued, based on Bill Williams Pty Limited v Williams [1972-73] ALR 303, that there was an interruption to the deceased’s employment before he was kidnapped by the conspirators and subsequently killed. The Arbitrator rejected that argument and found that there was no evidence from which an inference could be drawn that the deceased interrupted his employment prior to being seized by the three conspirators (Stojkovic v Telford Management Pty Ltd [1998] NSWCCR 165 applied).
The Arbitrator rejected (at [40]) the proposition that the deceased was kidnapped for reasons that were unrelated to his employment.

Arising out of the employment

The Arbitrator recognised that as the deceased’s death arose in the course of his employment, it was strictly unnecessary to consider whether it also arose out of his employment. However, as it remained for Mrs Ljubic to prove that the deceased’s employment was a substantial contributing factor to the injury resulting in his death, which also requires proof of a causal relationship between the injury and the employment, which according to the Arbitrator (at [41]) is “no less stringent than proof that an injury arose out of the employment” he considered it useful to reach some conclusions on that issue.
The Arbitrator said that Mr Roberts’ submission, which relied on the principles expressed in Craske v Wigan (1909) 2 BWCC35 (Craske), did not advance the appellant’s case. In Craske, the Master of the Rolls held that a causal connection between employment was not made out by mere proof that the injury would not have happened if the worker had not been engaged in employment at a particular time and place. It required that the worker be exposed by the nature of his employment to “some peculiar danger”.
After considering relevant authorities, the Arbitrator rejected the notion that exposure to some particular danger in the course of the deceased’s employment played a role in the modern law of causation in workers compensation (Nunan v Cockatoo Docks and Engineering Co Ltd (1941) 41 SR (NSW) 119 (Nunan)).
The Arbitrator noted that the question of whether the injury arises out of the employment requires a causal connection (Zinc Corp v Scarce (1995) 12 NSWCCR 566 (Scarce)). Whether the injury arises out of the employment is a question of fact as a matter of “ordinary common sense and experience” (March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506).
The test to be applied is whether the fact of being employed in the particular job caused, or to some material extent contributed to, the injury (Nunan). In seeking to ascertain whether an injury arises out of the employment, the test identified by Lord Sumner in Lancashire and Yorkshire Railway Company v Highley (1917) 10 BWCC 241 has been consistently embraced, namely “was it part of the injured person’s employment, to hazard, to suffer, or to do that which caused his injury?”.
The Arbitrator acknowledged (at [48] of the Reasons) that there was evidence that suggested that the kidnapping and death were the consequence of activities which fell well outside the duties the deceased was authorised or expected to perform. This included the evidence of X at the trial of Mr McCall that one of the motivations for the kidnapping was to obtain retribution.
If the reason for the death was a private vendetta it could not arise out of the employment, even if the deceased was in the course of his employment at the time when he was killed (Nunan at [124]). The Arbitrator acknowledged that although the judgment of Jordan CJ in Nunan had been repeatedly approved by the New South Wales Court of Appeal, it may require modification where the “private enemy” of the worker is also a fellow employee (see Kelly v Secretary Department of Community Services [2014] NSWCA 102 (Kelly)). It was noted that the facts in Kelly are quite different to the facts in the present matter because the conspirators were not fellow employees.

There was a significant impediment to the Commission making findings of fact on the basis of evidence given at the trial of Mr McCall. The factual basis of submissions before the Arbitrator was drawn from the transcript of Justice Barr’s summing up to the jury and his remarks on sentence. The Arbitrator noted that it would be inappropriate to base any findings of ultimate fact solely on that attenuated evidence.
The Arbitrator referred to X’s evidence of his belief that he (X) had been kidnapped at the instigation of the deceased. The Arbitrator referred to extracts from the transcript which suggested that there had been discussion about that matter between X and the deceased after he had been kidnapped. What conclusions could be drawn from the evidence was uncertain. It was not incompatible with an acceptance by X that his belief that the deceased arranged for him to be kidnapped was wrong. Amongst a number of other possible interpretations was that he was lying about the discussions that took place after the kidnapping. The evidence undoubtedly suggested, however, that even after the problem between X and the deceased was “settled”, he (X) still intended to extort money by the use of force and intimidation. That view of the evidence was consistent with a conclusion that profit from extortion was the predominant motivation for X’s actions on 23 May 2005.
Based on this limited evidence, the Arbitrator did not accept, on the balance of probabilities, that the kidnapping was for reasons of a private vendetta. Given that the Commission did not have the whole of X’s evidence, the Arbitrator was reluctant to make findings on a matter that was critical to the outcome of the proceedings on the limited and uncorroborated evidence available.
The Arbitrator also rejected the suggestion that the kidnapping was motivated by the deceased’s alleged activities as a drug dealer. Although the evidence established that he had been involved through his prestige car sales business with persons who were accused of drug dealing, there was no persuasive evidence that the deceased dealt in drugs.
For these reasons the Arbitrator rejected the proposition that the deceased’s death resulted from the private vendetta from his illicit activities and concluded that the only obvious and proven motive for the kidnapping was financial gain.
The Arbitrator was satisfied that the evidence established the necessary causal connection between the deceased’s duties and the injury causing his death to support a finding that it arose out of his employment.
The Arbitrator said (at [62] of the Reasons):
“Importantly, the fact that the deceased would visit premises at night to inspect cars was known to the conspirators. Thus, the nature of the deceased’s employment was pivotal to their plan to extort him. That employment permitted McCall to contact the deceased, probably on three occasions, on his mobile phone. It resulted in the deceased going to the premises at Wollstonecraft at about 9.00 pm in the belief that he was to inspect the vehicle. It provided the conspirators with the perfect opportunity to seize him in a relatively secluded spot, where he would not be recognised and from which the deceased had little hope of escaping.”
In the circumstances, the Arbitrator concluded that the common sense test of causation approved in Scarce was satisfied. He held that the fact that the deceased was employed in this particular job materially contributed to his injury and death.

Substantial contributing factor

The Arbitrator approached the application of s 9A of the 1987 Act to the facts in this case, applying the principles discussed in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324. In particular, the Arbitrator noted (at [65]):
(a) the requirements of s 9A must be considered separately to the tests for arising out of employment under ss 4 and 9 of the 1987 Act;
(b) as discussed, the meaning of injury, arising out of employment, involves a causative element and is to be inferred from the facts as a matter of common sense;
(c) the phrase “substantial contributing factor” in s 9A also involves a causative element. It is a different and added requirement to the “arising out of “ employment limit of ss 4 and 9, however the causal connection required for s 9A is not less stringent than that found in s 9. (Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed);
(d) for employment to be a “substantial contributing factor” to the injury for the purposes of s 9A the causal connection must be “real and of substance”;
(e) “employment” for the purpose of s 9A is the same “employment” that is under consideration is ss 4 and 9;
(f) in determining whether a worker’s employment was a substantial contributing factor, the matters specified in s 9A(2) must be taken into account to the extent that they are relevant, and
(g) section 9A(2)(b) directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury. It is an incorrect approach to consider some other activity other than the employment that had preceded the injury and then seek a linkage with the employment from the standpoint of that preceding activity.
The Arbitrator then considered and applied in some detail (at [66] of the Reasons) the application of the examples found in s 9A(2) to the circumstances in the instant matter. He acknowledged the difficulty in “fully teasing out” precisely the part played by the deceased’s role as the proprietor of the appellant, as opposed to his role as a manager and employee of the company, in the circumstances leading up to his death. He concluded however, that a consideration of the evidence in general, and in particular the matters stated in s 9A(2), led to a conclusion that employment was a factor that was both “real” and “of importance” in causing the injury which resulted in the death of the deceased. Employment was therefore considered a substantial contributing factor to the injury.
The Arbitrator concluded (at [70] of the Reasons) that the entirety of the plot to kidnap the deceased revolved around his employment. If the conspirators were unable to utilise that aspect of the deceased’s employment which necessitated him attending at private premises after business hours, the deceased may not have suffered injury. There may have been other factors leading to his injury, however on the evidence employment stood out as a substantial causal factor.
The Arbitrator noted (at [72] of the Reasons) that the task was to evaluate the various causal factors leading to the injury and determine whether those which relate to employment were substantial contributing factors. While the strength of the connection between employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgment of the fact finder (see Kelly at [46]). Whilst the real motivations of the conspirators are by no means obvious and undoubtedly contentious, the Arbitrator was “comfortably satisfied” that employment was a substantial contributing factor to the injury leading to the death of the deceased.

GROUNDS OF APPEAL

The appellant’s grounds of appeal were stated to be as follows:
“1.That the Arbitrator’s decision that the deceased’s death was caused by injury arising in the course of the deceased’s employment was affected by error of law in that the Arbitrator:
(a)Did not apply the correct test in determining the question; and/or
(b)Reversed the onus of proof in respect of the question.
2.     That the Arbitrator’s decision that the deceased’s death was caused by injury arising in the course of the deceased’s employment was affected by factual error in that there was no, or insufficient evidence, to establish that the deceased’s injury arose in the course of his employment.
3.     That the Arbitrator’s decision that the deceased’s employment was a substantial contributing factor to the injury, which caused his death, was affected by error of law in that the Arbitrator:
(a)Did not apply the correct test in determining the question; and/or
(b)Reversed the onus of proof in respect of the question.
4.       That the Arbitrator’s decision that the deceased’s employment was a substantial contributing factor to the injury which caused his death, was affected by factual error in that there was no, or insufficient evidence, to establish that the deceased’s employment was a substantial contributing factor to the injury.”
At the hearing of the appeal, the appellant’s case significantly changed in emphasis. The appellant withdrew reliance on grounds one and two.
Ground 3(a) was not pressed, in so far as the Arbitrator’s findings with respect to s 9A of the 1987 Act was concerned. The appellant withdrew the submission that there was no evidence to support the Arbitrator’s finding, but pressed the allegation that there was insufficient evidence to support the Arbitrator’s finding.
After making the concessions referred to in the preceding paragraphs, the issues for resolution on the appeal concern just two questions:
(a) in considering whether the deceased’s employment was a substantial contributing factor to the injury which caused his death, did the Arbitrator err by reversing the onus of proof?, and
(b) was there sufficient evidence to support the Arbitrator’s finding that the deceased’s employment was a substantial contributing factor to the injury?

SUBMISSIONS AND DISCUSSION

The appellant conceded in its written submissions that it does not challenge the Arbitrator’s finding that the deceased’s injury and subsequent death occurred in the course of the deceased’s employment. The appellant’s counsel, Mr Roberts SC, confirmed that concession at the hearing of the appeal.
Mr Roberts agreed that by making that concession, the requirements of s 4 of the 1987 Act are satisfied, irrespective of the Arbitrator’s finding that the injury also arose out of the deceased’s employment. Mr Roberts also conceded that the only basis upon which the appellant could succeed on this appeal involved the identification of error by the Arbitrator with respect to his findings concerning whether the deceased’s employment was a substantial contributing factor to his injury (s 9A of the 1987 Act).
Much of the appellant’s written submissions are directed to the Arbitrator’s reasoning in relation to his findings on whether the injury arose out of the deceased employment. As I indicated, Mr Roberts accepted that s 4 is satisfied by reason of the Arbitrator’s findings on the “in the course of” limb of s 4(a) of the 1987 Act, which are not challenged. Therefore the appellant’s written submissions directed to the Arbitrator’s conclusions concerning the “arising out of” limb of s 4 cannot advance the appellant’s appeal unless they touch on the s 9A issues.
The appellant submitted that the Arbitrator’s error was to reverse the onus of proof by finding that the appellant had failed to prove the non-employment related factors on which it relied rather than approaching the s 9A issues on the basis that Ms Ljubic bore the onus of satisfying s 9A.
I do not accept the appellant’s submission. It confuses the Arbitrator’s treatment of the requirements of s 4 with the requirements of s 9A. To the extent that the appellant sought to argue that the kidnapping of the deceased and the attempted extortion was motivated by a private vendetta, such that it would militate against a finding that the injury and subsequent death arose out of his employment, the evidentiary burden was on the appellant to establish those matters to the satisfaction of the Arbitrator. Where a claimant has proved an incapacitating injury (or injury causing death) arising out of or in the course of his employment, at least to a prima facie level, it is for the employer to show if it can, that there is something which disentitles the worker to compensation (Nunan at 124). That is the approach the Arbitrator correctly adopted in the findings on s 4.
The Arbitrator correctly identified that whilst “arising out of” (s 4) and substantial contributing factor (s 9A) both involve causative elements, the requirement that the employment must be “a substantial contributing factor” to the injury suffered by a worker found in s 9A is a different or added requirement to the causation element required to satisfy the “arising out of” limb of s 4.
The Arbitrator summarised the legal principles to be applied in determining the s 9A issue. They are reproduced at [58] of this decision. The appellant takes no issue with the Arbitrator’s formulation of the relevant principles. Importantly, the Arbitrator said (at [65]):
“1. The tests for an injury ‘arising out of’ employment under ss 4 and 9 and for employment being a ‘substantial contributing factor’ under s 9A must be considered separately. It is not sufficient to find that injury arose out of employment and to therefore conclude that the employment concerned was a substantial contributing factor to the injury.”
I can see nothing in the Arbitrator’s Reasons, nor was I directed to anything in the Reasons, to support the submission that the Arbitrator reversed the onus on s 9A. The Arbitrator clearly accepted that the onus of proving that the deceased’s employment was a substantial contributing factor to the deceased’s injury and subsequent death was with Mrs Ljubic. The methodical way in which the Arbitrator analysed the issues referred to in s 9A(2) graphically demonstrates this.
The Arbitrator referred to the reasoning of Emmett JA in Kelly, upon which the appellant relies, where his Honour stated (at [46]):
“The fact of the injury arising out of or in the course of employment is relevant, but not determinative of itself, since both s 4 and s 9A must be satisfied. Section 9A requires that the employment concerned be a substantial contributing factor to the injury. That use of the indefinite article admits of the possibility of other, and possibly non-employment-related substantial contributing factors. While the strength of the connection between the employment and the injury is the question in issue, the determination of that question is an evaluative one, leaving a broad area for the personal judgement of the fact finder. Being an evaluative matter, involving questions of impression and degree, a finding as to the relative contributing factors is a finding of fact (Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited (2009) NSWCA 324; 75 NSWLR 503 at [48]).” (emphasis in original)
The appellant submitted that the deceased’s abduction may have been motivated by a number of causes, including retribution by X and a belief that the deceased was involved in the drug trade and therefore would be a prime target for extortion.
The Arbitrator stated at [67] that he initially had considerable doubt as to whether employment was a substantial contributing factor to the injury which resulted in the death of the deceased. However, after considering the matters raised in s 9A(2) of the 1987 Act, the Arbitrator said (at [70]):
“The entirety of the plot to kidnap the deceased revolved around his employment. If the conspirators were unable to utilise that aspect of the applicant’s employment which necessitated him attending at to [sic] private premises after business hours, the deceased may not have suffered injury. There may be other factors to his injury, but on the evidence in this case, employment stands out as a substantial contributing factor.”
The factors which led the Arbitrator to his conclusion included an examination of the matters referred to in s 9A. These are referred to by the Arbitrator in his Reasons at [66]:
“As it is necessary to consider the matters raised in section 9A(2), I intend to turn directly to them:
(a)     The time and place of the injury - the injury resulting in the death of the deceased is said by the police to have occurred between 8:49 pm and 10.09 pm on 23 March 2005. Although I have found that he sustained injury in the course of his employment, the place at which he received the injury was a considerable distance from the last place at which he was required to perform his duties. It must be borne in mind, however, that the deceased did not voluntarily leave the last place at which he was required to work. He was forcibly taken from Wollstonecraft to Watsons Bay.
(b)     The nature of the task performed and the particular tasks of that work - in keeping with the instruction in Badawi to examine the tasks which the worker was required to perform, rather than what he was actually doing at the time of injury, I conclude that immediately before he was seized by the conspirators the deceased was performing the work of attending at domestic premises at Wollstonecraft to inspect a motor vehicle. This was a routine aspect of his employment which regularly required him to inspect motor vehicles outside ordinary business hours.
(c)     The duration of his employment - it appears that the deceased had been employed in the business carried on by the respondent, including the work of the purchasing and re-selling vehicles sense [sic, since] 1989. This work regularly included visiting premises after business hours to inspect used vehicles.
(d)     The probability that the injury or a similar injury would have happened anyway - the evidence suggests that X and McCall were determined to extort money from the deceased or from the [appellant]. It is not evident, however, that they would have persisted in this endeavour if their scheme to summon the deceased to Wollstonecraft during darkness had not succeeded. The scheme turned on utilising the nature of the deceased’s employment to lure him to a car park so that he might be seized in circumstances which precluded escape or recognition of the conspirators. It is difficult to imagine other circumstances in which the deceased may have been ensnared so advantageously to his captors, absent the call of his employment. The scheme hit upon by the conspirators minimised the possibility of intervention by family, friends, work colleagues, or members of the public to frustrate their plan.
(e)     The worker’s state of health before the injury - this appears to be irrelevant.
(f)      The worker’s lifestyle and his activities outside the workplace - I have discussed some of the issues that loosely fit the description of the deceased’s ‘activities outside the workplace’ above. The applicant’s statement to the police refers to a number of incidents which may possibly provide a motive for former customers, and employees of the [appellant] and acquaintances of the deceased to seek their retribution against him. In my opinion, however, it is simply not open to find, on the evidence in this case, that the deceased’s lifestyle outside of [the] work place gave rise to an increased risk of injury or death. Any such finding could only be based upon speculation.”
Perhaps the most compelling of the matters considered by the Arbitrator in favour of a positive finding under s 9A, is that referred to at [66(d)] of his Reasons. Namely, the evidence that X and Mr McCall were determined to extort money from the deceased, or from Mrs Ljubic. It is not evident that they would have persisted in that endeavour if their scheme to lure him to the premises at Wollstonecraft, during darkness, had not succeeded.
The Arbitrator was correct to find that the scheme depended upon utilising the nature of the deceased’s employment to lure him to the car park so that he might be seized in circumstances which precluded either escape or recognition of his conspirators. That plan minimised the intervention by family, friends or work colleagues or members of the public to frustrate the plan.
Mr Roberts conceded that the evidence referred to in the preceding paragraph was evidence capable of supporting a finding that the requirements of s 9A were satisfied. In the unusual circumstances of this case, as the Arbitrator correctly found, there may have been a number of factors that contributed to the abduction and death of the deceased. However, whilst some of those factors may not have been employment related, the fact that it was the nature of the deceased’s employment that caused him to be lured to an isolated location from which he was abducted and later killed was clearly a substantial contributing factor to his injury and subsequent death.

A finding as to the strength of the causal connection between the employment and the injury is an evaluative one. The Arbitrator’s conclusion based on his evaluation of the available evidence was open to him and does not demonstrate error. The Arbitrator methodically analysed the relative contributing factors leading to the worker’s death. His conclusion that the deceased’s employment was a substantial contributing factor to his injury and death was open on the evidence and disclosed no error.
For these reasons, I reject the submission that there was insufficient evidence to support the Arbitrator’s finding that the deceased’s employment was a substantial contributing factor to his injury and subsequent death.

DECISION

The Arbitrator’s determination of 7 May 2014 is confirmed.

COSTS

The appellant employer is to pay the respondent’s costs of the appeal.

Judge Keating
President

3 September 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2014] NSWWCCPD 56

21 August 2014 3 September 2014