The RedRock Company Pty Limited v Scharrer

Case •

[2009] NSWWCCPD 72

•

1 July 2009
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS:  Decision confirmed on Appeal: Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365
CITATION: The RedRock Company Pty Limited v Scharrer [2009] NSWWCCPD 72
APPELLANT: The RedRock Company Pty Limited
RESPONDENT: Camilla Roslyn Scharrer
INSURER: GIO General Limited
FILE NUMBER: A2-6788/08
ARBITRATOR: Mr M. Oldfield
DATE OF ARBITRATOR’S DECISION: 4 March 2009
DATE OF APPEAL DECISION: 1 July 2009
SUBJECT MATTER OF DECISION: Sections 4, 9, 10 and 14 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Kevin O’Grady
REPRESENTATION: Appellant: Turks Legal
Respondent: Lucas & Staggs Lawyers
ORDERS MADE ON APPEAL:

The Arbitrator’s decision dated 4 March 2009 is revoked and the following determination is made:

“1.   Award for the respondent.

  2.   No order as to costs.”

No order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

  1. On 1 April 2009 The RedRock Company Pty Ltd (‘ the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 4 March 2009.

  1. The Respondent to the Appeal is Camilla Roslyn Scharrer (nee Cheatham) (‘the worker’).

  1. This is one of two appeals brought in respect of the Arbitrator’s determination. The worker, who was successful in securing an award of weekly compensation, has challenged the quantification of her entitlement. Given the circumstance that the employer has challenged the Arbitrator’s determination that the worker’s injuries occurred in compensable circumstances, it is convenient to deal firstly with the present appeal. The worker acknowledges the appropriateness of such an approach in her submissions opposing this appeal (submissions Part A [3]).

  1. The worker, who is 31 years of age, was employed by the appellant as a sales representative. The appellant is a wholesaler of beverages, both alcoholic and non-alcoholic. The worker’s duties involved attendance upon customers in metropolitan Sydney. A motor vehicle was supplied to the worker by the appellant in which were transported the various products sold by the appellant. It is common ground that the worker was entitled to retain possession of the motor vehicle outside working hours and to use it for personal transport.

  1. The appellant’s office and warehouse was, at the relevant time, situated in Millers Point, Sydney. Most of the worker’s duties were performed “on the road” attending to the promotion and sale of her employer’s products. The worker was, however, required to attend the appellant’s premises on two days per week for the purpose of attending to clerical matters, attending meetings and stocking her vehicle.

  1. On 14 December 2001 the appellant had arranged a Christmas party for staff members to be held after work at The Slip Inn, a bar in Sussex Street, Sydney. The worker completed her duties at the appellant’s Millers Point premises on that day following which she drove in her work vehicle to the party arriving at approximately 7pm. The worker parked and proceeded to the party venue where she remained until 2am the following morning. A quantity of alcohol was consumed by the worker during the course of the festivities.

  1. After leaving the party venue the worker proceeded to drive her work vehicle at which time she was accompanied by a male friend. At 3am the worker’s vehicle was involved in a motor accident on Epping Highway, Marsfield which caused significant injuries to the worker.

  1. A claim for compensation benefits was made by the worker and liability in respect of that claim was accepted by the appellant’s insurer. Those benefits being weekly compensation and medical expenses, were paid until July 2005.

  1. The worker was notified by letter dated 15 June 2005 sent by the appellant’s insurer that liability was declined with respect to medical, hospital and associated expenses as from 1 July 2005 and in respect of weekly compensation benefits from 29 July 2005.

  1. A dispute arose concerning the worker’s entitlement to payment of ongoing compensation benefits and an Application to Resolve a Dispute (‘the Application’) was filed on her behalf with the Commission on 29 August 2008. That Application came before an arbitrator for conciliation/arbitration on 18 December 2008. A Certificate of Determination was issued on 4 March 2009.

THE DECISION UNDER REVIEW

  1. The ‘Certificate of Determination’, dated 4 March 2009 records the Arbitrator’s orders as follows:

The Commission determines:

“1.That the Applicant suffered injury on 15 December 2001 arising in the course of employment.

2.That the injuries suffered caused serious and permanent disability therefore the disqualifying provisions of s14 of the Workers Compensation Act 1987 do not apply.

3. That the Respondent pays the Applicant weekly payments of compensation pursuant to s40 of the Workers Compensation Act 1987 as follows:

$306.00 per week from 27 May 2005 to 31May 2007.
$10.00 per week from 1 June 2007 to 11 February 2008.
$226.00 per week from 12 February 2008 to date and continuing.

4.That the Respondent pays the Applicant’s s60 of the Workers Compensation Act 1987 medical and related expenses upon production of accounts and/or receipts.

5.That the dispute concerning a claim pursuant to s66 of the Workers Compensation Act 1987 for permanent loss of efficient use of the left arm at or above the elbow, the left leg at or below the knee and permanent impairments of the neck and back together with severe facial and bodily disfigurement be referred to Approved Medical Specialists by the Registrar following reasonable period after the Applicant gives birth to her second child. Any dispute concerning compensation payable pursuant to s67 of the Workers Compensation Act 1987 will be determined, if applicable, following issue of the Approved Medical Specialists medical assessment certificate.

6.That the Respondent pays the Applicant’s costs as agreed or assessed and such costs are to include attendance at the conciliation conferences on 28 October 2008 and the 25 November 2008.  The Commission certifies this matter as complex and orders an uplift of 20% in the costs in accordance with Item 5 of Table 4 of Schedule 6 of the Workers Compensation Regulations 2003.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

  1. A transcript of the proceedings conducted before the Arbitrator is before the Commission (‘transcript’). As stated in the Certificate of Determination a Statement of Reasons (‘Reasons’) for the Arbitrator’s determination accompanied the Certificate.

ISSUES IN DISPUTE

  1. The issues in dispute in the appeal are whether the Arbitrator erred:

(i)   in making findings in the absence of evidence;

(ii) in the manner of application of the provisions of section 4 and section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’);

(iii)  in failing to give adequate reasons for the decision, and

(iv)   in failing to consider relevant evidence.

  1. The summary of the issues set forth above is taken from the appellant’s application at Part B where the Grounds of Appeal are stated.

  1. The conduct of this appeal has, to an extent, become complicated by the inclusion by the worker in her Notice of Opposition to the appeal, of submissions which reiterate matters  agitated before the Arbitrator but not raised by the appellant in its challenge to the arbitrator’s determination. Those matters include a complex argument raised by the worker at the arbitration that the appellant has “admitted liability” and was, in some way, prevented from resiling from that admission. The argument involved the notion of estoppel and a suggested contract. Written submissions have also been furnished by the worker in relation to various matters enumerated in paragraph [54] of submissions. It seems that these have been raised by the worker as matters of contention and it appears that the worker is seeking to uphold the Arbitrator’s determination upon grounds other than those determined in her favour following the hearing. These matters are more fully addressed below.

ON THE PAPERS REVIEW

  1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

  1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

  1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

  1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

  1. The amount of compensation at issue on the appeal exceeds the thresholds provided by section 352(2) of the 1998 Act, which must be met before a grant of leave to appeal is made by the Commission.

  1. The requirements of section 352(2) and (4) of the 1998 Act having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the appellant to appeal to the Commission.

EVIDENCE

  1. The documentary evidence before the Arbitrator is summarised in paragraph [6.1] of Reasons. There was no oral evidence taken before the Arbitrator. The transcript which is before the Commission records the submissions put on behalf of each party at the hearing.

  1. The documents relied upon by the worker included two statements by her. The first dated 19 March 2002 and the second dated 11 August 2008. The first of those statements contains  evidence of the following matters:

·   The worker first commenced employment with the appellant in May of 1998 following which she remained there for a period of twelve months. Following an absence in Hawaii during which time the worker was employed in that place she returned to Australia and recommenced employment with the appellant being approximately mid 2001.

·   The worker was employed as a sales representative and her duties included attending to customers and potential customers of the appellant in the northern region of metropolitan Sydney. The worker’s duties also required her to attend the appellant’s office at Millers Point two days per week for the purpose of attending to clerical duties. Her work hours were from 9am to 5pm Monday to Friday.

·   The worker had at relevant times concurrent employment with a licensed bar in North Sydney. She was there employed two nights per week between the hours of 6pm and 2am.

·   The worker’s usual route home from the appellant’s office in Millers Point was via the Harbour Bridge onto Lane Cove Road onto Epping Road thence to Beecroft Road and thereafter Cheltnam Road. Thereafter the worker travelled through suburban streets of Beecroft to her then home in Malton Road. It was stated that the trip “usually takes me about 30 minutes. It takes longer if there is a lot of traffic.”

·   On Friday 14th December 2001 the worker attended to her duties at the Millers Point Office where she attended a sales meeting.  It is stated that the worker recalls having to attend to deliveries in the Northern Beaches area on that day. The worker returned to the appellant’s office at about 6pm. A Christmas party had been arranged by the appellant for staff at the Slip Inn Bar on Sussex Street, Sydney.

·   The worker drove from the office to the Slip Inn and arrived at the staff party at about 7pm. It was the worker’s intention to drive home after the party “as long as I didn’t drink too much.”

·   The worker had invited a personal friend named Michael to attend the party. Michael was at the Slip Inn at the time the worker arrived. The worker states that she can not recall Michael’s last name, a New Zealander, whom she had met through a mutual friend who had relocated to London.  She had no contact details for Michael.

·   The worker drank two vodka mix drinks and a cocktail at the party. The cocktail contained gin. The worker states, “I had this drink and can’t really remember what I drank after that.”

·   The worker gave her car keys to a fellow employee, Lisa. The keys were made available to allow Michael and another male guest at the party to attend to a problem involving a flat tyre on Lisa’s vehicle. The worker does not recall getting her keys back. She  notes that she had those keys in her possession later in the night.

·   The worker left the Slip Inn “at about 2pm [sic, 2am]”. The worker was in the company of Michael. The worker does not recall any conversation about “me not driving” and it is stated that she did not remember any of her work colleagues telling her not to drive. The worker does not recall getting into the car and is not sure if she put on a seatbelt. It is stated that she usually wore a seatbelt all the time.

·   It is stated that the worker assumed that she took the normal route home but stated that she could not be 100% positive as she doesn’t really remember.

·   The next thing remembered by the worker is that she was driving on Epping Road near Epping Boys High School. It is stated that she does not recall that she was speeding and it is noted that the speed limit at that point is 60kph. The highway at that point has three lanes either side.

·   The worker does not know what time it was at that stage but remembered having the windscreen wipers on “as fast as they would go as it was raining very heavily.” The worker felt the car start to slide around on the road. The steering wheel began to jerk from side to side. The worker recalls Michael reaching out and grabbing the wheel trying to steady the car but the vehicle veered to the right over the median strip and began to roll. The next thing the worker recalls is that she was lying on the ground. It was raining and she heard her friend Michael calling out to her. She was able to answer but was unable to move.

·   The worker describes her hospitalisation and detail of her injuries and her subsequent history.

·   The worker made reference to Constable Fitzgerald from Eastwood Police Station to whom she had given a statement concerning the accident. The worker states that she was told by the police officer that she had “returned a blood alcohol reading of 0.1 or something like that.” The worker was told that she would probably receive a summons to attend court. The worker had not heard from the police officer since giving the statement which was one month earlier.

  1. The second statement made by the worker contains evidence of the following:

·   The worker had married in 2007. She has one child, Angelina Grace born June 2007. The worker was not then employed.

·   The appellant’s insurer had accepted liability in respect of workers compensation benefits up until the 29th July 2005.

·   The vehicle used by the worker when employed by the appellant was a Citroen Berlingo which was owned by the appellant. The worker was entitled to exclusive use of the vehicle and was permitted to drive the vehicle outside working hours for personal use. It was stated there were “no restrictions’. All outgoings in respect of the vehicle were paid by the appellant.

·   The Christmas party on 14th December 2001 was fully paid for by the appellant. The party was organised by the worker’s boss Mr Ian Kinsella. Mr Kinsella mentioned on a number of occasions prior to the party that “he expected all the reps to be at the party.” The party was for all sales representatives, warehouse packers, drivers and office staff. Employees were encouraged to bring their partners. Attendance was not compulsory. Mr Kinsella wanted to “show his appreciation to all the staff and expected us to attend”.

·   The worker states that there was no demand during the course of the party by either Mr Kinsella or Mr Glen Wright “that they didn’t want me to drive the car home and for me to hand in the keys.” The worker had a conversation with Mr Wright at about 11pm on that night when Mr Wright enquired as to how the worker was getting home to which she replied she did not know. Mr Wright said to the worker “you are not driving” he also said “give me your keys” to which the worker replied “you are not having my keys”. The discussion was “light hearted”. Had there been a demand for the keys the worker would have handed them over.

·   Up until 1.45am to 2am when the worker left the party she “never paid for any alcohol”. The appellant paid for all drinks throughout the night up until the time the worker left. The worker did not know who was paying for the drinks. She could go up to the bar, put an order on the RedRock account and be served and this “remained the case” until she left with Mr Wright and the other sales representatives.

  1. That second statement contains detail of the extensive injuries sustained by the worker in the subject accident and details of her treatment. That treatment included a fusion procedure to her neck, a left knee reconstruction, plastic surgery to the right side of her face, repair of lacerations to shoulders, arm and back, the insertion of a plate into her left arm which suffered a fracture, removal of pins and plates in the left arm in February 2003 and laser surgery for the removal of gravel from wounds received in the subject accident. The worker, by the latter part of 2002, began to experience depression. She also experienced “flashbacks” concerning the accident.

  1. The worker attempted to return to part-time work with the appellant in May 2003. That work continued until August 2003. At that time she commenced employment as a supervisor at the Parklands Restaurant working between 8am and 4pm Wednesday to Sunday. The worker remained in that employ until February 2004 at which time she resigned and commenced work at a restaurant known as the “Balmain Bug”. Her position was that of head waitress.

  1. The worker continued to experience significant pain and restriction. Work with the restaurant continued until April 2005 at which time the worker opened a Café known as Eatz at Home. She was the sole proprietor. Work in the café on weekdays was between 10am and 4pm, weekends between 9am and 5pm. The worker attended to these duties seven days a week. This café business continued until it was sold in April 2007. The worker gave birth to her child in June 2007.

  1. In February 2008 the worker resumed employment working two days per week, one day working for a friend in a graphic design business and one day per week working in her father’s medical practice.

  1. There are two claim forms in respect of workers compensation benefits attached to the worker’s Application. The time of the subject injury in each of those claim forms is noted as being “2am approx”.  The second of those claim forms dated 5 March 2002 records the worker’s statement that she had consumed alcohol. It is noted that she “only remembers having two-three drinks”. Those details appear in the section of the claim form headed “About the journey” and it was stated that the worker was travelling home from work, following her usual route. It is recorded that the worker was driving home from a work Christmas function, the road was very wet and the car went out of control sliding vigorously side to side…”.

  1. A number of medical reports and certificates were attached to the worker’s application and relevant detail of those documents appears below.

  1. Copies of correspondence received by the worker from the appellant’s insurer are also annexed to the Application. Those documents relate to the insurer’s management of the claim both before and following acceptance of liability. That correspondence includes a letter dated 15 June 2005 from the insurer which details that company’s decision to decline further liability in respect of the claim. It is stated that the decision has been made having regard to the provisions of “Section 10(A) (sic) and 10(B) (sic)” of the Workers Compensation Act 1987 Act (‘the 1987 Act’).

  1. A further statement by the worker made on an unspecified date in November 2008 was admitted as a late document before the Arbitrator. It is there stated that the worker was supplied with the motor vehicle by the appellant company and that vehicle was fully stocked with samples of the company’s wares. That included mineral water, bottles of wine and bottles of spirits. The worker had no need to go to the office most days as the vehicle was re-stocked every Friday after a sales meeting.

  1. The worker’s duties included driving from cafes and restaurants and driving to the office to obtain stock if needed. At the end of a days work she went straight home from whatever suburb she may have worked on that day.

  1. The worker’s statement detailed her day by day duties and work obligations and included a description of promotional activities. That statement contains details of the worker’s circumstances including the extent of the disabilities and her work activities. It is stated that she would not be able to perform the duties required of her whilst employed with the appellant prior to her injury.

  1. A report from Dr WD Bye, orthopaedic surgeon, dated 24 November 2008 was also admitted as a late document at the hearing. That report contains that practitioner’s expression of opinion that the worker is fit for sedentary office work duties only and that such work could only be performed on a part-time basis.

  1. The appellant at the hearing relied upon all that material attached to its Reply which included a document which purported to be a notice issued pursuant to section 74 of the 1998 Act. That notice contains the statement that the claim is disputed upon the basis that the injury received was “attributable to…. serious and wilful misconduct.” Reference is also made in that correspondence to the provisions of section 10(1A) and 10(1B) of the 1987 Act. Reference is made to what is stated to be available evidence in support of matters raised by way of defence to the claim and reference is made to various statements made by witnesses.

  1. A number of documents were enclosed with the section 74 notice addressed to the worker including the claim forms referred to in [29] above. A report concerning investigations conducted by Milne and Associates Pty Limited dated 25 March 2002 was also enclosed. That report included a copy of a statement made on 19 March 2002 by Mr Wright, a director of the appellant, in which it is asserted that on the night of the subject accident at the party he said to the worker “you are not to drive, you have had too much to drink”. Detail of Mr Wright’s evidence appears hereunder. That report also contains a statement from a fellow worker, Ms Jane Rennenburg. Also attached to that notice was a statement by Mr Ian Kinsella a director of the appellant company. Detail of this evidence is addressed below.

  1. The last document attached to the notice forwarded to the worker was a police report dated 22 May 2002 addressed to the investigation firm Milne and Associates Pty Limited. That report concerned the subject motor vehicle accident. The report records the time of occurrence as being 3am, 15 December 2001. The description of events includes a notation that the worker’s vehicle was observed by witnesses to be driven west on Epping Road, Marsfield at an unknown speed but believed to be in excess of the sign posted 80km/h speed limit. When negotiating a slight left hand bend the vehicle was seen to cross from the west bound lanes to the east bound lanes. The vehicle then collided with a rock face and commenced to roll coming to rest on its roof on the grass median strip. The worker and her passenger named as Michael O’Brien were “ejected” from the vehicle.  Conditions at the time of the accident were noted as follows: “darkness”, “dry bitumen road”, “street lighting on”, “80 km signposted speed limit.”.

  1. The police report further noted that the worker had been conveyed to the Royal North Shore Hospital where a blood sample was taken which returned a reading of 0.124 grammes of alcohol in 100 millitres of blood. An interview with the worker by police on 16 February 2002 is noted at which time she stated that she had consumed “a cocktail and one vodka lime and soda”. The worker could not remember drinking anything else. The worker was informed that the matter would be reported and that she would be charged with an offence.

  1. The police report contained further abbreviated detail which included a notation that the weather was overcast, the road surface was sealed and the surface condition of the road was dry. The report contained notations that it was “unknown” as to whether the worker was wearing a seatbelt.

  1. The appellant at the hearing relied upon those documents attached to an application to admit late documents filed on 10 December 2008. Included amongst those documents was a further statement by  Mr Glen Wright made on 18 November 2008. Mr Wright stated that on the night of 14 December 2001 at the staff party he had been informed by Mr Kinsella that the worker had driven her company motor vehicle to the function. Mr Kinsella had informed Mr Wright that he had told the worker not to drive that evening as she had been drinking. Mr Kinsella later told Mr Wright that he had taken the car keys from the worker “so she could not drive”. Mr Wright further states that “a couple of days after the function” he was told by Mr Kinsella that the worker had been involved in an accident after driving home from the function. Mr Kinsella stated that he had given the car keys to the worker’s boyfriend on the night of the function “so that he could return them to her the following day.”

  1. A report from MJM Investigations Pty Limited dated 5 December 2008 was attached to the application to admit late documents. That report contains a notation that Senior Sergeant Jenkins of the NSW Police Crash Investigation Unit at Parramatta had informed the investigator that the worker had been prosecuted for “the offence of Mid Range PCA”. The matter had been dealt with at Ryde Local Court. The matter was concluded on 19 June 2002 at which time the worker entered a plea of guilty and was convicted of the offence. The worker was fined $400.00 with $58.00 court costs and was disqualified from driving for a period of nine months.

  1. The investigation report had attached a further statement from Mr Kinsella which comprised thirty numbered paragraphs. Matters addressed in that statement include an acknowledgment by Mr Kinsella that the worker and all sales staff “virtually had 24/7 use of their vehicles and could use them in their personal life within reason in accordance with the memos given to them.” Earlier reference had been made by Mr Kinsella to the “memos” however they do not form part of the investigation report or attachments.

  1. Mr Kinsella refers in his statement to an arrangement during the course of the staff party that was made to transfer the spare wheel from the worker’s vehicle to another staff vehicle. At that time he had taken the worker’s car keys from her and given these to either the worker’s friend Michael or John a friend of a fellow staff member. Mr Kinsella states he had “some recall” that he said to Michael that he should “hang onto the keys as I did not want Camilla to drive due to her intoxication.” Mr Kinsella states that he recalls Michael acknowledged that the worker was not going to drive. Mr Kinsella states that in hindsight he “probably should have taken the keys and retained them”. Mr Kinsella further states:

“When I had told Camilla she was not to drive the car that night she was flippant, almost if she did not take it seriously so I reinforced with her she was not to drive the vehicle that night to which she agreed.”

  1. A further statement made by Mr Kinsella on 5 December 2008 was attached to the investigation report. That statement details the duties of the worker and, where relevant, reference is made to the content hereunder.

  1. A report of Dr James Bodel dated 2 December 2008 was also attached to the application to admit late documents. Dr Bodel expressed his agreement in that report with the worker’s local doctor concerning that practitioner’s certification that the worker was fit for thirty hours work per week.

  1. Also attached to the investigation report were wage records relating to the worker’s earnings with the appellant.

  1. Attached to the application to admit late documents was a copy of correspondence dated 10 December 2008 from the appellant’s solicitors to the worker’s solicitors. That correspondence addresses matters which had been raised by the Commission in a direction issued on 26 November 2008. The question raised in that direction was whether the appellant admitted or denied that the worker was injured “in the course of her employment”. The correspondence confirms that the appellant denied that the subject injury arose out of or in the course of employment and the basis of that denial was particularised. Details of this matter of significance is addressed below.

PRELIMINARY MATTERS

  1. Both at the hearing and on this appeal the worker has raised for the Commission’s determination an argument founded upon the undisputed fact that liability in respect of the payment of workers compensation benefits was accepted and payment of same was made  soon after the subject accident and continued until mid 2005. It is said that the appellant is in some way precluded from defending these proceedings. The worker’s submissions concerning this matter are recorded between pages 2 and 19 of the transcript. Having regard to that which is recorded at page 2 of the transcript it seems that the worker’s contention was as follows:

(i)   the appellant’s acceptance of liability to pay and/or the payment of workers compensation benefits at a time shortly after the subject accident amounted to an admission of liability. Having regard to such admission the appellant may not now raise a defence, as particularised in the proceedings, to the claim brought by the worker;

(ii)    the appellant’s denial of the worker’s claim founded upon matters raised by way of defence in these proceedings amounts to a breach of contract, and

(iii)  the appellant is estopped from relying upon those issues raised in defence of the proceedings.

  1. The Arbitrator at paragraphs 8.2 to 8.6 of Reasons addresses argument raised on behalf of the worker which is identified as being “issue 2, ‘admission’ of liability”. The arguments raised were addressed however it appears (at [8.6] of Reasons) that the Arbitrator concluded that these arguments had no merit. It was stated by the Arbitrator:

“… I do not agree with Ms Scharrer that those cases, and any others, is (sic) precedent proper for the principle that by the payment of weekly payments the insurer has accepted unconditional liability. I am more swayed by the commentary in WCA 9.4 that suggests ‘….generally the courts have been reluctant to treat the mere payment of compensation as more than evidence in support of the worker’s case….’.”

  1. It appears that a 27 page written submission was presented to the Arbitrator at the hearing concerning these matters. In submissions put on behalf of the worker opposing this appeal she has sought to reiterate the argument and has furnished a further copy of the lengthy submissions provided at the hearing.

  1. At [52] of submissions put in opposition to this appeal the worker has made reference to a decision of Roche DP in the matter of Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19 (‘Begnell’). The matter of Begnell was a decision made on 26 February 2009 which dealt with arguments similar to those raised before the Arbitrator in the present matter. On this appeal the worker seeks to raise the argument again and impliedly seeks a review of the Arbitrator’s determination in which it was rejected. Having regard to the manner in which proceedings are to be conducted before the Commission and having regard in particular to the provisions of section 354(1) of the 1998 Act it is proposed to address the matter raised by the worker as though there has been a formal application for review of the Arbitrator’s determination.

  1. In Begnell the Commission determined, following an exhaustive examination of relevant portions of the 1998 Act and pertinent authority, that the arguments raised concerning suggested admissions and estoppel were without merit. In the present case the worker seeks to distinguish that matter on the facts.

  1. The submissions put by the worker in relation to the suggested “admission” seek to emphasis the legislative changes which followed the commencement of operation of Chapter 7 of the 1998 Act, that being the new claims procedure, in particular those provisions which appear in Part 3 of that Chapter concerning “dealing with claims”. I note that Part 3 commenced operation on 1 January 2002 and the evidence in the present case does not establish with any certainty as to whether the subject injury which occurred on 14 December 2001 was the subject of an “existing claim” within the meaning of the Acts. There is evidence that formal claim forms including one alleging injury “on the journey” were lodged by the worker on or about 5 March 2002. It is to be noted those documents reveal that the worker’s claim had been allotted a “claim number” by the insurer at that time. The inference is that there had been an earlier claim however there is no evidence as to when that original claim was made.

  1. Commencement of payments of compensation in the case of existing claims is regulated by section 93 of the 1998 Act whereas that matter is regulated by section 274 of that Act with respect to new claims. Both those provisions were considered by Roche DP in Begnell and the following conclusion was expressed (at [84]):

“84. There is nothing, either express or implied, in the terms of either section 93 or section 274 that leads to the conclusion urged by Mr Begnell. The fact that the provisional acceptance of liability is expressly stated not to constitute an admission of liability does not elevate the acceptance of liability under section 274 to something more than it has always been, namely, an admission.”

  1. The Commission in Begnell proceeded to examine relevant authority concerning suggested admissions founded upon voluntary payments of compensation benefits. That discussion appears between [85] and [97] of the determination made by Roche DP. I respectfully agree with the reasoning as expressed in that matter and conclude on the present facts that the appellant’s management of the worker’s claim and the making of voluntary payments up until July 2005 do not constitute admissions concerning liability preventing defence of the present claim. I reach this conclusion having regard in particular to those matters stated by Spigelman CJ in Department of Education and Training v Sinclair (2005) 4 DDCR 206 (‘Sinclair’). I again respectfully agree with the conclusion stated by Roche DP concerning Sinclair at [88] of Begnell:

“88. There is nothing in the terms of Chapter 7 that diminishes the weight of this authority.  Whilst the Chief Justice acknowledged that it might be appropriate to attach some “small weight to such an admission in cases involving simple questions of fact (e.g. whether there was an employment injury)”, any weight to be attached to such an admission was, in the circumstances in Sinclair, of “the slightest weight given that medical reports have been tendered.”  It is not the tendering of medical reports that is of significance in the present matter, but the obtaining of additional lay evidence suggesting that the alleged injury may not have happened at work.”

  1. In the present matter it appears that the significance of the blood alcohol reading had been, for some reason, disregarded by those managing the worker’s claim. It further appears that once the significance of that reading was appreciated, steps were taken to terminate payments. A defence to the worker’s ‘journey claim’ became apparent and that claim has since become complicated by the worker’s reliance upon an alternative allegation that her injuries were received in the course of her employment. Failure to “fully investigate” the claim should not “adversely affect” the appellant’s position before the Commission (see Sinclair at [93]).

  1. The Arbitrator does not appear to have addressed the matters raised by the worker concerning the existence of a contract. This may be explained upon the basis that a mere fleeting reference to the existence of such a contract was made during the course of submissions (transcript page 2).

  1. There has been no attempt made to define the terms of the suggested contract between the worker and the appellant or its insurer. In those circumstances I have no hesitation in disregarding the suggested existence of such an agreement. On any view of the facts it can not be said that there exist legal relations between the worker and the appellant and/or its insurer of such character as to constitute any bar to the appellant raising a defence to this claim before the Commission.

  1. Argument was put that the appellant is in some way estopped from relying upon the defences raised in these proceedings. It is put in written submissions on behalf of the worker that the facts of the present matter give rise to either estoppel by conduct and/or estoppel by waiver. The worker’s submissions with respect to this matter to an extent lack precision however it appears that it is the worker’s argument that she has made the assumption, up to mid 2005, that her injury was received in compensable circumstances and that she would suffer a material disadvantage if the appellant is permitted to revoke the basis of that assumption by denying liability and defending the claim before the Commission.

  1. It seems that the worker suggests that allowing the claim to be defended would cause detriment as follows:

“…. disadvantaged the applicant as far as contesting her entitlements under the WCA in that evidence was lost, presumptively loss of evidence, including quality of evidence.” (Written submissions paragraph 22)

  1. Having regard to the issues in dispute between the parties the only evidence that is not readily available appears to be that of the worker’s friend Michael. It was clear from the police report that that gentleman’s full name is Michael O’Brien although it is stated by the worker that she is unaware of his surname. There is no evidence before the Commission as to efforts made to locate the witness Michael O’Brien. No effort has been made to describe the nature of any evidence that the worker may wish to adduce through Michael O’Brien.

  1. The true nature of the dispute between the parties concerns application of principle to facts which are to an extent common ground between the parties. In short I am of the opinion that there is no basis upon which it may be argued that the appellant is estopped from departing from the assumption earlier made that the worker’s injury occurred in compensable circumstances.

  1. For the reasons set forth above I respectfully agree with the Arbitrator’s apparent view that the worker’s arguments concerning the suggested admission and the suggested estoppel should be rejected.

SUMMISSONS, DISCUSSION AND FINDINGS

  1. It was stated by the worker’s counsel at the hearing that “the claim made by the applicant was based on a claim for compensation as a journey and, in the alternative, as arising out (sic) of the course of employment”.

  1. The appellant had, up until the commencement of this claim before the Commission, treated the worker’s claim as one that had been brought in respect of an injury on a journey within the meaning of section 10 of the 1987 Act. It appears that during conduct of the proceedings, probably at a teleconference conducted by the Arbitrator in November of 2008 , a fresh allegation was made on behalf of the worker being that the subject injury was received in the course of employment within the meaning of section 4 of the 1987 Act. A direction was issued by the Arbitrator following that teleconference which invited the appellant to indicate, within a fixed timeframe, whether it admitted or denied that the worker was “injured in the course of employment”. The appellant by letter dated 10 December 2008 referred to at [48] above advised the worker’s solicitors that such allegation was denied. The misstatement of the terms of section 4 by counsel as above quoted may be disregarded. The questions before the Arbitrator concerned firstly whether the worker was injured in the course of her employment and, if so, was she entitled to compensation notwithstanding matters of fact proven with respect to the circumstances of the subject injury. The alternative claim put by the worker for the Arbitrator’s determination was whether the subject injury was received during a journey within the meaning of section 10 of the 1987 Act and whether the worker was entitled to compensation notwithstanding proof of relevant factual matters concerning the occurrence of the collision giving rise to her very serious injuries. It may be seen that, as argued on behalf of the appellant, the Arbitrator has failed to fully define the issues between the parties at [1.3] of Reasons.

Did the worker’s injury arise in the course of employment?

  1. It is convenient to note the Arbitrator’s finding with respect to the question as to whether the subject injury was received in the course of employment within the meaning of the Act. That finding appears at [9.7] of Reasons:

“9.7 Upon the above reasoning I therefore find that Ms Scharrer was in the course of her employment when she was injured being satisfied, from the site of the accident in comparison to where her abode in Beecroft was, that she was returning home after a day doing what she was expected and authorized to do (on the road servicing customers) and following attendance upon the Christmas Party organized and paid for by the Respondent all of which was conceded was in the course of her employment.  She was injured before she got back to her abode so therefore the car trip, on my reasoning, was also in the course of her employment.”

  1. It may be seen that the Arbitrator has noted that the appellant conceded that the worker, in attending the Christmas party was in the course of her employment. That “concession” appears to be expressed as recorded on page 44 of transcript where counsel for the appellant stated, “… in this case we say its clear that at the party perhaps the applicant was in the course of employment, but after that where was she going? What was she doing in the vehicle? What was the net effect of what the applicant was doing on behalf of the employer? …”.

  1. Such a concession, having regard to the undisputed facts, was in my view properly made. The worker was invited to attend the party by her superiors, she was not obliged to attend but was expected to do so and was invited to attend with her partner. The purpose of the party was to express thanks to staff for their efforts through their work. It is clear that it was to the benefit of the appellant that the worker and others attend the party given the opportunity to promote good relations among the staff and as between staff and management. There is abundant evidence to establish that the worker, whilst attending the Christmas party organised by the appellant, was in the course of her employment (see Cunningham v Tobin (2001) 21 NSWCCR 524 at [27]-[29] (‘Cunningham’)).

  1. The Arbitrator appears to have accepted the worker’s argument, relying upon the decision in Smith v Brown (1998) 16 NSWCCR 492 (‘Smith’), that , as stated by counsel (at transcript page 31), “… the applicant left home in the morning, went about her business, delivering items in the company vehicle which was provided for her which the employer expected to be used, and she suffered her injury on the way home from work – sorry, she suffered her injury on the way home from a client that she had just serviced via an office function.”

  1. Following the making of this submission the Arbitrator questioned counsel as to what precisely was meant by the matters put. The exchange as recorded appears to be to an extent confused however it is reasonably clear that the argument put was intended as an assertion that the facts supported the proposition that the subject injury was received “in the course of employment”.

  1. The worker addresses the question as to whether the injury was received in the course of employment between paragraphs 7 and 12 of written submissions which accompanied the Notice of Opposition filed on her behalf. Particular reliance was placed upon the decision of Clyde v State of NSW (TAFE Commission) [1995] 12 NSWCCR 541. Reference was again made to the decision in Smith.

  1. At the hearing the appellant, on a number of different occasions during submissions, touched on the question as to whether the worker was in the course of her employment at the time of injury. Again it may be said that those submissions lack precision however it is clear that the appellant put (at page 49 of transcript) that the relevant test is that to be found in the decision of the High Court in Henderson v Commission of Railways (WA) (1937) 58 CLR 281 (‘Henderson’) and Humphrey Earl Limited v Speechley (1951) 84 CLR 126. It was stated by counsel:

“At pages 965 and 966 of Mills and also between 986 through to 989 you'll see that the concluding paragraphs on page 989 talk about those things that I've mentioned briefly there, the gross misconduct and how the Henderson Speechley, which again my friend quoted, holds that to extend the course of employment you've got look at what was authorised, encouraged or permitted to the employee to do. I mean, the evidence about that is clearly to the contrary again. The employer is saying, "Do not drive. Give me back the keys." That's evidence that's uncontested, in my submission, because, even implicitly speaking, the applicant says that that's what happened in her two statements. She just thought that the employer was joking in one part.”

  1. The appellant in its written submissions in support of this appeal addresses the question as to whether the subject injury was received in the course of employment with more precision at paragraph 4 at pages 2 and 3 of those submissions. That lengthy paragraph which is broken into eleven sub-paragraphs challenges the Arbitrator’s finding concerning the application of section 4 of the 1987 Act upon various bases. The first complaint is that the Arbitrator has failed to give “adequate reasons” and in so doing has committed an error of law. Reliance is placed upon the decision in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (‘Soulemezis’). Mention is made in those submissions of the proven fact that the applicant was at the relevant time in the accompany of a male friend, Michael and it is put that the Arbitrator failed to expressly deal with that matter when addressing the question as to whether the injury occurred in the course of employment.

  1. Reference is made by the appellant to the blood alcohol reading of 0.124 and it is argued that the Arbitrator failed to consider that evidence when determining the issue of “in the course of employment”.

  1. The appellant proceeds to argue that the Arbitrator failed to analyse the evidence, in particular that of the worker herself, concerning her intentions at the time she left the staff party. It is argued that the Arbitrator’s failure to consider the absence of any clear evidence in relation to the worker’s intention at that time constituted an error in his reasoning process when addressing the question of whether the worker was in the course of employment.

  1. Reference is made in the course of submissions to two findings of the Arbitrator each of which are to be found at [9.10] of Reasons where it was said:

“… The blood alcohol reading taken at the hospital following the accident recorded 0.124 which is in excess of the legal limit of blood alcohol of 0.05. Whilst no evidence was brought forward to scientifically explain the physiological and/or other consequences to a person with a reading of 0.124 I am prepared to accept that such a reading, properly taken and not challenged, is prime facie evidence that at the time of injury Ms Scharrer was driving “whilst in contravention of a Statute (primarily the Road Transport (Safety and Traffic Management) Act 1999) applicable to the worker’s employment” and also she was “in contravention of orders given by or on behalf of her employer” (Messrs Wright and Kinsella, Directors of the Respondent – Statements 19 and 8 March 2002) not to drive home after the Christmas Party.”

  1. The appellant submits that notwithstanding the findings made as above quoted, the Arbitrator failed to take those matters into “consideration” when addressing the question as to whether the worker was in the course of employment at the relevant time.

  1. The worker at paragraphs 35 and 36 of written submissions which have been provided with respect to this appeal argues that, whilst reference was made by the appellant at the hearing before the Arbitrator to conversations between the worker and Messrs Wright and Kinsella, no submission was put “that such conversations took the applicant out of the course of employment, when she drove.” The worker proceeds to argue that the appellant is precluded from raising that point on this appeal given that it had not been argued before the Arbitrator.

  1. The worker argues (at paragraph 31 of submissions) that the contract of employment “was not severed by the fact that the applicant drove the company vehicle whilst having a blood/alcohol reading in excess of the “prescribed limit” just as Mr Clyde was still within the course of his employment when he drove his employer’s truck with a blood/alcohol reading of 0.416”. The citation of Clyde was given. Reliance is also placed upon the decision of the High Court in particular those matters stated by Walsh and Stephen JJ in Bill Williams Pty Limited v Williams [1972] 126 CLR 146 (‘Williams’). The passages particularly relied upon were those matters stated by Walsh J at 154 [2] and by Stephens J at 158-9 [4].

  1. In the course of submissions the worker makes reference to the provisions of section 14 of the 1987 Act. It is put that if the worker’s conduct is considered to be “serious and wilful misconduct” such is irrelevant “when determining whether that conduct occurred in the course of employment…”. Again reliance is placed upon the decision of Williams following which it is asserted that the purpose of the section is “to enable the worker injured, when engaged in serious and wilful conduct to be entitled to be compensated if, when injured, it results in death or serious and permanent disablement.” It is argued that should serious and wilful misconduct take the injury outside the course of employment “the section would have no meaning”.

  1. The worker, upon the assumption that the Commission permits the appellant’s argument concerning disobeyence of the employer’s direction not to drive, argues that such disobeyence “would not take the employee outside the course of employment, which is the point made by Neilson J…”. The reference to His Honour is apparently a reference to those reasons expressed in the course of the determination of the matter of Clyde.

  1. It is further argued on behalf of the worker that the terms of the worker’s employment had not been altered with respect to that which she was expected, required or authorised to do concerning use of the motor vehicle. Reference is made to the evidence in particular that of Mr Kinsella, and it appears that the credibility of the content of Mr Kinsella’s last statement is challenged. The submission includes the following, “… It is submitted that whilst not complying with what she had been told, and driving home the applicant did not take herself outside her employment, consistent with what Neilson J held in Clyde’s case, as referred to in paragraph 34, above.”

  1. The worker’s submissions proceed to deal with the blood/alcohol reading. The argument appears between paragraphs 42 and 48 of written submissions. The argument as put appears to be addressing the concept of “gross misconduct” being a term which appears in the judgment of the High Court in Hatzimanolis v ANI Corporation Limited [1992] 173 CLR 473 (‘Hatzimanolis’). The thrust of the worker’s argument appears to be as stated at paragraph 48 of submissions that “…there was no ‘purposeful conduct’… shown on the applicants part sufficient to bring it within the realms of ‘gross misconduct’”. Reference was earlier made to a number of authorities in which the courts have addressed the question of misconduct whilst in the course of employment and particular reliance was placed upon the decision of Fekonja v Luscan Limited [1994] 10 NSWCCR 339.

  1. Having regard to the moderately complex factual circumstances of the present case and the state of the case law relevant to a determination of whether an injury had occurred in the course of employment, it is my view that the Arbitrator has, as put on behalf of the appellant, failed to give sufficient reasons for his ultimate conclusion (refer 9.7 Reasons). In the circumstances I consider that the evidence requires review to determine whether the Arbitrator’s decision was correct (see State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 per Spigleman CJ at [30]).

  1. It is common ground that the worker was provided with a motor vehicle for use in the course of her employment and that she was permitted to retain possession of that vehicle, upon terms which were not elucidated in evidence, in her off-duty time for personal use. It is clear in those circumstances that so long as the worker did that which she was reasonably required, expected or authorised to do in order to carry out her actual duties she would remain in the course of her employment within the meaning of section 4 from the time that she left her home at Beecroft in that vehicle until her return in that vehicle to her home at the end of the day’s work. The question in the present matter is whether, when the staff party concluded and once behind the wheel of the staff car with an intention to drive, she was still in the course of her employment?

  1. The Arbitrator had made two significant findings of fact with which I respectfully agree and they are those mentioned at [77] above. The worker was in control of the vehicle with a blood alcohol reading of 0.124, and in driving the car was disobeying an order or direction of her employer.

  1. The worker’s submission noted at [79] above concerning the existence of a general prohibition against raising new points on appeal is correct. That general principle is, as I discussed in the matter of Olic v Email Limited and Electrolux Home Products Pty Limited [2006] NSWWCCPD 275 at [64]-[66] (‘Olic’), founded upon public policy concerning the need for finality of litigation. The prohibition is however not an absolute bar and in appropriate circumstances leave may be granted to a party to raise a new point on appeal (see Calin v The Greater Union Organisation Pty Limited [1991] 173 CLR 33). In the present case I cannot accept the worker’s assertion that the appellant’s argument concerning disobeyence of orders or directions from the employer had not earlier been raised as being relevant to a determination as to whether injury occurred in the course of employment. I make this observation having regard to the submissions made before the Arbitrator noted at at [73] above. Whilst it maybe said that those submissions lacked clarity I consider that the argument had been squarely raised. I further note that the worker has taken the opportunity on this appeal to address the matter as I have attempted to summarise above.

  1. The Arbitrator’s finding concerning disobedience is to an extent challenged, and the finding of driving whilst having the stated blood alcohol concentration has not been challenged on this appeal. I have earlier noted that the Arbitrator’s findings are conclusions with which I agree. The worker places considerable reliance upon the decision in the matter of Clyde. The facts of that matter concerned a courier driver who was injured in a motor vehicle accident which occurred whilst he was driving his employer’s truck attending to his business. The worker in that matter was found after the accident to have a blood alcohol level of 0.146. The employer in that matter denied that the worker’s injury arose in the course of employment. It was argued that the commission by the worker of prohibited and criminal conduct took his actions and the resulting injury outside the scope of his employment, thus it could not be said that the injury occurred in the course of employment. Neilson J in the course of addressing this argument surveyed the authorities (at 557-560). His Honour paid particular regard to those matters stated by Stephen J in Williams at 158-159:

"Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work: Kavanagh v. Commonwealth per Fullagar J ((1960) [1960] HCA 25; 103 CLR 547 at 559). It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, 'there is nothing more in the concept than time measured by activity of a particular character': Kavanagh v. Commonwealth per Menzies J (at 570). It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker; so long as he is engaged in his work or something incidental to it the time span endures; as soon as he ceases to be so engaged the time span ends and with it the course of employment."

  1. His Honour found in Clyde that the tests proposed by Stephen J in Williams had been satisfied and concluded that the worker at the time of injury was in the course of his employment. The worker was found by his Honour to have been acting in contravention of a statutory regulation within the meaning of section 14(1)(a) of the 1987 Act but His Honour found that the worker was not tortiously liable for the collision. A finding of serious and permanent disablement within the meaning of section 14 of the 1987 Act was made and accordingly compensation was found to be payable.

  1. I consider that the present matter may be distinguished from the matter of Clyde on the present facts. The worker in this matter was in the course of her employment certainly up until she left the staff party. Beyond that point she was entitled to the benefit of the provisions of the Acts if it be established that it was her intention to travel home. I address the questions raised concerning the journey provisions (section 10 of the 1987 Act) below. It is common ground that upon leaving the party the worker got into the vehicle and proceeded to drive. Accepting for the moment that it was the worker’s intention to drive home it is my view that her disobedience of her employer’s directions concerning driving and her decision to drive whilst having the blood alcohol concentration as noted was conduct that prevents the characterisation of her subsequent conduct up until the point of impact and injury as being in the course of employment within the meaning of section 4 of the 1987 Act. On the present facts the question is not whether the conduct I have highlighted took the worker outside her employment but whether by reason of her conduct she was not nor was she ever at any relevant time in the course of her employment. In my view, as stated, the worker was not in the course of her employment once she elected to drive off in the staff motor vehicle.

  1. The worker’s argument concerning entitlement to compensation notwithstanding her conduct is founded upon the combined effect of the operation of section 4 and section 14 of the 1987 Act. Section 14 provides:

“14. Conduct of worker etc

(cf former s 7 (2), (3))

(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.

(2) If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.

(3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.”

  1. The worker’s argument which suggests that section 14 of the 1987 Act could have “no purpose” if conduct “took the applicant outside the course of her employment” cannot be accepted. A worker will have the benefit of section 14(2) of the 1987 Act once it is established that she is in the course of employment and it is not shown the subject misconduct was entirely “foreign or repugnant to his employment” as stated by Tobias JA in WorkCover Authority of NSW v Walsh [2004] NSWCA 186 at [56] (‘Walsh’).

  1. Such a circumstance was the subject of consideration in the matter Pollock v Stickfast Labels Pty Ltd (in liq) (2002) 24 NSWCCR 279(‘Pollock’). In that matter the worker, a heroin addict, was employed to operate a letter press printing machine. On the day that he was injured he was so engaged. At 11pm the worker had completed much of the work assigned to him. He left the press running in the knowledge that it would automatically cut out after printing the allocated number of labels. He then went to an office on the premises and injected heroin which he had with him into his arm. As a consequence of the injection he collapsed in the office over a heater and was severely burnt. It was stated by Ipp JA (with whom Meagher JA and Foster AJA agreed) at 283 [16]:

“On the facts as found, the appellant left the factory floor and went into the office on the premises for the sole purpose of administering an injection of heroin to himself. He did this knowing that his employer would not approve of what he was doing. No matter how flexible the application of the test as to whether work done was in the course or within the scope of employment, the appellant's conduct in leaving the factory floor and injecting himself with heroin could not fall within that test. The appellant was not doing anything which he was reasonably required, expected or authorised to do in order to carry out his actual duties: Henderson v Commissioner of Railways [1937] HCA 67; (1937) 58 CLR 281 at 294; Humphrey Earl Limited v Speechley [1951] HCA 75; (1951) 84 CLR 126 at 133; Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 at 479 and following. The appellant was actually doing something that had nothing to do with his duties, something that his employer had warned him against doing and of which his employer, to his knowledge, seriously disapproved.”

  1. His Honour proceeded to consider the provisions of section 14(2) and stated (at 283-284 [18]):

“In my opinion, whatever s 14(2) means it does not convert conduct which was not in the course or within the scope of employment when the serious and wilful misconduct occurred into conduct that was in the course or within the scope of employment. I do not understand Higgins v Galibal Pty Limited (1998) 45 NSWLR 45 as having this effect. In the circumstances of this case, s 14(2) does not assist the appellant.”

  1. In the matter of Walsh Tobais JA observed, “In Pollock the appellant ceased to be in the course of employment when he left the factory floor for the sole purpose of injecting himself with heroin”. It is my view that those facts are analogous to the present in that once the worker assumed control of the staff vehicle she ceased to be in the course of her employment. The classical test to determine whether an injury arises in the course of employment is still to be found in the decision of Dixon J in Henderson where his honour stated at 294:

“… the question of whether (the injury) arises in the course of employment will depend on the nature and terms of the employment, on the circumstances in which the work is done and on what, as a result, a workman is reasonably required, expected or authorised to do in order to carry out his actual duties.”

In the present case the worker was expressly prohibited by her employer to drive in her then present state.

  1. The worker’s reliance upon that which was stated by Neilson J in Smith does not in my view assist in advancing her argument concerning “course of employment”. Whilst the employer  in the present case undoubtedly supplied the staff car for, among other things, transport for the worker to get about including to her home there was on this particular occasion a prohibition against use of the vehicle for that or any other purpose. It certainly cannot be said that there was an expectation or authorisation concerning the use to which the worker put the vehicle on the night in question.

  1. Whilst the parties have not made reference to the decision of the Court of Appeal in Higgins v Galibal Pty Limited (1998) 45 NSWLR 45 I consider it appropriate to examine the present evidence in the light of that which was stated by Priestley JA (Stein JA agreeing) concerning those difficulties which arise by reason of the interaction of section 4 and section 14 of the 1987 Act. The facts of that matter concerned a worker who was employed to work at a hotel. At the conclusion of his shift it was his intention to descend from the 5th floor to the mezzanine floor for the purpose of signing off. The worker, rather than using the elevator or the stairs chose to slide down a laundry shute which led to the mezzanine level. During his descent he failed to control the slide and fell causing serious and permanent disablement within the meaning of section 14(2) of the 1987 Act. The judge at first instance declined to order payment of compensation given his findings that “1. the worker was acting in contravention of orders set out in the staff handbook; 2. was acting without instructions from his employer; 3. his actions were not done for the purposes of and in connection with the employer’s trade or business; 4. the injury was solely attributable to his own serious and wilful misconduct which was gross misconduct”. His Honour also made a finding that his injury resulted in serious and permanent disablement.

  1. The decision of the primary judge was reversed on appeal and it was stated by Priestley JA at 58:

“In my opinion the facts relevant to the question whether the appellant was in the course of his employment at the time of his injury are that it was part of his duties, upon ending his shift, to go to the mezzanine floor to change out of his uniform and hand in his access keys before leaving the place of employment, and on Fridays to ensure that his time sheet for the week was signed. In my opinion the legal conclusion from these facts is that in travelling on this occasion from the fifth to the mezzanine floor he was doing something in the course of his employment.”

  1. Priestley JA had expressed the opinion that the term “serious and wilful misconduct” as it appears in section 14 was intended to include “gross misconduct” as that term had been used in the various authorities (including Hatzimanolis). It followed, the Court of Appeal held, that the injury having been received in the course of employment and being solely attributable to the serious and wilful misconduct of the worker and that the injury resulted in serious and permanent disablement, compensation was payable in respect of the injury (section 14(2)).

  1. In the present case there have been findings as noted at [87] above. There has also been a finding, unchallenged by the appellant, that the injury resulted in serious and permanent disablement. My view is that the worker has failed to establish she was in the course of employment during the one hour period between leaving the party and the occurrence of injury. It is upon this basis that the decision in Higgins may be distinguished from the present.

  1. The Arbitrator’s reasoning which led to him reach the conclusion at [9.7] of his determination that at the relevant time the worker was in the course of her employment appears in the immediately proceeding paragraph:

“… persons who are employed on the basis of being provided with an all purpose vehicle to enable them to efficiently and effectively service their employer’s customers or clients by proceeding immediately from their home to wherever, are actually in the course of employment from the moment they exit the entrance to their abode and do not cease being in the course of their employment until they enter the entrance to their abode at the end of their working period. If for some reason a person so employed gets injured at any point from the time they leave to the time they return, s10 of the 1987 Act does not apply as they (sic) were not on a periodical or daily journey to or from the employment.”

  1. For the reasons which I have attempted to outline above I conclude that the Arbitrator has erred in his determination of the facts and failed properly to apply matters of principle when addressing questions as to whether the worker was in the course of her employment at the time of injury. I accept the appellant’s argument that the Arbitrator’s reasons as expressed do not meet the legal requirements as to sufficiency. With respect to the Arbitrator’s observations as to the relevance of section 10 of the 1987 Act it is proposed to deal with that question below.

  1. Having regard to the findings which I have made the worker is not entitled to payment of the benefits as claimed in her Application. Should my conclusion with respect to the question as to whether the injury occurred in the course of employment be wrong it would be necessary to consider the operation of section 14 of the 1987 Act. A further matter for consideration would be the relevance, or otherwise, to the facts of the provisions of section 9A of the 1987 Act to the facts.

  1. Shortly stated my views concerning section 14 are that, on any view of the medical evidence, the worker has plainly suffered serious and permanent disablement as a result of the subject motor vehicle accident. Given the Arbitrator’s findings at [9.10] of Reasons, the worker may not place reliance on the provisions of section 14(1) given that it could not be said that the act of driving and her disobedience of the direction not to drive could be perceived as having been done by the worker for the purposes of and in connection with the employer’s trade or business.

  1. With respect to section 14(2) the onus is upon the appellant to establish that the subject injury was “solely attributable” to the serious and wilful misconduct of the worker. Having regard to the state of the evidence there is, in my view, nothing to establish that the injury was solely attributable to the serious and wilful misconduct of the worker as found by the Arbitrator. The onus of proof concerning “solely attributable” is upon the appellant. The absence of evidence concerning attribution permits the worker to rely upon the provision. Leaving aside consideration of the operation of section 9A, the worker would be entitled to the benefit of section 14(2).

  1. The provisions of section 9A of the 1987 Act preclude payment of compensation in respect of an injury “unless the employment concerned was a substantial contributing factor to the injury” (section 9A(1)). The question as to whether employment is a substantial contributing factor to injury is one of fact. The question of the proper construction of the provision is addressed by the Court of Appeal in Murray v Shillingsworth (2006) 4 DDCR 313 per Einstein J at [55] (‘Murray’). The mere fact that an injury arose in the course of employment is not sufficient to establish the matters raised for consideration by section 9A (section 9A(3)(a)).

  1. There is no clear evidence as to the “cause” of the subject motor vehicle accident. It is open to inference that the worker’s physical state, having regard to the consumption of alcohol, contributed in some manner to its occurrence. I accept the appellant’s argument that having regard to the blood/alcohol level as recorded, there is a strong inference that alcohol consumption was a major causative element concerning the occurrence of the accident. Accepting for present purposes that the worker was completing the day’s duties at the time of the injury the only “work related” element was that she was in the staff car travelling along Epping Highway. That element does not constitute, in my opinion, a substantial contributing factor to the occurrence of the injury.

Section 10 of the 1987 Act – Journey Provisions

  1. The worker in her written submissions provided with her Notice of Opposition to this appeal has included an annexure “B” which addresses matters raised concerning her alternative submission that the injury occurred whilst she was on a journey within the meaning of section 10 of the 1987 Act. The Arbitrator at [9.6] of Reasons as quoted above at [102] determined that, given his finding that the subject injury occurred in the course of employment “…s10 of the 1987 Act does not apply as they (sic) were not on a periodic or daily journey to or from the employment.” The appellant has taken the opportunity to address matters raised by section 10 in its submissions on this appeal in anticipation that the provision is raised by the worker on the appeal (submissions paragraph 7(a)-(d)).

  1. Neither party has argued and, given my conclusion expressed at [91] above it is not necessary to decide, whether entitlement to compensation pursuant to the journey provisions and pursuant to the general provisions of entitlement (sections 9 and 4) are mutually exclusive ( refer Thompsonv Lewishham Hospital [1978] WCR 111 per Glass JA at 118 (‘Thompson’) cf  New South Wales Police Force v Cox [2009] NSWCCPD 20).

  1. Having regard to the manner in which the parties have conducted this appeal it becomes necessary to examine whether, on the facts, the worker has an entitlement pursuant to section 10.

  1. The presently relevant provisions to be found in section 10 are as follows:

“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.

(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.
….

(3) The journeys to which this section applies are as follows:

(a)the daily or other periodic journeys between the worker’s place of abode and place of employment,

….

(5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act.

….”

  1. The evidence before the Commission as to whether the subject injury occurred whilst the worker was on a journey within the provisions of section 10 is limited. There is the statement of the worker at paragraph 32 of the statement made on 19 March 2002 that it was her intention to drive home after the Christmas party as long as she did not drink too much (paragraph 32 of statement). At paragraph 40 of that statement the worker states that she would “assume that I took the normal route home but I cannot be 100% positive, as I don’t really remember.” The subject accident occurred on Epping Road which is a major arterial road between the city and Beecroft. The claim form concerning “injury on journey” contains the detail of an allegation that the injury occurred on a journey within the meaning of the section. The significance of the finding noted earlier that the worker was in the course of her employment at the staff Christmas party is of significance given that any journey must, in the present context, have been between a place of employment and a place of abode.

  1. The appellant in defence of the claim has relied upon those matters specified in sub-paragraphs (1A) and (1B) of section 10. I accept the worker’s submission that the appellant has at no time disputed that she at the relevant time was journeying to her home at Beecroft. I note that the evidence of the worker was that the trip from Sydney to Beecroft took approximately 30 minutes in normal traffic conditions. Having regard to the evidence as to time it is clear that an interval of one hour elapsed between worker’s departure from the staff party and the occurrence of the motor vehicle accident. Notwithstanding this time interval the appellant has not raised any issue concerning an alleged interruption or deviation on the subject journey which may have been argued having regard to the terms of section 10(2).

  1. I am of the opinion that the worker is disqualified from receiving compensation notwithstanding acceptance that the subject accident occurred whilst she was on a journey within the meaning of section 10. That disqualification arises by reason of the application to the facts of the provisions of sections 10(1A) and (1B).

  1. Section 10 operates to “deem” an injury to have occurred in the course of employment if it occurs on a journey as defined in that provision. The Arbitrator has made findings of facts concerning her conduct including disobeyence of orders concerning use of the car and driving with a blood alcohol content as above noted. The latter finding must establish that at the time of the injury the worker was under the influence of alcohol within the meaning of the Road Transport (Safety and Traffic Management) Act 1999. The blood alcohol concentration was 0.124 a reading well in excess of the maximum permitted by the aforementioned Act. A clear inference may be drawn that at the relevant time the worker was under the influence of alcohol.

  1. Applying the terms of section 10(1B) to the facts as summarised immediately above leads to the conclusion that the injury received by the worker was “attributable to the serious and wilful misconduct of the worker.” There is an onus upon the worker to rebut the presumption as provided by the subsection. What is required is proof that the alcohol “did not contribute in any way to the injury or was not consumed or taken voluntarily.” It is my view that the worker has misstated the relevant principles concerning onus of proof which arises under that subsection in submissions annexure B paragraph 3. There is not, in my view, any “shifting” of the onus to the employer. It is my view that that evidence referred to in that submission does not form a basis to discharge the onus borne by her under the subsection. There is certainly no evidence to suggest that the alcohol as recorded in her blood was not “taken voluntarily”.

  1. The worker, having failed to discharge the onus upon her to establish that alcohol did not contribute in any way to her injury or alternatively that it was not consumed or taken voluntarily leads inevitably to the conclusion that she is disqualified from receiving compensation benefits in respect of the subject injury by reason of the operation of section 10(1A).

  1. For the reasons I have attempted to summarise I conclude that the Arbitrator has erred in his determination of the parties’ rights concerning the subject dispute. In those circumstances paragraphs 1- 6 inclusive should be revoked. In all the circumstances I am of the view that it is desirable, and in conformity with the legislature’s intent, that the error identified in this appeal be corrected without the need to remit the matter for further consideration by an arbitrator.

DECISION

  1. The Arbitrator’s decision dated 4 March 2009 is revoked and the following determination is made:

“1.     Award for the respondent.

2.     No order as to costs.”

COSTS

  1. No order as to costs of this appeal.

Kevin O’Grady

Deputy President

1 July 2009

I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

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Cases Citing This Decision

1

Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365
Cases Cited

7

Statutory Material Cited

0

Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19
Henderson v Commissioner of Railways (WA) [1937] HCA 67
Roncevich v Repatriation Commission [2005] HCA 40