Trad v Chubb Fire & Security Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Trad v Chubb Fire & Security Pty Ltd [2023] NSWPIC 28
APPLICANT:	Mark Trad
RESPONDENT:	Chubb Fire & Security Pty Ltd
Member:	Rachel Homan
DATE OF DECISION:	24 January 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation and incurred section 60 expenses; applicant sustained an accepted injury to his left knee and leg in the course of employment when walking across a carpark to repair equipment in a bus parked in the carpark; whether the employment concerned was a substantial contributing factor to the injury pursuant to section 9A; whether the applicant stepped in a ditch or was simply walking when injured; Held – employment was a substantial contributing factor to the injury; award for the applicant.
determinations made:	1. The applicant sustained a personal injury in the course of his employment pursuant to s 4(a) of the Workers Compensation Act 1987. 2. The employment concerned was a substantial contributing factor to the injury pursuant to s 9A of the Workers Compensation Act 1987. 3. The parties have agreed on a pre-injury average weekly earnings figure of $1,302.99 (as indexed from time to time).
orders made:	1. The respondent to pay the applicant weekly compensation from 1 April 2022 to date as follows: (a) from 1 April 2022 to 7 April 2022, the amount of $480.56 per week; (b) from 8 April 2022 to 21 April 2022, the amount of $1,062.82 per week; (c) from 22 April 2022 to 28 April 2022, the amount of $929.06 per week; (d) from 29 April 2022 to 12 May 2022, the amount of $480.56 per week; (e) from 13 May 2022 to 22 September 2022, the amount of $221.78 per week; (f) from 23 September 2022 to 29 September 2022, the amount of $0 per week, and (g) from 30 September 2022 to date and ongoing, the amount of $200.87 per week. 2. The respondent to have credit for any payments made to date and for the payment of any sick leave pursuant to s 50 of the Workers Compensation Act 1987. 3. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses, incurred to date, in accordance with s 60 of the Workers Compensation Act 1987, upon production of accounts, receipts and/or valid Medicare Notice of Charge.

STATEMENT OF REASONS

BACKGROUND

Mr Mark Trad (the applicant) was employed by Chubb Fire & Security Pty Ltd (the respondent) as a service technician.
On 20 January 2022, the applicant was in the course of his employment at Mount Druitt Hospital when he injured his left knee and leg whilst walking across a carpark.
Liability to pay compensation for the injury was disputed by the respondent’s insurer in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 4 April 2022.
The decision to dispute liability was maintained following internal review in a further notice issued on 18 August 2022.
The applicant commenced the present proceedings by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 26 September 2022.
The applicant seeks weekly compensation from 1 April 2022 to date and continuing and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for incurred treatment expenses.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on
8 December 2022 via Microsoft Teams. The applicant was represented by Mr Bruce McManamey of counsel, instructed by Ms Angela O’Reilly. The respondent was represented by Mr James McEnaney of counsel, instructed by Mr Justin Hart.
During the proceedings on that date, the respondent indicated that it no longer relied on a previously notified dispute as to whether the applicant sustained an injury to the left knee and leg pursuant to s 4 of the 1987 Act.
Directions were made admitting into evidence in accordance with r 67(4) of the Personal Injury Commission Rules 2021 late documents lodged by the respondent.
Leave was granted to the respondent to cross-examine the applicant.
At the conclusion of the arbitration hearing, directions were issued requiring the respondent to serve and lodge an agreed wages schedule in respect of the claim for weekly compensation. It was agreed that there was no dispute regarding either the calculation of pre-injury average weekly earnings (PIAWE) or the extent of the applicant’s incapacity resulting from the event on 20 January 2022. It was agreed that, should the injury be found to be compensable, the agreed wages schedule would form the basis of any order awarding weekly compensation.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act;
(b) the entitlement to weekly compensation during the period 1 April 2022 to date and continuing, and
(c) the entitlement to s 60 expenses as claimed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to an Application to Admit Late Documents lodged by the respondent on 24 October 2022;
(d)    documents attached to an Application to Admit Late Documents lodged by the respondent on 25 November 2022, and
(e)    agreed wages orders sent by email from Mr Hart on 21 December 2022.

Statement evidence

The applicant provided written evidence in a statement dated 12 August 2022.
The applicant gave evidence that he commenced employment with the respondent on
1 May 2006. At the time of the incident on 20 January 2022, the applicant was employed on a full-time basis and working five days per week for eight hours per day on average.
On 20 January 2022, the applicant was required to service fire equipment located in a bus parked in a carpark at Mount Druitt Hospital. The applicant said the surface of the carpark was uneven and poorly maintained. The applicant was walking towards the bus with a bucket in his hand, as well as other equipment when he stepped into a pothole that was approximately 50 mm of bare concrete.
The applicant said he “keeled over” and immediately heard a snap. The applicant initially thought it was a spasm in his left leg and felt severe pain, knee and left hamstring.
The applicant made his way to the bus and attempted to climb into the bus but was in excruciating pain. The applicant was assisted by a colleague out of the bus and walked to the Emergency Department at the hospital. X-rays taken at the hospital did not show any fracture and the applicant was discharged several hours later.
The applicant subsequently received treatment from his general practitioner and was referred for an MRI scan and physiotherapy. An MRI scan taken on 27 January 2022 confirmed injuries to the applicant’s left knee and hamstring.
The applicant remained off work until 28 February 2022, before returning on light duties on
1 March 2022. The applicant gradually increased his hours to four days per week.
The applicant said the poor state of the car park caused him to step into a ditch which caused the injury to his hamstring and knee.
The applicant said that prior to the incident he was in good health and never made any complaints to his doctor or consulted any other specialist for pain or discomfort in his left knee or left leg. The applicant was not aware that he had degenerative osteoarthritis prior to the incident.
The applicant described experiencing constant pain in his knee and leg, as well as difficulties lifting, twisting, bending or kneeling and sitting or walking for prolonged periods of time.

Photographic evidence

Attached to the ARD was a photograph taken by the applicant of a carpark in which a number of white vehicles and two white minibuses could be seen. In the foreground was a patch where the dark car park surface had come away in an uneven fashion revealing a grey surface below.
A second photograph depicting the same uneven patch was also attached.

CCTV footage

The respondent relies on CCTV footage, dated 20 January 2022, of a carpark which appears to be the same carpark depicted in the photographs attached to the ARD.
In one film, the applicant can be seen entering the carpark, carrying a white bucket filled with various objects in his left hand. After travelling some distance through the carpark, the applicant can be seen to transfer the bucket to his right hand, stop and bend down to touch his left leg. After a few seconds, the applicant continued on towards a white minibus, walking more slowly.
In the second film, the same events can be seen from a different angle.

Treating evidence

Clinical records from Mount Druitt Hospital include the results of an X-ray of the left knee taken on 20 January 2022. The report noted mild swelling of the lateral joint line and overlying subcutaneous soft tissue. There was minimal effusion within the suprapatellar bursa and subtle evidence of chondromalacia patella. A tiny avulsion fracture was visualised. It was noted that ligamentous and meniscal injury could not be excluded by the examination.
A discharge referral from Mount Druitt Hospital, dated 20 January 2022 noted,
“57 y/o male presented post injury to L) knee today
Was at work and took step and felt pain in posterior knee
Denies fall onto knee
Was able to mobilise afterwards
Pain posterior knee
Has not had previous L) knee pain
Otherwise well”
On 20 January 2022, the applicant’s general practitioner, Dr Kim Taylor recorded:
“Was walking at work with a Security Guard at Mt Druitt Hospital towards a bus this morning. Fell in a ditch.
Sore over his hamstring muscles.
Left knee painful posteriorly.
Went to Emergency.
Possible avulsion fracture of proximal fibula.
Did not know whether this was old or new.
MRI ordered”
The report of an MRI scan of the left knee taken on 27 January 2022 described a partial thickness vertical radial tear near the posterior route attachment of the medial meniscus. In addition, there was Grade 4 chondromalacia patellae and moderate osteoarthritic changes of the patellofemoral compartment associated with synovitis and joint effusion. There was likely to be superficial infrapatellar bursitis. The report described a “constellation of findings likely accountable for the patient’s symptoms”.

Associate Professor Hope

The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Associate Professor Nigel Hope, dated 6 June 2022.
Associate Professor Hope described the mechanism of injury on 20 January 2022 as the applicant stepping into a shallow concrete ditch. The applicant heard and felt a snap on the back of the left knee with resulting medial and posterior severe left knee pain.
Prior to 20 January 2022, the left knee was symptom-free.
An MRI of the left knee taken on 27 January 2022 showed a medial meniscal tear and medial osteoarthritis.
Associate Professor Hope diagnosed a left knee permanent aggravation of osteoarthritis and gave the opinion that the applicant’s pre-injury duties were permanently inappropriate. A/Prof Hope said the diagnosis was caused by employment.
Associate Professor Hope considered that a left total knee arthroplasty was required immediately.
Associate Professor Hope considered the applicant was fit to work four days per week for eight hours per day, but that his medical lifting restriction should be reduced to 5 kg.

Dr Rimmer

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Stephen Rimmer, dated 8 March 2022.
Dr Rimmer took a history of the applicant walking through a carpark at Mount Druitt Hospital when he heard and felt a crunch sensation which caused the sudden onset of sharp pain.
Dr Rimmer recorded his findings on examination and described the results of the MRI as showing moderate to severe patellofemoral degenerative osteoarthritis.
Dr Rimmer diagnosed a left hamstring strain and trivial aggravation of degenerative osteoarthritis in the left knee.
Dr Rimmer said it was possible that by just walking the applicant could strain his hamstring and aggravate the degenerative osteoarthritis of his knee.
Dr Rimmer was asked whether employment was a substantial contributing factor to the applicant’s current symptoms. Dr Rimmer responded:
“No I do not believe his employment with Chubb Fire and Security to be a substantial contributing factor as this injury, given it's trivial nature, could have occurred anytime, anywhere ie; just walking on flat ground.”

Dr Rimmer was asked whether the incident was the whole or predominant cause of the applicant’s diagnosable condition. Dr Rimmer responded:
“Yes the incident is the whole and predominant cause of Mr Trad's diagnosable condition.”

Oral evidence

The applicant gave evidence under cross-examination at the hearing on 8 December 2022.
The applicant was referred to his statement evidence, which was noted to have been prepared seven months after the injurious event, as well as the photographs attached to the ARD.
The applicant said he took the photographs on the day of the injury. The applicant said he thought he had hurt himself and was going to need to do a report. He took the photographs “just in case”, to give to his employer.
The applicant was referred to the CCTV footage in evidence and it was noted that a grey patch that appeared to be the same patch depicted in the applicant’s photographs could be seen in one of the two films. It was noted that the applicant had not yet reached the grey concrete patch when he stopped and reached for his knee.
The applicant was asked whether it was possible that he misremembered where he was when his knee started to hurt. The applicant said he was not sure. The applicant was asked whether he agreed that on the footage it appeared he had not reached the grey concrete patch when he stopped. The applicant responded that there might have been another patch.
The applicant was asked whether he accepted that he had not stepped into the concrete patch. The applicant said he maintained that he stepped into something. It may not have been the same patch he took photographs of on the day of the accident. The applicant said he perhaps took a photo of the wrong place.
In response to questions from his own counsel, the applicant was asked when he took the photographs attached to the ARD. The applicant said he could not recall. The applicant agreed that he had stopped work for the day after the injury but could not recall the sequence of events. The applicant said he may have gone back to the site after going to the Emergency Room.
The applicant then recalled that he was using crutches and had been wheeled out of the Emergency Room by a nurse so he would not have taken the photographs afterwards.
The applicant said the photograph may have been taken before he went to the Emergency Room but he could not recall. The applicant said he thought he had taken some photographs straightaway.

Applicant’s submissions

The applicant submitted that it was clear from the video footage that something happened to his knee whilst walking across the carpark. What was in issue was whether the applicant stepped into a pothole.
It was submitted that the applicant’s memory was not as good as it might be. It was possible that the photographs taken were not of the correct pothole. It was difficult to ascertain, on the available evidence, whether the grey patch in the applicant’s photographs was the same as that which could be seen in the video footage.
The applicant submitted that it was clear from the hospital records that the applicant presented with a material change in his knee. The applicant referred to the MRI evidence and submitted that there was agreement between the medical experts as to the diagnosis.
Associate Professor Hope took a history of the applicant stepping into a shallow concrete ditch when he heard and felt a snap in the back of the knee resulting in severe medial and posterior left knee pain. Associate Professor Hope noted that an MRI of the left knee taken on 27 January 2022 showed a medial meniscal tear. This was suggestive of an external force acting upon the knee.
The applicant noted that Dr Rimmer’s history did not describe a ditch. Dr Rimmer agreed, however, that was possible that just by walking, the applicant could strain his hamstring and aggravate the degenerative osteoarthritis of his left knee.
The applicant noted that Dr Rimmer expressed the view that the incident was ‘the whole and predominant cause’ of the applicant’s diagnosable condition but did not believe employment was a substantial contributing factor.
The applicant noted that the respondent had quite properly conceded injury but the issue remaining in dispute was whether the requirements of s 9A of the 1987 Act were satisfied.
The applicant referred to the authorities in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[1] (Badawi) and Mercer v ANZ Banking Group[2] (Mercer) and submitted that, applying those authorities, s 9A would be satisfied if the relevant causative element was present. The applicant submitted that the only available conclusion was that employment was a substantial contributor in factor to the injury.
[1] [2009] NSWCA 324 (8 October 2009); (2009) 7 DCR 75.
[2] [2000] NSWCA 138.
The applicant noted that the applicant was only walking across the carpark because his employer required him to do so. The applicant was carrying objects and a white bucket across the carpark which were related to his employment.
The respondent said his primary submission was that the carpark surface was uneven and that the injury occurred when the applicant stepped onto the uneven surface. If, however, the applicant was mistaken with regard to the surface. It was common ground that the process of walking through the carpark was the cause of an aggravation of the applicant’s osteoarthritis and hamstring injury. There was no evidence anywhere to suggest a spontaneous occurrence.
Although the test in s 9A required consideration of the probability that the injury would have happened at a similar time regardless of work, that part of s 9A was directed to spontaneous occurrences. The applicant appeared to be fine and in good health prior to the event. Although the applicant already had osteoarthritis of the knee, it was asymptomatic prior to the incident. There was no suggestion in the evidence that lifestyle or any other factors contributed to the condition.
Whether or not there was a pothole, the activity of walking across a carpark, carrying work items was a substantial contributing factor to the injury.

Respondent’s submissions

The respondent submitted that it was necessary to make a finding about what happened on 20 January 2022.
The respondent submitted that, having regard to the CCTV footage, there was no point at which the applicant appeared to dip into or drop into anything. There appeared to be nothing extraneous acting upon the applicant’s knee joint other than his feet attached to terra firma.
The respondent submitted that the applicant appeared to accept in his oral evidence that he took photographs of the carpark on the day and at a time likely to be very near to when the injury occurred. The Commission would accept that the photographs must have been taken within minutes of the injury occurring. The respondent submitted that it was not believable that the applicant did not remember where the injury occurred.

The respondent submitted that the Commission was bound on the evidence to make a finding that the applicant was simply walking when the injury occurred. The applicant took photographs of the area where he was walking, knowing that he was going to make a claim. The applicant had made claims for compensation previously. The respondent referred to an entry in the clinical records, dated 24 April 2018, which recorded that the applicant’s finger had been jammed in a heavy door in a gust of wind at a venue in Katoomba and the applicant wished to claim on public liability insurance.
The respondent also noted references in clinical records to investigations of the applicant’s spine and extreme strain and stress at work. There was a discussion around “Work Cover”.
The respondent submitted that it could not be suggested that the applicant was unaware of his ability to claim compensation.
The respondent noted the inconsistent oral evidence and the applicant’s concession that the pothole depicted in his photographs may not have been the correct pothole, only after seeing the CCTV footage. The respondent submitted that the applicant had given an account of stepping into a pothole, knowing or suspecting that an injury just due to walking at work would not be covered by compensation.
The respondent submitted that the Commission would conclude, as a matter of fact, that the applicant sustained the injury just while walking.
The respondent submitted that Dr Rimmer had given an opinion that was clearly relevant to
s 9A(2)(d).
Having regard to s 9A(3), the mere fact that the injury occurred in the course of employment was insufficient to render the injury compensable. The respondent submitted that s 9A(3) had work to do and compared the facts of the present case to those in the arbitral decision of Mundundu v Healthscope Ltd[3].
[3] [2017] NSWWCC 146.
In the absence of a real connection between employment and injury, the applicant failed to satisfy the requirements of s 9A of the 1987 Act.

Applicant’s submissions in reply

The applicant submitted that there was no dispute that the applicant had a pre-existing condition. Whether the activity in which the applicant was engaged at the time of injury was mundane or ordinary was not relevant.
The sole reason for the applicant walking in the carpark was his employment. It was immaterial that this was a mundane activity. The Commission regularly determined that compensable injuries were sustained from mundane activities such as prolonged sitting.
The relevant question was that of causation and the respondent’s own expert said the event was the whole or predominant cause of the applicant’s presentation.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an ‘injury’ shall receive compensation from the worker’s employer in accordance with the Act.
The term ‘injury’ is defined in s 4:
“In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The expressions, “arising out of” and “in the course of” employment were considered in Badawi at [72]:
“Section 4 defines injury as ‘personal injury arising out of or in the course of employment’. The use of the disjunctive is significant, in that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9. It is established that the second limb of the definition ‘in the course of employment’ involves a temporal element and does not of itself contain a causative element. It was for that reason that Mr Zickar succeeded when his congenital aneurism ruptured when he was at work: Zickar v MGH Plastic Industries Pty. Difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but that arises not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances.”
There is no dispute between the parties that on 20 January 2022, the applicant was at his usual workplace performing his employment duties when he sustained an injury to his left knee and leg. The temporal element of the test in s 4(a) of the 1987 Act is satisfied as the applicant was “in the course of employment” when the injury occurred.
In order for compensation to be payable in respect of the injury, the applicant must also satisfy s 9A of the 1987, which provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f)    the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Subsection (3)(a) makes clear that the fact that injury occurred in the course of the worker’s employment, is insufficient to establish that employment was a substantial contributing factor to the injury.
In Kelly v Secretary, Department of Family and Community Services, Department of Corrective Services v Clifton[4] Emmett JA stated at [43]:
“The fact of the injury arising out of or in the course of the 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. Whilst 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 judgment of the fact finder. Being an evaluative matter involving questions
of impression and degree, a finding as to relative contributing factors is a finding of
[4] [2006] NSWWCCPD 310.
fact (Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [48]).”
In Mercer v ANZ Banking Group[5], Mason P observed:
“Here the word ‘substantial’ qualifies ‘contributing factor’. Obviously it is the extent of the causal link which is at issue. Judge Bishop recognised this. At par 29 of his judgment he held that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’. In my view this was the correct approach, remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane [1994] TASSC 73; (1994) 4 Tas R 156).”
[5] [2000] NSWCA 138.
In E-Dry Pty Ltd v Ker[6] Keating J observed:
“The assessment of whether the employment is a substantial contributing factor to the injury is not solely a medical question but a question which is based on ‘an assessment of all the evidence, lay and expert’ (Smith v Parkes Shire Council [2010] NSWWCCPD 130 (confirmed by Court of Appeal in StateCover Mutual Ltd v Smith [2012] NSWCA 27)).
Whether employment is a substantial contributing factor to an injury is a ‘question of fact and is a matter of impression and degree (McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348 (McMahon)) to be decided after a consideration of all the evidence’ (Duc Dien Tran v Salmat Document ManagementSolutions Pty Ltd [2008] NSWWCCPD 147 at [72]). This is an evaluative process (State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71 at [72]). In Kernick, Acting Deputy President Snell (as he then was) said (at [31]):
‘In considering whether the Worker had suffered compensable injury in the employ of the Second Employer, it was necessary firstly for the Arbitrator to deal with the question of whether, on the evidence overall, he was satisfied an injury had occurred. If he was so satisfied, it was necessary that he consider the provisions of section 9A, in deciding whether the injury was compensable. Whether ‘the employment concerned was a substantial contributing factor to the injury’ for the purposes of section 9A is a question to be decided on the evidence overall, including a consideration of the matters described in section 9A(2). It is not purely a medical question.’”
[6] [2017] NSWWCCPD 26.
Applying s 9A of the 1987 Act in the present case, I note that there is no controversy that the applicant had pre-existing osteoarthritic changes at his left knee. Both A/Prof Hope and
Dr Rimmer have diagnosed an aggravation of the pre-existing osteoarthritis caused by the event on 20 January 2022. The presence of an underlying degenerative condition is a circumstance that is relevant to the consideration at s 9(2)(e) of the 1987 Act and generally weighs against a conclusion that employment was a substantial contributing factor to the injury.
I accept that the underlying disease condition was a substantial contributing factor to the injury. It was possibly even the main contributing factor to the injury. Such a finding would not, however, preclude a finding that employment was also “a substantial” contributing factor.
The presence of the pre-existing degenerative condition also raises the possibility that the applicant’s lifestyle or activities outside the workplace contributed to the injury for the purposes of s 9A(2)(f). There is, however, no medical opinion to support a conclusion that any particular aspect of the applicant’s lifestyle or activities outside the workplace were significant or substantial contributing factors to the injury that occurred on 20 January 2022.
Dr Rimmer has described the event on 20 January 2022 as “trivial” and gave the opinion that it could have occurred anytime, anywhere. That opinion is clearly relevant to the consideration at s 9A(2)(d). I do, however, accept the applicant’s submission that the triviality of the event or the mundane nature of the activity concerned is not determinative.
Dr Rimmer has not given evidence to establish the “probability” of such an event occurring anyway, at about the same time or at the same stage of the applicant’s life, if he had not been at work or had not worked in that employment. Nor has Dr Rimmer specifically considered the nature of the carpark surface or the fact that the applicant was carrying a laden bucket on his left side when the injury occurred (matters I will address below).

I also note that determination of whether employment is a substantial contributing factor is not a purely medical question. It is a question which requires assessment of all the evidence.
The factual evidence in this case establishes that the applicant was walking in a carpark at Mount Druitt Hospital while carrying a large white bucket containing items related to his work duties when the injury occurred.
For the purposes of s 9A(2)(a), I accept that the time of the injury was during the applicant’s normal work hours. The contribution of “the place” to the injury is a matter of more controversy.
There is some inconsistency in the evidence in relation to the issue of whether the applicant stepped into a shallow concrete ditch or pothole in the carpark surface when he heard and felt a snap at the back of his left knee.
The applicant’s written statement, which was prepared approximately seven months after the event, indicated that he stepped into such a pothole. The applicant relies on photographs of the carpark in question in which a patch where the dark carpark surface has come away, leaving an uneven grey surface below, can be seen.
The applicant’s account is broadly consistent with the history taken by his medicolegal expert, A/Prof Hope in June 2022. Associate Professor Hope described the applicant stepping into a shallow concrete ditch.
The most contemporaneous account of the mechanism of injury does not, however, support the applicant’s claim that he stepped into a pothole or ditch when the injury occurred. The discharge referral prepared on the same day at Mount Druitt Hospital indicates that the applicant simply took a step and felt pain in the posterior knee. The applicant denied a fall. There is no specific reference to any pothole, ditch or uneven surface.
The account in the hospital records may be contrasted with that recorded in the general practitioner’s notes later the same day, probably after the applicant had returned to the site of the injury and taken the photographs of the uneven patch. In those notes, the applicant is recorded to have reported “falling” in a “ditch”.
The history recorded in the discharge referral is broadly consistent with the history recorded less than two months after the injury by Dr Rimmer. Dr Rimmer took a history of the applicant “walking” through a carpark when he heard and felt a crunch sensation which caused a sudden onset of sharp pain.
I accept the respondent’s submission that the CCTV footage in evidence does not appear to depict the applicant tripping, stumbling, falling or otherwise stepping into a ditch or pothole. One of the films does appear to show a grey patch in the carpark surface similar in shape and size to that seen in the applicant’s photographs. The film reveals, however, that the applicant stopped and reached down to touch his left knee before he reached that part of the carpark.
In his oral evidence at the arbitration hearing, the applicant was unable to provide a persuasive account of when the photographs were taken. The applicant is not seen to photograph the site in the CCTV footage in evidence. The applicant suggested that there may have been another pothole and suggested he may have taken a photograph of the wrong place. The applicant maintained that he stepped in something.
The applicant’s recollection that he stepped in something or that there may have been another pothole is not corroborated by any of the video or photographic evidence and does not receive support from the most contemporaneous account of the event.
Noting that it is the applicant who bears the onus of establishing the facts on the balance of probabilities, I am not satisfied that the applicant did step or fall into a pothole, ditch or the uneven surface shown in his photographs while walking through the carpark.
Although I have not accepted that the applicant stepped into a pothole, ditch or the uneven patch depicted in his photographic evidence at the time of the injurious event, I do find on the photographic evidence that the remainder of the carpark surface was not smooth or even but comprised of a rough or rocky surface.
Whilst there is no specific medical opinion on the contribution of that rough or rocky surface to the injury, I find that consideration of “the place” of the injury weighs in the applicant’s favour. The place of the injury was the applicant’s place of employment and the place where he performed his work duties. It was a place with a rough or rocky surface which the applicant was required to traverse in order to access the bus where he was to service fire equipment. There is no suggestion in the evidence that the applicant would have been walking across that surface had it not been for his employment.
The respondent has compared this case to the arbitral decision in Mundundu. In that case, the worker experienced severe lumbar pain when she turned after using a toilet at work. The respondent in that case submitted that the activity of turning after using a toilet was an ordinary incident of life, which had no real or substantial connection to employment, or the applicant’s employment duties and could have happened about that stage of the applicant’s life, regardless of her employment. The applicant argued that immediately prior to going to the toilet, she was performing work duties that involved bending, twisting and lifting and felt a twinge of lumbar pain before the acute onset of symptoms when turning to flush the toilet.
The arbitrator did not accept that the applicant experienced a twinge prior to the acute onset of symptoms whilst using the toilet or that the nature and conditions of the applicant’s employment duties contributed to the injury. After considering the factors set out in s 9A(2), the arbitrator noted that there was nothing about the nature of the applicant’s work or the particular tasks of her work which contributed to the mechanism of injury or the pathology. There was nothing about the applicant being at work or working in the employ of the respondent, which contributed in a causal sense to the applicant undertaking the precise twisting movement that caused the injury.
Contrary to the respondent’s submissions, I find that the facts in Mundundu can be contrasted with those in the present case. Although walking is an activity that occurs in daily outside work in a range of settings, I accept on all of the evidence that the applicant was required by his work duties to walk through the particular carpark in question in order to perform his work duties on a bus parked in the carpark. The applicant’s purpose in walking through the carpark and his presence in the carpark itself was to undertake the requirements of his work.
I find that while he was walking in the carpark, the applicant was carrying, in his left hand, a large bucket filled with items relevant to his work tasks. Although no doctor has commented on the contribution of the weight of the bucket or the uneven loading of the applicant’s left side to the injury, that fact forms part of the overall circumstances of the case.
There is nothing in the evidence to suggest that the applicant would have been walking through the carpark at Mount Druitt Hospital, carrying a bucket, for any reason other than to perform his work duties.

The circumstances of this case are appropriately compared with those in Hogno v Fairfax Regional Printers Pty Ltd[7], where a worker suffered a compensable injury to his knee when he twisted it whilst getting out of his car in his employer’s carpark to perform his work.
[7] [2009] NSWWCCPD 33.
The current facts may also be compared with those in Department of Corrective Services v Clifton[8]. In that case, the worker was walking from the office meal table to his office, had a coughing fit and, as a result, blacked out and fell to the concrete floor, fracturing his right femur. The coughing fit could have occurred anyway, at about the same time or at the same stage of the worker’s life. Although the concrete floor could not be said to be something that was “peculiar” to the work place, it was a feature of the work place with which the worker came into contact while doing something that was incidental to his work duties, namely walking to his desk. In these circumstances, Roche DP took the view that employment was a substantial contributing factor to the injury.
[8] [2006] NSWWCCPD 310.
I am satisfied that consideration of the factors at s 9A(2)(b) weighs heavily in favour of a finding that the applicant’s employment was a substantial contributing factor to the injury.
I am not satisfied that consideration of the duration of the applicant’s employment for the purposes of s 9A(2)(c) is of assistance in determining whether employment was a substantial contributing factor to the injury.
Weighing the relevant considerations in s 9A(2), and giving particular weight to the time and place of the injury, the nature of the work performed and the particular tasks of that work, I am satisfied that employment was a substantial contributing factor to the injury.
There will be an award for the applicant for weekly compensation to be paid in accordance with the agreed orders and a general order for s 60 expenses.

[2023] NSWPIC 28

24 January 2023