Van Wessem v Entertainment Outlet Pty Ltd - [2010] NSWWCCPD 97

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Decision confirmed on appeal: Van Wessem v Entertainment Outlet Pty Ltd* [2011] NSWCA 214**
CITATION:		Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97
APPELLANT:		Susan Van Wessem
RESPONDENT:		Entertainment Outlet Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		WCC A1-010009/09
ARBITRATOR:	Mr M Oldfield
DATE OF ARBITRATOR’S DECISION:		3 May 2010
DATE OF APPEAL DECISION:		10 September 2010
SUBJECT MATTER OF DECISION:		Section 4, in the course of employment; s 9A, self-employed working director
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Beston Macken McManis
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 3 May 2010 is confirmed. No order as to the costs of the Appeal.

BACKGROUND TO THE APPEAL

On 31 May 2010, Susan Van Wessem (the appellant) sought leave to bring an Appeal Against Decision of Arbitrator in the Workers Compensation Commission (the Commission) against a decision dated 3 May 2010.

The respondent to the appeal is Entertainment Outlet Pty Ltd (the respondent).

Mrs Van Wessem is the widow of Stephen Jan Van Wessem (Mr Van Wessem/the worker).
Mr Van Wessem was the sole working director of the respondent. He was tragically killed on Bobbin Head Road in the Ku-ring-gai National Park whilst riding his bicycle on Sunday 15 February 2009 at approximately 11.00 am.
The respondent had entered into a contract with Aussie Home Loans Pty Limited to provide advice and act as a mortgage broker for clients of Aussie Home Loans Pty Limited.
Aussie Home Loans supplied referrals to Mr Van Wessem from inquiries made to them by potential customers. Mr Van Wessem was required to follow up those referrals by telephone contact within two hours and, if necessary, make arrangements to visit the client.
Mr Van Wessem had no office or premises to undertake this work. He worked from home, making contact with clients by using his mobile phone and email.
Mr Van Wessem was not an employee of Aussie Home Loans. He was not paid any salary. His income was derived from commissions on home loans entered into by clients referred to him. He did not have any set hours of work, but was required to adhere to the terms of a contract with Aussie Home Loans and any other policies or directives issued by them.
Mr Van Wessem often worked outside normal working hours and frequently worked on weekends. When not undertaking work for Aussie Home Loans, Mr Van Wessem was free to go about his domestic and recreational activities as he chose.
Mr Van Wessem was an avid bike-rider. He usually rode three times a week into the Ku-ring-gai National Park, often with his friend, Mr Phillip Williams.
On Sunday 15 February 2009, whilst cycling on Bobbin Head Road in the Ku-ring-gai National Park, Mr Van Wessem lost control of his bike and collided with a vehicle travelling in the opposite direction, as a result of which he was fatally injured.
Mr Van Wessem had been in contact with a potential client before undertaking the ride and his diary indicates that he was intending to either call or meet with the client later that day.
Mrs Van Wessem claimed lump sum compensation pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act). The application was denied by QBE Workers Compensation (NSW) Limited on behalf of the respondent, alleging that Mr Van Wessem’s death did not arise out of or in the course of his employment with the respondent, and that his employment was not a substantial contributing factor to the injuries that led to his death.
An Application to Resolve a Dispute (Application) was filed on behalf of Mrs Van Wessem in the Commission on 9 December 2009. She claimed lump sum benefits in the sum of $425,000 pursuant to s 25(1)(a). No claim was made under s 25(b) or under s 26 of the 1987 Act.
A Reply was filed on 24 December 2009.
The matter came before an Arbitrator for a conciliation/arbitration hearing on 3 March 2010. The decision was reserved and a Determination and Statement of Reasons (Reasons) was delivered on 3 May 2010. The Arbitrator found in favour of the respondent.
On 31 May 2010, Mrs Van Wessem sought leave to file an Appeal Against Decision of Arbitrator.

THE DECISION UNDER REVIEW

The Certificate of Determination dated 3 May 2010 records the Arbitrator’s orders as follows:

“The Commission determines:
1. That there is an award for the respondent.
2. That there is no order as to costs.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are:

(a) whether the deceased worker suffered an injury in the course of his employment within the meaning of s 4;
(b) whether the worker’s employment was a substantial contributing factor to his death within the meaning of s 9A of the 1987 Act.

ON THE PAPERS REVIEW

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.”

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

LEAVE

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

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

The amount of compensation at issue on the appeal is such that the thresholds as specified in s 352(2)(a) and (b) have been met.
The requirements as to the time and monetary thresholds specified in the 1998 Act have been satisfied. Having regard to the arguments raised, I grant leave to appeal.

EVIDENCE AND SUBMISSIONS

The documentary evidence before the Arbitrator consisted of:
(a)   Application to Resolve a Dispute and attached documents;
(b)   Reply to the Application and attached documents;
(c)   Application to Admit Late Documents lodged by the respondent dated 11 January 2010 and attached documents (a report of Leigh, Kelly & Associates Pty Limited);
(d)   Application to Admit Late Documents lodged by the applicant dated 1 March 2010 and attached documents (statement of Susan Van Wessem, extracts from the worker’s diary and extracts from the worker’s telephone accounts).
There was no oral evidence before the Arbitrator.

The evidence
Mrs Van Wessem

Mrs Van Wessem provided a signed statement dated 26 February 2010. She stated that her late husband, Stephen Van Wessem, was injured on 15 February 2009 whilst cycling, and subsequently died on 15 March 2009 in hospital, without regaining consciousness. She described her husband as the primary breadwinner for the family.
Mrs Van Wessem described her husband as a self-employed consultant, having no fixed hours of work. He was supplied with referrals by Aussie Home Loans, being the details of potential customers. Mr Van Wessem’s role was to follow up on those referrals. This was, in the first instance, always done by a telephone contact, but would also involve subsequent visits to meet clients at their homes.
Mr Van Wessem elected to take up this form of employment for lifestyle reasons. It allowed him a flexible lifestyle where he could combine working with other pursuits. Despite this, he worked hard, and was described by Mrs Van Wessem as a “workaholic”. He was very successful in his role.
Mr Van Wessem had no office or business premises to conduct his consultancy work. He conducted the work wherever he happened to be. He operated a laptop computer, which he would take with him on occasions. He was an active, sports-loving man who would take his phone with him, and make and receive business calls and SMS communications whilst cycling, kayaking, going to coffee shops, or wherever else he might be on a given day: “There was simply no line that could be drawn as to when he was working and when he wasn’t because of the nature of his business”.
Mr Van Wessem carried his mobile phone with him at all times and rarely turned it off. It was common for him to be making and receiving work mobile phone calls at all hours of the day and night, and each day of the weekend. As Mrs Van Wessem understood it, her husband was “on call” and required to have his phone on so that he could receive SMS texts or calls from Aussie Home Loans with the details of referrals. She recalled Mr Van Wessem telling her that it was the policy of Aussie Home Loans that he was required to follow up on those leads within two hours of receiving the details of a potential customer.
There was no meaningful difference in the worker’s work patterns on weekdays or weekends. Mrs Van Wessem observed his work habits first-hand, and stated that he usually worked from home.
Mr Van Wessem was keen on cycling and would often find time to fit a ride in during the course of a day. On average, he would ride three times a week, but there was no set pattern to it. It depended on his commitments. When he went for a ride, he was in the habit of riding his pushbike from his home to Bobbin Head and back. Bobbin Head Road was only a few kilometres from the deceased’s home in Wahroonga. It was a ride that was popular with cyclists.
On 15 February 2009, Mrs Van Wessem left for work at about 9.30 am. She recalls speaking to her husband that morning and recalled that her husband said words to the effect, “I’ve got a client I might be meeting with today, so I might be out during the day”.
Mrs Van Wessem recalled that there was something said about a ride; either that her husband was contemplating a ride or that he was going on a ride, but she believes he was calling his friend, Phillip Williams, to either arrange or confirm a ride together.
Mrs Van Wessem states that her husband took his mobile phone with him when he went out riding on 15 February 2009. He carried it on a pouch on his bicycle. She recalled that, when she went to Royal North Shore Hospital later that day to see her husband, the staff gave her her husband’s mobile phone.
Attached to Mrs Van Wessem’s statement is an extract from her husband’s diary dated 14 February 2009 which shows the name “Joanna Zhang” with the number “XXXXX XX318”. Mrs Van Wessem understood this to be the name of a client supplied to her husband by Aussie Home Loans whom he was in the process of contacting and trying to meet with on 14 and 15 February 2009.
Also attached to her statement was an extract from the deceased’s mobile telephone account which included the details of his incoming and outgoing calls on the day of his accident. It shows that her husband rang Ms Zhang on the number stated at 4.47 pm on Saturday 14 February 2009 and again at 9.50 am on Sunday 15 February 2009.

Phillip Williams

Mr Phillip Williams had known the deceased worker for 13 or 14 years and was quite close to him in the last seven years, describing him as his best friend.
He also described Mr Van Wessem as a “workaholic”. He confirmed that Mr Van Wessem’s hours were flexible. He added, “He basically worked when he needed to”. He stated that Mr Van Wessem usually attended meetings fairly early in the morning or in the evening. He added, “He had to work when his clients wanted him to be available”.
Mr Williams and Mr Van Wessem cycled together regularly over the 12 months prior to the accident. They cycled together approximately once per week, usually on Sundays, but sometimes during the week. In the six months prior to the accident, the worker had been cycling at least three times per week, taking the same route each time.
Mr Williams stated that it was his practice to meet Mr Van Wessem at his home. The pair would then cycle north on Bobbin Head Road toward the Kalkari Visitor Centre. There they would stop for a rest before turning around to head home, travelling south on Bobbin Head Road.
Mr Williams stated that “Stephen was on call most of the time”. He always took his mobile phone with him when he went cycling and would carry it in a little black pouch which was attached to the front of his bike near the stem.
During their regular rides, Mr Van Wessem would often receive messages from his family and from work associates and clients. He would generally return the calls when they stopped at the Kalkari Visitor Centre in Bobbin Head Park.
Mr Van Wessem’s bike was only a couple of weeks old. It was in excellent condition.
On 15 February 2009, Mr Williams met Mr Van Wessem at approximately 9.30–10.00 am at an intersection approximately 100 metres from his house. The deceased was wearing cycling clothing and he was wearing a helmet.
At some point during the ride, either when they met or later at the Kalkari Visitor Centre, Mr Van Wessem said words to the effect of, “I returned a call to a woman who was very sleepy. I obviously woke her up. I arranged to call her back”.
The weather conditions on 15 February 2009 were poor. Whilst at the Kalkari Visitor Centre, it rained very heavily, which Mr Williams described as “torrential rain”. They waited for 10 or 15 minutes, taking shelter at the Centre until the rain cleared, and set off at about 11.00 am to return home.
Mr Van Wessem did not use his mobile phone at any time during the ride or whilst at the Kalkari Visitor Centre.
Mr Williams states that, after leaving the Visitor Centre, Mr Van Wessem set off first and was 20–50 metres ahead of Mr Williams. The road was all downhill for the first three kilometres from the Visitor Centre. As they proceeded through an S-bend, Mr Williams lost sight of Mr Van Wessem. At the time, Mr Williams states that he was travelling at 30–40 kilometres per hour. He was familiar with the speeds they travelled at because he had a speedometer on his bike.
Mr Williams states that he saw a Mazda four-wheel drive with a boat on a trailer heading in a southerly direction “towards me in the opposite direction”. The vehicle was pulling up on the eastern side of the road. As he rounded the final bend of the S-bend, Mr Williams saw the deceased in the middle of the road. He was lying on the correct side of the road, being the northbound side one to two metres from the double unbroken centre lines. His bike was behind him approximately one to two metres from the centre line. The four-wheel drive was parked 10–20 metres from where Mr Van Wessem was lying on the road. By the time Mr Williams reached him, Mr Van Wessem was unconscious. Several passersby rendered assistance.
Ambulance officers treated Mr Van Wessem at the scene. He was then airlifted to Royal North Shore Hospital.
Mr Williams states that the bicycle the deceased was riding was taken by police. He believed that the pouch containing the mobile phone was still on the pushbike and believes that the police took possession of the phone, along with the bike.
In Mr Williams’s opinion, the accident occurred as a result of the deceased’s bike slipping as he rounded the left-hand bend, causing him to come into collision with the oncoming vehicle.

Naomi Walker

Naomi Elizabeth Walker provided a signed statement of evidence dated 28 April 2009.
Ms Walker is employed by AHL Investments Pty Limited as a senior human resources manager. AHL Investments Pty Limited is a service company to the Aussie Home Loans Group.
Ms Walker confirmed the existence of a contract between Entertainment Outlet Pty Ltd and Aussie Home Loans Pty Limited for the provision of sales service for their mortgage-broking business.
Entertainment Outlet was paid upfront commission on the value of loans settled each month, together with certain ongoing trail commissions. Mr Van Wessem was not an employee of Aussie Home Loans and he was not paid any salary. No provision was made for income tax on commission payments, nor was he entitled to any personal or annual leave or superannuation.
Ms Walker confirmed that the worker did not have any set hours that he was expected to work and that it was left up to him to determine the hours that he worked and when he would schedule customer appointments. She said, “Our only stipulation was that he actually serviced each customer lead that was provided to him within our service level requirements”. She stated that it was her experience that many customers required contact and servicing outside of normal business hours, including weekends.
Mr Van Wessem was required to service new lead inquiries through Aussie Home Loans as they were distributed by the regional office (9.00 am to 5.00 pm weekdays) or from the call centre (5.00 pm to 8.00 pm weekdays and 9.00 am to 5.00 pm weekends). Mr Van Wessem was also available to service existing clients during normal business hours and outside of normal business hours, as demand required. Ms Walker said, “Mr Van Wessem as director of Entertainment Outlet Pty Ltd was required to service new leads generated through Aussie Home Loans from 9.00 am to 8.00 pm weekdays and from 9.00 am to 5.00 pm on weekends”.

Police report

A police report dated 8 April 2009 recorded the worker’s details and those of the driver of the four-wheel drive with which Mr Van Wessem collided. The report concluded:
“On Sunday 15 February 2009 a pushbike rider has lost control of his bike and collided with the front wheel of a vehicle.”

Record of interview between Glen Weston and Constable Robert Robbins

Mr Weston is an investigator instructed by QBE. On 22 April 2009, he conducted a record of interview with Constable Robert Bruce Robbins of the Hornsby Police. The record of interview contains a series of questions and answers concerning Constable Robbins’s involvement at the scene of the accident. I have had regard to the record of interview, which I don’t reproduce, except for the following relevant questions and answers:

“Q.53 What is your understanding of what happened during the collision?
A. Mr Van Wessem was riding downhill in excess of 40 kilometres per hour and appears to have underestimated a left-hand bend, as a result of which he appears to have lost control of his pushbike, sliding into the four-wheel drive. It appears that he then bounced headfirst into a metal rail guard.

Q.62 What police action was taken as a result of your investigation of the accident?
A. Information obtained from the driver of vehicle two and the assessment of the scene and conditions indicated that Mr Van Wessem was at fault. There was no police action taken.”

The contract

A copy of the agreement between Aussie Home Loans Pty Limited and Entertainment Outlet Ltd dated 30 September 2008 (noting Mr Van Wessem as the ‘Aussie Mortgage Advisor”) was admitted in evidence. As counsel conceded in argument before the Arbitrator, the agreement does not shed any light on the precise terms and conditions applying to Mr Van Wessem, in terms of his obligations to pursue business opportunities referred to him from Aussie Home Loans, except that, under the heading “Your Obligations to Us”, it states:
“Standard of Performance
You must at all times ensure that the services are provided:
(a) properly and carefully;
(b) in a professional, efficient and businesslike manner at your own risk and expense;
(c) promptly and to Aussie’s standards;
(d) in full compliance with all relevant legislation;
(e) in accordance with this agreement; and
(f) in accordance with Aussie’s policies.”

Other than Mrs Van Wessem’s understanding of her husband’s obligation to follow up business opportunities forwarded to her husband within a two-hour period, there are no policy documents or other standards in evidence.

Other evidence

There was no oral evidence called before the Arbitrator and there is no application for fresh evidence on this appeal.

THE ARBITRATOR’S REASONS

After reviewing the evidence and reserving his decision, the Arbitrator provided a Statement of Reasons (Reasons).
At [5.23] of the Reasons, the Arbitrator considered whether the accident occurred during an overall period of work or whether it should be characterised as having occurred during an interval or interlude within an overall period of employment. The Arbitrator’s findings at [5.23] are ambiguous, but it appears he found that the accident occurred during an overall period of employment, as the worker was required to be available to respond to inquiries referred to him between the hours of 9.00 am and 5.00 pm on the day of the accident. He said, “Mr Van Wessem suffered injury during the overall period of work and therefore the subsequent finding that the injury occurred in the course of employment”. The Arbitrator then went on to consider whether the provisions of s 9A operated to disentitle the worker to compensation.
Having stated the facts and relevant authorities, the Arbitrator concluded that the worker’s participation in the bike-riding activity was unconnected with his employer, and “was not part of the employment expectations, requirements or obligations” of the employer. Confusingly, the Arbitrator then found that the worker’s participation in bike-riding occurred during intervals, interludes or interruptions in his overall period of employment that had “no proper link whatsoever with his employment”.
Applying the rationale in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 (Badawi), the Arbitrator concluded that the connection between Mr Van Wessem’s injury and his employment was not “real and of substance”, nor having any proper link with his employment or being incidental to it. He found that the provisions of s 9A operated to deny compensation to the appellant as found.

SUBMISSIONS

Appellant’s submissions

The appellant submits that the Arbitrator correctly found that the deceased worker suffered injuries in the course of employment within the meaning of s 4.
The appellant’s remaining submissions concern the Arbitrator’s finding that the employment was not a substantial contributing factor to the worker’s death.
The appellant submits that the Arbitrator erred in assessing the causal connection between the worker’s accident and his employment by weighing “employment factors”, such as whether the activity constituted an essential incident of the employment or was subject to a specific direction by the employer. Such a consideration is not required by s 9A of the 1987 Act. The appellant submits that the bicycle accident was an incident to which the deceased worker was exposed in the course of his employment and to which he would not otherwise have been exposed.
Once it is established that an injury occurred “in the course of employment”, it will normally follow that employment was a substantial contributing factor in terms of s 9A (Da Ros v Qantas Airways Limited [2010] NSWCA 89 (Da Ros) at [21] and [22]).
The Arbitrator erred in assessing the causal element in s 9A by reference to whether the cycling activities undertaken by the worker were directed by the respondent as being reasonably required, expected or authorised. The appellant submits that the worker was essentially self-employed and was the sole director and worker for the respondent company. It is therefore unhelpful and apt to lead to confused and inappropriate analysis to apply concepts such as what the deceased’s employment had “authorised” or “required” him to do. The Arbitrator failed to take account of modern concepts of employment as discussed in Blacktown City Council v Smith [1996] NSWSC 613; 14 NSWCCR 132.
The appellant seeks an order that the Arbitrator’s decision be set aside and in lieu thereof the Commission determine that the applicant be entitled to the death benefit pursuant to s 25, with liberty to apply to the Commission if any dispute occurs such as the apportionment of weekly benefits for children.

Respondent’s submissions

The respondent submits that the appropriate findings should be that the worker’s injuries did not arise out of or in the course of his employment and, on this basis alone, there should be an award for the respondent. In the alternative, s 9A applies, and the finding of the Arbitrator on this aspect should not be disturbed.
The respondent submits that the facts in Da Ros, upon which the appellant principally relies, are significantly different to the facts in this case.
At [20] of Da Ros, the test applicable to s 9A is stated to be:
“The causal connection required by the phrase ‘a substantial contributing factor’ is one that was ‘real and of substance’.”
The respondent, however, points to the caveat noted in [22]:
“The activity in which a claimant may be involved when he or she suffers injury is usually within the course of employment or it is not; if it is, it is usually neither necessary nor appropriate to ask whether it constitutes an essential incident or core element of the employment.” (emphasis added)
Further, in [22]-[23], Basten JA cited Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632–633. However, the respondent submits that “other activities” must have some connection with the employment. In this case, the “other activities” of bike-riding has no such connection with the worker’s employment. The respondent relies on [24] of Da Ros, where the court stated:
“In the present case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed … No satisfactory alternative having been proffered on behalf of Qantas, and in accordance with the reasoning in Badawi, there is only one conclusion reasonably open on a finding of primary fact.” (emphasis added)
In the current matter, the worker’s employment did not expose him to the risk of bike-riding.
Further, the respondent relies on [25] in Da Ros, where the court stated:
“It does not follow from this approach that whenever an injury occurs in the course of employment there will be a substantial causal connection between the employment and the injury … there may be other kinds of circumstances where no substantial contributing factor is established.”
The respondent submits that, when considering the practical differences between the ingredients of employment in Da Ros and the instant case, the lack of such evidence in the present case amounts to a “satisfactory alternative”, as referred to in Da Ros at [24].
It is submitted that the “other activities”, that is, bicycle-riding, has no connection with the employment and does not constitute “an essential incident or core element of the employment”.
Accordingly, the respondent submits that the Arbitrator correctly determined that the worker’s employment was not a substantial contributing factor to his death, and submits that the Arbitrator’s finding should be maintained.
Further, the respondent submits that the appropriate finding in this matter is that the worker’s accident and subsequent death did not arise out of or in the course of his employment. As this appeal from the Arbitrator’s decision is by way of review, the respondent submits that the Presidential Member is able to, and indeed should, correct what the respondent submits is an error by the Arbitrator in finding that the worker was in the course of his employment at the time of the accident that led to his death. The respondent repeats and relies on the submissions before the Arbitrator referred to in [5.1] to [5.10] of the Reasons.
The relevant authorities dealing with the extension of “course of employment” have at their core concept a finding that the employee has been relocated to a different area to that where the person is normally domiciled. The respondent submits that such a classification does not apply to the worker.
The respondent submits, as is recorded in the transcript at T5.40:
“[T]he applicant was in the course of his employment when he was doing work which was connected with that employment. There are occasions when he was doing activities that were not connected to his employment. They were activities of a personal or domestic nature. Now, it would be, in my submission, unrealistic to find that in this particular case he was in the employment 24 hours, 7 days a week. There would be times when you go out to dinner at night. There would be times when you are attending to your own sporting functions or you’re attending to the children’s activities or to whatever variety which, while you’re living in your own domestic home, it is unrealistic appraisal when you look at how it would be if you were sent to a camp.”
The respondent submits that it has been established that the worker’s contract required him to be available to take leads from 9.00 am to 8.00 pm Monday to Friday, and from 9.00 am to 5.00 pm on weekends. The respondent submits that, if the worker was to make a phone call or attend a meeting outside the nominated hours, he would likely be considered within the course of his employment. The respondent further submits that the nominated hours are not determinative of the course of the employment, but are merely a guide to be evaluated with the whole of the facts.
Even adopting a commonsense approach to flexible working hours, the respondent submits that the Arbitrator’s finding that the worker was in the course of his employment at the time of his accident is contrary to the approach taken by superior courts (Hatzimanolis v ANI Corporation Ltd (1992) HCA 21 at 14 and 15):
“However, it would be an unacceptable extension of the course of employment to hold that an employee was within the course of employment whenever the employer had authorised, encouraged or permitted that employee to spend time during an interval between periods of actual work at a particular place or in a particular way …
For the purpose of workers compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in an interval between two discrete periods.”
The respondent submits that these statements demonstrate that the course of employment will be suspended depending upon the activity of the worker.
The respondent submits that the correct approach is not to analyse the day of the worker’s accident by dividing the day into work and interlude, as the work component would be so small (if any), and the interlude would be the balance of the day.
Rather, the respondent submits that the correct approach is to determine that the worker was in the course of his employment when he was involved in any activity contemplated by s 4(a) of the 1987 Act when he was doing something connected with his employment activity.
It is submitted that, when one examines the factual matrix of the types of cases where the course of employment has been expanded and the worker has not been sent to a different location to his “normal area”, the core element is that the worker suffered injury in circumstances where there was a connection to the employment, ie, doing, meeting or engaging in an activity connected with employment.
The respondent submits that this is not the case in the worker’s circumstances. The fact that he may or may not make a phone call is insufficient to extend the course of employment to an unrelated activity (ie, bike-riding), which has absolutely nothing to do with his employment.
Accordingly, the respondent submits that the Arbitrator’s finding with respect to s 4 should be revoked and a finding made that the applicant’s death did not arise out of or in the course of employment.

DISCUSSION AND FINDINGS

This appeal concerns a review of the Arbitrator’s decision to determine whether his conclusions on two discrete issues were correct. The appellant appeals the Arbitrator’s finding that the deceased worker’s employment was not a substantial contributing factor to his death within the meaning of s 9A of the 1987 Act. In reply, the employer raises an additional ground of appeal, namely, the Arbitrator’s alleged error in finding that the worker was in the course of his employment at the time of the accident that caused his injury and death. The timetable set down by the Commission for the filing of submissions provided the appellant with an opportunity to file submissions in reply to the employer’s submissions in opposition to the appeal. The appellant did not avail herself of the opportunity and, as a result, there are no additional submissions from the appellant on the latter question, although both issues were the subject of detailed submissions before the Arbitrator. In determining the appeal, I have had regard to the submissions on appeal and to the submissions before the Arbitrator.

Was the worker in the course of his employment at the time of the accident that caused his injury and death?

The phrase “arising in the course of employment” refers to a temporal relationship between the injuries and the employment. A causal connection is only relevant to injuries arising “out of” the employment (Davidson v Mould (1944) 69 CLR 96; ALR 165 (Davidson)).
In Davidson, the High Court held that the course of employment does not start and end with a worker’s paid hours of employment. The temporal relationship includes all the time that the worker is engaged on the performance of his duties of employment and those things which are incidental to it.
What is reasonably incidental to the performance of the worker’s duties must be judged not from any fixed and immutable standard, but from all the circumstances in the particular case, including in particular, those practices current at the time. In Commonwealth v Oliver (1962) 107 CLR 353; ALR 609, Dixon J adopted the comments of Lord Loreburn in Low or Jackson v General Steam Fishing Co [1909] AC 523:
“Everything, of course, must depend upon the nature of what he has to do, but allowance should be made for the ordinary habits of human nature and the ordinary way in which those employed in such an occupation may be expected to act. A man may be within the course of his employment not merely while he is actually doing the work set before him, but also while he is where he would not be but for his employment, and is doing what a man so employed might do without impropriety.”
In Henderson v Commission of Railways (WA) (1937) 58 CLR 281; [1938] ALR 18, Dixon J (McTiernan J agreeing, Latham CJ dissenting) stated at 294:
“The general principle governing the ascertainment of ‘course of employment’ appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work.”
The test to be applied to determine whether a particular activity is sufficiently connected with the employment to be “in the course of employment” was again considered in Humphrey Earl Limited v Speechley (1951) 84 CLR 126; [1952] ALR 46. In that case, the High Court was concerned with whether a worker was in the course of his employment in circumstances where he had, in the company of a colleague, travelled two suburbs away from his place of work by motorcycle and sidecar to obtain a meal for lunch. During the return journey, he was involved in a collision and was injured. Finding in those circumstances that the worker was not in the course of his employment at the time of the accident, Dixon J at 133 stated:
“When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which was reasonably required, expected or authorised to do in order to carry out his duties.”
In Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473; 106 ALR 611; 8 NSWCCR 242 (Hatzimanolis), the majority of the High Court held that the Henderson-Speechley test, as it has become known, was too narrow to determine whether the injury occurred within the course of employment in cases where the injury had occurred outside actual working hours. At [10], the majority of the High Court stated:
“On the whole, the flexible application of the test has enabled a satisfactory line of demarcation to be drawn between those injuries which are work-related and those which are so remote from the notion of the worker’s employment as not to call for compensation by the employer. Nevertheless, only by use of a strained interpretation of the words ‘in order to carry out his duties’ is it possible to reconcile the application of the test with decisions in many modern cases where workers have been held to have sustained injury in the course of employment.”
The High Court went on to cite examples of cases where this had occurred, including Whittingham v Commissioner of Railways (WA)(2) [1931] HCA 49; 46 CLR 22 (Whittingham), and Danvers v Commissioner of Railways (NSW) (1969) 122 CLR 529; [1970] ALR 403 (Danvers).
The majority in Hatzimanolis went on to say at [13]:
“Beneficial as the Henderson-Speechley test has proved to be in the law of workers’ compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something ‘in order to carry out his duties’ at the time he sustained injury is in many case simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of employment so that their application will accord with the current conception of course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers.”
The majority went on to find at [16]:
“Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’ (20) Danvers (1969) 122 CLR at 537.” (emphasis added)

The facts in this case establish that the worker was the sole working director of the respondent company, Entertainment Outlet Pty Limited. The respondent had entered into a contract with Aussie Home Loans that required it to be on-call during a set period of hours, namely, 9.00 am to 8.00 pm Monday to Friday and 9.00 am to 5.00 pm on weekends. The worker and the worker alone determined how and when, in the interests of the respondent, those contractual obligations would be satisfied. The evidence from Ms Walker establishes that Mr Van Wessem was required to be on-call to respond to referrals directed to him from Aussie Home Loans between those hours. Mrs Van Wessem confirmed that to be the case. She said that the worker conducted his work from wherever he happened to be. He carried his mobile phone at all times and rarely turned it off. It was common for him to make and receive calls at all hours of the day and night, and, to her understanding, Mr Van Wessem was effectively “on-call” during the nominated span of hours. To her understanding, the worker was required, as a matter of policy, to respond to referrals sent to him within two hours of receiving them, that is, he was required to contact potential customers within a two-hour period. There was no challenge to that evidence. Mr Williams was familiar with the worker’s habits. He also said that the worker was “on-call most of the time”. When cycling, he carried his phone in a pouch attached to the bike.
Although Mr Van Wessem did not use his phone during the ride on 15 February 2009, according to Mr Williams, during their regular rides, the worker would often receive messages from family and from work associates and clients, and he would generally return the calls when they stopped at the halfway point at the Kalkari Visitor Centre in the Bobbin Head Park.
In Archer v East West Airways Limited (1976) WCR 176, Langsworth J in the Workers Compensation Commission held that the course of employment extends to the reasonable and normal use of the worker’s home while remaining there so as to be available at call under the terms of employment, as and when required by the employer. An injury received during such a period will be received in the course of employment. That case involved an airline flight attendant who was injured at her home whilst on “reserve duty”. The terms of her employment required her to be available to respond immediately, if called upon, to attend for duty. Whilst in the course of collecting items of clothing that were part of her uniform from a clothes line where they had been hung out to dry, she tripped and fell, and was injured.
In deciding the case in favour of the worker, his Honour said:
“It is true that the applicant was at her home which is normally the scene of her private and domestic activities and as such would have no nexus with her employment, but on a reserve day and by virtue of her contract of employment with the respondent, it did have a real and substantial nexus with her employment because it was the place nominated under the terms of employment at and in which she was to remain and be available at call. It was by the terms of her employment her duty to be there and to be available at call.
The course of employment must mean in the course of the work which a person is employed to do and what is incidental to it, in other words, in the course of that person’s service. If it is right to conclude that the course of employment extends to remaining at home so as to be available at call by the respondent, and, if so, to dress herself in appropriate air hostess uniform preparatory to signing on at the airport as early as possible, the course of employment would, in my opinion, extend to the reasonable and normal use of her home whilst remaining therein so as to be available at call on a reserve day.”
In Jadoul v Qantas Airways [2001] NSWCC 175 (Jadoul), a case that also dealt with injuries sustained by a flight attendant whilst rostered on standby, it was accepted, without demur from the parties, that the worker was in the course of her employment when she slipped and fell in her hallway preparatory to collecting her luggage and travelling by taxi from her home to the airport to commence duty.
The respondent submits that this case should not be treated as an “on-call” case and the nominated hours that the worker was to be responsive to referrals under the Aussie Home Loans contract are not determinative of the course of employment, but merely a guide to be evaluated with the whole of the facts. It submits that, even adopting a commonsense approach to flexible working hours, a finding that the worker was in the course of his employment would be contrary to the approach taken by superior courts, including Hatzimanolis.
Whilst Hatzimanolis may be more readily applicable to injuries occurring during intervals or interludes within an overall period of work where the activity involved giving rise to the injury occurred where the employer has expressly or impliedly induced or encouraged the employee to spend the interval at a particular place or in a particular way, the High Court nevertheless accepted that, in determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment, “not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.
In Badawi, the majority of the Court of Appeal applied the principles stated in Hatzimanolis and noted at [72] that difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but they arise not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances.
As the appellant conceded in submissions, questions of inducement or encouragement are not particularly helpful in determining whether the worker was in the course of his employment at the time he was injured. For all practical purposes, the worker and the employer are one and the same. Mr Van Wessem was the sole working director of the respondent company. It was he and he alone who determined how and in what circumstances the employer’s contract with Aussie Home Loans would be serviced. The evidence establishes that he did this in accordance with the contractual obligations to be available at call during the nominated span of hours.
In Hook v Rolfe (1986) 7 NSWLR 40, Glass JA (Hope and Samuels JJA agreeing) recognised that the worker’s activity undertaken for both work and non-work purposes may be within the course of employment. His Honour remarked that the solution to adopt in the case of an activity undertaken for multiple purposes is to inquire as to the relevant purpose and to disregard the others, not inquiring as to the dominant purpose. In Mayhew v G & S Mayhew Pty Limited (1995) 12 NSWCCR 389, the worker was injured whilst installing a heating unit for his swimming pool on his roof. He was employed in a business which sold and installed such heaters. Armitage J held that the worker’s injury either arose out of or in the course of his employment, finding that one of the purposes of the installation was work-related.
What is more decisive in my view is a consideration of the general nature and terms and circumstances of Mr Van Wessem’s employment. These required him to be at call, not 24 hours a day, as the respondent submits, but within a nominated span of hours. Admittedly, this was a very long span of hours, but it was a period during which the worker routinely responded to referrals directed from Aussie Home Loans. The fact that the worker took his mobile phone with him and routinely responded to calls, both domestic and business-related, during the course of his regular cycling activities leads me to the conclusion that, during the course of those rides, he remained in the course of his employment.
Several factors reinforce me in that view. First, the evidence that he routinely spoke to clients at the halfway point during the ride; second, the worker had been in contact with a client before the ride began. Even though the time of the call taken from the phone records and Mr Williams’s estimate of when the ride began do not coincide precisely, it may be inferred that Mr Van Wessem called the client before setting off on the ride. The evidence also established that he intended to pursue further contact with the client later that day.
There is a factual dispute concerning whether the worker in fact had his mobile phone with him on the day of his accident. The evidence from the police officers suggests that he did not. However, Mrs Van Wessem stated that the mobile phone the worker had with him during the course of the ride had been retrieved and was returned to her later that day at the hospital. That evidence is unchallenged and I accept it. Mr Williams believed that the phone was still attached to the bike when the police took possession of it. There may be a variety of reasons why the police officer believed that the worker did not have a phone with him. Perhaps it may have been retrieved by witnesses or emergency personnel at the scene of the accident without the knowledge of the police. I accept that, from the available evidence, at the time of the accident, Mr Van Wessem was in possession of his mobile phone.
The fact that the evidence discloses that he did not use his mobile phone during the course of the ride on the day of his accident is not decisive. The circumstances of his employment, as I have said, dictated that he routinely carried it with him and I accept that, when doing so whilst cycling in the circumstances as alleged, he was in the course of his employment.
I reject the respondent’s submission that the course of the worker’s employment was suspended periodically throughout the day and night, depending upon whether he was actually attending to employment-related duties. That approach is inconsistent in my view with Archer and Jadoul, and is also inconsistent with the test enunciated in Hatzimanolis and confirmed in Badawi, because to determine whether an injury occurs in the course of employment is answered not by looking to the circumstances of the particular occasion out of which the injury has arisen, but by having regard to the general nature, terms and conditions of the employment.
To satisfy the general nature, terms and conditions of his employment, Mr Van Wessem was either obligated to, or elected to, carry a mobile phone with him for the purposes of responding to referrals forwarded to him through Aussie Home Loans. He did this routinely. During the course of his regular rides, the unchallenged evidence is that he regularly placed calls to or received calls from clients or potential clients pursuant to the contractual obligations between his employer and Aussie Home Loans. It was part of the general nature and terms of his employment. In my view, when the worker was conducting himself in this way, he was acting in the course of his employment.
For these reasons, I find that, at the time of his accident, the deceased worker was in the course of his employment within the meaning of s 4.
It was not argued before the Arbitrator or on appeal that the worker’s injuries arose out of his employment, and I therefore make no findings on that issue.

Substantial contributing factor

The respondent submits that the provisions of s 9A of the 1987 Act apply in the circumstances of this case to deny the appellant any entitlement to compensation.
Section 9A(1) is in the following terms:
“No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury”.
The meaning of “substantial contributing factor” and the application of s 9A generally were considered at length in Badawi.
At [48], the Court held that the following propositions distilled from Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 (Mercer) in respect of the operation of s 9A have been accepted as correct, and can be taken to be uncontroversial:
“(1) The strength of the causal linkage between the employment concerned and the injury is the question in issue: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [36] per Santow JA (Beazley and Ipp JJA agreeing).
(3) Both s 4 and s 9A require independent satisfaction: McMahon v Lagana (t/as The Vessel ‘Nimble II’) [2004] NSWCA 164; 4 DDCR 348 at [25] 355 and [33] 356 per Hodgson JA (Santow JA and Stein AJA agreeing) and Larson v Commissioner of Police [2004] NSWCA 126; 3 DDCR 365 at [38] 378 per Tobias JA (Mason P and Santow JA agreeing).
(4) Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [49] 216 per Spigelman CJ (Hodgson and Bryson JJA agreeing); and Dayton at [22] per Giles JA.
(5) Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge: Hevi Lift at [105]-[106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(6) Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634 at [56] 646 per Basten JA (Giles and McColl JJA agreeing); WorkCover Authority of NSW v Walsh [2004] NSWCA 186 at [99]; McMahon v Lagana at [32] per Hodgson JA (Santow JA and Stein AJA agreeing), Dayton at [22] per Giles JA and Murray v Shillingsworth [2006] NSWCA 367 at [65] per Einstein J.
(7) The phrase ‘employment concerned’ in s 9A(1) bears the same meaning as ‘employment’ in the phrase ‘arising out of or in the course of employment’: Mercer at [13] 745 and Federal Broom at 632-633. We agree.”
Accepting that the requirement imposed by s 9A that the “employment concerned” was a “substantial contributing factor” involves a causative element, the Court accepted (at [81]) that causation is a fact-laden conclusion which must be based on commonsense. Whilst it is not possible to lay down a principle which can be applied “unbendingly” to all cases, the Court made a number of observations concerning the application of the word “substantial”. At [82], the majority stated:
“We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, ‘substantial’ as it appears in section 9A means ‘in a manner that is real and of substance’ and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, ‘little substance’.”
Section 9A(2) provides examples of matters to be taken into account for the purpose of determining whether a worker’s employment was a substantial contributing factor to the injury:

The time and place of injury

There is no dispute that the fatal injury suffered by Mr Van Wessem occurred on Sunday 15 February 2009 at approximately 11.09 am on Bobbin Head Road, North Wahroonga. At that time and place, Mr Van Wessem lost control of the bicycle and collided with the front wheel of a vehicle travelling in the opposite direction.
There is nothing about the time and place of the injury that links it to the employment save for the fact that Mr Van Wessem was available to respond to phone calls at that time.

The nature of the work performed and the particular tasks of that work

Mr Van Wessem was the sole working director of the respondent. The respondent had entered into a contractual arrangement with Aussie Home Loans Limited to act as a mortgage adviser and contractor. Clients would be referred from Aussie Home Loans to Mr Van Wessem initially by telephone. He was required by virtue of the terms of the contract between the respondent and Aussie Home Loans to be available for referrals from Aussie Home Loans between the hours of 9.00 am to 8.00 pm weekdays, and 9.00 am to 5.00 pm on weekends. Whilst there is no documentary evidence of it, Mrs Van Wessem’s evidence, which I accept, is that there was a “policy” which required her husband to follow up referrals from Aussie Home Loans within two hours of having received them. Subject to these requirements, the worker was free to organise his professional, domestic and recreational activities as he saw fit. It was the worker’s practice to undertake at least three lengthy cycling activities each week, one of which was often on a Sunday and in the company of his close friend, Mr Williams. It was the worker’s practice to rarely turn his mobile phone off. He was often required to meet with potential customers before and after regular office hours. Mr Van Wessem worked from home. He did not have separate office accommodation. When working, he invariably took his mobile phone with him, and often a laptop computer.
These arrangements reflect the advances in technology which more and more commonly facilitate workers working from home or operating much more flexible working arrangements than the more traditional arrangements where workers work at their employer’s premises during a set period of hours.
It may be seen from these facts that the worker’s employment essentially moved with him. It required him to be available to respond to referrals within a relatively short timeframe, even though he may, at the same time, be undertaking a dual purpose of some other domestic or recreational activity.
It is in this sense that, although there are similarities with cases such as Badawi, Da Ros, Watson v Qantas Airways Limited [2009] NSWCA 322 (Watson), and Hatzimanolis, the facts in the this case are different in that the worker’s employment did not require him to be at any particular location at a particular time when he was working, and did not require him to work at places remote from his home. It afforded him a certain amount of freedom to work at times that were more flexible than traditional working arrangements. It was this flexibility that attracted Mr Van Wessem to this kind of work and allowed him, as his wife said, to combine his work with other pursuits.
The nature of the work played no role in the accident. It did not require him to go cycling.

The duration of employment

The contract between the respondent and Aussie Home Loans Limited was entered into on 30 September 2008, and had therefore been in place for some four to five months before the accident.

The duration of employment is a relevant factor in the sense that the employment was entered into after the worker had already established a practice of cycling to Bobbin Head on Sunday mornings, and tends to diminish any link between the cycling and the employment.

The probability that the injury or similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment

Mr Van Wessem was a keen cyclist. On average, he rode three times a week at various times. When he went for a ride, he was in the habit of riding his pushbike to Bobbin Head and back, which was a ride of approximately 45 minutes. Mr Williams stated in May 2009, when he provided his statement, that he and Mr Van Wessem had been regular cycling partners for 12 months. In other words, Mr Van Wessem had been a regular cyclist since at least May of 2008. That is, he had been in the regular practice of cycling to Bobbin Head and back from his home well before his employer entered into the contract with Aussie Home Loans. There was nothing about his employment that obliged Mr Van Wessem to use a bicycle or to undertake the kind of ride that he was undertaking at the time of his accident. The connection with employment was limited to the extent that he carried his mobile phone with him during such rides in order to alert him to the possibility of an incoming referral. The evidence disclosed that Mr Van Wessem did not use his mobile phone during the course of the ride, although he had used it prior to commencing the ride for a work-related call. These facts lead me to conclude that Mr Van Wessem would have undertaken the ride he was engaged in at the time of his accident irrespective of any employment-related obligation or requirement. Seen in that context, the probability of a similar injury occurring, irrespective of his employment, is high. This suggests Mr Van Wessem’s employment was not a factor, let alone a significant contributing factor to the injury.

Worker’s state of health before the injury and the existence of any hereditary risks

This is not a relevant consideration.

The worker’s lifestyle and his or her activities outside the workplace

For the reasons discussed at paragraph [141], the worker’s lifestyle and his activities outside the workplace were the relevant factors that exposed him to the risk of sustaining injuries in the circumstances that he did on the day of his accident.

The appellant submits that the Arbitrator’s error in assessing the causal connection between the accident and the worker’s employment occurred by his weighing “employment factors”, such as whether the bike-riding was an essential incident of the employment or was subject to a specific direction. Whilst the Arbitrator’s reasons are brief, they do not disclose error. The Arbitrator correctly identified the test to be applied from Badawi and applied the test by weighing the nature, terms and conditions of the worker’s employment, and assessing the causal connection between that employment and the worker’s injury, applying the causal test of “real and of substance” as identified in Badawi.
The appellant also relies on the statements made by Basten JA in Da Ros at [22], where his Honour noted that the activity in which a claimant may be involved when he or she suffers injury is either within the course of employment or it is not. If it is, it is usually neither necessary nor appropriate to ask whether it constitutes an essential or core element of the employment. His Honour added that it is also usually neither necessary nor appropriate to inquire whether the activity was the subject of a specific direction by the employer or was simply a permissible activity chosen by the employee. His Honour drew support from the comments of Kitto J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, where his Honour concluded:
“Where it is possible to identify as a contributing factor to the aggravation … of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation …” (emphasis added)
Basten JA in Da Ros found that, in that case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment, and to which he would not otherwise have been exposed, because it was one of two contributing factors, the other being the presence of the courier at the same place and time. He found it difficult to understand why it would not be a substantial contributing factor, no satisfactory alternative having been proffered on behalf of the employer, and, in accordance with the reasoning in Badawi, he found that the provisions of s 9A were therefore satisfied. His Honour went on to state:
“It does not follow from this approach that whenever an injury occurs in the course of employment there will be a substantial causal connection between the employment and the injury.”
His Honour cited Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31; 187 CLR 310 as an example, but acknowledged there may be other kinds of circumstances where no substantial contributing factor is established.
The respondent submits that the “other activities” (referred to by Kitto J in Semlich) must have some connection with the employment and, in this case, the “other activity” of bike-riding has no such connection with the employment. The respondent submits that the worker’s employment did not expose him to the risk of bike-riding.
I agree with the respondent’s submissions that the decision in Da Ros does not advance the appellant’s position. Considering the factors that are listed at [16] of Da Ros, there are a number of practical and significant differences between the facts in that case and this appeal. They are these:
(a) the worker’s employment had taken him to Los Angeles, where he was required to remain on slip time;
(b) as a member of the Qantas flight staff recreational club, he had access to facilities, including bicycles provided by his employer;
(c) there was evidence of encouragement of flight staff by the employer to familiarise themselves with slip ports and not to remain inactive in the accommodation provided in slip ports;
(d) the employer encouraged and indeed required the worker to maintain his physical fitness;
(e) the performance of his duties required him to demonstrate a degree of agility and fitness;
(f) repeated failure to attain appropriate standards during the course of training may result in dismissal from employment;
(g) the worker was in fact utilising one of the employer’s bicycles at the time of the accident;
(h) the injury sustained by the accident occurred through the negligence of another party;
(i) the worker was remunerated whilst staying in the slip port.
The respondent submits that the lack of any such material in this appeal amounts to a “satisfactory alternative” as referred to at [24] of Da Ros.
Unlike cases such as Hatzimanolis, Da Ros, Watson and others, this is not a case where the worker’s employment placed him in a remote location or otherwise exposed the worker to a risk to which he would not otherwise have been exposed. I am satisfied on the evidence before me that Mr Van Wessem had engaged in the practice of undertaking a Sunday morning bicycle ride in the company of his friend, Mr Williams, for a considerable period of time before his company entered into its contract with Aussie Home Loans. His practice of undertaking the rides was not altered in any way as a result of undertaking that employment. In that sense, it cannot be said that the employment concerned was a substantial contributing factor to the injuries, in that it did not contribute at all.

CONCLUSION

I conclude that, for the reasons given by the Arbitrator and for the additional reasons in this decision, he was correct to conclude that Mr Van Wessem suffered personal injury arising in the course of his employment on 15 February 2009 pursuant to s 4 of the 1987 Act.
The Arbitrator also correctly concluded that Mr Van Wessem’s employment was not a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act, and therefore no compensation is payable under this Act in respect of the injuries sustained.

DECISION

The decision of the Arbitrator dated 3 May 2010 is confirmed.

COSTS

No order as to the costs of the Appeal.

Judge Keating
President
10 September 2010

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

ASSOCIATE