Woolnough v Target Australia Pty Ltd
[2008] NSWWCCPD 109
•2 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Woolnough v Target Australia Pty Ltd [2008] NSWWCCPD 109 | ||||
| APPELLANT: | Christine Anne Woolnough | ||||
| RESPONDENT: | Target Australia Pty Ltd | ||||
| INSURER: | Coles Group Limited | ||||
| FILE NUMBER: | WCC472-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 7 April 2008 | ||||
| DATE OF APPEAL DECISION: | 2 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Journey claim; whether the interruption / deviation materially increased the risk of injury; section 10(2) of the Workers Compensation Act 1987. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Everingham Solomons Solicitors | |||
| Respondent: | Lander & Rogers Lawyers | ||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 7 April 2008 is revoked. 2. The matter is remitted to the Arbitrator at first instance for redetermination in accordance with these reasons. 3. The Respondent is to pay the Applicants costs of the proceedings before the Arbitrator. 4. The Respondent is to pay the Appellant’s costs of the Appeal | ||||
BACKGROUND TO THE APPEAL
On 2 May 2008 Christine Anne Woolnough (‘the Appellant/Ms Woolnough’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 7 April 2008.
The Respondent to the Appeal is Target Australia Pty Ltd (‘the Respondent /Target’).
Ms Woolnough was employed by Target in Port Macquarie as a customer services assistant / door greeter.
On 29 August 2007 she completed her shift at 2.30 pm as required. She drove from Target to her home making two stops: firstly, at the home of a friend Cheryl Vick (‘Cheryl’) to collect a quantity of eggs, and secondly, at the home of her friend Glanda Banks (‘Glanda’) to deliver some of the eggs.
Whilst returning to her car, which was parked in Glanda’s driveway, she tripped and fell injuring her right hand and wrist.
Ms Woolnough lodged a claim with Target’s insurer which was denied.
On 24 January 2008 she filed an ‘Application to Resolve a Dispute’ (‘Application’) in the Commission seeking weekly benefits compensation from 29 August 2007 to 15 February 2008.
The parties attended a conciliation / arbitration hearing on 10 March 2008 where Ms Woolnough gave brief oral evidence.
On 7 April 2008 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued wherein the Arbitrator made an award in favour of the Respondent, Target, on the grounds that “…the material risk of injury was increased because of the interruption or deviation to her journey…” such that section 10(2) of the Workers Compensation Act 1987 (the 1987 Act) operated to defeat the claim.
It is from this decision that Ms Woolnough seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
(a)“(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 submission by both 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 section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
THE REVIEW PROCESS
The nature of the review process has been succinctly summarised by Deputy President Roche in a number of decisions, and recently in Universal Consultancy Services Pty Ltd v Datta [2008] NSWWCCPD 87 where he said as follows [16-18]:
“16.The Court of Appeal considered the nature of a ‘review’ under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’), where Bryson JA said at [38]:
‘A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.’
17.McColl JA approved this passage in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
18.The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler[2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
‘28.The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30.A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.’”
Bearing these principles in mind, I turn now to the issues in dispute.
THE ISSUES IN DISPUTE
Target does not dispute that Ms Woolnough injured her right wrist and hand on 29 August 2007. Moreover, Target has conceded that she was on a journey from her place of employment to her place of abode at the time of the injury so that prima facie, she was entitled to compensation by virtue of the provisions of section 10 (1) of the 1987 Act.
The dispute is confined to the issue as to whether there was an interruption of, or deviation from Ms Woolnough’s journey which materially increased the risk of injury such that section 10(2) would operate to defeat her claim.
I note also Target’s concession that if successful, Ms Woolnough was entitled to benefits at the rate of $311.37 per week pursuant to section 36 of the 1987 Act.
THE GROUNDS OF APPEAL
Ms Woolnough submits that the Arbitrator erred in two respects as follows:
“(a)in determining on the facts that the Applicant’s injury was received during or after an interruption of or deviation from the Applicant’s journey from her place of employment when the evidence supported that the Applicant’s injury was sustained on a journey regularly embarked upon by the Applicant from her place of work to her home albeit not the most regular and shortest route taken to her home: (the ‘Interruption or Deviation’ Issue)
(b)in determining that interruption of or deviation from a periodic journey materially increased the risk of injury such that section 10 (2) of the 1987 Act applied to defeat the Applicant’s claim for compensation.” (the ‘Material increase of Risk’ Issue)
THE RELEVANT LEGISLATION
Section 10 of the 1987 Act makes special provisions for payment of compensation when a worker is injured on a periodic journey. Relevant provisions are as follows:
“Section 10
(1)A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(2)Subsection (1) does not apply if-
(a)the injury was received during or after any interruption of, or deviation from, any such journey; and
(b)the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey, unless , in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation.
(3)The journeys to which this section applies are as follows:
(a)the daily or other periodic journeys between the worker’s place of abode and place of employment.”
THE EVIDENCE
Ms Woolnough relied upon a statement she gave to Target’s investigators dated 15 November 2007. She stated that:
a.She collected four trays of eggs from Cheryl, a practice she has undertaken generally fortnightly for the past eighteen months or so.
b.She delivered a tray of eggs to Glanda’s home, again something she has done regularly over the past eighteen months or so.
c.She stumbled on a slight rise in the concrete of Glanda’s driveway which was difficult to see but of which she was aware because of prior conversations with Glanda.
d.She has known Glanda for about two years and visited her home frequently.
e.She has never previously experienced any difficulty negotiating Glanda’s driveway.
f.The weather was fine.
g.Her vision was not impeded, and she was wearing her prescription glasses.
h.She was not distracted, not carrying anything, nor using a mobile phone or other device.
i.Her usual practice was to drive directly home after delivering eggs to Glanda.
j.It was not always the case that Glanda purchased eggs every fortnight, and sometimes Glanda would collect her eggs from Ms Woolnough.
Ms Glanda Banks (Glanda) also provided a statement to Target. She confirmed the ‘egg delivery’ arrangement, although stated that in more recent times she requested them monthly, not fortnightly. She was aware of the incident because Ms Woolnough had telephoned her later in the day to advise of the fall. She stated that she asked Ms Woolnough “Where did it happen?” to which Ms Woolnough replied “Up that little bit of the driveway.” Glanda stated: “I knew exactly what Christine was talking about.” She then went on to describe the slope or rise in her driveway a few metres from her front door, stating that “ I have on numerous occasions stumbled on that rise.” She stated that other visitors had also stumbled and fallen on the rise in the past. She could not recall warning Ms Woolnough of the rise in the driveway.
Photographs of the ‘rise’ were tendered by Target at the hearing. They were attached to the report of MJM Investigators dated 21 November 2007.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Interruption or Deviation’ Issue
Ms Woolnough submits that the Arbitrator erred in determining that her injury was received during or after an interruption to or deviation from her journey since”… it was one embarked upon regularly…although not her most regular journey route home.” She further submits that “…after having placed the eggs on the chair and having formed an intention of continuing on her way home, she had recommenced or was continuing on her journey and was in the motion of so doing when she was injured.”. Thus she claims that this was “…one of the normal journey routes home from her place of employment which [she] had embarked upon many times beforehand…”
In other words, there was no interruption to or deviation from her journey so as to bring section 10(2) into play.
This same submission was made to the Arbitrator and rejected.
The Arbitrator noted the evidence as to the ‘regularity’ of such a journey referring to portions of the statements of both Ms Woolnough and Glanda Banks (at [21] to [23]). She then noted the submission made by Ms Woolnough that the decision of the High Court in Vetter v Lake Macquarie City Council [2001] HCA 12 (‘Vetter’) was authority for the proposition that she had not interrupted nor deviated from her journey because of its ‘regularity’.
In Vetter, the worker regularly (about once per fortnight) visited her grandmother on her way home from work. She was injured in the journey from her grandmother’s home to her own. The Court of Appeal found that she had in effect undertaken two discreet journeys.
This approach was rejected by the High Court, the majority stating:
“[29]There is no obligation upon a worker to take the shortest and most direct route from the worker’s place of work to the worker’s place of abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker’s residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in the risk during or after any deviation or interruption. That is what the Act requires.”
The Arbitrator quoted from the reasons of Kirby J at [26] as follows:
“So long as the journey in question can fairly be characterised as a ‘journey’ or ‘part of a journey’, within s10, questions of interruption or deviation must be left to the judge to determine in accordance with s10(2). It is inconsistent with the terms of that subsection for interruptions and deviations, as such, to deprive the travel involved of the character of a ‘journey’ within the Compensation Act.”
This issue was recently considered by President Keating in ISS Facility Services Australia Pty Ltd v Antonios [2008] NSWWCCPD 52 (‘Antonios’) where he said [39]:
“The Appellant Employer further submits that the “journey” undertaken by the Respondent Worker was not over[sic] an indirect route but that the route taken bore no relationship to the route between the place of abode and place of employment. If I were to accept this submission, which I do not, it would render section 10(2) with little or no work to do. The intention of this section is to compensate journey injuries which would not otherwise qualify for compensation. It is accepted that a worker may choose a longer route to allow him or her to achieve a purpose additional to the journey provided the journey still retains the character of a journey between the place of abode and the place of employment, see Vetter and George v Mechanical Advantage Group Pty Ltd (2002) 23 NSWCCR 303 (‘George’).”
In other words, Vetter does not exclude journeys that are not the shortest or most direct. It in essence further defines the nature of a “periodic journey.” Section 10(2) comes into play where a journey has the character of one defined in section 10(1). If a deviation or interruption occurs, it is a matter for the trial judge to determine if the risk of injury was materially increased.
A similar submission to that of Ms Woolnough was put to Deputy President Roche in Hapago Pty Ltd trading as Noni B v Anderson [2006] NSWWCCPD 217, being that there was no interruption or deviation at all, relying again on Vetter as the authority. Deputy President Roche said:
“[34]In that case, [Vetter] the High Court did not consider the question of ‘material increase in risk of injury’ because that issue had been determined as a question of fact by the trial judge and no appeal was available against that factual finding. Therefore, the only question for the High Court was whether the worker was on a journey given that she had interrupted that journey to visit her grandmother and was injured while driving from her grandmother’s house to her own home. The Court held that a worker may still be on a journey within the meaning of section 10 of the 1987 Act even if he or she chooses a longer and more indirect route.”
The Arbitrator concluded as follows at [29]:
“The Applicant’s stop off at Glanda’s house to deliver a tray of twenty eggs was for a reason ‘unconnected with the worker’s employment or the purpose of the journey’ (section 10(2)(b)). Her stop interrupted her journey from work and took her off her usual route home – she travelled from work to Vicki’s[sic] house and then as conceded in cross-examination travelled back towards her place of employment to Glanda’s house. During that interruption and deviation she was injured….”
The Arbitrator’s findings on this issue were open to her on all of the evidence, and I am not persuaded that she has erred in her determination on this issue. Even if I am wrong, it seems to me that Ms Woolnough had not, on the evidence, established a ‘regular’ routine such as would entitle her to claim that there was no interruption to or deviation from her route. I say this because of Ms Woolnough’s statement that she did not always deliver eggs to Glanda, and Glanda’s statement that the arrangement had become less regular (monthly).
The ‘Material Increase in Risk’ Issue
As the Arbitrator rightly pointed out, having determined that the injury occurred during or after an interruption to or deviation from her journey, the onus was then on Ms Woolnough to establish that the risk of injury was not materially increased because of the interruption or deviation.
The Arbitrator made reference to the decision of the Court of Appeal in Babcock AustraliaLtd v Proudfoot [1993] NSWCC 30 (‘Babcock’). The judgment of Cripps JA is particularly instructive. He said as follows at [529]-[530]:
“Section 10 does not mandate that to be within its purview a worker must take the shortest most direct route home. Furthermore, a journey once started does not cease to be one because of deviations or interruptions. What the section provides is that an injury arising during or after a deviation or interruption unconnected with work will not be one arising out of or in the course of the worker’s employment unless the worker discharges the onus of establishing the proviso.”
As the Arbitrator noted at [32]:
“As the issue of whether the interruption or deviation has materially increased the risk of injury is[a] question of fact and degree to be determined in the particular circumstances of each case, it is accordingly necessary to carefully review the evidence before me in order to determine whether the Applicant has proved that the risk of injury ‘was not materially increased because of the interruption or deviation’ in the circumstances of this case.”
The Arbitrator then set about reviewing the statements of Ms Woolnough and Glanda Banks, particularly emphasising the evidence of Glanda as to “…the risk of harm posed by the rise in the driveway…” She then summarised the parties’ submissions before concluding as follows at [44]-[53]:
“44.In my view, the evidence in the Applicant’s case [the two statements]…do not, on the balance of probabilities, serve to negative [sic] a material increase in risk.
45.Rather than negativing [sic] a material increase in risk, the evidence…serves…to highlight …that the risk of injury was materially increased during or because of the interruption or deviation to Glanda’s place.
46.On the Applicant’s own evidence she was warned by Glanda on more than one occasion about the risk of injury because of the rise in the driveway.
47.Being forewarned of the risk or danger that the rise in the driveway represented does not in my view negate the risk it presented.
48.Glanda gives evidence about numerous occasions that she herself has stumbled…
49.It is also relevant in my view that there is evidence from Glanda about other people being injured because of the rise…
50.The Applicant has given evidence that she had been told by Glanda on more than one occasion that ’someone had tripped on the driveway’ at that particular point.
51.As Counsel for the Respondent submitted the Applicant’s knowledge of the risk ‘existing upon attending the residence of Ms Banks…must be considered to be an acknowledgment of the material increase in the risk …’
52.The Applicant was required to discharge the onus of establishing that the risk of injury was not materially increased by the interruption or deviation. On the evidence before me, this has not been done.
53.I am satisfied that the material risk of injury was increased due to the interruption or deviation…”
However, as Ms Woolnough rightly submits:
“It is necessary that the correct legal issue be addressed, namely, not the materiality of the increase of the risk of the particular injury that occurred, but the increase of risk generally, having regard to any deviation found: Scobie v K.D.Welding Co. Pty Ltd [1959] 103 CLR 314.” (‘Scobie’)
This issue was considered by the Court of Appeal in NRMA Smash Repairs v Hoy (1995) 11 NSWCCR 326. In that case, a Commissioner made an award for a worker who had interrupted his journey home by attending a ‘send off’ for a fellow worker at a hotel. He consumed a quantity of alcohol and waited for a break in the wet weather. Some two hours after stopping at the hotel, he left and was injured when, failing to take a bend in the road, he was thrown from his motorbike. The Commissioner found that the consumption of alcohol had caused “some increase in the risk [of injury] but not a material increase” but also said ”in accordance with Scobie, I am satisfied that the factor of alcohol was not the cause of the actual injury.”
In dismissing the appeal, the Court held:
“The question to be asked in applying section 10(2) of the Act is not whether the actual injury could be traced to the particular increase in danger involved but whether, by reason of the interruption, the journey became a more hazardous one, and more hazardous to a material extent, than it would otherwise have been.”
In other words, the cause of the injury is irrelevant: what must be considered is not the actual injury which occurred and the materiality of the increase of the risk of that particular injury, but the increase of the risk of injury generally as a result of the interruption or deviation. As Fullagar J said in Scobie (at [326]):
“The proviso is concerned not with cause of injury but with increased risk of injury. Further, it is concerned only with acts of the worker which increase the risk of injury. The deviation is an act of the worker.”
In the present case, it is clear from the passages I have quoted above from the Arbitrator’s Statement of Reasons that her focus was on the rise in Glanda’s driveway, known to Ms Woolnough, as the cause of her injury, and not the increase in the risk of injury as such.
Having regard to these decisions, did the interruption or deviation materially increase the risk of injury generally?
The authorities suggest that:
“The issue when determining whether the interruption or deviation has materially increased the risk of injury is a comparison of the risk likely to arise had there been no interruption or deviation and the risk that did in fact arise. The conclusion then to be drawn from the comparison is a matter of fact and degree: Young v Cmr for Railways [1960] WCR (NSW) 71: Old Spaghetti Factory v Oughtred [1975] WCR (NSW) 231.” [See Mills Workers Compensation New South Wales (Sydney: Butterworths, 2002) p 1744]
In the present case, the evidence was clear that Ms Woolnough was aware of the rise and its risks, but had never previously, over many occasions, had any difficulty with Glanda’s driveway. The weather was fine; she was not distracted in any way. She states that on 29 August 2007 she “…stumbled, lost my balance and fell towards the ground.”
I cannot see how the interruption or deviation undertaken by Ms Woolnough could be said to have materially increased the risk of injury generally. I accept Ms Woolnough’s submissions that:
“…the risk presented…by the uneven surface upon the driveway was no different to uneven surfaces that present to all pedestrians when using footpaths, stairs, ramps and the like. [She] fell or stumbled due to inadvertence and submits that the general increase in the risk of injury having regard to the deviation was not a ‘material’ increase as proscribed by the section. There was no increase in the risk of injury generally…”
In the absence of any expert evidence to the contrary, and this is by no means a criticism since it is not a case that benefited from such analysis, I am of the view that Ms Woolnough’s statement was sufficient to discharge the onus upon her, having regard to the principles established in the cases to which I have referred.
President Keating dealt with the issue of ‘onus ’in considerable detail in Antonios stating at [47]-[48]:
“47. In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd[2008] NSWCA 39 Justice Campbell said:
‘If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If the defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument.
...Before an evidential onus shifts from a plaintiff, the plaintiff must have adduced enough evidence for the court to infer, if the evidence that the plaintiff adduced was accepted by the court and was the only evidence on that topic in the case, that the proposition concerning which the plaintiff had the onus of proof was more likely than not true. In that situation, one says that an onus of adducing evidence shifts to the defendant because the defendant is then in a situation in which, if the defendant does not adduce evidence concerning that proposition, the party might succeed in establishing that proposition.’
48.In this case no expert evidence was called by either party. I make no criticism of the parties as this is not a case which readily lends itself to any form of expert evidence. It seems to me that the evidence of the Worker’s stated intent when he set out on the journey, the clothing he was wearing, the evidence of the route to be taken between the West Ryde Shopping Centre and the Naremburn Public School and the evidence that the Worker had sufficient time to complete that journey prior to commencing his shift establish that there was sufficient evidence from which the negative proposition may be inferred. That being so, the evidential onus then shifted to the Employer to adduce evidence that the negative proposition is incorrect. No such evidence was introduced by the Employer leaving the Arbitrator with the Worker’s evidence as the only evidence on that topic.”
He went on at [52]-[53] as follows:
“The Appellant Employer submits that whether the risk of injury is materially increased is a question of fact and a Worker must prove the negative Tucker v WD & HO Wills (1969) 43 WCR 11 (‘Tucker’) at [19]. On this point the Respondent Worker agrees. In Tucker Gibson J in the Workers Compensation Commission of NSW found in favour of a worker seeking compensation after having sustained an injury during the course of an interruption to his journey during which he spent one hour in a local hotel. He there consumed his normal consumption of alcohol and proceeded home in darkness. Had he not interrupted his journey he would have reached his home during a period of light. His Honour Judge Gibson found in favour of the Worker finding that the intake of alcohol and the darkness did not materially increase the risk of injury. An appeal to the NSW Court of Appeal was dismissed. In dismissing the appeal, Herron CJ said:
‘For the reasons that I have averted to earlier, in my opinion these were questions of fact for his Honour and as he was entitled to come to such a decision as a question of fact this court cannot and will not disturb his finding.’
He went on to say:
‘This finding of the Judge, that there was some slight increase in the risk, is not inconsistent with the Applicant having discharged the onus placed upon him upon such an issue. His Honour distinguished between the prima facie slight increase present in such circumstances and a material increase which deprives a worker of his right to compensation. In my opinion the two findings are reconcilable when one comes to consider the context in which they are used in the Workers Compensation Act.’
Jacobs JA went on to add:
‘I also agree that the question arising under the proviso was one of fact for the Commission, and in this regard it must be borne in mind that the Applicant was bound to prove a negative, namely that the risk of injury was not materially increased by reason only of the substantial interruption or substantial deviation. This negative could not in the nature of things be exhaustively proved, because the number of elements of which account might be taken was practically inexhaustible. The Applicant could not negative all elements, but could only point to those of them that seemed to be most important. There was evidence before the Commission on important aspects of this question, and the Commission on those aspects could satisfy itself that the risk had not been materially increased. That being so, the issue remained one of fact and the learned Commissioner was entitled to reach the conclusion to which he did come.’”
In the present case, Ms Woolnough’s statement clearly addressed what seemed to be the most important factors, and the Arbitrator could readily conclude on that information that the risk of injury had not been materially increased.
I acknowledge Target’s submission that the critical issue to consider in this matter is whether the risk of injury was materially increased due to the visits to the homes of Cheryl and Glanda, and the submission that Ms Woolnough’s knowledge of the risk “…must be considered to be an acknowledgement of the material increase in the risk inherent upon interruption or deviation of the Appellant’s journey being the visit to Ms Bank’s residence.” But that is not the test, and confuses the cause of the injury with the general risk of injury. In any event, it may well be argued that , being forewarned of the rise in the driveway, Ms Woolnough was thus forearmed , and her fall on this particular occasion was clearly a result of mere inadvertence.
CONCLUSION
I am satisfied in all the circumstances and for the reasons stated that the interruption to and deviation from her place of employment to her place of abode did not materially increase the risk of injury to Ms Woolnough, and accordingly, she is entitled to an award.
Although the parties agreed on the amount of the award if Ms Woolnough was successful, its duration remains obscure. I note that in her Application, Ms Woolnough sought weekly benefits from 29 August 2007 to 15 February 2008. However, in the Transcript [page 7] the Arbitrator said:
“And I note for the record that you agree that if the applicant is successful it will sound in and [sic] quantum of $311.37 for the period 29 August ’07 to 27 February ’08, and then from 28 February at the rate of $280.23 per week…”
In the circumstances, I think the appropriate course is to remit the matter to the Arbitrator at first instance to formalise the award and to consider any claim for section 60 expenses which may flow from the award.
DECISION
1. The decision of the Arbitrator dated 7 April 2008 is revoked.
2.The matter is remitted to the Arbitrator at first instance for redetermination in accordance with these reasons.
3.The Respondent is to pay the Applicant’s costs of the proceedings before the Arbitrator.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Deborah Moore
Acting Deputy President 2 October 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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