WorkCover New South Wales v Beaton
[2009] NSWWCCPD 118
•23 September 2009
| WORKERS COMPENSATION COMMISSION | ||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||
| CITATION: | WorkCover New South Wales v Beaton & Anor [2009] NSWWCCPD 118 | |||
| APPELLANT: | WorkCover New South Wales | |||
| FIRST RESPONDENT: SECOND RESPONDENT: | Harold Beaton Pinners Transport Pty Ltd | |||
| INSURER: | WorkCover New South Wales: Uninsured Liability Scheme | |||
| FILE NUMBER: | A1 –1000/09 | |||
| ARBITRATOR: | Mr J Ireland | |||
| DATE OF ARBITRATOR’S DECISION: | 28 May 2009 | |||
| DATE OF APPEAL DECISION: | 23 September 2009 | |||
| SUBJECT MATTER OF DECISION: | Jurisdiction of the Commission; worker and employer resident in Victoria; injury in New South Wales; whether the connection with that State was sufficient to enliven the jurisdiction of the Commission. | |||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||
| HEARING: | On the papers | |||
| REPRESENTATION: | Appellant: | Sparke Helmore Lawyers | ||
| First Respondent: | Adams Leyland Solicitors | |||
| Second Respondent: | No appearance | |||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator dated 28 May 2009 is confirmed. 2. The Appellant is to pay the costs of the appeal. | |||
BACKGROUND TO THE APPEAL
On 24 June 2009 WorkCover New South Wales (WorkCover/the Appellant’) sought leave to appeal a decision of a Commission Arbitrator dated 28 May 2009.
The First Respondent to the appeal is Harold Beaton (‘the Worker/Mr Beaton’).
The Second Respondent to the appeal is Pinners Transport Pty Ltd (‘Pinners’).
This case concerns the territorial operation of the New South Wales Workers CompensationAct 1987 (‘the 1987 Act’).
Mr Beaton was (and remains) a resident of Shepparton in Victoria. He commenced work with Pinners in about July 2000. Pinners’ registered office was also in Shepparton, and it conducted its business there.
Mr Beaton was initially employed as a storeman, although he had worked as a truck driver since he was eighteen. A few weeks before his accident on 15 June 2001 he was asked to perform truck driving duties because the company was short-staffed. He was required to drive three times a week to Newcastle and back.
This he did, and on 15 June 2001 whilst driving his truck along the Hume Highway towards Sydney approximately halfway between Holbrook and Tarcutta in New South Wales he struck a truck in front of him and suffered injuries principally to his head, neck and back.
He was treated at Wagga Base Hospital and eventually resumed work a week later in his normal position as a storeman/forklift driver and remained there until Pinners ceased trading approximately four months later. Thereafter, he has had various truck driving jobs.
He made a claim on Pinners Victorian insurer, QBE Workers Compensation (Victoria) Pty Ltd (‘QBE’) and received weekly benefits payments for various periods and medical expenses, which as at 11 May 2009 totalled $61,001.42.
On 15 October 2007 he made a claim on the Appellant’s Uninsured Liability Scheme which was denied. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 11 February 2009, he sought weekly benefits, medical expenses and lump sum compensation.
The parties attended a hearing before the Arbitrator on 12 May 2009 where it was agreed that the only issue for determination at that time was the question of jurisdiction. In a reserved decision delivered on 28 May 2009 the Arbitrator found that the Commission had jurisdiction to hear and determine the matter. The Certificate of Determination issued on 28 May 2009 records the following orders:
“1. I find the Workers Compensation Commission of New South Wales to have jurisdiction to hear and determine the Applicant’s claim.
2. This matter should now be the subject of a further telephone conference to be convened between the parties and arbitrator to determine a date for the hearing of the remaining issues.”
It is from this decision that the Appellant 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:
“(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 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 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.
Mr Beaton submits that leave should not be granted since the threshold in section 352(2) is not satisfied. However, as the Appellant rightly points out, the amount as claimed by Mr Beaton and at issue in this appeal exceeds $5,000.00. That is the appropriate test where no monetary award is made (Grimson v Integral Energy [2003] NSWWCCPD 29).
I am also satisfied that the decision of the Arbitrator is not “of an interlocutory nature” and thus satisfies the requirements of section 352(8) (P&O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87).
Leave to appeal is granted.
THE ISSUES IN DISPUTE
The Appellant submits that the Arbitrator erred in two respects namely:
a. In finding jurisdiction when there were insufficient other connectors to New South Wales;
b. In failing to take into consideration whether it was unreasonable to expect Pinners to have held workers compensation insurance in New South Wales.
THE ARBITRATOR’S FINDINGS AND REASONS
The Arbitrator noted the parties’ acknowledgement that, since the injury occurred on 15 June 2001, neither the provisions of section 9AA or 13 of the 1987 Act were applicable such that “ the principles to be applied in any determination in relation to this matter were those in existence prior to that date.” [9]
He set out at some length details of the parties’ submissions where the focus was on whether there was sufficient “connection” to New South Wales so as to enliven the jurisdiction of the Commission.
Both parties relied extensively in their submissions on the decision of ADP Lansdowne in Tozer v I.D. Transport Pty Ltd [2005] NSWWCCPD 101 (‘Tozer’), WorkCover Authority of New South Wales v Billpat Holdings & Ors (1995) 11 NSWCCR (‘Billpat’) and Mynott vBarnard (1939) 62 CLR 68 (‘Mynott’).
In short, Mr Beaton argued that the fact that the injury occurred in New South Wales provided sufficient nexus to bring into operation the provisions of the 1987 Act, and that the facts were similar to those of Tozer.
The Appellant submitted that that fact was insufficient, particularly in circumstances where the employment contract was negotiated in Victoria, both parties were resident there, and Mr Beaton had already received payments from Pinners Victorian insurer, QBE. The Appellant relied upon various extracts from the judgment of Kirby A-CJ (as he then was) in Billpat in support of its assertions.
The Arbitrator said at [18]:
“I have considered the case of Billpat and Tozer and the authorities alluded to in each of those judgments and the forcibly argued Respondent’s submissions that a number of factors would arguably be required in order to establish the appropriate connectors. Whilst a valiant attempt was made to show that in the case in question there was precious little similarity with the connectors found in Billpat’s case, I am of the view that though that may be the case the factual matters of which I should heed practical substance are those that are confined to the nexus between the Applicant’s employment and the State of New South Wales. Contrary to the Respondent’s view on this point I believe that Kirby J was not necessarily alluding to the fact that there should be countless connectors as, to quote his words, ‘Some nexus with the State of New South Wales is required to bring into operation the New South Wales Workers Compensation Act 1987.’ Indeed in the latter part of the head note Kirby J alludes to the fact that what is sufficient now is no longer as narrow as it formerly was.”
He continued as follows:
“19. I am mindful of the Respondent’s submissions in terms of the fact that the Applicant resided in the State of Victoria, his contract of employment was in the State of Victoria, he was paid within the State of Victoria and all records suggest a very firm connection with that State. The fact remains that the undisputed evidence is that the Respondent engaged the Applicant, be it for what may have been a relatively short period of time, to travel from his home town of Shepparton and to drive interstate through effectively the State of New South Wales on no less than three occasions in each of the first and second weeks of his employment as an interstate truck driver. This clearly is significantly different from the factual circumstances in the case of Tozer where the Applicant was effectively ‘driving through the State of New South Wales.’
20. We know from the Applicant’s statement that he was required to load and unload in Newcastle and on occasions was required within the State of New South Wales…Clearly then a very significant part of the Applicant’s time was spent for the Respondent in the State of New South Wales. This allied with the fact that the Applicant’s injury occurred in the State of New South Wales does in my opinion create sufficient nexus to the State to validate the Applicant’s assertion that the Workers Compensation [Commission] of New South Wales has indeed jurisdiction to determine this matter. In coming to this conclusion I am mindful of the observations of the Respondent that it would be effectively burdensome and inappropriate for the Respondent to be required to have cover for its workers within the State of New South Wales when appropriate cover is provided in the State of Victoria and indeed payments were made to this Applicant. The fact remains however, as alluded to by Kirby J in Billpat’s case, that whilst it could in some circumstances be unreasonable to expect that one jurisdiction’s Workers Compensation Act would attach to an employer in another jurisdiction, I believe in the case in question it would have been encumbent upon the Respondent to recognise that with the many hours spent by the Applicant within the State of New South Wales that there was a very real prospect that legislature of New South Wales could well apply to such workers. Accordingly it is my view that the Workers Compensation Commission of New South Wales does have the requisite jurisdiction to determine this matter.”
DISCUSSION AND FINDINGS
Does New South Wales Have Jurisdiction?
In Tozer, the worker was employed by the Respondent as an interstate truck driver from September 1999 to 2003. At the time his employment commenced he lived in Queensland. The headquarters of the Respondent was in Victoria. The Appellant was required to drive from Brisbane to Melbourne, via Sydney. On 10 January 2000 he suffered an injury in Tenterfield, northern New South Wales, while loading pumpkins at a farm in the course of his work. A pumpkin fell from a height and hit his neck. He lodged a claim for compensation in respect of this injury in Brisbane, and was paid weekly compensation by the Respondent’s Victorian workers compensation insurer for almost a year. He returned to work then moved to Sydney and gained other employment where his injuries he claimed were further aggravated and he was incapacitated for work. He brought proceedings for weekly payments and other benefits in the Commission.
The Arbitrator found in favour of the employer on the basis that at the time of the injury the worker was “merely passing through New South Wales” and that there were insufficient connectors to New South Wales for the 1987 and 1998 Acts to apply to the injury.
On appeal, ADP Lansdowne revoked that decision. She carefully considered in some detail a number of authorities on this issue before concluding at [41] that:
“In my view both as a matter of principle and in accordance with O’Connor v Healey it is sufficient to establish “a relevant connection” to New South Wales, according to the test applied in Stanley v Gallagher, that the injury occurs in New South Wales and the work, or at least a substantial part of it, is located in New South Wales.”
In Stanley v Gallagher and Ors [2002] NSWCA 174, Pearlman AJA, with whom Stein JA and Heydon JA agreed, adopted the test outlined by Kirby P in Commissioner for Railways for the State of Queensland v Peters and Anor (1991) 24 NSWLR 407 (‘Peters’), that what is required is “a relevant connection with New South Wales”.
Mynott concerned the death of a worker who was injured at his workplace in New South Wales. The worker and his employer were resident in Victoria and the contract of employment had been made in Victoria. The contract was to perform work solely in New South Wales. The worker’s dependants filed an application under the Victorian legislation. The High Court upheld the decision of the Supreme Court that the action failed, but the judges were not unanimous in their opinion as to why. Latham CJ and Starke J held that the critical factor was where the injury occurred - the Victorian Act only applied to accidents occurring in Victoria. Rich J and Dixon J held that the Act did not apply because the employment of the worker was not carried out in Victoria. McTiernan J did not specify what was the disabling factor that caused the application to fail.
ADP Lansdowne’s consideration of the implications of this, and her analysis of the authorities is thorough, and pertinent to this case. She continued at [33] – [35] as follows:
“33. Thus Mynott v Barnard stands for the proposition that where neither the injury nor the carrying out of work occurred in the state, the workers compensation legislation will not apply (subject to any legislative extension). On the evidence in this case, both the injury and the carrying out of a major component of the work occurred in New South Wales, which would tend to suggest that on the principles of Mynott v Barnard the New South Wales legislation should apply. This is subject to two caveats. First, Mynott v Barnard did not hold that the occurrence of injury and work in one state was sufficient to enable that state’s legislation to apply, in the absence of other connectors to the state; merely that these factors (or one of them) was necessary. Secondly, Mynott v Barnard is of some vintage, and the principles have been considered much more recently by the New South Wales Court of Appeal. It may be more appropriate to apply those more recent cases. Further, in one of those cases, Workcover Authority of New South Wales v Billpat Holdings Pty Ltd & Ors (1995) 11 NSWCCR 565 (‘Billpat’), Kirby P commented that the approach to territorial jurisdiction had changed since Mynott v Barnard. However, as the view as to what is sufficient connection is, in his words, “no longer as narrow as it formerly was”, this development should if anything make injury or place of work in the state sufficient, even if they were not so in earlier times.
34. The more recent authorities are Peters, Billpat, FAI Traders Insurance Co Ltd v Price & Ors [1999] NSWCA 425 (‘Price’) and Stanley v Gallagher. Kirby P developed the test for connection in Peters, which was then applied in Billpat and Stanley v Gallagher. Peters concerned an injury to a New South Wales resident in New South Wales who had been engaged by the Commissioner for Railways for Queensland to cut sleepers. The work was performed in New South Wales. Kirby P, with whom Priestley JA and Waddell JA agreed, held that:
“It is enough that there was a relevant connection with New South Wales. Many are the workers’ compensation cases where employers are out of the jurisdiction, injuries arise out of the jurisdiction and incapacity arises out of the jurisdiction. So long as the words of the Workers’ Compensation Act, in their generality, apply to the worker and operate upon facts or events having a sufficient connection with this State, the validity of the legislation in its extra-territorial operation is unchallengeable.” (page 437)
35. The use of the singular article “a” and singular word “connection” in this test suggests that only one connection may be required. That was not the situation on the facts of that case, however. Although Kirby P referred to extra territorial jurisdiction in very broad terms, even suggesting that injury in the jurisdiction was not required, there were in that case multiple connections with New South Wales, and, indeed, the only factor relating to another state was the location of the employer.”
At [36], she considered Billpat, commenting as follows:
“The next case, Billpat, concerned an injury to a worker in New South Wales while travelling from his place of work in Queensland to his home in New South Wales. The worker argued that the only connection to New South Wales required to bring into operation the New South Wales legislation is injury in the state (see Kirby P paragraph 38), but also relied on the other connections on the facts of that case (paragraph 41). The insurer in that case submitted that in addition to injury in the state, employment in the state must also be proved (paragraph 41). The Court chose to determine the case on its facts, without itemising which factors were critical. It does appear, however, that the Court regarded it as essential that there be some connection in addition to injury in the state. After outlining the respective positions of the parties Kirby P continued (emphasis added) “On the factual level, whatever may be the precise requirement in addition to the happening of the injury within the jurisdiction, there were very many connectors with this State which make the application of the New South Wales Act to the injury within the State, neither surprising nor offensive to the Mynott principle” (paragraph 44). The factors relied on in that case principally related to the location of the employer in New South Wales, but the Court also referred to the employment of New South Wales residents, such as the worker in that case, and the making of the contract of employment in New South Wales.”
At [38] she concluded:
“In all of these cases the Court of Appeal held that the New South Wales legislation applied, despite the fact that there were some factors in each case that were linked to another state. In common with the present case, in each of these cases the injury occurred in New South Wales. In each, however, there were a number of factors that linked the claim to New South Wales in addition to injury in New South Wales. Specifically, in each of them, the worker lived in New South Wales at the time of the injury. In Billpat the employer was also located in New South Wales, and in Billpat and Stanley v Gallagher the contract for employment was also made in New South Wales and the worker was paid in New South Wales. What is unclear from these cases is which of these additional factors, if any, are critical. It does appear that something other than injury in the state is required ( my emphasis).There is no case that has held that injury in the state is sufficient, and the comments of Kirby P in Billpat suggest that it is not. The cases do not, however, provide clarity as to what that additional factor or factors is or are, and it may differ from case to case. Here the additional factor is location of a place of work in the state. This factor does not appear necessary (see Billpat and Stanley v Gallagher, as compared with the view of Dixon J in Mynott v Barnard), provided other sufficient connection exists. Is it sufficient, however, together with injury in this state? In every case referred to, where jurisdiction was found, the worker resided in New South Wales, and this was not the case here, but it is unclear whether or not this is necessary, if other connection exists.”
Since that decision, the Court of Appeal considered similar issues in Ballantyne vWorkCover Authority of New South Wales [2007] NSWCA 239 (‘Ballantyne’). That case principally concerned the operation of section 145 of the 1987 Act, but the observations by Basten JA in particular relating to jurisdictional issues are pertinent.
The facts in that case were that Mr Crofton was employed as a deckhand on a fishing vessel owned and operated by the Appellants, Mr and Mrs Ballantyne. The business was carried on from Victoria, but the catch was frequently unloaded at Eden in New South Wales, where Mr Crofton suffered a back injury in December 1999. Mr Crofton ceased work after a repetition of the injury in February 2000.
The Appellants held workers compensation insurance in Victoria but were uninsured in New South Wales. A claim was made with the Appellants' insurer in Victoria in March 2000, resulting in weekly compensation payments being made to Mr Crofton. Mr Crofton then brought proceedings for compensation in New South Wales and was successful.
The Appellants subsequently brought proceedings to waive their liability to reimburse the Authority. That was heard and determined by the Commission, and became the subject of appeal.
Relevant to the present case are the observations of Basten JA at [64] – [65]:
“[64] Since 1 January 2006, the Act has contained provisions, which are noted below, which seek to define the relevant connection between employment and the State necessary to attract liability to pay compensation under the Workers Compensation Act. However, prior to that date, and thus relevantly for the purposes of the present proceedings, the principle of statutory construction as explained in Mynott v Barnard (1939) 62 CLR 68 applied. In that case, almost every possible connection bar the place of accident was with Victoria. Nevertheless, the Court unanimously applied the principle established in 1909 in Tomalin v S . Pearson & Son Ltd [1909] 2 KB 61, that the Act imposed liability upon the employer to pay compensation in respect of any injury suffered within the jurisdiction or "law area" of the statute in question. In Mynott even the fact that the worker died in Victoria did not engage the operation of the Victorian Act, the accident having occurred in New South Wales. As explained by Latham CJ at pp 73-74:
‘As Fetcher Moulton LJ said in Tomalin v S. Pearson & Son Ltd, speaking of the corresponding provision in the English Act, 'it clearly cannot apply universally all over the world'. It would be unreasonable to read the section as applying to all employers, all workers and all accidents everywhere. Some territorial limitation must be introduced in a construction of the section. The court has been offered an embarrassing choice of possible limitations. Each of the following elements (or some combination of them) has been suggested as possibly relevant -- the Victorian domicile or residence of one or both parties: the fact that the contract of employment was made in Victoria: the fact that the work under the contract was to be done in Victoria, in whole or in part: the fact that the accident happened in Victoria: the fact that the governing law of the contract of employment was the law of Victoria: and, on the basis of a number of American decisions, the fact that the 'status' of the parties as employer and worker arose under Victorian law, or that the relationship of employment in a particular case has a real and substantial connection with Victoria, or a more real and substantial connection with Victoria than with any other country, or the fact of the localisation in Victoria of the employer's enterprise.’
[65]… the basic premise upon which the Workers Compensation Act operated (until 1 January 2006) was that it might apply to any person employing a worker who might undertake work in New South Wales or who might, in the course of his or her employment, including no doubt the journey to and from the workplace, pass through New South Wales or part thereof, in the event of an accident there.”
Thus it is clear that, for injuries occurring prior to 1 January 2006, the principles in Mynott apply. Contrary to the views of ADP Lansdowne in Tozer, it is not necessary for “something other than injury in the State” to arise in order to enliven the jurisdiction of New South Wales.
In other words, the Appellant’s assertion that there must be a number of “connectors” with New South Wales is simply wrong in view of Ballantyne.
Further support for the comments of Basten JA can be found in the commentary relating to section 7 of the Workers Compensation Act 1926 in Mills, second edition, 1979 at page 190 as follows:
“[130] Paragraph (1)(a): injury received in or out of New South Wales. The entitlement of a worker to compensation under par 7(1)(a) is limited to injuries which occur within New South Wales: Mynott v Barnard (1939) 62 CLR 68, and it is enough that the injury occurs within the State; that the contract may have been entered into outside the State, that the parties are both resident outside the State, or that part of the work is to be performed outside the State, does not take the injury outside the scope of the section, and injuries received on journeys (see later paragraphs of sub-s (7)(1)) are to be compensated as if they occurred in the course of employment: O’Connor v Healey [1968] 1 NSWR 225; 69 SR (NSW) 111. The judgment of Dignam J in that case, [1966] WCR 127, contains an extensive review of the cases on this point from various jurisdictions. See too Australian Timken Pty Ltd v Stone (No 2) 1971 AR 247.
An injury which occurs outside the State will give an entitlement to compensation under the Act if the conditions specified in sub-s 7(1a) are satisfied.”
In line with the authorities to which I have referred, I am satisfied that the Commission has jurisdiction to hear and determine this matter.
In these circumstances, it is not necessary to consider the second ground of appeal raised by the Appellant. In any event, the comments of the Arbitrator at [20] to which the Appellant refers, are really obiter, since Mr Beaton has a clear entitlement to pursue his claim for compensation in New South Wales. The consequences of that for Pinners, its insurer and the Appellant is another matter altogether, and not relevant to the jurisdictional question.
DECISION
The decision of the Arbitrator dated 28 May 2009 is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
23 September 2009
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.
ASSOCIATE
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