Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214

Sole working director of respondent killed in cycling accident – claim for death benefits compensation – injury was in course of employment – Commission found employment concerned not a substantial contributing factor to the injury (s 9A(1) 1987 Act) – whether erroneous decision in point of law – Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 – whether approached from perspective of the cycling rather than of the employment concerned – consideration of causal linkage between employment and injury – no erroneous decision in point of law – injury in course of employment does not lead to finding of employment being substantial contributing factor to injury – appeals – need to identify erroneous decision in point of law.

Court of Appeal

Giles, Hodgson and Handley JJA

29 July 2011

Facts:

Mrs Van Wessem is the widow of Stephen Van Wessem. Mr Van Wessem was the sole working director of the respondent. He was killed on Bobbin Head Road in the Ku-ring-gai National Park whilst cycling on Sunday 15 February 2009 at approximately 11.00 am.

The respondent had 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 had no office or premises to undertake this work. He worked from home or from wherever he happened to be, making contact with clients by using his mobile phone and email.

Mr Van Wessem’s 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 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 brought a claim for compensation payable on death under s 25.

Decision under appeal

The President found that Mr Van Wessem’s injury occurred in the course of his employment, but also found that the employment concerned was not a substantial contributing factor to the injury.

Appeal

The appellant appealed on the following grounds:

"1. The President erred in confirming the Arbitrator’s decision entering an Award for the Respondent in respect of the Applicant’s claim for death benefits.

2. The President erred in law in holding that the deceased worker’s employment was not a substantial contributing factor to the injury/death within the meaning of Section 9A of the Workers Compensation Act 1987 (NSW).

3. Having correctly found that the deceased worker suffered injury in the course of employment within the meaning of Section 4, the President erred at law in failing to also hold that the employment was a substantial contributing factor.”

During the hearing Senior Counsel stated the particular errors were:

1. That it was not relevant that the nature of the work performed and the particular tasks of that work did not require Mr Van Wessem to go cycling (s 9A(2)(b));

2. That when considering the duration of Mr Van Wessem’s employment his prior practice of cycling was not relevant (s 9A(2)(c));

3. That there was no evidence on which it could be found that the probability of a similar injury occurring irrespective of Mr Van Wessem’s employment was high (s 9A(2)(d)), and

4. That an irrelevant consideration had been taken into account in saying that this was not a case where Mr Van Wessem’s employment placed him in a remote location or otherwise exposed him to a risk to which he would not otherwise have been exposed.

Held: Appeal dismissed with costs.

Need to identify erroneous decision in point of law

1. The grounds of appeal were deficient as they did not state specifically the grounds relied on in support of the appeal (UCPR 57.18(1)(e)). They did not identify the erroneous decision(s) in point of law.

Was it relevant that the nature of the work performed and the particular tasks of that work did not require Mr Van Wessem to go cycling (s 9A)(2)(b)?

2. The appellant relied on observations by Basten JA, Tobias and McColl JJA agreeing, in Da Ros v Qantas Airways Ltd [2010] NSWCA 89; (2010) 8 DDCR 103 at [21] (Da Ros)that it was erroneous to “discount” the employment concerned because, although the worker’s conduct was permitted and encouraged by the employer, the specific activity was not required by the employer; and at [22] that “it was usually neither necessary nor appropriate to inquire whether the particular activity was the subject of a specific direction by the employer or was simply a permissible activity, chosen by the employee”.  [25]

3. The President did not do either of these things but identified relevant aspects of the employment concerned. Mr Van Wessem did not have to be at any particular place at a particular time when he was working, or to work at remote locations, or to cycle. He was not concerned with Mr Van Wessem directing or encouraging himself as sole director of his employer, which would have been entirely artificial. [26]

Was it relevant, when considering the duration of Mr Van Wessem’s employment, to consider his prior practice of cycling (s 9A(2)(c))?

4. The appellant submitted that it was an irrelevant consideration that there had been a practice of pre-employment cycling, because all that mattered was that there was cycling in the course of employment. [28]

5. The Court of Appeal stated that being in the course of employment is temporal, whilst being a substantial contributing factor is causal. There must be an evaluation of the strength of the causal linkage between the employment and the injury (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 at [106] per McColl JA, Mason P and Beazley JA agreeing).  It was not irrelevant for the President to have regard to pre-employment activity of the same kind as the activity engaged in at the time of injury. It was perhaps not a s 9A(2)(d) matter of duration of employment but it was a relevant matter. [29]

Was there an irrelevant consideration taken into account in saying that this was not a case where Mr Van Wessem’s employment placed him in a remote location or otherwise exposed him to a risk to which he would not otherwise have been exposed?

6. The appellant submitted that it was an irrelevant consideration to state that “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”.  [33]

7. The Court of Appeal held that it was not irrelevant for the President to explain that remote location cases differed from the present case.  Whether or not Mr Van Wessem’s work exposed him to a risk to which he would not otherwise have been exposed was relevant, and important. [34]

The significance of injury in the course of employment

8. The appellant submitted that once it was established that an injury occurred in the course of employment “it will normally follow that the employment was a substantial contributing factor in terms of s 9A”. [40]

9. The Court of Appeal held that this submission was not well founded as the “uncontroversial propositions” set out by Allsop P and Beazley and McColl JJA in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 at [48] included that the fact of the injury arising out or in the course of employment is relevant but not determinative.  In the course of employment is temporal, not causal. [42]–[43]

10. Basten JA’s observation in Da Ros may have held good on the facts of that case. It does not support normally moving from injury in the course of employment to the employment concerned being a substantial contributing factor to the injury. Causation is a quite different concept from temporal occurrence.

Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37

Boilermaker’s deafness; whether it is necessary for a deregistered employer to be restored to the company register; proof of non-insurance; ss 140 and 142B of the Workers Compensation Act 1987; proof of noisy employment

Roche DP

19 July 2011

Facts:

Mr Howard, who is 72 years old, made a claim for compensation for noise-induced binaural hearing loss (boilermaker’s deafness). He alleged that he was last employed in employment to the nature of which his injury was due in either late 1961 or early 1962, when he was employed as a boilermaker for X L Diamond Grids Pty Ltd (Diamond Grids).

Diamond Grids was deregistered on 27 February 1992 and no application had been made for it to be restored to the company register.

As he was unable to identify an insurer for Diamond Grids, Mr Howard claimed compensation from the Workers Compensation Nominal Insurer (the Nominal Insurer). WorkCover appeared for the Nominal Insurer.

In proceedings in the Commission, Mr Howard claimed $7,800 for medical expenses, $30,316 in respect of 58.3 per cent binaural hearing loss and an undisclosed amount for pain and suffering. He named Diamond Grids as the first respondent and the Nominal Insurer as the second respondent.

WorkCover essentially put all matters in issue and, in addition, submitted at the arbitration that the fact that Diamond Grids had not been served with the application and did not exist was a “fatal bar” (T9.12) to the worker succeeding.

The Arbitrator identified the issues in dispute to be whether Mr Howard:

(a) had been employed by Diamond Grids;

(b) sustained an injury under ss 4 and 17 of the 1987 Act;

(c) provided proper notice under s 61 of the 1998 Act and properly made a claim under s 261 of that Act, and

(d) had established on the balance of probabilities that Diamond Grids was uninsured at the relevant time.

The Arbitrator found in Mr Howard’s favour on all issues. WorkCover appealed.

The issues in dispute in the appeal were whether the Arbitrator erred in:

(a) failing to hold that the purported proceedings were a nullity because they failed to comply with the provisions of s 142B(1)(a) of the 1987 Act (s 142B). Related to this issue was the applicability of s 601AG of the Corporations Act 2001 (Cth) (s 601AG);

(b) finding that Mr Howard had “discharged his onus that X L Diamond Grid [sic] Pty Ltd was uninsured at the relevant time” (non-insurance), and

(c) failing to determine there was insufficient evidence to establish that Mr Howard’s employment with Diamond Grids was employment of the type that was capable of causing industrial deafness (noisy employment).

Held: Arbitrator’s decision confirmed.

Section 142B

1. Section 142B provides:

“142B Proceedings before Commission on claim for compensation

(1) On an application to the Commission for a determination of a claim for compensation under this Division, or on the commencement of proceedings in a court in respect of a claim for work injury damages under this Division:

(a) the applicant must name the employer by whom the applicant alleges compensation is payable and the Nominal Insurer as respondents to, or defendants in, the proceedings, and

(b) the Nominal Insurer may, by service of a notice on any person who, in the opinion of the Nominal Insurer, may be liable to pay to the applicant compensation under this Act (or may have insured that liability), join that person as a party to the proceedings.

(2) The Commission may make orders providing for the reimbursement of the Insurance Fund under section 145.”

2. WorkCover submitted that:

(a) an identity cannot be named as party to legal proceedings if it does not exist;

(b) Diamond Grids should have been restored to the company register for the purpose of being joined to the proceedings and failure to do so invalidated the proceedings, and

(c) the insurance fund’s right of recovery against former directors of uninsured corporations lends support to the proposition that the proper interpretation of s 142B(1)(a) cannot be fulfilled merely by the naming of a non-existent entity as a purported respondent.

3. Mr Howard submitted:

(a) section 142B does not require an employer to be joined as a party to the proceedings, but merely that it be “named as a respondent” in the proceedings;

(b) clause 180(c) of the 2010 Regulation contemplates the very issue under consideration in this matter, namely, where a corporation has ceased to exist and is named in a claim made to a court or the Commission under section 142B, then the applicant is not, subject to any rules of the court or the Commission, required to serve a copy of the application on that corporation;

(c) clause 180(c) was drafted to overcome the difficulty of serving a corporation named in proceedings under s 142B, but which has ceased to exist, with a copy of the applications, and

(d) clause 180(c) would be rendered “superfluous” if s 142B was to be interpreted as contemplated by WorkCover.

4. WorkCover, in response, made further submissions, including submissions that Mr Howard’s reliance on cl 180 was misplaced and cl 180(c) could not be used to limit the operation of a requirement stated in a section of an Act [31].

5. WorkCover’s submissions have been previously rejected by the former Compensation Court of NSW (see Carter v The Khamis Mushayt Armed Forces Hospital [1994] NSWCC 27; 10 NSWCCR 605 (Carter) and Hicks v Shane & Gary Burton Pty Ltd [2002] NSWCC 65 (Hicks)).

6. In Carter, Campbell CJ said (at 610B) in relation to s 144(2), which was, at the time of the decision, in substantially the same terms as s 142B(1)(a):

The literal words of the subsection do not require effective, or indeed any, service. In my view once an application for determination has been filed naming the employer (as well as WorkCover) as a respondent the requirements of the subsection have been met.

7. In Hicks, Neilson CCJ said (at [4] and [5]) that cl 77(1)(c) of the Workers Compensation (General) Regulation 1995, which was in substantially the same terms as cl 180(c) of the 2010 Regulation:

clearly envisages a non-existent company being named as a respondent in the proceedings which is what has occurred in the current matter and not requiring service upon a non-existent company, which, of course, would at any rate be an impossibility.

By implication the regulation validates what has been done in the current proceedings. The regulation appears to permit proceedings to be continued against the WorkCover Authority as if it were the insurer of the de-registered company in much the same [way] as an insurer of a de-registered company can be pursued in a claim pursuant to s 162 of the Workers Compensation Act 1987.

8. Consistent with Carter, Hicks and cl 180(c), s 142B does not require a deregistered company to be restored to the company register before a worker can claim against the Nominal Insurer and service of the application is not required to be effected on the “named” employer.

9. WorkCover could restore Diamond Grids to the company register if it sought to recover, under s 145, any payments ultimately made to Mr Howard (see WorkCover Authority of New South Wales v Picton Truck & Trailer Repairs Pty Ltd (deregistered) [2004] NSWCA 371; 22 ACLC 1517).

Section 601AG

10. This section only applied where “the insurance contract” covered the company’s liability immediately before deregistration. The Nominal Insurer’s liability did not arise under an insurance contract, but under the terms of the 1987 Act. As such, s 601AG had no application.

Non-insurance

11. Mr Howard had to establish that Diamond Grids was not insured under the 1987 Act at the time he stopped work. More than due search and inquiry was required. The Commission must be satisfied, on the balance of probabilities, that Diamond Grids was uninsured (see Rockcote Enterprises Pty Ltd v Fire Service Architects Pty Ltd [2008] NSWCA 39 at [78]).

12. Mr Howard’s solicitors sought information regarding insurance for Diamond Grids from WorkCover and wrote to various insurers requesting that they search their current and archived records, covering over 120 past and current insurers. Although responses covering only 29 insurers were received, the inquiries made by Mr Howard’s solicitors were sufficient to discharge the onus of proof.

Noisy employment

13. Mr Howard had to establish that his employment was of such a nature as to be capable of causing boilermaker’s deafness. Evidence should be sufficiently detailed to establish that the noise to which Mr Howard was exposed was capable of causing boilermaker’s deafness (Dawson t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35). A worker must establish that the nature of his or her employment with the employer in question involved a real, as opposed to a theoretical, risk of hearing loss (Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697).

14. WorkCover criticised the evidence from the worker’s ear, nose and throat specialist (Dr Macarthur) because he failed to obtain an accurate history and, as such, his opinion was defective and could not be relied on.

15. Although Dr Macarthur’s history did not precisely accord with Mr Howard’s evidence, he recorded the essential circumstances of Mr Howard’s employment and the noise to which he was exposed as a boilermaker. Based on that history, Dr Macarthur provided uncontradicted evidence that Mr Howard’s employment with Diamond Grids was employment to the nature of which the disease of boilermaker’s deafness was due.

16. Dr Macarthur’s findings on examination, coupled with his conclusion that Mr Howard suffered from bilateral sensorineural deafness (boilermaker’s deafness) and had not suffered a severe head injury or been exposed to other relevant noise as an employee in New South Wales, provided a fair climate for the Arbitrator to accept the doctor’s opinion (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510) [92].

Inghams Enterprises Pty Ltd v Rachmaninoff [2011] NSWWCCPD 35

Duty to give reasons for decision; s 74 of the Workplace Injury Management and Workers Compensation Act 1998; requirements as to giving notice of dispute; s 357 of the Workplace Injury Management and Workers Compensation Act 1998; Commission’s discretion to give directions requiring production of documents; failure to exercise discretion; allegation of ‘nature and conditions’ injury; consequences of failure to adequately particularise injury alleged; parties’ obligation to adhere to Registrar’s Guidelines

O’Grady DP

6 July 2011

Facts:

Mr Rachmaninoff commenced employment as a farmhand with Inghams Enterprises Pty Ltd (Inghams), the appellant, in 2002. His duties involved catching chickens, which required a lot of bending, twisting, working on uneven surfaces and lifting weights between 7 and 10 kg. Mr Rachmaninoff alleged that the “nature and conditions” of this work between 2002 and December 2009 caused injury to his back.

Mr Rachmaninoff’s claim for lump sum compensation (which did not nominate a particular date of injury) in respect of five per cent whole person impairment was declined by Inghams, a self-insurer. The s 74 notice stated that liability had been denied “as [Mr Rachmaninoff] has not sustained whole person impairment as a result of the injury on 20.6.08”.

Proceedings were commenced. At the teleconference, Mr Rachmaninoff asked, and it was ultimately ordered by the Arbitrator (in a Certificate of Determination dated 16 July 2010), that the matter be remitted to the Registrar for referral to an AMS for assessment. That request was founded upon the absence of any denial of injury made by Inghams in its s 74 notice. Inghams asked that the matter proceed to arbitration. The Arbitrator noted at [7] of Reasons that “no issue which could be determined at an arbitration was identified in the s 74 notice”. Leave was granted to issue notices for production to third parties and to file and serve relevant material from documents produced for referral to the AMS by a certain date. Mr Rachmininoff was examined by the AMS, and the MAC was prepared, prior to that date. After the AMS had the opportunity to review the material filed by the parties, the MAC that had been prepared earlier was issued unaltered. The Certificate of Determination dated 9 February 2011 ordered that Inghams pay Mr Rachmaninoff, “as lump sum compensation under section 66, $8662.50 in respect of 6% permanent impairment resulting from injury on Nature and Conditions of employment from 2002 to 2009”.

Prior to the issue of the MAC, Inghams sought leave to issue directions for production (directions) to various insurers, following receipt of information from WorkCover in relation to prior workers compensation claims. The directions were issued in error without leave being granted by the Arbitrator. The parties were informed by the Commission that the directions were a “nullity”. No documents were produced in response to the directions.

Inghams appealed the AMS’s decision. That appeal did not proceed, as the delegate of the Registrar was not satisfied that at least one of the grounds of appeal as specified in s 327(3) of the 1998 Act had been made out.

On appeal, Inghams challenged the determination found in both Certificates of Determination.

Held: Certificates of Determination dated 16 July 2010 and 9 February 2011 were confirmed.

Nature of the appeal

1. The Registrar’s orders (in Certificate of Determination dated 9 February 2011) were final orders concerning Inghams’s liability to pay compensation benefits to Mr Rachmaninoff. The appeal concerning those orders was governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010 (the amending Act): Sch 6 Pt 19G cl 8 to the 1987 Act.

2. The orders made by the Arbitrator (in Certificate of Determination dated 16 July 2010) were in the nature of interlocutory orders which could be challenged on this appeal (Bunning v Cross (1978) 141 CLR 54 per Jacobs J at 82 and Crowley v Glissan (No 1) (1905) 2 CLR 402). Mr Rachmaninoff did not press an earlier argument that the time requirements found in s 352(4) of the 1998 Act raised a bar to the appeal in relation to the orders made in July 2010 [67]. The appeal of those orders and the Arbitrator’s refusal to make directions requiring production of documents was governed by the provisions of s 352 of the 1998 Act in its form before the amendments effected by the amending Act.

Failure to give reasons/adequate reasons

3, Inghams submitted that reasons did not accompany the Certificate of Determination dated 9 February 2011. That argument was rejected. The Registrar’s orders were made having regard to the MAC. The only dispute between the parties concerned the question of whole person impairment. The MAC had been obtained in accordance with the provisions of s 65(3) of the 1987 Act. The MAC is conclusively presumed to be correct as to the degree of permanent impairment of the worker as a result of an injury: s 326(1)(a) of the 1998 Act. This was sufficient to satisfy s 294 of the 1998 Act [73]–[74].

4. Inghams also complained that the reasons given by the Arbitrator for refusing to appoint an arbitration hearing were inadequate. On appeal, it was determined that, although the Arbitrator did not specifically mention s 289A of the 1998 Act, it was clear at [7] of Reasons that her decision was founded upon the absence of any matter in dispute in respect of which notice had been given [91].

Refusal to “give leave” to the appellant to file and serve directions for production of documents

5. No order or refusal was made in respect of Inghams’s application for directions for production of documents [94].

6. The Commission’s power to give such a direction is found in s 357 of the 1998 Act and the exercise of that power was regulated at the time by the provisions of former Pt 13 r 13.4 of the Workers Compensation Commission Rules 2006 (the 2006 Rules). Such a direction may, at the Commission’s discretion, be given: s 357(1). The Arbitrator’s failure to exercise that discretion was an error of law [95].

7. The question was whether Inghams’s application was a special case and whether the making of an order was required “for the avoidance of injustice”: Pt 13 r 13.4(1) of the 2006 Rules [101]. The answer to this was “no”, for the following reasons:

(a) there was no evidence that the materials sought to be produced were relevant to the claim before the Commission [97];

(b) Inghams speculated as to possible relevance of any material held by those third parties [98];

(c) there was evidence that suggested that at least one of the third parties held records relating to a completely irrelevant claim [98], and

(d) there was no other evidence that suggested a relevant antecedent back injury [99].

Nature and conditions

8. Inghams’s submission that, due to the lack of particularity in the manner of description of the injury, “a section 74 Notice can’t issue” was rejected. Any fair assessment of the claim would have led to a clear realisation that the careless use of the term “nature and conditions” referred to injury occasioned by the physical demands of work carried out over a period of time [111].

9. Inghams complained that “no date of injury is specified” and that the Arbitrator allowed Mr Rachmaninoff to amend the injury particulars to extend the period of “nature and conditions” from 2008 to 2009. The amendment was required to permit correspondence between the poorly drafted allegation of injury and the evidence Mr Rachmaninoff relied upon. Inghams was fully aware of those allegations of work-related injury extending into 2009, and no prejudice to it was made out [115].

Failure to determine a date of injury

10. Inghams submitted that failure to make a finding of injury otherwise than as made concerning a nature and conditions related injury would have consequences, including difficulty in determining monetary entitlement [119].

11. The whole person impairment determined by the AMS was the result of work-related traumata. The pathology involved damage to Mr Rachmaninoff’s lumbar disc at L5/S1. Having regard to s 322 of the 1998 Act and the reasoning in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288 (at [26] and [27]), impairments resulting from the “same injury” (the same pathology), being a consequence of the traumata, are to be assessed together [122].

Procedural fairness

12. Inghams suggested that it was not afforded procedural fairness by the Arbitrator due to her failure to list the matter for arbitration. Where the only issue in dispute is the existence of whole person impairment, the provisions of the Acts operate so as to have that question determined by an AMS (s 65(3)). The Arbitrator was obliged to refer the dispute to an AMS: Haroun v Rail Corporation NSW [2008] NSWCA 192; 7 DDCR 139 (per Handley JA at [20]) [124].

13. Inghams did not give notice of a liability issue that required adjudication by an arbitrator [126].

Mid Coast County Council v Platz [2011] NSWWCCPD 36

Section 40(2)(b) of the Workers Compensation Act 1987; ability to earn in some suitable employment; s 40(1) of the Workers Compensation Act 1987; exercise of discretion to determine proper quantum of weekly payments

O’Grady DP

14 July 2011

Facts:

Mr Platz commenced employment with Mid Coast County Council (Mid Coast), the appellant, in September 2000 and remained in that employ until he was stood down on full pay on 1 December 2009. At that time, he was working as a maintenance operator. His employment was terminated on 1 March 2010.

Mr Platz alleged that, prior to being stood down, he had been subjected to bullying, harassment and victimisation by his fellow workers in the course of his employment, and that such treatment caused psychological injury which resulted in his incapacity for work.

Mr Platz claimed compensation benefits from Mid Coast on 9 December 2009. Liability was disputed and notice of the dispute was given by Mid Coast’s insurer in s 74 notices (in substantially identical terms) dated 30 December 2009 and 27 January 2010. Mid Coast asserted that “work was not a substantial contributing factor” to injury in terms of s 9A of the 1987 Act.

Mr Platz commenced proceedings in the Commission claiming weekly payments and medical expenses. The matter proceeded to hearing and the Arbitrator made orders in favour of Mr Platz. She found that he had suffered a psychological injury under s 4 of the 1987 Act, employment was a substantial contributing factor to the injury under s 9A of the 1987 Act, and that he was entitled to weekly compensation under ss 36 and 40, and s 60 expenses.

Mid Coast appealed. The issue in dispute in the appeal was whether the Arbitrator erred in her determination of Mr Platz’s entitlement to an award of weekly compensation under s 40 of the 1987 Act.

Mid Coast argued that the Arbitrator erred in her reasoning concerning the proper construction and application of the provisions of s 40(1) and s 40(2) of the 1987 Act. Mid Coast said that the evidence did not support a finding that Mr Platz “could no longer perform the duties of a plumber or plumber’s assistant or find or obtain work with local plumbing and drainage companies” [41]. Mid Coast also submitted that the Arbitrator erred in rejecting its argument that Mr Platz had a “residual earning capacity of at least $800 per week” [46]. It said that she relied on “speculative and unreliable” evidence and that she “dismissed demonstrated earnings” [49]. It also complained that the Arbitrator failed to properly exercise her discretion under s 40(1) as outlined in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (Mitchell) by failing to take into account that Mr Platz had “deliberately taken himself away from paid work that could have returned or paid equal to or close to [Mr Platz’s] pre-injury probable earnings” [53].

Held: Arbitrator’s decision confirmed.

1. The Arbitrator accepted Mr Platz as a witness of truth. No express submission was put to challenge that credit finding. There was no evidence before the Arbitrator that contradicted Mr Platz’s evidence concerning the state of his reputation in the plumbing trade in his geographical area [44]. It was open to the Arbitrator to accept these matters despite the absence of corroboration. There was no factual error by the Arbitrator [45].

2. Entitlement to weekly compensation is to be determined, as stated by Glass JA in Hill v Bryant (1974) 2 NSWLR 423, where the similar provisions of s 11(1) of the Workers’ Compensation Act 1926 (now repealed) were being considered (at 428):

The inquiry to be undertaken in obedience to the section is designed to ascertain a weekly payment not to be exceeded, that maximum being the difference between two weekly amounts. The difference is obtained by subtracting from a sum hypothetically earned the larger of two other sums one actually received as earnings and the other hypothetically earned.

3. It was open to the Arbitrator to accept that the invoices totalling $800 rendered by Mr Platz in August 2010 were in respect of “cumulative work” and not in respect of one week’s work [50]. Mr Platz’s actual earnings, averaged over the relevant period, were determined as being $71.16 per week.

4. The Arbitrator’s finding as to Mr Platz’s ability to earn ($517.50) was founded on her acceptance that he was able to work 25 hours per week in suitable employment, a sales position, paid at the same hourly rate as he was paid at Repco. The Arbitrator dealt with the determination of Mr Platz’s entitlement to weekly compensation in accordance with the observations of Glass JA.

5. The fact that Mr Platz had, as alleged by Mid Coast, “deliberately taken himself away from paid work” was only relevant, if at all, to the determination of Mr Platz’s ability to earn (step two of Mitchell) [54]. As was stated by the Court in Mitchell (at 534–535):

self-induced diminution of earning capacity lies squarely within the exercise required to be carried out at what we have identified as the second stage. The matters to which Egan A-CCJ referred go directly to the ‘worker’s ability to earn in the general labour market reasonably accessible to the worker’ and are therefore required (by section 40(3)(a)) to be taken into account in the section 40(2)(b) exercise. In consequence, there can be no justification for taking them into account in the additional discretionary phase.

6. The Arbitrator appropriately exercised her discretion in s 40(1) in determining entitlement [55].

Fire and Rescue New South Wales (formerly NSW Fire Brigades) v Guymer [2011] NSWWCCPD 38

Injury arising out of employment; s 4(a) of the Workers Compensation Act 1987; causal connection between injury and employment; whether injury wholly or predominantly caused by reasonable action taken with respect to demotion or discipline; s 11A of the Workers Compensation Act 1987

O’Grady DP

29 July 2011

Facts:

Mr Guymer commenced service with Fire and Rescue NSW, the appellant, in 1978. He attained the rank of superintendent and held the position of Zone Commander.

In July 2008, as a result of anonymous correspondence received by the ICAC alleging “corrupt practices within the NSW Fire Brigades” and naming Mr Guymer, an independent investigation was conducted to investigate Mr Guymer’s alleged unauthorised absence from the work location on a number of occasions, alleged false claims for expenses and suggested misuse of a government credit card. The latter allegation was ultimately withdrawn. The independent investigation report found prima facie evidence of misconduct by Mr Guymer relating to claims for expenses and suggested false entries in vehicle running sheets. Disciplinary proceedings against Mr Guymer were commenced and certain matters were referred to the police. The allegations concerning absences and credit card fraud were not pursued. He was demoted to Inspector and was not eligible for promotion for a minimum of two years.

On 11 March 2008 and 17 April 2009, a Sydney radio broadcaster interviewed the Commissioner regarding allegations of corruption. Mr Guymer was not identified in those interviews.

On 7 July 2009, Mr Guymer entered a plea of guilty to the charge of “make false statement to obtain money”. The charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.

On 21 July 2009, while on holiday leave, Mr Guymer was informed by a colleague that a radio broadcaster was discussing on radio the sexual assault of a firefighter, making accusations of a cover-up and a conspiracy by officers to persecute the victim. In 2007, Mr Guymer had interviewed a firefighter who informed him that he had been sexually assaulted at a fire station in 1985 and he suspected that the content of the radio broadcast involved him.

On 22 July 2009 and 23 July 2009, Mr Guymer heard further broadcasts concerning the allegations of sexual assault, absence of support for the victim and cover-up. He was named during the broadcast on 23 July 2009. He was informed of a subsequent broadcast on 24 July 2009, during which the Minister was interviewed concerning the allegations.

He alleged that, as a consequence of the radio broadcasts, he received a psychological injury causing incapacity. Mr Guymer’s allegation was that injury was caused when, in July 2009, Sydney radio broadcasts identified him “as having committed credit card fraud” and as being “implicated in an alleged assault matter”. Fire and Rescue NSW raised a defence under s 11A of the 1987 Act.

The Arbitrator made an award for compensation benefits in favour of Mr Guymer. This decision was appealed on the basis that the Arbitrator erred in determining that Mr Guymer received injury within the meaning of s 4 of the 1987 Act and in finding against Fire and Rescue NSW in respect of the s 11A defence.

Fire and Rescue NSW, on appeal, submitted:

(a) that the Arbitrator made a finding that Mr Guymer’s psychological injury was caused by the broadcast comments [70];

(b) the Arbitrator’s reference to “a connection” between injury and employment was “an erroneous interpretation of s 4 of the Act” [72];

(c) that attention was given only to the existence of a “connection” rather than a “causal connection” [73];

(d) that the Arbitrator “erred in his application of the ‘common sense analysis of the causal chain’” [74];

(e) the Arbitrator erroneously adopted the “but for” test of causation [75];

(f) that an unbroken causal chain was not established [76];

(g) that, whilst Mr Guymer “ultimately experienced a situation where he was deleteriously named on public radio”, such was not “part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury” [78];

(h) that “the mere fact that Mr Hadley’s comments made reference to the overall employment of [Mr Guymer] does not… make them part of ‘employment’ as understood following Federal Broom, Mercer and Badawi” [79];

(i) that the conduct leading to police charges took Mr Guymer outside his employment [81], and

(j) any distress suffered by Mr Guymer because of the broadcasts concerning sexual assault and cover up “did not arise out of his own employment, but only out of ‘being employed’” [81].

Held: Arbitrator’s decision confirmed.

Did injury arise out of employment?

1. There was no dispute between the parties that Mr Guymer received a psychological injury following the July broadcasts.

2. The Arbitrator had in mind those general considerations as to the question of causation explained in the decision of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). The Arbitrator acknowledged that the question addressed in Kooragang was to be distinguished from the question before him. The distinction was that in Kooragang the question was whether the worker’s death “resulted from” an admitted injury. The Arbitrator’s use of the term “a connection”, after his consideration of Kooragang was intended to connote “causal connection”. [85]

3. The Arbitrator was entitled, after a commonsense evaluation of the evidence, to determine that the injury received following the broadcasts arose out of his employment, as the broadcasts concerned Mr Guymer’s performance of his duties and allegations of improper conduct by him as an officer of Fire and Rescue NSW [88]–[89].

4. Regard was had to what was said by Windeyer J in Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437 where, in a different context, the terms “caused by” and “arising out of” were considered. His Honour said (at 447):

“Caused by’ connotes a ‘direct’ or ‘proximate’ relationship of cause and effect. ‘Arising out of’ extends this to a result that is less immediate; but it still carries a sense of consequence.

5. A finding that the injury suffered by Mr Guymer had a direct or proximate relationship to the broadcasts did not preclude a conclusion, after a commonsense evaluation of the evidence, that the injury was a consequence of the employment and as such was causally related to it and therefore arose out of employment [91].

6. The Arbitrator was not considering the question of causal nexus when he used the term “but for” in Reasons. He was making the point that, if not for injury, Mr Guymer would have continued working [92].

7. On the evidence, it was Mr Guymer’s employment that required him to suffer the broadcasts which caused the injury. It was not Mr Guymer’s case that the broadcasts were part of his employment, but that the injury caused by the broadcasts arose out of his employment [93].

8. Consideration of the question as to whether injury arose out of employment does not require debate concerning “questions of the scope of employment. The question which [requires determination] is to be answered by enquiring whether there was a causal connection between the employment and the injury” (Tarry v Warringah Shire Council [1974] 48 WCR 1 (per Samuels JA at 8) [94].

Section 11A defence

9. The broadcasts and their consequences were concerned with the employment, and the injury received by Mr Guymer was causally related to the employment [102].

10. The s 11A defence could not be successful, as there was no disciplinary action taken or proposed to be taken at the time of the broadcasts in respect of any credit card fraud. As to the suggested investigations into Mr Guymer’s involvement in the complaint of sexual assault, all that was revealed on the evidence was that there was a leaked ministerial brief. At the time of the broadcasts, Mr Guymer had no knowledge of that action being taken by his employer, and had no knowledge of any complaint being made by the firefighter in February of that year [102].

11. The injury was caused by the public broadcast, not by action taken with respect to discipline or demotion [102].

12. The medical opinions were unanimous that it was the broadcasts which were the proximate cause of the incapacity [103].