Issue 5: September 2018

The issues on appeal were whether the Arbitrator erred in:

finding that Sch 8, Pt 2A, cl 28C of the 2016 Regulation provided an additional right to an assessment by an AMS when an additional AMS assessment had already occurred pursuant to cl 11 (Ground No 1), and

in finding that Sch 8, Pt 2A, cl 28C of the 2016 Regulation provided a further right of AMS assessment separate to the right under Sch 8, cl 11, when that clause had not been relied upon by the worker and the appellant was not asked to make submissions on that Part (Ground No 2).

Discussion

1. The constructional choice focused on cl 28D(3) of Pt 2A of the 2016 Regulation, and the interaction between cl 11 and Pt 2A. ([58]–[60])

(Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101 and Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; 78 NSWLR 704 referred to)

2. The application of cl 11 of Pt 1 of Sch 8 is not dependent on whether a worker is an ‘existing recipient of weekly payments’. It provides for one “further lump sum compensation claim” in respect of an “existing impairment”. An “existing impairment” is defined in subcl (6) as “a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012”. A “further lump sum compensation claim” is defined as “a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment”. ([63])

(Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46 and Draca v Formtec Group (NSW) Pty Ltd [2016] NSWWCCPD 53 referred to)

3. Clause 11 of the 2016 Regulation provides for one further lump sum compensation claim in specified circumstances. It is restricted to injured workers with ‘an existing impairment’, who have made a lump sum claim before 19 June 2012 (see the definition of ‘existing impairment’). The respondent was such a worker. ([72])

4. Subclause 11(5) provides for the consequential amendment of specified sections and clauses of the 1987 and 1998, Acts, and the 2016 Regulation, which are to be “read subject to this clause”. These limited amendments are those necessary for the operation of cl 11, in respect of ‘a further lump sum compensation claim’. Subclause (4)(c) restricts the operation of s 322A of the 1998 Act only “for the purposes of a further lump sum compensation claim”. That is, an assessment permitted pursuant to cl 11 could not be used for a purpose beyond the further lump sum claim allowed, in certain circumstances, by that clause. The application of s 322A is removed by cl 11 only to that extent. Clause 11 does not restrict the number of further assessments that can be made, but cl 11(2) restricts a relevant injured worker to “[o]nly one further lump sum compensation claim”. ([73])

5. Clause 28D(2) provides that s 322A does not prevent a further assessment for the purposes of Pt 3 of the 1987 Act. Part 3 deals with benefits, including weekly payments, medical and related expenses, and lump sum compensation. However, the provisions of the Workers Compensation Acts that are “deemed to be amended” by Pt 2A are s 39 of the 1987 Act, Pt 19H of Sch 6 of the 1987 Act (the transitional provisions applying to the 2012 Amending Act) and s 322A of the 1998 Act. ([76])

6. Assessments permitted on the basis of cl 11 and Pt 2A of the 2016 Regulation are different. Access to cl 11 requires that an injured worker, before 19 June 2012, have made a lump sum compensation claim in respect of the relevant injury (see the definition of ‘existing impairment’ in cl 11(6)). Access to Pt 2A, on the other hand, requires that the injured worker was an ‘existing recipient of weekly payments’ within the meaning of the definition in Sch 6, Pt 19H cl 1 of the 1987 Act (see Pt 2A, cl 28B(2)). These classes of injured worker are not coextensive. The scope of the assessments, under cl 11 and Pt 2A, are expressed differently. An assessment pursuant to cl 11 is “for the purposes of a further lump sum compensation claim”. An assessment pursuant to cl 28D is “for the purposes of Part 3 of the 1987 Act”. The consequential amendments to the Workers Compensation Acts and Regulation, contained in these provisions, are different (see subcll (3) and (5) of cl 11, and subcl 28A(2) and cl 28C of Pt 2A). Clause 11 permits an injured worker to make a “further lump sum compensation claim”, and such a claim “is not required to be greater than 10%”. The consequential amendments described in subcl 28A(2) of Pt 2A do not provide for amendment of s 66 of the 1987 Act. ([80])

7. There is nothing in subcl 28D(1) of Pt 2A that restricts the application of that subclause to an injured worker whose degree of permanent impairment has been assessed only once – subcl 28D(1) applies to an injured worker whose degree of permanent impairment “is or has been assessed”. There are varying bases on which more than one assessment could have been made before an injured worker seeks to invoke cl 28D(1). The injured worker may have had more than one assessment before commencement of the 2012 Amending Act. The injured worker may have been referred for further medical assessment or reconsideration pursuant to s 329 of the 1998 Act. The wording of subcl (1) does not exclude such injured workers from its operation. ([84])

8. The phrase ‘further assessment’ appears in both subcll 28D(2) and 28D(3). Subclause (2) refers to “a further assessment being made of the degree of permanent impairment resulting from the worker’s injury for the purposes of Part 3 of the 1987 Act”. Subclause (3) uses the phrase “a further assessment being made of the degree of permanent impairment resulting from the worker’s injury”. The wording is similar, but not identical. In both instances, the phrase ‘further assessment’ is used. ([85])

9. There is a difference between the classes of injured workers entitled to rely on cl 11 as opposed to Pt 2A. There is a difference in the effect of assessment pursuant to those two provisions. The language used to describe assessment pursuant to cl 11(4)(c) is different to the language used to describe assessment pursuant to Pt 2A. The difference in the wording in cl 28D, compared with that in cl 11(4)(c), is consistent with the view that there is a distinction between an assessment mandated by cl 11, and a ‘further assessment’ within the meaning of Pt 2A. Additionally, the broad reading of subcl 28D(3), for which the appellant argues, potentially involves inconsistency with s 329 of the 1998 Act. ([89])

10. The preferable construction of subcl 28D(3) is that “only one further assessment may be made” pursuant to Pt 2A of the 2016 Regulation. This construction is consistent with the object of Pt 2A, as described in the Explanatory note concerning the Workers Compensation Amendment (Transitional Arrangements for Weekly Payments) Regulation 2016, which inserted Pt 2A in the 2016 Regulation. It is consistent with a worker who is an ‘existing recipient’, who has previously been assessed, being entitled to one further assessment for the purposes of determining his or her entitlement to benefits. It followed that the respondent was entitled to the referral for further assessment made by the Arbitrator, unless he had previously had a further referral on the basis of Pt 2A. ([96])

11. A referral for assessment of the degree of permanent impairment, based on cl 11(4)(c) of the 2016 Regulation, was available to the respondent when the referral was made in matter no 629/17. Deputy President Snell concluded that such a referral would not constitute a ‘further assessment’ within the meaning of cl 28D. It followed that, if the referral for assessment in matter no 629/17 was pursuant to cl 11, the respondent remained entitled to a ‘further assessment’ based on Pt 2A of the 2016 Regulation. ([97])

12. The referral was in proceedings (matter no 629/17) which involved only a ‘further lump sum compensation claim’ within the meaning of cl 11 of the 2016 Regulation. The respondent’s other entitlements were being met voluntarily by the appellant. The further lump sum claim could only have been brought on the basis of cl 11. Otherwise it would have been prevented by s 66(1A) of the 1987 Act, cl 15 of Pt 19H of Sch 6 to the 1987 Act, and cl 10 of Sch 8 to the 2016 Regulation. Subclause 11(5) of the 2016 Regulation provides that those provisions of the 1987 Act and Regulation are to be read subject to cl 11. The respondent was dependent on the consequential amendments effected by cl 11, for his further lump sum compensation claim to have efficacy. The referral for assessment, in matter no 629/17, was pursuant to cl 11, not Pt 2A of the 2016 Regulation. There was no basis on which that referral should be characterised as one pursuant to Pt 2A. ([98])

13. Ground No 1 was rejected. Ground No 2 was a procedural fairness ground. The parties were given an opportunity during the appeal to make further submissions going to the point of statutory construction at issue. In those circumstances, the appellant requested that the issue of statutory construction be dealt with on the appeal, and the issue of procedural fairness did not arise. ([102]–[103]) As the Arbitrator’s referral for assessment was confirmed on the basis of Pt 2A of the Regulation, the respondent’s Notice of Contention did not arise.

Threshold matters

1.  The worker referred to the prior proceedings, contending that only the s 66 component was resolved and the s 60 expenses claim was at large. She asserted that the s 60 expenses claim had been joined to the present proceedings. Deputy President Wood noted that no documents were sought to be admitted in support of those assertions. ([18], [19], [37])

2. The Commission’s entire files were accessed and perused and there was no reference to any application pursuant to r 11.1 of the 2011 Rules to join the proceedings or any such order in any of the documentation or in the transcript of arbitration recorded in these proceedings. The respondent had no knowledge of any such application or order. The Deputy President rejected the worker’s assertion that the two matters were joined. ([42]−[43], [45])

3. In any event, a Certificate of Determination dated 12 May 2016 was issued in the prior proceedings by Arbitrator Moore. In that Certificate of Determination, the claim for lump sum in respect of the lumbar spine, the claim for injury resulting from the ‘nature and conditions of employment’ and the claim for s 60 expenses were discontinued. Even if the two matters had been joined, there was no evidence that the discontinued claim for s 60 expenses was revived, and so it could not be accepted that it was claimed in these proceedings. Whatever was claimed in the prior proceedings was of no assistance to the worker in relation to satisfaction of the monetary threshold in the proceedings. ([46])

4. Section 352(3) of the 1998 Act provides that there is no appeal under this section unless the amount of compensation at issue on the appeal exceeds $5,000. The general purpose and policy of the provision is to require a certain monetary threshold to be met, that is, there is “an amount in issue”. The provision restricts the right of appeal in a number of circumstances. The requirement is not a simple formality or technicality and its application does not offend the principles and objectives of the Commission set out in subss 354(1) and 354(3) of the 1998 Act. ([53], [55])

5. It appeared from the evidence that the worker had exhausted the temporary domestic assistance available to her pursuant to s 60AA(2) of the 1987 Act. ([62])

6. As the former s 352(2) was expressed in identical terms to s 352(3) as it now appears, the pre-2011 authorities dealing with the former s 352(2) are equally applicable to the issues relating to the monetary threshold pursuant to s 352(3). ([63])

(Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193 applied)

7. In some circumstances, the types of decisions referred to in subs 352(8) will not result in an award of compensation but still found an appeal to a Presidential member. Equally, a decision against a worker where an award for the respondent is entered is also capable of founding an appeal. ([65])

Application of the authorities

8. There was no “amount of compensation” claimed in these proceedings. The matter proceeded to arbitration as there were issues as to injury and consequential conditions, and there was an argument as to whether the losses from those injuries and conditions could be aggregated. If they could be aggregated, the assessment could potentially qualify the worker for entitlements to domestic assistance pursuant to s 60AA of the 1987 Act and/or ongoing weekly payments pursuant to s 39 of the 1987 Act. ([80])

9. Contrary to the worker’s submissions, the matters listed by the Arbitrator as in dispute were not “issues concerning claims for compensation”, they were issues as to liability for which an entitlement may at some subsequent stage crystalise and may or may not eventuate as an amount of compensation. Such an eventuality does not constitute a “real capacity” to put an amount in issue in this appeal. ([81])

(Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 (Regan), [27] applied)

10. In relation to the claim for domestic assistance, there was no care plan in evidence. Although the Commission now has jurisdiction to determine a claim for domestic assistance, a claim for compensation cannot be brought in the absence of a care plan. ([82])

11. Section 39 of the 1987 Act provides for the continuation of payments beyond the first 260 weeks if the worker satisfies the greater than 20% WPI threshold, however the worker’s entitlements are subject to the requirements of s 38 of the 1987 Act. Putting aside the question of the Commission’s jurisdiction to determine such a claim, there were no particulars provided that go to the matters that need to be satisfied under s 38. It was abundantly clear that no such claim was before the Commission. ([83])

12. The Deputy President did not accept the worker’s submission that Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25 (Abu-Ali) could be distinguished. It was on all fours with these proceedings. As in Abu-Ali, the worker in these proceedings was seeking a referral to an AMS for the purpose of reaching the necessary thresholds that, if reached, would enable her to make a claim for further weekly payments pursuant to s 39 and domestic assistance pursuant to s 60AA. There was no amount of compensation claimed before Arbitrator Wynyard and there was no amount of compensation directly at issue on this appeal. ([84]–[85])

(Regan; Grimson v Intergral Energy [2003] NSWWCCPD 29; NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63; O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 applied)

13. Deputy President Wood was not satisfied that the worker had met the monetary threshold pursuant to s 352(3)(a) of the 1998 Act and the appeal could not be brought. ([86])

This appeal concerned:

(a) whether the consequential condition of the right leg was compensable in circumstances where there was no change in the worker’s overall assessment of permanent impairment, and

(b) whether the Arbitrator provided sufficient reasons for his decision.

Held: The Arbitrator’s Certificate of Determination was confirmed. 

Discussion

1. The worker’s November 2017 claim was a further lump sum compensation claim pursuant to cl 11(6) of Sch 8 to the 2016 Regulation, having previously settled a claim for lump sum compensation in respect of the existing impairment in a complying agreement in May 2012. The November 2017 claim was the one further lump sum compensation claim that may be made pursuant to cl 11(1) and (2). It was available as if s 66(1A) of the 1987 Act had never been enacted (cl 11(4)(a)). It did not matter that the degree of permanent impairment was not greater than 10%, as the effect of cl 11 is to preserve the worker’s entitlement to make one further claim in respect of all impairments arising from his accepted injury. ([57]–[58])

2. The President observed that s 66(1A) and cl 11 must be read with s 66A(3) of the 1987 Act. Section 66A(3) provides for the Commission to award compensation additional to compensation payable by a complying agreement, if one of the conditions under s 66A(3) is satisfied. The only relevant condition was s 66A(3)(c) of the 1987 Act, which provides the Commission with jurisdiction to award compensation additional to the compensation payable pursuant to a complying agreement where there has been an increase in the degree of permanent impairment since the complying agreement was entered. ([59])

3. Contrary to the worker’s submission, the Arbitrator was not required to consider the degree of permanent impairment assessed by the worker’s forensic medical expert. The Arbitrator was only required to consider the conclusive and binding Medical Assessment Certificate issued by the Approved Medical Specialist. That Medical Assessment Certificate was to take effect according to the terms of the relevant legislation. ([61])

4. The President rejected the worker’s submission that the right leg was a further condition which warranted a separate assessment and award. Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker (s 322(2) of the 1998 Act). The worker’s further claim for lump sum compensation was in respect of impairments that result from the same injury which had been the subject of the May 2012 complying agreement. There was only one injurious event, that is, the event that occurred in August 2009. The impairment to the right lower leg was an alleged consequential condition arising from the accepted lumbar spine injury in August 2009. ([62]–[64])

5. As the worker was unable to establish an increase in the degree of permanent impairment since the complying agreement was entered, he did not satisfy s 66A(3) of the 1987 Act. It followed that the Arbitrator did not err in finding that the worker was not entitled to further lump sum compensation pursuant to s 66 of the 1987 Act. ([65]–[67]).

6. The Arbitrator provided the reasoning process that led him to find that the worker had no entitlement to further lump sum compensation pursuant to s 66 of the 1987 Act. While the Arbitrator could have elaborated further on the reasons for making that finding, the reasons satisfied the statutory duty to provide “brief reasons” pursuant to s 294 of the 1998 Act. ([71])

7. The worker did not demonstrate that the Arbitrator’s reasons were inadequate or that such inadequacy disclosed that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the dispute. Even if the Arbitrator’s reasons were inadequate it did not affect the result because the worker was not entitled to the further lump sum compensation claimed. ([72]–[73])

(YG & GG v Minister for Community Services [2002] NSWCA 247; Young v Labourpower Recruitment Services Pty Ltd [2016] NSWWCCPD 37 considered and applied)

The issues on appeal were whether the Arbitrator erred:

(a) by failing to take account, or adequate account, of the totality of the worker’s conduct that resulted in the accident (Ground 1);

(b) by failing to allow the Council to raise alcohol consumption as an issue (Ground 2);

(c) by misunderstanding the relevance of consumption of alcohol (Ground 3);

(d) in the application of the relevant authorities to the facts in this case (Ground 4);

(e) in finding the injury was not attributable to gross misconduct and in relying on the same grounds advanced in respect of serious and wilful misconduct to find that the injury was a personal injury within the meaning of s 4(a) of the 1987 Act (Ground 5), and

(f) in finding that the worker was entitled to treatment expenses pursuant to s 60 of the 1987 Act (Ground 6).

Held: The Certificate of Determination dated 11 April 2018 was confirmed.

1. It was convenient for Deputy President Wood to deal with Ground 2 before proceeding to determine the remaining grounds.

Ground 2: The Arbitrator erred by failing to allow the Council to raise alcohol consumption as an issue

2. An Insurer does not satisfy the obligations imposed upon it by s 74 of the 1998 Act by leaving the worker to work out exactly what issues are raised and disputed. It is immaterial that documents may have been attached to the s 74 notice that go to the issue. ([147])

(Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 (Mateus), [45] applied)

3. Alcohol consumption, and the effect it may have had on the worker’s driving ability, was not raised at all in either of the s 74 notices. The Deputy President did not accept that the insurer’s notice squarely raised all issues that the worker needed to address. In those circumstances, it is incumbent upon the Council to satisfy the Commission that it is in the interests of justice to allow the late issue (alcohol consumption) to be raised (s 298A(4) of the 1998 Act). To allow the issue to be raised is an exercise of discretion. ([150]–[151])

4. Despite the worker’s (undated) submissions directed to the Arbitrator that the Council’s notice pursuant to s 74 did not raise alcohol consumption, the Council made no attempt to respond to that point or defend its position. The Council made no submissions to the Arbitrator (or in this appeal) as to why the discretion ought to be exercised in its favour in the event that s 289A of the 1998 Act prevented the Council from raising the issue in its primary submissions. The Council was content to let the matter proceed to determination, with a Certificate of Determination being issued on 11 April 2018, some three weeks later. ([153]–[154])

5. Applying the principles in Mateus, the Council provided no explanation for the delay in notifying the issue, the worker would clearly have been prejudiced if the issue was allowed to be raised and there was little evidence to support the argument that alcohol was, on the balance of probabilities, a factor contributing to the accident. It was appropriate for the consumption of alcohol to be excluded in the consideration of the worker’s conduct. In the circumstances, the Council had not identified any error on behalf of the Arbitrator in the exercise of his discretion to exclude the consumption of alcohol as a factor in his consideration of the worker’s conduct. This ground of appeal failed. ([156])

Ground 1: The Arbitrator erred by failing to take account, or adequate account, of the totality of the worker’s conduct that resulted in the accident

6. Deputy President Wood held that it was not open to conclude that the road was damp. It was not a factor to consider in respect of the worker’s conduct. The effect, if any, of the blood alcohol content had also been excluded as a factor. Although the Arbitrator had failed to consider the submission that the road was damp, it had not affected his conclusion and could not amount to error. ([162])

7. It was apparent, however from his reasons that the Arbitrator had not appreciated the Council’s submission that the whole of the conduct should be considered. The Council submitted that the context in which the injury occurred was relevant. That is, the risk of the injury occurring was set in circumstances where the worker was travelling at speed, on a single lane highway without a dividing structure, at the same time as using a hand held mobile telephone. Those factors were clearly set out in the second s 74 notice and were matters raised by the Council in its submissions. ([163])

8. While the Arbitrator noted the evidence before him, Deputy President Wood did not accept the worker’s submission that the Arbitrator analysed and dealt with all the elements of the conduct. The entirety of the speed at which the worker was travelling was relevant, not just that he was “slightly” over the speed limit. He was using his mobile telephone, that by his own admission required him to take one hand off the wheel at the same time as being distracted by the use of his telephone. These were material facts that the Arbitrator was required to take into account in making his evaluative judgment as to whether the worker’s behaviour constituted serious and wilful misconduct. ([164]–[165])

(Edwards v Noble [1971] HCA 54; 125 CLR 296 referred to)

9. The Arbitrator gave no explanation as to why he considered only the facts of driving “slightly” above the speed limit and using his mobile telephone in making his findings. He failed to take into account factual matters that were put to him in submissions and were facts in evidence before him – that is, that the worker was travelling at a relatively high speed, on a two-way carriageway without barriers and, while making a telephone call, took one hand off the wheel. The Arbitrator was required to take those matters into account and in failing to do so had fallen into error in making his evaluative judgment of the conduct. ([166])

(Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, [171] applied)

10. As this ground of appeal established error, the Arbitrator’s findings were revoked and it was not necessary to consider the remaining grounds of appeal. Where an Arbitrator’s findings are revoked, it is generally desirable that the Presidential member hearing the appeal re-determine all issues. ([167])

(Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 referred to)

Consideration

Did the conduct constitute serious and wilful misconduct?

11. The phrase “serious and wilful misconduct” comprehends more than negligence, carelessness, or the mere disregard of orders. The person performing the act must:

(a) know that it will cause injury, or

(b) act with disregard as to whether it will cause injury, and

(c) proceed in any event without regard to the risk.

Not every breach of a law or rule by a worker would necessarily be regarded as serious misconduct. ([179]–[180])

(Johnson v Marshall Sons & Co Ltd [1906] AC 409; Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45 (Higgins) and Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; 18 NSWCCR 109 applied)

12. Deputy President Wood was clearly satisfied that the worker’s conduct was both serious and wilful, and that he was aware his conduct carried a risk of serious injury in accordance with s 10(1A) of the 1987 Act. She was further satisfied that the worker’s injuries were attributable to the conduct. Accordingly, compensation pursuant to s 10(1) of the 1987 Act was not payable. ([184]–[188], [212])

Did Mr Knapp suffer a personal injury arising out of or in the course of his employment?

13. The Council did not raise an issue or make any submission to the Arbitrator in relation to whether employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act. ([191])

14. It is incorrect to say that if someone is guilty of gross misconduct, they cannot be in the course of employment. The proper approach is to first determine whether the worker suffered a personal injury arising out of or in the course of his or her employment. If it is alleged that the worker’s conduct constituted gross misconduct, then an evaluative assessment of that notion is required before a consideration of whether the gross misconduct was of such a nature that it took the worker out of the course of his or her employment. ([194]–[195])

(Higgins applied)

15. The notion of “gross misconduct” does not appear in the New South Wales workers compensation legislation. As Priestley JA said in Higgins, the idea of gross misconduct is a “judicial gloss” and not a statutory concept. ([196])

16. The phrases “in the course of employment” and “arising out of employment” are distinct concepts. ([197])

(Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547 and Tarry v Warringah Shire Council [1974] WCR (NSW) 1 referred to)

17. For the injury to have occurred in the course of employment, what is required is that the worker was doing something that he or she was reasonably required, expected or authorised to do in order to carry out his or her duties. If the injury occurs during an interval or interlude between an overall period of work, it will be within the course of employment if, expressly or impliedly, the worker was induced or encouraged to spend that time at the particular place or in a particular way. ([201]–[202])

(Henderson v Commissioner of Railways (WA) [1937] HCA 67; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 and Comcare v PVYW [2013] HCA 41, 303 ALR 1 applied)

18. The phrase “arising out of employment” requires a causal connection with the employment. Causation is a question of fact and requires consideration of whether the particular job caused or to some extent materially contributed to the injury. It is sufficient to have arisen out of the employment if it is established that the fact of being employed in the particular job caused, or contributed to the injury. ([203])

(Nunan v Cockatoo Docks & Engineering Co Ltd (1941) SR (NSW) 119 and Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Aust Pty Ltd [2009] NSWCA 324 applied)

19. The worker’s injuries arose out of his employment as there was a direct causal link with his employment. He had no other reason to telephone his employer, he was using his work telephone and the only available inference is that the calls were to discuss employment matters. ([210])

20. If the injury arose out of employment the misconduct is irrelevant, even when the misconduct is such that it takes the worker outside of the course of his employment. ([211])

Conclusion

21. Deputy President Wood was not satisfied that the worker was in the course of his employment when the injury occurred. Even if he were, and his conduct took him outside the course of his employment, that did not operate to break the clear causal connection (sufficient to satisfy the test of “arising out of”) between the injuries and his employment. ([213])

22. The Deputy President was satisfied that the worker’s injuries arose out of his employment pursuant to s 4(a) of the 1987 Act. Therefore, the worker’s injuries were compensable and the Certificate of Determination was confirmed. ([214]–[215])