Welcome to the March 2014 issue of the Edwards Michael Lawyers eBulletin

WCC Deputy President Considers New Journey Provisions

As a result of the 2012 reforms, Section 10(3A) was inserted into the journey provisions, requiring a “real and substantial connection” between employment and an accident or incident involving personal injury.

In Dewan Singh & Kim Singh t/as Krambach Service Station v Wickenden [2014] NSW WCC PD 13 Deputy President Roche considered an appeal from a finding in a worker’s favour in relation to this issue.

Ms Wickenden was a casual employee at a Service Station who normally ceased duties at 2.30pm, allowing her to travel home on her motorcycle in daylight hours.  As a result of training required by her employer, however, on the date of injury she was required to finish work at 5.30pm, meaning her 15 kilometre ride home would be undertaken in darkness.  Whilst travelling home she observed cattle on the road and, whilst she was slowing her motorcycle a car travelling in the opposite direction swerved to miss the cows and collided with her resulting in injuries which were the subject of a workers compensation claim.

The matter was initially decided in favour of the worker on the basis that as a result of employment the journey home in darkness involved “increased peril”, and that a “real and substantial connection” was therefore established.  The employer appealed.

Deputy President Roche concluded that the Arbitrator was in error in relation to his reliance on ‘increased peril” however he did not think that finding was necessary for the worker to succeed:-

“Section 10(3A) requires “a real and substantial connection between the employment and the accident or incident out of which the personal injury arose”.

The analysis of the facts and circumstances of this case, as summarised at [23] above, which the Arbitrator accepted, established that connection.  That analysis concluded with the Statement that confronting cattle on a country road in the dark was a circumstance to which Ms Wickenden was exposed because of her employment.  Thus, Section 10(3A) was satisfied because the connection between the employment and the accident was real and of substance”.

The Deputy President emphasised that the employment connection did not need to be the sole cause of an accident, only that the connection between employment and the accident had to be “real and substantial”.  The Deputy President accepted that ‘the mere fact of travelling to and from work will not provide that connection” but that driving home from work does not, of itself, prevent Section 10(3A) from being satisfied.

The critical factors which allowed the worker to succeed in this case were that the accident arose from the danger of riding home in darkness on a narrow country road and that it was the worker’s employment which required her to work later than her normal finishing time and to travel home in darkness.

High Court Decision in PVYW Considered by WCC

In Gregory Britt and Leanne Britt v Coady [2014] NSW WCC PD 5 Deputy President Roche considered an Appeal from an Arbitrator who awarded compensation in circumstances where a worker was assaulted by his employer late in the evening after both men had been drinking.

The Commission found that the worker was expected by his employer to drive him to or from certain venues as the employer had lost his license.  On the day of injury, the two men were working at Cootamundra and it was initially planned that the worker would drive them home to Gundagai after a few drinks after work.  It was found that the worker stopped drinking after consuming two schooners on the basis that he would need to be fit to drive.  The employer later decided that the two men would stay in Cootamundra, would attend for further drinks and would then undertake a few hours work the next day.  Late in the evening the worker was assaulted by the employer after returning from the Christmas drinks.

The employer challenged the Arbitrator’s finding that the worker was in the course of his employment when the injury occurred, arguing that the Arbitrator had misapplied the principles in Hatzimanolis v ANI Corporation Limited [1992] HCA 21 and Comcare v PVYW [2013] HCA 41.  In particular, the employer relied upon the following statement of the majority Judgment in PVYW at [60]:-

“An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place”.

Referring to the above, Deputy President Roche stated:-

“That passage would apply if, having been induced or encouraged to stay at a particular place, Mr Cody had been injured while engaged in an activity at that place and participation in that activity had not been induced or encouraged by the employer”.

By contrast with the situation in PVYW, Roche DP determined that not only was the worker’s presence in the place where the injury occurred induced or encouraged by the worker, but the activity in which the worker was engaged (drinking and socialising etc) was also induced or encouraged by the employer.  The appeal was dismissed.

Injury Sustained Overseas: Whether Employment Connected with NSW

In Workers Compensation Nominal Insurer v O’Donohue [2014] NSW WCC PD1, Roche DP considered whether a professional actor/performer who lived in Sydney but was injured in Bahrain, whilst undertaking work pursuant to a contract made in Hong Kong, was entitled to workers’ compensation benefits under the New South Wales legislation.

The Deputy President summarised the relevant provisions as follows:-

“section 9AA(3) provides a series of cascading tests to determine the State with which the employment is connected.  First, employment is connected with the State in which the worker usually works.  Second, if no State is identified by the first test, one looks to the State in which the worker is usually based for the purposes of that employment.  Third, if no State is identified by the second test, one looks to the State in which the employer’s principal place of business in Australia is located”.

The Acting President found that the Arbitrator erred in finding that the worker “usually works” in New South Wales.  He noted that “usually works” means the place where the worker habitually or customarily works, or where he or she works in a regular manner, not the place where the worker works for the majority of time.  It was found that employment was undertaken in different locations, including Dubai, Singapore and Jakarta and that the evidence did not support a conclusion that the worker usually worked in New South Wales.

However, Roche DP did not believe the above error affected the outcome because it was open to the Arbitrator to find that the worker was “usually based” in New South Wales and also that the employer’s “principal place of business” was in New South Wales.

WCC Transcript Required for Statement of Reasons

In Nepean Rubber Moulding Pty Limited v Veljonoski [2014] NSW WCC PD 3 no transcript of proceedings or of the Arbitrator’s ex tempore Reasons was available due to a technical failure.

Deputy President O’Grady determined that the absence of a transcript of the Arbitrator’s reasons constitutes a constructive failure to provide reasons as required by Section 294 of the 1998 Act and that ‘as a matter of general principle failure to provide sufficient reasons constitutes an error of law”.  Accordingly, the matter was remitted to a different Arbitrator for fresh determination.

Deputy President O’Grady was required to considered similar issues in Endeavour Energy v Ohmsen [2014] NSW WCC PD 6 where an ex tempore Decision was given in relation to a Section 60 issue during the course of an unrecorded Teleconference.  In that case the Section 60 issue was remitted to the same Arbitrator for rehearing.

Recovery Claims Against Nominal Defendant: Due Search & Enquiry

In Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSW CA the Court of Appeal considered an appeal by a Workers Compensation Scheme Agent from the dismissal of a Section 151Z recovery action against the Nominal Defendant on the basis of failure to  satisfy the “due search and enquiry” provisions of the Motor Accidents Compensation Act 1999. 

The Motor Accidents Act provided at the relevant time that an action for recovery of damages in respect of injury caused by the fault of the owner or driver of an unidentified motor vehicle can be bought against the Nominal Defendant if the identity of the vehicle cannot be established after due search and enquiry.

The Workers Compensation Scheme Agent sought to recover workers compensation payments sustained by the worker as the result of a motor vehicle collision on 13 March 2000.  The worker submitted a claim for workers compensation and received benefits.  The Scheme Agent instructed lawyers to act in relation to Section 151Z recovery on 20 May 2008.  If was found that subsequently the worker initially obtained registration details of the vehicle but that information was subsequently lost.  It was also found, however, that at the time the information was lost there was still a prospect that due and enquiry may have identified the vehicle.

The Court of Appeal decided that although a Section 151Z recovery is not a claim for “damages”, rather a claim for statutory indemnity, it was a condition precedent for any liability in the Nominal Defendant for due search and enquiry to have been undertaken but to have been unsuccessful.  The Court determined that the relevant time for “due search and enquiry” is when the cause of action arose (ie. when the injury was sustained), not when the Section 151Z recovery action is initiated or determined.

The Court served that the Workers Compensation Scheme Agent had accepted liability for payments of compensation shortly after the accident, at a time when it could have undertaken its own enquiries to identify the vehicle.  The Court accepted that when enquiries were eventually made in 2008 the opportunity to make useful enquiries was limited.  The Scheme Agent’s appeal was unsuccessful.

The above decision emphasises the importance of Scheme Agents identifying claims where injuries have been caused as the result of the negligence of an owner or driver of an unidentified vehicle as soon as practicable after a claim is lodged, and to then instruct investigators to exhaust all reasonable avenues of enquiry in order to identify the vehicle.