1. The Certificate of Determination dated 2 August 2024 is confirmed.

WORKERS COMPENSATION - s 10(3A) of the Workers Compensation Act 1987; whether real and substantial connection between accident on journey and employment; Bina v ISS Property Services Pty Limited [2013] NSWWCCPD 72 and Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 considered; whether Member erred by applying a test of causation between accident and employment

Anderson v Sydney Trains [2024] NSWPIC 417

1. This appeal primarily concerns the application of s 10(3A) of the Workers Compensation Act 1987 (the 1987 Act) to a worker's journey between a place of abode and a place of employment.
2. Kellie Anderson (the appellant) commenced employment with Sydney Trains (the respondent) as a Transport Officer on 13 April 2023. On 17 April 2023, the appellant suffered injury when she fell at Strathfield Station while travelling from her home at Glenmore Park to the respondent's Petersham office where she was undertaking training.
3. Relevantly, the appellant suffered injuries to her neck and left shoulder in the incident at Strathfield Station. Following the injury, she consulted her general practitioner, Dr Michael Looi, of Penrith, who certified that she was unfit for work.[1] The appellant alleges that she has been unable to return to any form of employment.
4. On 6 February 2024, the appellant made a claim for compensation on the respondent.[2] By a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 9 February 2024, the respondent denied liability to pay compensation for the injury of 17 April 2023.[3] It denied that the appellant suffered injury arising out of and in the course of her employment in accordance with s 4 of the 1987 Act. It accepted that she was on a journey between her place of abode and place of employment at the time of her injury. However, it stated that:

"you are not entitled to compensation because there was no real and substantial connection between your employment and the accident that caused your injury."[4]

1. By an Application to Resolve a Dispute (ARD) lodged with the Commission on 23 May 2024, the appellant claimed weekly compensation and an indemnity in respect of her hospital and medical expenses pursuant to s 60 of the 1987 Act. The "Injury Description" in the ARD is as follows:

"Travelling to a training course for her employment as a transport officer, the [appellant] worker has tripped and fallen at Strathfield Train Station on her way to the Petersham Office suffering injury to her cervical spine (neck) and left shoulder."

1. When the matter came on for arbitration hearing on 12 July 2024 before Member Seaton, Mr Horan, of counsel, appeared for the appellant and Mr Robison, of counsel, appeared for the respondent. The appellant relied exclusively on the journey provisions in s 10 of the 1987 Act to prove her entitlement to compensation.
2. Mr Horan argued that there was "a real and substantial connection" between the appellant's employment and her accident at Strathfield Station. The connection was to be found in the backpack which the appellant was carrying to transport "textbooks" between her home and the training course. During the fall the backpack had struck her in the neck. Thus, it had "a real and substantial effect on the mechanics of the fall" and put the case "fairly and squarely within the provisions of section 10(3A)."[5]
3. Secondly, the appellant argued that the respondent's direction that she attend at its Petersham training centre at the commencement of her employment created a real and substantial connection between employment and the accident. The respondent's offer of employment dated 7 March 2023 designated the place of employment as its premises at Wilson Street Redfern. A journey to those premises did not involve the appellant in changing trains. The journey to Petersham required her to change trains at Strathfield where she was exposed to a trip hazard that was a cause of her accident. This argument is not pursued on this appeal.
4. Mr Robison submitted that the only cause of the accident on the morning of 17 April 2023 was the loose gravel on which the appellant fell at Strathfield Station.[6] The backpack had no part to play in the fall. Further, the fact that she was carrying it did not make a fall more likely to occur.[7] Mr Robison also referred to accounts of the fall that suggested the appellant tripped on "raised cement". He cautioned that the Member should not find a causal nexus between the movement of the backpack and the appellant's injury in the absence of medical evidence.[8]

1. In resolving the issue of whether there was a real and substantial connection between the employment and the accident or incident, the Member first surveyed the case law. She referred to Field v Department of Education and Communities[9] where it was held that the word "connection" in s 10(3A) involved a wider concept than causation.[10] She referred to Mitchell v Newcastle Permanent Building Society Ltd[11] where it was said that the necessary link required a connection that was "more than remote and tenuous".[12] The Member also referred to the reasoning in Bina v ISS Property Services Pty Limited,[13] Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden,[14] and State Super Financial Services Australia Limited v McCoy.[15]
2. The Member accepted the appellant's evidence that she was carrying a backpack which "flung forward during her fall and hit her in the back of the neck" on the morning of 17 April 2023.[16] She accepted that the backpack contained textbooks. She inferred that the appellant was carrying those textbooks for her training course that day.[17] The Member continued:

"As the respondent submitted there is no medical evidence to support the conclusion that the backpack hitting the [appellant's] head is causative of her neck and left shoulder injuries. I am unable to accept the inference proposed by the [appellant] that the backpack hitting the [appellant] in the back of her head during her fall was causative of her neck and left shoulder injuries in the absence of medical evidence to that effect.

What is to be determined however is whether there is a real and substantial connection between the employment and the accident or incident."[18]

1. The Member found that the circumstances of the case did not establish a "sufficiently real and substantial connection between the employment and the accident". She continued:

"Carrying the backpack full of heavy textbooks required for training with the respondent is a feature of what the [appellant] was reasonably required, expected or authorised to do by reason of her employment and provides a connection between the employment and the accident or incident on 17 April 2023, as it may have contributed to the [appellant's] injuries, but it was not causative of the accident or incident."[19]

1. The Member also found that there was no real and substantial connection between the incident and the fact that the appellant was required to travel to the training centre at Petersham.[20] She entered an award for the respondent.

1. The appellant relies on four grounds of appeal which are as follows:

(a) The Member erred at [139] of her reasons in mistaking the test required by s 10(3A): the connection must be between the employment and the accident or incident out of which the personal injury arose, not between the employment and the accident or injury. (emphasis as in original) (Ground 1)

(b) The Member erred at [138] in stating that it was "uncontroversial" that the cause of the appellant's accident was loose or uneven gravel. "The extent of the accident or incident and cause were in issue." Further, the error was demonstrative of error in the Member's approach to the s 10(3A) test. (Ground 2)

(c) The Member erred in applying the test in s 10(3A) by her focus on the cause for the fall, that is the reason the fall happened rather than the connection between the employment and the accident or incident. "The factual circumstances which she had determined at paragraph [140] provided a connection between the employment and the accident or incident." (Ground 3)

(d) The Member's findings in paragraphs [143] and [144] that any connection between the backpack and the accident were remote and tenuous "is erroneous and unsupported by reasons". (Ground 4)

1. Each of these grounds arise from the first or primary argument made by the appellant at the hearing; namely that there was a connection between the accident and the employment through the backpack in which the appellant was carrying textbooks.

1. The evidence in the case is exceedingly brief. The appellant's primary evidence is contained in a signed statement dated 20 May 2024. By that statement the appellant recounts that she commenced employment as a transport officer with the respondent on 13 April 2023. She states:

"My employment contract required me to undergo training when I commenced employment. Sydney Trains instructed me to attend their office at Petersham NSW 2049 for the purposes of undertaking this training."[21]

1. The appellant states that she travelled to the Petersham office by train. She boarded the train at Penrith Railway Station and changed trains at Strathfield to travel to Petersham. The appellant states that on 17 April 2023:

"I alighted the train I boarded at Penrith at Strathfield. To change trains, I was required to walk to another platform.

I was required to walk down a ramp at Strathfield Station to change platforms. The ramp would take me under the station and lead me to another ramp which led up to the platform which my second train was departing from.

The ramp I was walking down was made of gravel. The gravel was uneven and loose.

Initially, it did not appear that the uneven and loose gravel would create a trip hazard. There were no warning signs or areas marked as unsafe to walk on.

As I walked down the ramp, my left foot became caught on an uneven piece of gravel. Although I tried to stabilise myself, I fell on my right side. I did not see this uneven piece of gravel as I was looking forwards when walking.

When I hit the ground, my backpack flung forward and hit me in the back of the head."[22]

1. The appellant says that her "fall caused me to experience pain" in the neck, hips and shoulders. She then recounts her medical treatment following the fall and states that she has been unable to return to any form of employment.[23]
2. By her claim for compensation form the appellant gave the following account of the injury:

"I was walking down a ramp and the ground had a raise in it which made me fall to my side and injured my neck and the side of my body."

1. In response to an enquiry as to "Which parts of your body are affected?" the appellant responded:

"My neck and shoulder have been affected from the fall as I was carrying my bag full of textbooks."[24]

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

"(3) 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 and enabling legislation without holding any conference or formal hearing."

1. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions 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.

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

"(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

(3) The journeys to which this section applies are as follows -

(a) the daily or other periodic journeys between the worker's place of abode and place of employment,

(3A) A journey referred to in subsection (3) to or from the worker's place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose."

1. Rules 78(2) and (3) of the Personal Injury Commission Rules 2021 (the Rules) are as follows:

"(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker's reasons for the determination that includes the following -

(a) the appropriate decision-maker's findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the appropriate decision-maker's understanding of the applicable law,

(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.

(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker's view of the case made by each party."

1. The grounds of appeal allege error of law. But they also challenge the Member's findings of fact. In accordance with the authorities which have discussed s 352(5) of the 1998 Act, to succeed in overturning a factual finding the appellant must prove error.[25] The approach in Raulston is consistent with subsequent instruction from the Court of Appeal. In Northern NSW Local Health Network v Heggie,[26] Sackville AJA said:

"A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519, per Mason and Deane JJ."

1. In Workers Compensation Nominal Insurer v Hill,[27] Basten JA said the following at [20]:

"If, on appeal by way of rehearing, the court asked whether the findings of fact were 'open' to the trial judge, that might demonstrate an unduly limited understanding of the court's function; however, that language is not out of place in determining an appeal from factual findings under s 352(5)."

1. The case law referred to by the Member establishes that the phrase "connection between" in s 10(3A) may, but does not necessarily, convey the notion of a causal connection between an incident on a journey and a worker's employment.[28] Rather, the word connection connotes an association or relationship.[29] To the extent that Mitchell limited the meaning of the phrase to a causal connection it is wrongly decided. Further, the statutory requirement is for a connection.[30] It does not have to be the cause of, or the connection with, the accident or incident.
2. Connection is a word of wide import, but it must be considered in the context of s 10. Plainly that involves a consideration of whether the connection between the incident and the employment was "real and of substance". The latter phrase has been utilised by the Court of Appeal to describe the causal link necessary to prove "a substantial contributing factor" for the purpose of s 9A of the 1987 Act.[31] Mitchell stated that a connection that was remote and tenuous would not satisfy the terms of the section.[32] However that does not exhaust the meaning of the phrase "real and substantial connection".
3. It is evident from the reasoning of Deputy President Roche in Wickenden that the use of the antiquated concepts of "special exposure" or of "greater peril" cannot substitute for an enquiry as to whether there is a real and substantial connection between the incident and the worker's employment. While the facts which prove a real and substantial connection may also prove increased peril, "that is not a necessary condition of the provision."[33]
4. Each case arising from the subsection involves a variant of the time honoured problem confronted by courts of whether there is a relationship between one event and another. This is not a problem of statutory construction. Connection, like causation, is a fact laden conclusion. For that reason, the plurality in Badawi stated that:

"It is not possible and indeed would be incorrect, therefore, to lay down a principle which can be applied unbendingly to all cases."[34]

Absent error of fact or law, a Member's factual conclusions on the issue of connection are unlikely to be disturbed.

1. By a preamble to its submissions, the appellant contended that the Member made the following findings of fact:[35]

"(a) The worker was carrying a backpack that flung forward during her fall and hit her in the back of the head; paragraph 127 of the decision.

(b) The worker was carrying the backpack on her left shoulder; paragraph 133 of the decision.

(c) The employer required the worker to carry textbooks for her training course on the day of her fall; paragraph 130 of the decision.

(d) The worker's backpack which she was carrying contained textbooks for use in the employer's training course; paragraph 131 of the decision.

(e) That the textbooks were heavy; paragraph 132 of the decision."

1. The appellant refers to aspects of the submissions that she made at the hearing culminating in the submission recorded at [112] of the reasons that:

"There is a connection between that factual scenario of having the backpack full of books on the left shoulder and the accident because the backpack plays an important part not in the beginning of the incident or fall but certainly by the time she is on the ground and still in motion when the backpack flies forward".[36]

1. By a preamble to its submissions, the respondent states that the appellant's case is made "somewhat difficult" by her concession that:

"the Member referred to Field v Secretary Department of Education [2023] NSWPIC 21 as standing for the proposition that the scope for s 10(3A) is broader than mere causation of injury."[37]

Ground 1 - Error in misstating the test required by s 10(3A)

1. By her submissions under this ground the appellant merely restates the ground of appeal. In referring to the "connection between the employment and the accident or injury" at [139] of her reasons, the Member misstated the test in s 10(3A). The appellant argues that:

"The connection must be between the employment and the accident or incident out of which the personal injury arose, not between the employment and the accident or injury."[38] (emphasis as in original)

1. The respondent observes that the submission refers to only one paragraph of the Member's reasoning. It argues that even if that paragraph was taken in isolation the Member was not "only having regard to the actual injury itself. She was having regard to that from which the injury 'arose' which must mean something broader than causation of injury itself".
2. The respondent submitted that [139] should be considered "in the context of the entire decision".[39] As the appellant had argued at the arbitration hearing that her backpack had a "causative role to play in the injury", it was necessary for the Member to determine that issue as a prerequisite to determining whether there was a "relevant nexus between employment and the journey".[40]
3. Viewed from this perspective, the respondent argues that the Member did not misstate the test. She stated it correctly. She then:

"proceeded to determine the argument, which was before her, as to whether or not there was actual causation of injury caused by a work-related task of carrying the books".[41]

1. While a misdirection as to the meaning of the language of s 10(3A) would give rise to an error of law, I am not persuaded that the Member erred as alleged. The Member referred to the correct test on many occasions in her reasons. At [6] she stated that the dispute involved a:

"determination of whether there is a real and substantial connection between the [appellant's] employment with the respondent and the accident or incident of 17 April 2023."[42]

The Member accurately reiterated this test on multiple subsequent occasions in her discussion of the case law, her recording of the parties' submissions, and in her determination of the case.

1. The Member commenced the dispositive section of her reasons by stating at [115] that:

"A determination of whether there is a real and substantial connection between the employment and the accident or incident on 17 April 2023 must be made on the balance of probabilities based on the evidence in accordance with law".

1. There follows a recitation of the legislative history of s 10 of the 1987 Act and the case law from Presidential members addressing the 2012 amendment to s10, including at [121] a reference to Field "where a real and substantial connection was established". There are references to the instruction of Keating P in Bina and Roche DP in Wickenden.[43] Finally the Member quotes from the decision of Keating P in McCoy at [69] a quotation which emphasises the requirement of the section that there be an "association or relationship between the employment and accident or incident". There can be no doubt that when the Member's reasons are read as a whole she correctly stated the test of "real and substantial connection" set out in s 10(3A).

1. The appellant's primary argument at the hearing was that the backpack, which contained textbooks, provided the necessary connection between the accident and her employment. As the respondent submits, it was her case that she suffered injury to her neck and shoulder at the time of the incident caused by her backpack striking her neck and, presumably, her shoulder as, or after, she fell to the ground. Absent acceptance of the backpack as a cause of "injury", it is difficult to envisage a real and substantial connection between the backpack and the accident or incident on 17 April 2023. The evidence did not permit a finding that the backpack was a cause of the appellant tripping and falling.
2. The emphasis that the appellant placed on the backpack causing the injury at the hearing is readily apparent from the transcript. Mr Horan submitted:

"Firstly, the fall to the ground and secondly, the effects of that fall then causing the backpack of textbooks to come into play in terms of the mechanics of the accident and coming to play in a real and substantial manner, in my submission, because we are talking about an injury to the [appellant's] neck and left shoulder, and indeed, the backpack being on her left shoulder and hitting her head, in my submission, are real actual causative matters in terms of the injuries that she sustained in the incident."[44] (my emphasis)

1. It is plain from the above that the appellant argued that acceptance of injury caused by the backpack permitted a conclusion that there was a real and substantial connection between employment and the accident. The Member was required to determine that issue. She did this at [135] by concluding that she was unable to accept that:

"the backpack hitting the [appellant] in the back of her head during the fall was causative of her neck and left shoulder injuries in the absence of medical evidence to that effect".[45]

1. Immediately following the determination of the issue of whether the backpack caused the appellant's neck and shoulder injuries, the Member returned to the ultimate issue in the case. At [136] she stated:

"What is to be determined however is whether there is a real and substantial connection between the employment and the accident or incident."

1. A consideration of the Member's reasons in the context of the argument put by the appellant unequivocally establishes that the Member did not lose sight of the statutory language in determining the case. The solitary reference to a connection between employment and injury highlighted by the appellant reflects the primary submission made by her at the hearing. Injury caused by the backpack constituted proof of a connection between the accident and her employment. The Member dealt with this argument and rejected it. This ground of appeal fails.

Ground 2 - Error in finding that the cause of the appellant's accident was uncontroversial

1. The impugned passage of the Member's decision is as follows:

"It is uncontroversial that the cause of the [appellant's] accident or incident on 17 April 2023 was the loose uneven piece of gravel or raised cement on the ramp at Strathfield Station. The [appellant] submits that the accident or incident should be viewed as a whole including the backpack hitting the [appellant's] head as she fell, and I agree in general with that submission".[46]

1. The appellant criticises this paragraph as the "accident or incident":

"included not only the slipping on the gravel or cement and the commencement of the fall, but also the mechanics of the fall that with the heavy backpack on the left shoulder flinging forward forcefully such that it struck the worker's head and played a part in the left shoulder and head/neck being forcibly involved in the 'physics' and 'mechanics' of the fall."[47]

Tripping on loose gravel or raised cement was "merely the cause of the start of her fall."

1. The respondent submits that the second sentence of the impugned paragraph explicitly acknowledged the appellant's argument that the role of the "backpack hitting the [appellant's] head as she fell" was an integral part of the accident or incident. The respondent continues:

"The complaint at [18] that the Member did not have regard to the mechanics of the fall is simply not correct. She had regard to the extent and strength of the evidence going to that issue and was not persuaded by it. Indeed, the manner by which she was not persuaded by it is conceded by the formulation of Ground 3."[48]

1. The appellant's submission is unpersuasive. In my opinion it was not inapt to describe the cause of the appellant's fall and, therefore, her accident as the raised or uneven gravel on the surface of the down ramp at Strathfield Station. It is consistent with the "Injury Description" in the ARD and with the appellant's evidence. By her statement, the appellant unambiguously states that she fell on her right side after her left foot became caught on the gravel. It was only after she hit the ground that:

"my backpack flung forward and hit me in the back of the head."[49]

1. The appellant argued at the hearing that her accident was in "at least two stages".[50] First, "the fall to the ground". Secondly, the force of the fall caused her backpack to strike her in the neck. It was the second "stage" of the fall that created a connection with her employment as the backpack contained textbooks, presumably provided by the respondent. Although the fall was in two stages, they were both part of the "accident or incident" as these words are used in s 10(3A).
2. The Member did not ignore or reject the appellant's contention that the fall was in "two stages".[51] On the contrary, in the impugned paragraph she stated that she agreed "in general" with the argument that the incident should be "viewed as a whole including the backpack hitting the [appellant's] head as she fell." Her rejection of the appellant's case turned on her conclusion that the appellant had not proven that the backpack had caused injury to the neck or shoulder.
3. As the Member accepted the characterisation of the fall propounded by the appellant, her criticism of the language used by the Member cannot establish error. She did not misstate or misconstrue the statutory language. She did not mistake the appellant's argument that the relevant "accident or incident" involved all of the consequences of the fall from the moment she slipped to the time when she finally came to rest. As the Member did not err in any material respect in her use of the term "uncontroversial" to describe the cause of the appellant's fall or in her understanding of the appellant's case, this ground of appeal fails.

Ground 3 - Error in applying the test in s 10(3A) by focusing on the cause of the fall

1. In this ground of appeal, the appellant attacks the "findings" of the Member at [140]. That paragraph states:

"Carrying the backpack full of heavy textbooks required for training with the respondent is a feature of what the [appellant] was reasonably required, expected or authorised to do by reason of her employment and provides a connection between the employment and the accident or incident on 17 April 2023, and it may have contributed to the [appellant's] injuries, but it was not causative of the accident or incident".

1. The appellant criticises the Member's statement that the carrying of textbooks was "not causative of the accident". She submits that the resort to causation is erroneous and inconsistent with the authorities. It is indicative that the Member applied the wrong test. She continues:

"the Member has erred in applying the test in section 10(3A) by her steadfast focus on the cause for the fall, that is the reason the fall happened, rather than the connection between the employment and the accident or incident, the factual circumstances of which she had already determined in paragraph 140 provided a connection between the employment and the accident or incident."[52]

1. The respondent submits that the Member was obliged to determine the case which was put by the appellant which "included, squarely, a causation argument."[53]

1. The appellant's focus on single paragraphs of the reasons is likely to mislead. The reasons must be read as a whole.[54] Immediately following the paragraph impugned by the appellant, the Member stated:

"While establishing a causal relationship is not necessarily required to meet s 10(3A) what is required is a link between the employment and the incident that is real or actual and substantive and in my view that is not present in this case".[55]

1. The Member then proceeded to consider the "link or connection" between carrying the backpack and the accident on 17 April 2023 and found that it was remote and tenuous. Plainly, in reaching her ultimate finding as to the connection, if any, between the accident and employment, the Member returned to the statutory test, a test that she had referred to on multiple occasions throughout the course of her decision. The argument that the Member has focused on the wrong test is not made out.
2. The Member's "steadfast focus" on injury in this case arose from the argument put by the appellant at the arbitration hearing. She contended that there was a connection between the accident and the employment as the movement of the backpack caused an injury to the neck. I have set out a part of the appellant's submission at [43] above. At the conclusion of his submissions Mr Horan returned to the same point. After recapitulating the circumstances of the fall, he continued:

"So in my submission, you would generally accept those factual matters and where you have a backpack being flung forward and hitting her in the back of the head really that's relevant to injuries to the left shoulder and the neck, in my submission. The real focus in this case is not on why the accident happened, it's on whether there's a real and substantial connection between the employment and the accident."[56] (my emphasis)

1. There is no doubt, as the respondent submitted, that the appellant's case at the arbitration hearing "included, squarely, a causation argument". The appellant criticises the Member for determining the very issue that she raised at the hearing: namely that a connection between employment and the accident could be found in the backpack striking the appellant in the back of the head causing injury. The Member resolved this issue against the appellant. At [135] she stated that she was unable to accept that the appellant suffered injury in the manner submitted by Mr Horan "in the absence of medical evidence to that effect". While there is an acknowledgment that the backpack "may" have caused injury to the appellant's neck and left shoulder at other parts of the reasons, the finding that she had not proven that it did is crystal clear. The finding is not criticised in this appeal.
2. The appellant does not submit that it was not open to the Member to find that the appellant did not injure her neck in the manner she alleged at the hearing. Plainly, a finding on causation may be open without medical evidence to support it.[57] But in the circumstances of this case, where the appellant fell and was on the ground prior to being struck by the backpack, the cause of the appellant's neck and shoulder injury is not straightforward. There were other possible causes of the neck and shoulder injury, including the effect of a sudden fall. In the absence of an attack on the Member's finding, I do not propose to discuss this matter further.
3. Absent proof of injury, the evidence does not suggest that the backpack had any substantial role to play in the incident or accident. It is not suggested, for example, that the appellant tripped and fell because of the weight of the backpack or that it altered the way in which she initially made contact with the ground. Much of Mr Horan's submissions on this aspect of the case concentrated on the role of the backpack in causing injury. It is by no means clear that he suggested any alternative basis by which the backpack provided a real and substantial connection between the accident and the appellant's employment. The mere fact that the backpack moved and struck the appellant may not establish any relevant connection.
4. In any event, the existence of a real and substantial connection between an accident on a journey and employment is a question of fact and degree for the Member. I am not persuaded that the Member misdirected herself as alleged or that the factual conclusion she reached was not open to her on the evidence.

Ground 4 - Insufficient reasons - the Member's finding that the effects of the backpack were not real and substantial was "unsupported by reasons"

1. The appellant attacks paragraphs [143] and [144] of the Member's reasons and argues that the finding that the effects of the backpack were not "real and substantial" is "entirely unsupported by reasons".

1. The respondent submits that to succeed on this ground the appellant must demonstrate not only that the reasons were inadequate, but that the inadequacy was sufficient to demonstrate a failure on the Member's part to exercise the statutory duty which she had to fairly and lawfully determine the dispute which was before her.[58] The respondent submits that the Member gave a careful account of the submissions made by each party; directed herself as to the applicable principles; the factual narrative; and, came to a conclusion that was reasonably open to her. In those circumstances the appellant's submission on this ground should fail.

1. The Member's findings at [143] and [144] that the appellant alleges are unsupported by reasons state:

"The evidence is that the backpack played a role in the accident or injury once the [appellant] began to fall, however the link or connection between the employment and the backpack hitting the [appellant's] head is not real and substantial so as to meet the requirements of s 10(3A).

Any link or connection between the employment by way of the [appellant] carrying the backpack full of books and the accident or incident on 17 April 2023 is in this sense remote and tenuous."

1. Plainly, the adequacy of the reasons of a member of the Personal Injury Commission must be determined by reference to the obligation in s 294 of the 1998 Act to provide a "brief statement setting out" the reasons for the determination, and the requirement of the Rules to state material findings of fact; to refer to the evidence on which those findings were based; and to the reasoning process that led to the conclusions.[59] It is unlikely that the obligation of a member to provide reasons can be equated to that of a judge. The reference to "brief reasons" and the objective of informal and expeditious dispute resolution in the legislation suggests that "adequate" reasons need not be lengthy nor consider every aspect of the evidence. The fact that members undertake a large volume of work which all too frequently entails determining matters orally or in writing is also supportive of this conclusion. But as the 1998 Act provides for an appeal, it is essential that the reasons are sufficient to permit a Presidential member to discern whether there is error of fact, law or discretion. From that perspective, the appellate case law on reasons may provide guidance but it does not supplant the legislation.
2. I do not accept the appellant's submission that the Member's findings of ultimate fact are entirely unsupported by reasons. There is no room for doubt that the Member engaged in exhaustive discussion of the relevant law and that she canvassed the evidence before her and the submissions of the parties. The reasoning process which led to her conclusions is, in my opinion, also perfectly transparent when the reasons are read as a whole.
3. As the discussion of the earlier grounds demonstrate, the appellant's primary argument at the hearing was that a connection between the accident and employment could be found in the backpack utilised to transport textbooks to work. After the appellant fell to the ground, the backpack struck her in the head causing injury. The Member accepted that the textbooks were provided by the respondent and that the backpack was flung forward and hit her on the head after she struck the ground.[60] It is also clear that she accepted that the accident involved the entirety of the events from the time the appellant slipped until the time she came to rest. She did not accept that the appellant had proven that her backpack had caused the neck and shoulder injury.
4. Against the background of these findings, the Member found that the link between "the employment and the backpack hitting the [appellant's] head [was] not real and substantial" and the link between the backpack and the accident was "remote and tenuous". If the backpack had not caused injury, its role in the accident was problematic. The mere presence of the backpack, or the fact that it came into contact with the appellant's head, could not prove a real and substantial connection with the accident or injury. In short, in the absence of proof of injury caused by the backpack, the Member could not find a relationship between the accident and the employment.
5. As the Member's findings can be readily understood in the light of her reasons, this ground of appeal must also fail. As the appellant has not made good any of the four grounds on which she relies, the appeal must be dismissed and the Certificate of Determination confirmed.

1. The Certificate of Determination dated 2 August 2024 is confirmed.

[1] Appellant's statement dated 20 May 2024, Application to Resolve a Dispute (ARD), p 2.

[2] Reply to Application to Resolve a Dispute (reply), p 1.

[5] Transcript (T) of proceedings 12 July 2024, T 7.

[9] [2014] NSWWCCPD 16 (Field).

[11] [2013] NSWWCCPD 55 (Mitchell).

[13] [2013] NSWWCCPD 72 (Bina).

[14] [2014] NSWWCCPD 13 (Wickenden).

[15] [2018] NSWWCCPD 26 (McCoy).

[25] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston).

[26] [2013] NSWCA 255 (Heggie), [72].

[27] [2020] NSWCA 54, [20].

[31] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi), [82]-[87].

[35] Appellant's submissions (AS), [11].

[37] Respondent's submissions (RS), [16].

[54] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.

[57] Fernandez v Tubemakers of Australia (1975) 2 NSWLR 190, 197, per Glass JA; Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465.

[58] Citing M & S Shipman Pty Limited v Matters [2003] NSWWCCPD 19.

[59] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [136]-[139].