Ballina Shire Council v Knapp

Court of Appeal (NSW)|2019-06-07|Before: Basten JA, Macfarlan JA, Payne JA

NSWWCCPD 35 Date of Decision: 27 August 2018 Before: Deputy President Elizabeth Wood File Number(s): WCC A1-5818/17

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Brief facts

From February 2003, the respondent was employed by Ballina Shire Council as a plant operator, involving outdoor work around the Council area. He usually worked Monday to Friday and would travel to his workplace at Evans Head. At the time of the accident he was living in Evans Head. He agreed to work overtime as a traffic controller at road works on a Saturday.
On Saturday 5 July 2014, at about 6.17am, the respondent was involved in a motor vehicle accident whilst driving from his residence to either the works depot, at Alstonville, or the day's worksite at East Ballina. At the time of the motor vehicle accident he was making a mobile telephone call to his work supervisor, Mr Gibson, and was likely running behind schedule. The accident caused the deaths of two passengers in a car travelling in the opposite direction. The respondent suffered catastrophic injuries in the accident.
The respondent was immediately taken to Gold Coast Hospital, where he remained until 18 September 2014. In February 2015, the respondent received a Court Attendance Notice to answer two charges of dangerous driving causing death. He pleaded guilty, and was sentenced by Wells DCJ in the District Court and served 12 months imprisonment. The respondent made a claim for workers compensation.

The hearing before the Arbitrator

On 11 April 2018, Mr Bell, the Arbitrator, issued a Certificate of Determination with appended reasons. This certificate recorded: "1. Respondent to pay the applicant's s 60 of the Workers Compensation Act 1987 expenses on production of accounts/receipts/Medicare Notice of Charge. 2. Leave to the parties to apply within 28 days in regard to capacity and the applicable weekly compensation rates should agreement not be reached."
Section 4 of the Workers Compensation Act 1987 (NSW) defines "injury" and relevantly provides: 4 Definition of "injury" (cf former s 6 (1)) In this Act: injury: (a) means personal injury arising out of or in the course of employment, …
In his reasons, the Arbitrator concluded that the respondent was on a journey within the meaning of s 10(1) of the Workers Compensation Act. The question determined by the Arbitrator was whether the respondent's injury was attributable to "serious and wilful misconduct" within the meaning of s 10(1A) of the Workers Compensation Act which provides, relevantly: 10 Journey claims (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. (1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker. (1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport Act 2013), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. … (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, … (e) a journey between any camp or place: (i) where the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to reside temporarily, or (ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker's employment, and the worker's place of abode when not so residing, … (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. ... (5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act. …
The Arbitrator's findings on this issue were as follows: "[58] Mr Knapp suffered personal injuries whilst on a periodic journey to work on 5 July 2014 within section 10(1) (and section 4(a)) of the 1987 Act and for which there was a real and substantial connection between his employment and the accident out of which the personal injuries arose. [59] Mr Knapp's injury was not attributable to serious and wilful misconduct within section 10(1A) of the 1987 Act. [60] Mr Knapp was not guilty of gross misconduct taking him outside the scope or course of his employment. [61] Mr Knapp is entitled to the benefit of the weekly compensation provisions of the Acts from 5 July 2014 to date. These are to dealt [sic] with by way of further conciliation and/or arbitration if required. [62] Mr Knapp is entitled to section 60 of the 1987 Act expenses for the compensable injury."

The hearing before the Deputy President

On 8 May 2018, the Council lodged an appeal against the Arbitrator's decision. The six grounds of appeal were: "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; Ground 2: The Arbitrator erred by failing to allow the Council to raise alcohol consumption as an issue; Ground 3: The Arbitrator erred by misunderstanding the relevance of consumption of alcohol; Ground 4: The Arbitrator erred in the application of the relevant authorities to the facts in this case; Ground 5: The Arbitrator erred 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, and Ground 6: The Arbitrator erred in finding that Mr Knapp was entitled to treatment expenses pursuant to s 60 of the 1987 Act."
There was no formal or informal notice of contention or other notice given by the respondent seeking to claim workers compensation for injury, other than in reliance on a journey claim under s 10 of the Workers Compensation Act.
The Deputy President found error on the basis of Ground 1, in that the Arbitrator erred by failing to take account of the totality of the worker's conduct that resulted in the accident for the following reasons: 1. it was not open to the Arbitrator to conclude that the road was damp, based on the witnesses' equivocal evidence, and the effect (if any) of blood alcohol content was also excluded as a factor; 2. the Arbitrator failed to take into account factual matters that were put to him in submissions, namely that Mr Knapp was travelling at a relatively high speed and, while making a telephone call, took one hand off the wheel. Since the Arbitrator was required to take those matters into account and did not, error was established and the Arbitrator's findings were revoked.
The Deputy President concluded that: "I am satisfied that Mr Knapp's actions constituted serious and wilful misconduct in accordance with s 10(1A) of the 1987 Act. By virtue of that section, Mr Knapp is disentitled to the benefits of s 10(1) of the 1987 Act."
That conclusion, on the basis of the issues raised by the parties, was determinative of the only question before the Deputy President, being whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act.
The Deputy President, however, went on to conduct a review of the evidence to determine whether Mr Knapp was entitled to workers compensation for injury, other than under s 10, relying on the decision of this Court in Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1.
The Deputy President found that Mr Knapp's conduct was conduct "arising out of employment", as there was a direct causal link with his employment in that he had no reason other than employment to telephone his employer, he was using his work telephone and the only available inference is that the calls made were to discuss employment matters.
The Deputy President found that as the injury arose out of employment the misconduct she had concluded occurred was irrelevant, purportedly applying Kassim v Busways Blacktown Pty Ltd (2003) 25 NSWCCR 450; [2003] NSWCC 6, Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10; 4 NSWCCR 8 and Tarry v Warringah Shire Council (1974) WCR (NSW) 1.

The grounds of appeal

On 27 November 2018, the Council filed an amended notice of appeal. The grounds of appeal were: "1. The Deputy President erred in finding that the respondent's injury arose out of his employment with the appellant within the meaning of the Workers Compensation Act 1987, s4, in circumstances where: a. The injury did not occur in the course of or as a result of anything that occurred in the course of, his employment; b. The circumstances that caused the injury constituted serious and wilful misconduct on the part of the respondent within the meaning of the Workers Compensation Act 1987, s10 and 14; c. The circumstances that caused the injury constituted gross misconduct on the part of the respondent, such as would have taken him out of the course of his employment had he been in it; d. It was not open to the Deputy President to reason that the respondent's acts, of the character described, caused his injury to arise from his employment, having found that the appellant played no part in the respondent's commission of those acts; e. It was not open to the Deputy President to find that the respondent's injury arose from his employment, merely because: i. The respondent was required to travel to work; ii. The respondent had been issued with a mobile telephone; and iii. The calls that caused the injury were made on that telephone to his supervisor. 2. The Deputy President erred in failing to consider whether the respondent's employment was a substantial contributing factor to his injury within the meaning of the Workers Compensation Act 1987, s 9A. 3. The Deputy President erred in deciding the appeal on a basis that was outside the scope of the errors asserted in the grounds of appeal, and the submissions of the parties on appeal, in excess of the jurisdiction conferred by the Workers Compensation and Injury Management Act 1998, s 352(5). 4. The Deputy President denied the appellant procedural fairness in finding that the respondent's injury arose from his employment, when the respondent had made no submission to that effect on appeal and the Deputy President gave the appellant no notice that she might decide the appeal on that basis and invited no submissions on it."
There was also a notice of contention which provided: "1. If the Appeal is successful on the ground that the Deputy President should have dealt with s 9A, Workers Compensation Act 1987 ('s 9A'), on the facts as found by the Arbitrator at first instance, and in all of the circumstances of the case and for the reasons set out in the Cross-Appeal, the Deputy President would have resolved s 9A in favour of the Respondent. 2. The Deputy President was entitled to find that the issue of "arising out of the course of employment" pursuant to s 4 Workers Compensation Act was an issue that was to be resolved on the appeal before her, given the terms of the s.74 Notices dated 28 November 2014, 9 February 2017, and 29 December 2017 before her, the submissions before the Arbitrator, and the Notice of Appeal and the submissions before her."

Determination of appeal

Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) provided, relevantly: 352 Appeal against decision of Commission constituted by Arbitrator (1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator. … (4) An appeal can only be made within 28 days after the making of the decision appealed against. (5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing. … (6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case. (7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by an approved medical specialist under Part 7). … (8) In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Deputy President determined that Chubb Security provided her with authority to determine the case, even after she had made dispositive findings about the only issue before her.
Santow AJA in Chubb Security said: "[29] In this case, no one denies that the Commission should have exercised its jurisdiction to properly determine the rates and period of the award of weekly compensation. It is certainly regrettable that the Arbitrator failed to follow the well-accepted tests set out in Pantaleo and Mitchell in order to do so. It is perhaps also regrettable that the Deputy President did not redress the Arbitrator's default and fully determine the practical details of the awards in this case. I would not say more than that sending the matter back to the Arbitrator, although retrospectively validated, may perhaps have been an unnecessary stringing-out of a claim such as this where the issues outstanding once liability was resolved were in such narrow compass. Furthermore, it is certainly more than merely regrettable that these factual issues still remain unresolved, when one would have thought that the relevant documentary evidence of wage records and medical certificates were easily accessible by reasonable co-operation between the parties." (Emphasis added.)
The appellant's case in this Court was that the only issue before the Deputy President was whether in determining that the respondent was entitled to compensation by reason of his s 10 journey claim the Arbitrator's decision was affected by any error of fact, law or discretion. It was common ground on the appeal that if this ground of the notice of appeal was upheld it was unnecessary for this Court to deal with any other issues.
In opening his oral submissions, Senior Counsel for the respondent, Mr Morris SC, with whom M Hammond and R A Coffey appeared, conceded that ground 3 of the notice of appeal should be upheld and the appeal allowed and the notice of contention should be dismissed: "MORRIS: Thank you, your Honours. Your Honours, with respect to 352, we've a concession there that the deputy president fell into error. This now brings into play, essentially, a notice of cross-appeal because the deputy president disposed of my client's claim on the basis that the Arbitrator fell into error when assessing whether the conduct was serious and wilful, or, put another way, gross misconduct if we can use the terms interchangeably. To that extent, you've been taken to the reasoning by my learned friend, and there are really two issues that fall for consideration from the notice of cross appeal. BASTEN JA: Where's your concession about 352 appear? MORRIS: I've just made it, your Honour. BASTEN JA: Thank you. MACFARLAN JA: Perhaps you could just define a little more precisely what the concession is. MORRIS: The concession is that the deputy president embarked upon a process of rehearing which was prohibited to her by reference to s 352. MACFARLAN JA: The part that constituted a rehearing outside what was permissible was dealing with s 4? MORRIS: Yes. Your Honours that leads us back to this determination of serious and wilful which was the extent to which she did overturn the arbitrator's award. PAYNE JA: It means we can put your notice of contention to one side as well? MORRIS: I think that's probably right."
Senior Counsel's concession was correctly made. When Chubb Security was decided the Presidential member was conducting a review within the meaning of s 352(5) as it then existed. At the time Chubb Security was decided, s 352(5) was in this form: 352 Appeal against decision of Commission constituted by Arbitrator … (5) An appeal under this section is to be by way of review of the decision appealed against. …
The change in legislation in this case is significant. The appeal before the Deputy President was limited to a determination of whether the Arbitrator's decision "was or was not affected by any error of fact, law or discretion, and to the correction of any such error". The section specifically provided that the "appeal is not a review or new hearing".
The language of s 352(5) as it now appears, makes it clear that the dicta in Chubb relied upon by the Deputy President had no role to play in the appeal before her. The only question raised by the parties before the Deputy President was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act. Having dismissed that claim, in the circumstances of this case, the Deputy President had no jurisdiction to determine whether the respondent was entitled to compensation on some other basis.

Disposition of the cross-appeal

The cross-appeal raises the powers of this Court on appeal. Section 353 of the WIM Act provides, relevantly: 353 Appeal against decision of Commission constituted by Presidential member (1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal. (2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit. … (5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.
The jurisdiction of this Court is limited to correcting error "in point of law". The notice of cross-appeal identified the following grounds: "1. The Deputy President had before her insufficient evidence to find that the Respondent was driving at a speed of 111 kilometres per hour at the time of the accident, because the assumptions as to the length and position of the yaw used by the Police Reconstruction Expert were inconsistent with the eyewitness account given by Mr McLeod as to the movement of the Respondent's vehicle immediately prior to collision. 2. The Deputy President had no evidence before her that: a. the first telephone call was made at a time that the Respondent was driving his vehicle; a. [sic] the Respondent had the choice to pull off the road at a convenient place in order to make the call to his supervisor; or b. [sic] the Respondent was actually holding his mobile telephone to his ear at the time of or relevantly before the accident. 3. Any reliance by the Deputy President on the Statement of Agreed Facts or the judgment in the criminal proceedings failed to take into account the fact that the Respondent was wholly amnesic of the events leading up to and including the accident, and had entered a plea of guilty on advice of his solicitor in circumstances where by doing so he would be entitled to a discount on sentencing for an early plea of guilty. 4. There was no evidence of the Respondent that he had conducted himself wilfully, and the proposition was never put to him in cross-examination before the Arbitrator or the Deputy President, where it should have been as a matter of fairness. 5. The Deputy President erred in applying concepts of "current awareness of road safety" and "common knowledge" to an accident which had occurred four years previously. 6. For the reasons in this Cross Appeal, the Deputy President erred in finding that the Respondent's conduct at the time of the accident constituted serious and wilful misconduct within the meaning of s 10(1)A of the Workers Compensation Act 1987."
The cross-appellant did not identify in his written submissions any arguable error made by the Deputy President "in point of law". The cross-appellant's written submissions asserted that an error of fact finding can amount to an error of law. For this proposition the cross-appellant relied on Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [56] and [61] per McColl JA. That submission must be rejected. All that McColl JA was doing in those passages in Onesteel was explaining the well-known principle that a "no evidence ground" may be characterised as "a decision of a question with respect to a matter of law": Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 at [59] (French CJ) and a "question of law": Kostas at [90] - [91] (Hayne, Heydon, Crennan and Kiefel JJ).
The relevant question is whether there was evidence available from which the Deputy President could draw inferences and make findings. Whether the evidence was sufficient was a matter for the Deputy President to determine, so long as the evidence taken into account could be described as rationally probative of the existence of a fact in issue. In Amaba v Booth [2010] NSWCA 344, Basten JA explained the "no evidence" ground thus: "[21] That question aside, it is necessary to address the respondent's argument that, once the medical evidence tendered on behalf of Mr Booth is held to be properly admitted, it will not be open to the appellants to challenge findings based on that evidence because it will be impossible for them to say that there was no evidence capable of supporting the findings of the trial judge. In accordance with statements by Glass JA (Samuels JA agreeing) in this Court in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and the statement of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 it was submitted that no broader claim is permitted. As explained by Mason CJ at 356: 'Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' [22] However, as I noted recently in Goodwin v Commissioner of Police [2010] NSWCA 239 at [12], some doubt has been cast on the scope and operation of that principle by reference in later judgments to the need for findings or inferences of fact to be supported by 'logical grounds': see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [52] (McHugh and Gummow JJ, Callinan J agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [40] (Gummow and Kiefel JJ, dissenting); cf [113], [119] and [129]-[130] (Crennan and Bell JJ). [23] Implicit in the statement that there is no evidence to 'support' a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of 'relevance', on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding': Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5]: 'The word "rationally" is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.' [24] Whether an inference is reasonably open, in the sense of being logically available, involves an evaluative judgment, which is to be assessed by the court exercising appellate or supervisory jurisdiction."
The only grounds addressed orally by the cross-appellant related to the speed at which he was driving at the time of the accident (ground 1) and whether he was holding a mobile telephone near his ear at the time of the accident (ground 1 and perhaps part of ground 6).
In relation to the speeding finding addressed by ground 1, the point of law was said to be that "the document upon which the speed estimate was based, the expert report of Mr Parker, was based on an assumption that wasn't proved in the evidence". Senior Counsel for the cross-appellant accepted that this issue was not raised before the Deputy President, which is itself a formidable hurdle to success on this point in this Court.
In any event, there was ample evidence about speeding available to the Deputy President. That evidence included agreed facts tendered in the criminal case against the respondent and provided by the respondent to the Arbitrator and an expert report based on observations of a police officer, which had also been put before the Arbitrator by the respondent. The fact, assuming it be the fact, that inconsistent observations were made by another eye witness is not to the point. It could not be said there was "no evidence" supporting the Deputy President's finding of speeding.
The challenge to the Deputy President's finding that the cross-appellant held his mobile telephone to his ear at the time of the accident, addressed by ground 1 and perhaps ground 6, does not raise any arguable error in point of law. On the evidence, the only way the cross-appellant could have made the telephone call he admitted he made was, as he further admitted, to take the phone in his hand and put it up to his ear. Senior counsel for the cross-appellant accepted that his client had deliberately used his mobile telephone immediately before the accident and that he expressed regret for that conduct at his sentencing hearing. Whether or not the conduct was, as was submitted, "in a sense, excusable or explicable in terms of him trying to contact his employer", no error in point of law was identified in the determination made by the Deputy President.
None of the remaining grounds, which were not addressed orally, gave rise to any error in point of law.
Finally, it is noted that the parties agreed that no order as to costs was to be sought and the order for restitution sought in the notice of appeal was not pressed.

Endnotes

(1992) 173 CLR 473; [1992] HCA 21.
(2013) 250 CLR 246; [2013] HCA 41. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2019

(2003) 25 NSWCCR 450

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