Van Wessem v Entertainment Outlet Pty Ltd

The appeal 11It was necessary that the injury resulting in Mr Van Wessem's death arose out of or in the course of his employment (1987 Act, s 4, definition of "injury") and that the employment concerned was a substantial contributing factor to the injury (1987 Act, s 9A(1)). The President found that Mr Van Wessem's injury occurred in the course of his employment, but that the employment concerned was not a substantial contributing factor to the injury. 12The appellant appealed against the decision as to substantial contributing factor. The respondent applied for leave to cross-appeal out of time against the decision as to course of employment. The correct process was probably by notice of contention, but it does not matter because the respondent's application was not pressed. Error of law in relation to the decision as to course of employment is not before the Court.

The grounds of appeal 13The notice of appeal stated as the grounds of appeal - "1. The President erred in confirming the Arbitrator's decision entering an Award for the Respondent in respect of the Applicant's claim for death benefits. 2. The President erred in law in holding that the deceased worker's employment was not a substantial contributing factor to the injury/death within the meaning of Section 9A of the Workers Compensation Act 1987 (NSW). 3. Having correctly found that the deceased worker suffered injury in the course of employment within the meaning of Section 4, the President erred at law in failing to also hold that the employment was a substantial contributing factor." 14These grounds were deficient. They did not state specifically the grounds relied on in support of the appeal (UCPR 57.18(1)(e)), because they did not identify the erroneous decision(s) in point of law: they did no more than assert, repetitiously, that there was error of law in the decision as to course of employment. There was disregard of Practice Note SC CA 1 at [10] - "A notice of appeal (including a draft notice of appeal supporting a leave application contained in the White Folder) must state the matters required by r 51.18. It is not enough merely to allege that the primary court erred in law or fact or that its decision is against the evidence or the weight of the evidence. The grounds of appeal must identify the respects in which error of law or (if applicable) fact occurred as well as any material findings that it is said that the primary court should or should not have made, and any material facts that it is said that the primary court should or should not have found." 15In Durham v Durham [2011] NSWCA 62 Tobias JA (at [30]-[31]) and Campbell JA (at [59]-[62], [84]) drew attention to similar deficiency in grounds of appeal, and to the important purpose of proper statement of the grounds of appeal. I add my voice to these reminders to the profession. 16Senior counsel for the appellant, who had not drawn the notice of appeal, was required to identify the erroneous decision(s) in point of law. He did so, but some difficulty in the process of identification and a degree of shifting sands as the submissions proceeded underlined the necessity for identification in the grounds of appeal, with the focus which it should bring. 17The appellant asserted as the primary error of law that the President had "approached the question in s 9A from the perspective of the non-employment activity undertaken during an interval in the employment, rather than from the perspective of the employment concerned", and had thereby misconstrued s 9A. The quoted words are from Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324; (2009) 75 NSWLR 503 at [102] in the reasons of Allsop P and Beazley and McColl JJA. 18The appellant asserted particular errors of law, which she said also demonstrated the primary error. 19Three of the particular errors were said to be in the President's consideration of the factors set out in s 9A(2) of the 1987 Act, as factors to be taken into account so far as relevant - "(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace." 20The particular errors were - (i) that it was not relevant that the nature of the work performed and the particular tasks of that work did not require Mr Van Wessem to go cycling (s 9A(2)(b)); (ii) that when considering the duration of Mr Van Wessem's employment his prior practice of cycling was not relevant (s 9A(2)(c)); (iii) that there was no evidence on which it could be found that the probability of a similar injury occurring irrespective of Mr Van Wessem's employment was high (s 9A(2)(d)); and (iv) that an irrelevant consideration had been taken into account in saying that this was not a case where Mr Van Wessem's employment placed him in a remote location or otherwise exposed him to a risk to which he would not otherwise have been exposed.

Badawi v Nexon Asia Pacific Pty Limited 21In Badawi v Nexon Asia Pacific Pty Limited the worker went to the snowfields in the course of her employment, part of a sales team seeking business from the manager of the resort. She went skiing with the knowledge and approval of her employer. While she was skiing her supervisor phoned and asked her to return to the resort for business matters. On her way back she fell and was injured. Although it was conceded that the worker had been injured in the course of her employment, the Workers Compensation Commission rejected her claim on the ground that s 9A(1) had not been satisfied. Her appeal to the Court of Appeal was allowed. 22Allsop P and Beazley and McColl JJA held that the President had erred in point of law in having regard to the recreational skiing rather than the nature of the work performed or the particular tasks of the work in determining whether the employment concerned was a substantial contributing factor to the injury, and more widely because - "101 ... Section 9A(1) requires a determination as to whether the employment is a substantial contributing factor to the injury. The determination so called for is not performed in a case such as this by looking at the recreational activity and then seeing whether any aspect of the employment concerned might have strengthened the linkage with that employment. Rather, a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account. 102 However, to approach the question in s 9A from the perspective of the non-employment activity undertaken during an interval in the employment, rather than from the perspective of the employment concerned, was to misunderstand the statutory test." 23Their Honours' explanation of the President's erroneous application of s 9A included, after setting out a passage from his Honour's reasons - "105 It is apparent from this passage that the President was not considering the employment concerned, nor what the appellant was doing at the time of the accident, which was going to meet her supervisor to discuss business matters in direct response to the supervisor's request. Rather, the President was considering some other activity that had preceded the accident and was seeking a linkage with the employment from the standpoint of that preceding activity. In our opinion, this is a incorrect application of s 9A. Section 9A requires a consideration of ' the employment concerned' to ascertain whether it was a substantial contributing factor to the injury given the relevant circumstances in which the injury occurred, including the matters in s 9A(2). His Honour's comment that there was no question of the appellant being distracted by the telephone call from Mr Russell, or of hurrying, is perhaps the most obvious indication that he was looking at the preceding recreational activity, and looking to see if there was a link back to the employment."

The particular errors 24The first particular error was said to occur at [138] of the President's reasons. The paragraph should be seen in context. His Honour described Mr Van Wessem's work practices and noted the technological advances which made them possible. He continued - "136. It may be seen from these facts that the worker's employment essentially moved with him. It required him to be available to respond to referrals within a relatively short timeframe, even though he may, at the same time, be undertaking a dual purpose of some other domestic or recreational activity. 137. It is in this sense that, although there are similarities with cases such as Badawi, Da Ros , Watson v Qantas Airways Limited [2009] NSWCA 322 ( Watson ), and Hatzimanolis , the facts in the this case are different in that the worker's employment did not require him to be at any particular location at a particular time when he was working, and did not require him to work at places remote from his home. It afforded him a certain amount of freedom to work at times that were more flexible than traditional working arrangements. It was this flexibility that attracted Mr Van Wessem to this kind of work and allowed him, as his wife said, to combine his work with other pursuits. 138. The nature of the work played no role in the accident. It did not require him to go cycling." 25Paragraph [138] was a correct statement as to the nature of the work. The appellant relied on observations by Basten JA, Tobias and McColl JJA agreeing, in Da Ros v Qantas Airways Limited [2010] NSWCA 89; (2010) 8 DDCR 103 at [21] that it was erroneous to "discount" the employment concerned because, although the worker's conduct was permitted and encouraged by the employer, the specific activity was not required by the employer; and at [22] that "it is usually neither necessary nor appropriate to inquire whether the particular activity was the subject of a specific direction by the employer or was simply a permissible activity, chosen by the employee". 26The President did not do either of these things. He identified relevant aspects of the employment concerned: Mr Van Wessem did not have to be at any particular place at a particular time when he was working, or to work at remote locations, or to cycle. He was not concerned with Mr Van Wessem directing or encouraging himself as the sole director of his employer, which would have been entirely artificial. 27The second particular error was said to occur at [139]-[140] of the President's reasons. His Honour said - "139 The contract between the respondent and Aussie Home Loans Limited was entered into on 30 September 2008, and had therefore been in place for some four to five months before the accident. 140 The duration of employment is a relevant factor in the sense that the employment was entered into after the worker had already established a practice of cycling to Bobbin Head on Sunday mornings, and tends to diminish any link between the cycling and the employment." 28The appellant submitted that it was irrelevant that there had been a practice of pre-employment cycling, because all that mattered was that there was cycling in the course of employment. 29However, being in the course of employment is temporal, whilst being a substantial contributing factor is causal. There must be evaluation of the strength of the causal linkage between the employment and the injury ( Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 at [106] per McColl JA, Mason P and Beazley JA agreeing). It was not irrelevant to have regard to pre-employment activity of the same kind as the activity engaged in at the time of injury. It was perhaps not a s 9A(2)(d) matter of duration of employment, as the President's "in the sense ... " indicates, but it was a relevant matter. 30The third particular error was said to occur at [141] of the President's reasons. His Honour said - "141 Mr Van Wessem was a keen cyclist. On average, he rode three times a week at various times. When he went for a ride, he was in the habit of riding his pushbike to Bobbin Head and back, which was a ride of approximately 45 minutes. Mr Williams stated in May 2009, when he provided his statement, that he and Mr Van Wessem had been regular cycling partners for 12 months. In other words, Mr Van Wessem had been a regular cyclist since at least May of 2008. That is, he had been in the regular practice of cycling to Bobbin Head and back from his home well before his employer entered into the contract with Aussie Home Loans. There was nothing about his employment that obliged Mr Van Wessem to use a bicycle or to undertake the kind of ride that he was undertaking at the time of his accident. The connection with employment was limited to the extent that he carried his mobile phone with him during such rides in order to alert him to the possibility of an incoming referral. The evidence disclosed that Mr Van Wessem did not use his mobile phone during the course of the ride, although he had used it prior to commencing the ride for a work-related call. These facts lead me to conclude that Mr Van Wessem would have undertaken the ride he was engaged in at the time of his accident irrespective of any employment-related obligation or requirement . Seen in that context, the probability of a similar injury occurring, irrespective of his employment, is high. This suggests Mr Van Wessem's employment was not a factor, let alone a significant contributing factor to the injury." (emphasis added) 31The appellant initially submitted that there was no evidence which would permit the emphasised conclusion. The conclusion was an inference or conclusion from other facts, and there was evidence from which the inference or conclusion could be drawn or reached. The appellant submitted in particular that there was no evidence of a practice of cycling on Sundays, but the evidence of Mr Williams provided a sound basis for the practice. The appellant then submitted that the finding could not be made because the nature of Mr Van Wessem's work was such that any cycling would be in the course of his employment. That denied the hypothesis required by s 9A(2)(d). The submission finally became that the President erroneously focussed on the cycling, not the employment concerned, part of the primary error: see later in these reasons. 32The fourth particular error was said to occur at [151] of the President's reasons. The President had moved on from the matters in s 9A(2). He was addressing submissions as to error by the Arbitrator and as to the appellant's reliance on Da Ros v Qantas Airways Limited , a case of an airline pilot injured when riding a bicycle in Los Angeles where he was required to remain on slip time. He said - "151. Unlike cases such as Hatzimanolis, Da Ros, Watson and others, this is not a case where the worker's employment placed him in a remote location or otherwise exposed the worker to a risk to which he would not otherwise have been exposed . I am satisfied on the evidence before me that Mr Van Wessem had engaged in the practice of undertaking a Sunday morning bicycle ride in the company of his friend, Mr Williams, for a considerable period of time before his company entered into its contract with Aussie Home Loans. His practice of undertaking the rides was not altered in any way as a result of undertaking that employment. In that sense, it cannot be said that the employment concerned was a substantial contributing factor to the injuries, in that it did not contribute at all." (emphasis added) 33The appellant submitted that the emphasised words were an irrelevant consideration. She submitted that if Mr Van Wessem was not in a remote location "you shouldn't have regard to the remote location cases to determine whether or not the substantial contributing factor is made out". She submitted that it was irrelevant to determine that it was not a case where Mr Van Wessem's employment exposed him to a risk to which he would not otherwise have been exposed "because the question posed for consideration was the issue of the worker's lifestyle and his or her activities outside the workplace in terms of assessing material contribution". 34It was not irrelevant for the President to explain that remote location cases differed from the present case. Whether or not Mr Van Wessem's work exposed him to a risk to which he would not otherwise have been exposed was relevant, and important. 35The President said at [143], under a heading referring to s 9A(2)(f) of the 1987 Act, that for the reasons discussed at [141] "the worker's lifestyle and his activities outside the workplace were the relevant factors which exposed him to the risk of sustaining injuries in the circumstances that he did on the day of his accident". The appellant also submitted that it was not relevant for the President to have addressed s 9A(2)(f), the worker's lifestyle and his or her activities outside the workplace , because, on the President's findings Mr Van Wessem was not outside the workplace - as I understand it, meaning that he was never outside his workplace. Mr Van Wessem's work practices did not make it irrelevant to consider his pre-employment and continued practice of cycling as something occurring by reason of his lifestyle, as a factor in the inquiry into the causal linkage between the employment concerned and the injury. 36To go to the primary error, none of the particular errors involved the President departing from consideration of the employment concerned, and instead considering the cycling and from that perspective looking for a linkage between the cycling and the employment. The relevant causal linkage is between the employment concerned and the injury, and when the injury was in a cycling accident it can not be ignored that Mr Van Wessem was cycling. But that does not mean that the President fell into the primary error. 37Nor is the primary error otherwise revealed in the reasons. The President set out at [129] the "uncontroversial propositions" stated by the plurality in Badawi v Nexon Asia Pacific Pty Limited at [48], which included that the strength of the linkage between employment and injury was the issue. He referred to the fact-laden nature of causation and the explanation of "substantial" in Badawi v Nexon Asia Pacific Pty Limited at [82]. He considered in turn the factors in s 9A(2). He came to his conclusion at [151] specifically in terms of the contribution of the employment concerned to the injury. 38The appellant submitted that the President's statement at [133] as to s 9A(2)(a) that "[t]here is nothing about the time and place of the injury that links it to the employment save for the fact that Mr Van Wessem was available to respond to phone calls at that time" revealed misdirection, because his place of employment was wherever he and his phone happened to be. This was in terms a consideration of linkage between the injury and the employment and, given Mr Van Wessem's work practices, not an incorrect statement. 39Erroneous decision in point of law has not been shown.

The significance of injury in the course of employment 40In the appellant's written submissions reliance was placed on the observation by Basten JA, Tobias and McColl JJA agreeing, in Da Ros v Qantas Airways Limited at [21] that, the worker being there on his bicycle in the course of his employment, "it would appear to follow that the employment concerned was a substantial contributing factor". The appellant submitted that once it was established that an injury occurred in the course of employment "it will normally follow that the employment was a substantial contributing factor in terms of s 9A". 41The submission is not well founded. 42The "uncontroversial propositions" set out by Allsop P and Beazley and McColl JJA in Badawi v Nexon Asia Pacific Pty Limited at [48] included - " (2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [36] per Santow JA (Beazley and Ipp JJA agreeing)." 43That is plainly so as to in the course of employment, which is temporal and not causal. Further, s 9A(3) of the 1987 Act provides - "(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment ; (b) ... " 44In Badawi v Nexon Asia Pacific Pty Limited Basten JA, who dissented in the result, referred at [121] and [128]-[129] to the finding of injury in the course of employment in some circumstances leaving a substantial contributing factor as the only conclusion reasonably open. Handley AJA, who also dissented in the result, relevantly agreed with the plurality and expressed some disagreement, at [153], with what Basten JA had said at [121]. 45Basten JA's observation in Da Ros v Qantas Airways Limited may have held good on the facts of that case. It does not support normally moving from injury in the course of employment to the employment concerned being a substantial contributing factor to the injury. Causation is a quite different concept from temporal occurrence.

Orders 46I propose that the appeal be dismissed with costs. 47HODGSON JA : I agree with Giles JA. 48HANDLEY AJA : I agree with Giles JA.

Amendments 18 August 2011 - Incorrect hearing date Amended paragraphs: Coversheet 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: 18 August 2011