Tran v Vo

1. [1]

   MACFARLAN JA: I agree with Payne JA.

2. [2]

   LEEMING JA: I agree with Payne JA that this appeal should be dismissed with costs. I agree with what his Honour’s reasons, and without detracting from them, I wish to add observations on two matters.

3. [3]

   First, the fact that Ms Vo has received payments from the appellants’ workers’ compensation insurer does not give rise to any question of double compensation. Those payments are required to be repaid, and indeed Ms Vo has undertaken to the Court to do so. It is not to the point to submit, as the appellants submitted, that s 151Z of the Workers Compensation Act 1987 (NSW) had no application. That does not stand in the way of the workers’ compensation insurer having a right to recover the monies paid. There can be no suggestion of a limitation defence under s 14(1)(a) of the Limitation Act 1969 (NSW), and even if there were a defence at general law, the undertaking ensures Ms Vo’s obligation to repay.

4. [4]

   The appellants’ response is to assert that “The question still remains as to who may now enforce that undertaking”. I see no reason why, as a matter of its ordinary construction, the workers’ compensation insurer – which is after all explicitly identified in the undertaking – could not enforce it directly. It is to be recalled that such an undertaking is not some contract between parties or some other cause of action upon which one party can sue the other: cf European Bank Ltd v Robb Evans of Robb Evans & Associates (2010) 240 CLR 432; [2010] HCA 6 at [14] (in relation to the usual undertaking as to damages). But in any event, it is also to be recalled that although doubtless the submission was being made in accordance with submissions from the (presumably different) public liability insurer of the appellants, counsel making it was doing so on behalf of the appellants – the parties who raised this point at trial. If, as the appellants contend, there is some question over the workers’ compensation insurer enforcing the undertaking in its favour because it is not a party in this dispute, there can be no difficulty in the appellants doing so. I respectfully struggle to see how the appellants can be heard to say that there is a difficulty in their being able to enforce the undertaking.

5. [5]

   Secondly, this Court was told that it had been common ground throughout the trial that the proceedings were not maintainable if, as the appellants contended, the proceedings were “for the recovery of work injury damages” and the requirements of ss 315 and 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) had not been complied with. Two things may be noted as to that common ground. The first is that it would appear to follow from Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, as well as first principle, that Ms Vo’s statement of claim (i) was not a nullity, (ii) properly invoked the jurisdiction of this Court, and (iii) therefore invoked this Court’s procedural rules for dealing with the issues to which it gave rise. See also 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [2]-[5] and [90]-[105]. The second is that it by no means follows automatically, or at least without further analysis, that a breach of a requirement pre-trial, the consequence of which was to limit the matters capable of being put in issue in litigation, is one which may be saved up by the defendant and relied upon at the hearing, so as to disentitle an otherwise successful plaintiff from a judgment in her favour. It seems unlikely that that consequence would be a purpose readily inferred from ss 315 and 318, especially when, as a matter of substance, both parties had conducted the litigation in a way that was untrammelled by the requirements imposed by those sections.

6. [6]

   That said, the foregoing, although raised by the Court during argument, was not the subject of any submissions and should be treated as no more than preliminary observations on a point that may arise for determination in some future appeal.

7. [7]

   PAYNE JA: This is an appeal from a decision of the primary judge delivered on 29 July 2016 (Vo v Tran [2016] NSWSC 1043). Final orders were made on 30 August 2016 (Vo v Tran (No 2) [2016] NSWSC 1198). A stay was granted pending the outcome of this appeal (Vo v Tran (No 3) [2016] NSWSC 1199).

Background facts

1. [8]

   The respondent, Ms Vo, was born in Vietnam in 1980. In 1998, she finished high school. In 2002, she completed an undergraduate degree at Ho Chi Min University of Information and Technology. In 2004, she completed an accounting course in Vietnam. In 2004 to 2006, she undertook accountancy work in Vietnam.

2. [9]

   In October 2008, the respondent came to Australia on a student visa. That visa was due to expire in August 2013. The student visa allowed the respondent to work 20 hours per week in Australia.

3. [10]

   The respondent was introduced to the appellants’ retail shop, “Thu Phung Desserts”, by a friend who knew one of the appellants, who were the owners of the business.

4. [11]

   In July 2011, the respondent commenced a part-time casual job with Thu Phung Desserts as a shop assistant. Her supervisor was the second appellant who conducted the business in partnership with her husband, the first appellant. The respondent worked one to two hours on the days she was rostered to work, being Wednesday, Thursday and Friday of each week. At the time the respondent suffered her injuries, she attended Central College, Redfern on Monday and Tuesday of each week.

5. [12]

   On Monday 13 February 2012, the respondent finished her classes at the Central College at about 12:00 pm. She travelled to Cabramatta, arriving at approximately 1:00 to 1:30 pm. She met a friend for lunch and the two spent the afternoon walking in Cabramatta.

6. [13]

   The respondent went to Thu Phung Desserts at approximately 5:00 to 5:30 pm with the intention of buying a drink at the shop. On arrival her friend, Ms Hoa, who also worked as a casual employee at Thu Phung Desserts, asked her if she would help her with cleaning the floor and with the last stage of cleaning a sugarcane juicing machine.

7. [14]

   At the time, a tiled area of the shop floor was wet and slippery. The respondent walked on the wet and slippery tiled surface and slipped. As she did so, she came into contact with the sugarcane juicing machine which was operating. Her left hand entered a void in the juicing machine used to insert sugarcane and other items for crushing, causing her to sustain significant injuries to her left hand.

8. [15]

   The respondent was admitted to Liverpool Hospital and underwent surgical and other medical treatment. She was treated by her general practitioner, Dr Harry Pope and later her consultant psychiatrist, Dr Son Nguyen, and psychologist Dr Linda Nguy.

9. [16]

   In October 2012, by reason of depression and post-traumatic stress disorder arising from her injuries, the respondent attempted to commit suicide. However, subsequently she recovered to the point whereby she continued her studies.

10. [17]

    In March 2013, the respondent completed all her accounting subjects in her Diploma of Accounting course. In July 2013, she commenced a Bachelor Degree course in Accounting Studies at Central College, which was due to be completed in February 2016.

Decision of primary judge

1. [18]

   An important issue before the primary judge was whether Ms Vo’s injury had arisen out of or was in the course of her employment with the appellants.

2. [19]

   The appellants’ position was that as the respondent’s injury had arisen out of or in the course of her employment with the appellants, then her right to commence proceedings seeking common law damages against the appellants was restricted by Pt 6 of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMA). The respondent’s position was that these proceedings were not subject to the WIMA, and it was thus unnecessary for her to comply with the preconditions in that Act before commencing a claim for common law damages.

3. [20]

   It was common ground before the primary judge that as Ms Vo did not comply with the preconditions for the commencement of proceedings seeking common law damages set out in the WIMA, if that Act applied, the proceedings were improperly commenced and would need to be started again.

4. [21]

   The primary judge found that the respondent’s status as at the date of the accident was not as an employee of the appellants. This was because she had fixed rostered working days (Wednesday, Thursday and Friday) on which she worked limited fixed hours each day as a casual employee. The appellants did not ask or direct her to work on the Monday she was injured.

5. [22]

   The primary judge found that:

6. [23]

   The primary judge also found that the relationship of employer/employee had no bearing upon the respondent’s presence at the shop premises on the day she was injured. Her presence was not due to any obligation owed by her as an employee. Her attendance when injured was not pursuant to any employment related practice. The primary judge concluded that at the time of the accident the respondent was not working as an employee, that is to say, that she was not injured in the course of her employment with the appellants. There was no basis for the contention that the activity she was assisting with when her accident occurred arose out of her employment.

7. [24]

   The primary judge then addressed the occupier’s liability claim made by the respondent. As these findings were not challenged on this appeal, it is sufficient to set out the primary judge’s findings only briefly. His Honour concluded:

   1. (1)

      the relationship of occupier and entrant is one of the established categories of relationships in relation to which the common law of negligence imposes a duty on the occupier to take care of the entrant: Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62;

   2. (2)

      the scope of an occupier’s duty is one to take reasonable care in the circumstances for the entrant’s safety, and to protect him/her from risks of injury that can be foreseen and avoided: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7;

   3. (3)

      Ms Vo was both honest and reliable in her account of the circumstances in which she attended the premises and the circumstances in which she was injured. The primary judge had no hesitation in accepting her evidence in relation to those matters;

   4. (4)

      the evidence established that the juicing machine represented a hazard that was capable of causing an accident such as that which occurred on the date of the respondent’s injury. The nature of the risk of injury and the circumstances giving rise to it were properly identified in the expert engineering report of Ms Pok, dated 13 June 2014, which was not challenged by the appellants;

   5. (5)

      the risk that existed on the date of the respondent’s accident was foreseeable to any persons who were in proximity to the machine, whether they were employees, delivery personnel or anybody else lawfully on the shop premises;

   6. (6)

      there was no evidence that the appellants provided any warning, by notices or otherwise, of the potential risk or hazard associated with the juicing machine. There was no evidence that the appellants gave instructions to Ms Hoa in respect of the machine and its safety or otherwise, or the need to take precautionary steps in her interests or in the interests of others lawfully upon the shop premises;

   7. (7)

      the evidence established that the only person other than the respondent on the shop premises on the day of the accident was Ms Hoa. There was no evidence suggesting the presence of either the appellants themselves or any other person supervising the shop premises. The respondent was lawfully present as a customer who had responded to Ms Hoa’s request for assistance. The appellants, of course, were vicariously liable in respect of any negligent act or omission by Ms Hoa arising from or consequent upon her request to the respondent to assist her in completing the cleaning operations on the date of the accident. The appellants were also directly liable for the inadequately guarded machine;

   8. (8)

      the rollers of the juicing machine presented a danger to persons who might be in proximity to the machine if there was not adequate guarding or a mechanism that would ensure that the machine could not operate;

   9. (9)

      the primary judge found that the risk from the combination of circumstances he described was one that was readily foreseeable and preventable by cost-effective precautions. There was a clear obligation on the appellants to people who were on the shop premises to ensure that the plant and equipment used in the course of the business and the premises were safe. This was particularly so in the case of machinery involving moving parts capable of drawing a person’s hand into the machine;

   10. (10)

       accordingly, the primary judge found that the risk of having a hand stuck in the juicing machine was, on the evidence, including the expert evidence, foreseeable and a risk that a reasonable person ought to have appreciated (s 5B(1)(a) of the Civil Liability Act 2002 (NSW) (CLA). The risk was not insignificant where the machine was regularly used (s 5B(1)(b), CLA) and where, in the event of injury from it, the likely consequences were serious. In the circumstances, a reasonable person in the appellants’ position would have taken available precautions against the risk of harm, such as the fitting of interlocking guarding (s 5B(1)(c), CLA);

   11. (11)

       the primary judge found that there was a high probability of harm from the juicing machine in the absence of such precautions (s 5B(2)(a), CLA), that the harm was likely to be of a serious nature (s 5B(2)(b), CLA) and that the burden of taking the precautions was minimal (s 5B(2)(c), CLA);

   12. (12)

       on causation, the primary judge found that the respondent’s physical and psychiatric injuries arose directly from the appellants’ failure to take steps to render the juicing machine safe; but for such failures, the respondent’s injuries would not have occurred: ss 5D and 5E of the CLA.

8. [25]

   The primary judge also made findings about an estoppel claim made by the appellants, based upon the claim made for workers compensation. That claim was not pressed on appeal. His Honour also made findings about contributory negligence which are not the subject of the appeal.

9. [26]

   The primary judge then dealt with the question of damages. For present purposes the critical findings addressed the topic of double compensation in relation to the payments of workers compensation.

10. [27]

    Although the circumstances in which the claim was made were controversial before the primary judge, it was common ground that workers compensation payments were made to the respondent as a result of her injuries. It was common ground on the appeal that those payments were not repayable by the respondent in this case pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) (WCA) or any other provision of the WCA or the WIMA.

11. [28]

    It was accepted by the respondent that she could not retain the benefit of both those workers compensation payments and common law damages. The respondent proposed to the primary judge resolving that issue by giving an undertaking to the Court, as a condition of any damages award, to repay the full amount of those workers compensation payments to the workers compensation insurer.

12. [29]

    The primary judge accepted that the undertaking offered by the respondent to repay the compensation she received out of any award of damages was sufficient. As the primary judge stated in the reasons for judgment delivered on 29 July 2016 at [258]:

13. [30]

    It is this aspect of the primary judge’s damages award which was the subject of ground 5 of the appeal.

14. [31]

    On 30 August 2016, orders were made entering verdict and judgment in favour of the respondent in the amount of $512,764.94: Vo v Tran (No 2). No ground of appeal addressed the calculation of damages and it is unnecessary to consider this issue.

Issues on appeal

1. [32]

   The notice of appeal raised seven grounds. Only five of those grounds were addressed in the appellants’ written submissions in chief. In the written submissions in reply it was stated that “the issues for determination of the appeal” were grounds 1 - 5. The appellants expressed those grounds as follows:

   1. (1)

      Does the respondent’s claim for damages need to be determined with reference to the WCA or the WIMA and in particular with reference to the definition of “injury” contained therein? (grounds 1 - 4)

   2. (2)

      If so, did the respondent’s injury arise out of or was it in the course of her employment with the appellants? (grounds 1 - 4)

   3. (3)

      If not, how should the Court deal with the past payments of workers compensation made to the respondent by the appellants’ workers compensation insurer? (ground 5)

2. [33]

   Grounds 1 - 4 were each addressed to particular aspects of the primary judge’s finding that the respondent’s injuries did not arise out of and was not in the course of her employment with the appellants:

3. [34]

   Ground 5 addressed damages. The issue was whether the primary judge had erred when awarding damages in accepting the undertaking by the respondent to repay any workers compensation she had received, rather than deducting that sum from the damages award:

4. [35]

   Two grounds of appeal were not addressed in writing or orally by the appellants. The first ground asserted the making of inconsistent findings of fact about requests made to the respondent to engage in work for the appellants on the day of the injury (ground 6) and the other asserted that the primary judge erred in not finding that the respondent had been asked “through its employee” to engage in work for them on the day of the accident (ground 7).

5. [36]

   It is possible that the submissions advanced about Ms Hoa’s alleged agency (addressed below) were thought by the appellants to arise under these grounds 6 and 7. I will address that allegation of agency when dealing with the substance of grounds 1 - 4.

Grounds 1- 4 of the appeal

1. [37]

   I will deal with grounds 1 - 4 and the issue of Ms Hoa’s agency together as this was the way the issues were approached by the parties.

2. [38]

   It is important first to sketch the statutory background relating to this appeal. The first matter to notice is that, subject to various procedural and substantive restrictions, an injured worker has the right to sue an employer for common law damages. Section 151 of the WCA provides:

3. [39]

   The commencement of proceedings seeking common law damages for “work injury damages” is circumscribed in various respects. In particular, a “pre-filing statement” setting out various matters must be filed. Such a statement cannot be served unless various conditions are satisfied. Section 315 of the WIMA states:

4. [40]

   The conduct of proceedings for “work injury damages” is also affected by s 318 of the WIMA which provides:

5. [41]

   An important substantive difference between claims for common law damages generally and those relating to the “injury” to a “worker” is that s 151H of the WCA provides that an injured worker is entitled to damages only if the injury results in the death of the worker or a degree of permanent impairment that is at least 15%. There are also important limitations upon the recovery of certain types of damages in the case of common law claims for work injury damages however they are unnecessary to consider for the purposes of this appeal.

6. [42]

   Section 151H of the WCA provides:

7. [43]

   The critical question in this case is whether the claim made by the respondent is for “work injury damages”, which is the precondition to the application of ss 315 and 318, set out above.

8. [44]

   Section 250 of the WIMA provides relevantly for the purposes of a common law claim:

9. [45]

   Section 4 of the WCA provides relevantly:

10. [46]

    The definition of “injury” under s 4 of the WIMA is in relevantly identical terms:

11. [47]

    Accordingly, if the respondent’s injury met the description of “work injury damages”, being a personal injury “arising out of” or “in the course of” employment as defined in s 4 of the WCA and s 4 of the WIMA, it would be a claim falling within the provisions of ss 315 and 318 of the WIMA.

12. [48]

    It was submitted that the respondent’s injury met the description of a personal injury “arising out of” or “in the course of” her employment which was thus a claim for “work injury damages” as defined, which attracted the provisions of ss 315 and 318 of the WIMA. Although on the evidence the respondent’s injuries were significant, the appellants submitted that the respondent had not established that she suffered a degree of permanent impairment that is at least 15%. It was submitted that she may be entitled to bring a claim for work injury damages, but only after the various pre-conditions set out in the WIMA are met, including serving a pre-filing statement and attending a compulsory mediation.

13. [49]

    It was submitted that the word “injury” is used in both the WIMA and the WCA and had the same defined meaning in both. The word “injury” can only mean personal injury arising out of or in the course of employment.

14. [50]

    It was submitted that an activity can be within the “course of employment” even though voluntary and unremunerated if the employer derives benefit from the activity and the employer encourages employees to join such an activity: Clancy v Department of Public Health [1962] NSWR 2.

15. [51]

    “In the course of employment” requires consideration of whether the respondent, at the time she suffered her injury, although not engaged in actual work, was at a place the appellants induced or encouraged her to be or was engaged in an activity the appellants induced or encouraged her to engage in: Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21 at [16]; Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 at [38].

16. [52]

    It was submitted that in this case, the respondent’s injuries were suffered by reference to both an activity and a place. Of significance is the fact that the accident occurred at the respondent’s workplace. The “injury” was suffered whilst she was engaged in undertaking her normal duties at her employer’s premises. The appellants submitted that the relevant question was: “did Tran and Le either expressly or impliedly induce or encourage Vo to engage in the activity at her employer’s premises on 27 March 2012?”.

17. [53]

    At the time of her injury the respondent was undertaking a task that she normally performed as part of her employment. She had been requested to undertake it by another employee. She undertook that task at her employer’s premises. She had previously undertaken a similar cleaning task on her rostered days off. The task was ultimately for her employer’s benefit.

18. [54]

    It was submitted that, “on the basis of the evidence it is clear that it was something that was not only authorised by the employer but it was something her employer (at very least through another employee) had actively encouraged Vo to take part in”.

19. [55]

    It was submitted that whilst the respondent’s motives and beliefs may provide some evidentiary support as to whether she was in the course of her employment, they do not form the relevant test. The employer determines the course of employment. It was submitted that the characterisation of the occasion will depend upon an objective assessment of the conduct of persons in authority with the employer. Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 per Allsop P at [45] was referred to.

20. [56]

    It was submitted that “arising out of employment” means arising out of the work that the respondent had been employed to do, and what was incidental to it. This denotes a causal relationship: Lawrence v George Matthews (1924) Limited [1929] 1 KB 1 at 19; Smith v The Australian Woollen Mills Ltd (1933) 50 CLR 504; [1933] HCA 60 at 511-512. The appellants accepted that in order to support a finding that the respondent’s injuries arose out of her employment it is necessary that a causal relationship be established between the accident and her employment.

21. [57]

    Had the respondent’s injuries been attributable to some feature of the premises which bore no relationship to her employment, there would have been much to be said for an argument that it did not arise out of her employment. In this case however, according to the appellants, the respondent’s injuries were directly related to the work which she and Ms Hoa performed as part of their normal duties. Her slip brought her into contact with the juicing machine that was in the process of being cleaned by her and Ms Hoa. It was this contact that caused her injury.

22. [58]

    It was submitted that the nature of the respondent’s employment contributed to a material extent to her injury. It was submitted that this conclusion would be sufficient to establish that the respondent’s injuries arose out of her employment.

23. [59]

    On the basis that the respondent’s injury was one in the course of her employment or was one arising from her employment, it was submitted that the claim brought by the respondent, in its current form, should have been dismissed.

24. [60]

    Mr H Marshall SC, who appeared for the respondent with Mr Baran, submitted that the factual circumstances that were not in dispute were determinative. Those circumstances were:

    1. (1)

       the respondent was a casual employee, working on rostered days. The day of her accident was not one of those days. She was not required to work by the employer on the day of the accident;

    2. (2)

       the respondent went to the appellants’ premises, not to perform work but to buy a drink and meet her friend who was working there at that time;

    3. (3)

       whilst at the premises, the friend asked the respondent to help her “clear up” so that she could finish earlier and leave with the respondent;

    4. (4)

       the help provided involved performing some duties which she, the respondent, would ordinarily perform when she was rostered on for duty;

    5. (5)

       the day of the accident was not the only occasion when her friend had asked the respondent to assist. On previous occasions the respondent had been asked and had agreed;

    6. (6)

       there was no evidence to suggest that on the day of the accident or, for that matter, on any previous occasion, the appellants were aware of the voluntary assistance provided by the respondent to her friend. Equally, there was no evidence that the appellants endorsed this voluntary assistance by the respondent or any other employee;

    7. (7)

       the respondent was not paid by, nor did she request payment from the appellants for this voluntary assistance, either with respect to the day of the accident or on any previous occasion.

Consideration of grounds 1 - 4

1. [61]

   There is no doubt that, subject to the effect of any restrictions or conditions in the WIMA and the WCA, the respondent was able to bring a damages claim for personal injury. The High Court in Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 stated at [18]:

2. [62]

   The parties approached this case on the basis that if the appellants were correct that the “injury” suffered by the respondent “arose out of” or was “in the course of her employment” with the appellants, it necessarily followed that the orders of the primary judge should be set aside and the respondent should be forced to commence again any common law damages claim against the appellants.

3. [63]

   While this result was common ground, for my part I express no view about whether the assumption made by the parties was correct. In Berowra Holdings Pty Limited v Gordon, the High Court made clear that proceedings commenced without regard to s 151C of the WCA which applied and where a settlement was obtained following an offer of compromise which was made, were not invalid for want of jurisdiction. In that case s 151C was not referred to until 18 months after the proceedings had been commenced and only after the offer of compromise had been made.

4. [64]

   A similar question might arise here. Whether, properly construed, the provisions relied upon by the appellants lead to any different outcome is not in issue here.

5. [65]

   In the present case the proceedings were litigated to finality on all issues. Although, by reason of the non-compliance with ss 315 and 318 of the WIMA, the issue of whether the respondent had suffered greater than 15% impairment as a result of her injuries was not litigated, her injuries were extremely serious.

6. [66]

   This case does not determine the question whether, in the case of proceedings which both parties have participated in the litigation to finality, and where an unsuccessful party has not sought interlocutory relief prior to the trial about the bringing the proceedings alleging a failure to comply with the preconditions in ss 315 and 318 of the WIMA, the proceedings are necessarily invalid for want of jurisdiction because of a failure by the respondent to comply with those requirements of ss 315 and 318 of the WIMA.

7. [67]

   The way the parties in the present case approached the issue makes it unnecessary to say any more about it.

8. [68]

   The starting point for a consideration of grounds 1 - 4 is that Mr Pollin SC, who appeared for the appellants, submitted at the commencement of his oral address that Ms Hoa was acting within her implied or ostensible authority, conferred by the appellants, in asking the respondent to assist in cleaning the premises. Thus, it was submitted, the Court should infer that the appellants induced or encouraged the respondent to attend the premises and assist in cleaning on the Monday she was not rostered to work.

9. [69]

   It was submitted on behalf of the respondent that the question of Ms Hoa’s implied or ostensible authority to induce or encourage Ms Vo to assist in cleaning the premises was never raised at trial. That submission should be accepted.

10. [70]

    In considering this issue, the starting point is that the defence was amended on day one of the trial to allege for the first time that these proceedings were not maintainable because of a failure to comply with ss 315 and 318 of the WIMA. Paragraph 7(c) of the appellants’ amended defence stated:

11. [71]

    The amended defence is silent about Ms Hoa’s implied or ostensible authority to act on behalf of the appellants to encourage the respondent to assist with the cleaning of the shop on the day she was injured.

12. [72]

    While the pleading may have been broad enough to permit the question of Ms Hoa’s implied or ostensible authority to be litigated, there was no finding by the primary judge about Ms Hoa’s implied or ostensible authority to induce or encourage the respondent to act as she did, because the primary judge was not asked by the appellants to make such a finding.

13. [73]

    The primary judge dealt with the issue of “overtime”, which is the way the case was argued below. The way the case was put was set out in writing by the appellants before the primary judge:

14. [74]

    There would be obvious prejudice in permitting the appellants to rely on Ms Hoa’s implied or ostensible authority for the first time on appeal. The precise content of the respondent’s and Ms Hoa’s contracts of employment were not explored in evidence as no doubt they would have been if this issue had been raised. If this argument had been raised at trial there would have been important forensic options available to the respondent including tendering some or all of the statements apparently filed by the appellants but not tendered at the trial, calling additional evidence from the respondent and other employees about the terms of her employment and seeking a Jones v Dunkel inference about the failure of the appellants to give evidence. The loss of those forensic opportunities means that the appellants should not be permitted to rely upon this argument for the first time on appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35.

15. [75]

    Even on the assumption there was no prejudice to the respondent in permitting the appellant to raise this point on appeal for the first time, I would not conclude that Ms Hoa’s request of the respondent was within Ms Hoa’s implied or ostensible authority.

16. [76]

    There was no basis in the evidence to conclude that Ms Hoa had actual, implied or ostensible authority to act on behalf of the appellants so as to induce or encourage the respondent to be at the place of employment on the day she was injured or to engage in the activity she was engaged in at the time she was injured.

17. [77]

    The evidence given by the respondent was that she worked on her rostered days, Wednesday, Thursday and Friday, and occasionally worked at the shop on call and at the direction of the second appellant. When asked to work, she would receive a telephone call from the second appellant who would ask “[c]an you come in and work?” She had visited the shop on other occasions when she was not working and had helped clean the premises before. On those occasions she would provide such help with cleaning as she was asked. She agreed that “no-one ever told you not to come and help your friend when she was working there”. No evidence was adduced from the respondent in cross-examination from which it could be inferred that the appellants were aware of Ms Vo visiting the shop when she was not working or that they had induced or encouraged her to do so.

18. [78]

    The other evidence was essentially silent on this issue. The appellants chose not to give evidence. Ms Hoa did not give evidence. There was no documentary evidence touching upon this issue.

19. [79]

    The appellants’ argument based on the terms of s 250(2) of the WIMA takes the matter no further. That section does not have the effect that Ms Hoa’s inducement or encouragement of the respondent to assist her in cleaning the shop became an inducement or encouragement offered by the employer within the meaning of Comcare v PVYW. To have this effect, the other employee must be the agent of the employer in making the request. For the reasons given, the appellants did not seek such a finding below and, even if permitted to raise this argument on appeal, failed to establish that Ms Hoa had the actual, implied or ostensible authority of the appellants for this purpose.

20. [80]

    To the extent that this argument arises under grounds 6 and 7 of the appeal, those grounds should be dismissed.

21. [81]

    The appellant’s case was principally focussed on the submission that the respondent’s injury was one that was in the course of her employment.

22. [82]

    To determine this question it is necessary to consider the decisions in Hatzimanolis and Comcare v PVYW, where the High Court described in detail the meaning of the phrase “course of employment”.

23. [83]

    In Hatzimanolis the Court (at [14]) identified as a striking feature of the cases dealing with an injury to a worker which occurred in an interval between periods of actual work, that “the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way”. The Court went on to say at [16]:

24. [84]

    This focus on encouragement and inducement given to an employee to engage in an activity or be at a particular place, outside of the worker’s working hours, is at the heart of the present case.

25. [85]

    In Comcare v PVYW, where the injury occurred away from the worker’s usual place of employment and at a time outside her usual working hours, the Court returned to this question. Critically for present purposes, the High Court in Comcare v PVYW stated at [35]-[36] and [38] (footnotes omitted):

26. [86]

    The plurality, French CJ, Hayne, Crennan and Kiefel JJ, stated at [50] and [52] (footnotes omitted):

27. [87]

    An injury occurring during an interval between normal working hours, such as that suffered by the respondent, may be regarded as one arising in the course of her employment in circumstances where the employer has induced or encouraged the employee to spend the interval at a particular place or perform a particular activity. This is because, as the High Court explains in Comcare v PVYW, the effective source of the employer’s liability is the inducement or encouragement of the employee.

28. [88]

    In my view, at the time of the accident the respondent was not acting in the course of her employment. The evidence was that when asked to work, the respondent would receive a telephone call from the second appellant, not Ms Hoa, and would be asked “[c]an you come in and work?”.

29. [89]

    The activity engaged in at the time of injury, assisting her friend with cleaning, was not induced or encouraged by the appellants. When analysing the injury by reference to a place, the shop premises, the appellants did not induce or encourage the respondent to be there.

30. [90]

    At the time of the injury the respondent had attended the shop premises to purchase a soft drink. This was not as a result of any encouragement or inducement by the appellants. As earlier noted, the argument advanced by the appellants on the appeal for the first time, that Ms Hoa, as agent, encouraged or induced the respondent to be at the place or engage in the activity leading to her injury, should be rejected.

31. [91]

    In this case, there was virtually no evidence about the terms and conditions of the respondent’s employment. There was no evidence of written terms. The appellants were not called to give evidence about any oral terms.

32. [92]

    The respondent’s evidence, which I have summarised at [77] above, was that she was required to work on her rostered days, Wednesday, Thursday and Friday and was otherwise “on call’, in that the second appellant would telephone her and ask if she was free to work in the shop on that day.

33. [93]

    On the evidence before the primary judge, the appellants did not know the respondent was present on that day. There was no evidence that the appellants were ever aware that the respondent had attended the shop premises on days when she was not working. The appellants had not asked her to perform work on that day by the system established, namely a telephone call to the respondent from the second appellant. The fact that the respondent voluntarily provided some assistance to her friend Ms Hoa on days when she visited the shop does not mean that in doing so she was acting on any inducement or encouragement by the appellants.

34. [94]

    The submission that the respondent was “performing the same duties” at the time of her injury does not lead to any different conclusion. The performance of the activity, cleaning, that preceded her injury was not the result of any inducement or encouragement by the appellants.

35. [95]

    As Comcare v PVYW makes clear, in circumstances where the injury to a worker occurs at a time outside her usual working hours, a finding that the injury occurred in the “course of her employment” requires identification of an inducement or encouragement by the employer of the performance of the activity which led to the injury, or inducement or encouragement by the employer to be at the place where the injury occurred. Evidence of any such inducement or encouragement by the employer is absent in this case.

36. [96]

    The primary judge was correct to conclude that the injury did not occur in the course of the respondent’s employment.

37. [97]

    In Smith v Australian Woollen Mills Ltd Starke J, at 517-518, addressed the meaning of the phrase “arising out of” in the then existing workers compensation legislation as follows:

38. [98]

    Starke J’s reference to Stewart v Metropolitan Water, Sewerage and Drainage Board (1932) 48 CLR 216; [1932] HCA 45 was a reference to his own judgment in that case. In Stewart, his Honour explained, by reference to six English decisions, that to show that an injury was one “arising out of” employment it was not sufficient merely to show that but for the employment, the worker would not have been at the scene of the accident.

39. [99]

    In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited (2009) 75 NSWLR 503; [2009] NSWCA 324 Allsop P, Beazley and McColl JJA at [72]-[79] summarised the relevant principles in determining if an injury is one “arising out of … employment ” thus:

40. [100]

    In Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 Allsop P returned to this topic in a case where the injured worker had suffered the injury at a party held at the workplace after work had finished for the day. His Honour said at [27]-[29]:

41. [101]

    Returning to the present case, the respondent’s submission that the unchallenged factual findings lead to the conclusion that the injury suffered by the respondent was not one which “arose out of her employment” should be accepted.

42. [102]

    In particular, the following findings strongly indicate that the requisite causal connection was not here present:

    1. (1)

       the respondent was a casual employee, working on rostered days. The day of her accident was not one of those days. If required to work she would be telephoned by the second appellant. She was not required to work by the appellants on the day of the accident;

    2. (2)

       the respondent went to the appellants’ premises, not to perform work but to buy a drink and meet her friend who was working there at that time;

    3. (3)

       at the time of the accident the respondent was not performing a task her employer had induced or encouraged her to perform.

43. [103]

    On the factual findings of the primary judge, no conclusion that the injury was one arising out of employment can be drawn. The critical enquiry was what the respondent actually did in her employment. Nothing about what the respondent did as part of her employment caused the injury she suffered on this occasion.

44. [104]

    Stewart makes clear that it is not sufficient, as the appellant submitted orally, that the injury was one “arising out of” employment because “but for” the employment, the worker would not have been at the scene of the accident.

45. [105]

    The appellants fail in the challenge to the primary judge’s finding that the respondent’s injury was not one arising out of her employment.

46. [106]

    Although a separate ground of appeal was addressed to an alleged failure by the primary judge to give adequate reasons for his conclusions, the appellants did not address any written or oral submissions to the topic.

47. [107]

    The complaint should be rejected. The primary judge addressed all of the issues and authorities presented for determination by the parties and gave adequate reasons for his findings.

48. [108]

    Grounds 1 - 4 of the appeal should be dismissed.

Ground 5

1. [109]

   The appellants submitted that the primary judge erred in the manner in which he assessed the respondent’s damages.

2. [110]

   Prior to these proceedings, the respondent made a claim against the appellants for workers compensation. That claim was accepted and the appellants’ workers compensation insurer, Employers Mutual Insurance, paid the respondent compensation. The evidence, which was not challenged by the appellants on this appeal, was that $183,811.36 was paid to the respondent as workers compensation.

3. [111]

   The basis of the respondent’s claim for common law damages was inconsistent with an entitlement to be paid workers compensation. As noted above, an estoppel claim made by the appellants was rejected by the primary judge and there is no appeal from that decision.

4. [112]

   The primary judge awarded the respondent a full indemnity for the losses she had suffered by reason of the appellants’ tortious conduct. His Honour also accepted an undertaking from the respondent to repay to Employers Mutual Insurance from the damages award the workers compensation payments she had received. The appellants submitted that it was unclear who had standing to enforce that undertaking.

5. [113]

   It was common ground that neither s 151Z nor any other provision WCA had any application to this aspect of the matter and that there was no statutory requirement for the respondent to repay any compensation payments. The appellants submitted that there was no applicable “legislative signpost” to assist the Court in determining this issue.

6. [114]

   It was submitted that the decision of this Court in Franklins Self Serve Pty Ltd v Wyber (1999) 48 NSWLR 249; [1999] NSWCA 390 at [109]-[110] had the effect the amount of the workers compensation payments should be deducted from the award of damages in a case such as the present.

7. [115]

   Therefore, it was submitted, that in assessing the respondent’s damages the primary judge should have “deducted a sum representing the value of benefits received and receivable as compensation” as out of pocket expenses and past economic loss.

Consideration of ground 5

1. [116]

   This ground raises a question about the proper operation of the relevant principles preventing double compensation in a factual situation which does not appear to have been addressed before. The content of the “rule against double compensation” was not controversial on the appeal. It was accepted by the respondent that she could not retain the benefit of both workers compensation payments she had received and common law damages for the full amount of her loss. The primary judge resolved the issue by accepting an undertaking to the Court in the following terms:

2. [117]

   There was no challenge on this appeal to the identification of the amount of $183,811.36 as being the sum paid as workers compensation or to the form of the undertaking.

3. [118]

   The parties approached this problem as being one analogous to earlier cases where s 151Z of the WCA did not apply despite a payment of workers compensation having been made prior to a subsequent payment of common law damages. In Wyber, Mason P (with whom Sheller JA and Cole AJA agreed) pointed out that in such a case simply to state the legal policy against double compensation masked considerable practical difficulties. His Honour said:

4. [119]

   It is true, as the appellants submitted, that in Wyber workers compensation payments received by the worker from one employer, George Weston, prior to the award of common law damages and which were outside the relevant statutory regime for recovery of workers compensation payments, were deducted from the relevant common law damages award.

5. [120]

   It is also correct, as the appellants submitted that Mason P said at [56], in analysing a number of cases that the response of this Court in a number of decisions to questions of double recovery in circumstances where a successful worker in a common law damages claim had previously received an award of workers compensation was:

6. [121]

   This conclusion, however appears to follow from the feature noted by Mason P, at [49], common to all of the cases cited, that “‘the end result may be the same for the plaintiff, but the procedural and substantive consequences may differ for the employers, tortfeasors and insurers”. (italics added). Mason P was not suggesting in Wyber that there was any fixed or immutable rule to be applied in addressing the question of preventing double compensation in an employment context.

7. [122]

   In the present case, unlike in Wyber and the cases considered by Mason P in that decision, on the conclusion of this Court about the “injury” suffered, the respondent was not entitled to be paid workers compensation at all.

8. [123]

   The respondent has been paid workers compensation, but on the mistaken basis that she was entitled to it. The appellants’ workers compensation insurer is entitled at common law to be repaid because of the mistake: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48. The workers compensation insurer is also entitled to rescission in equity, because of the respondent’s (innocent) misrepresentation that she was a worker who had suffered an “injury”: Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 at [25].

9. [124]

   Not only is the respondent required to repay the amounts of workers compensation she received, but her undertaking to the court means that she could not rely on any defence such as change of position: David Securities at 384-386.

10. [125]

    In my view, on the facts of this case, the primary judge did not err in accepting the undertaking given to the Court by the respondent to repay the workers compensation insurer the amount of $183,811.36.

11. [126]

    The suggestion that it is uncertain whether the undertaking given to the Court is enforceable is without merit. Breach of an undertaking to the Court may have serious consequences for the party who has given the undertaking. There is no reason to think that the undertaking will not be complied with by the respondent. The appellants are the parties responsible for paying common law damages and are also the parties who have made the payments of workers compensation. Presumably those payments, in each capacity, have been made or will be made by their insurers. The appellants are no doubt be in a position to inform each insurer of the undertaking which has been given to the Court. Any failure to comply with the undertaking will no doubt be brought to the attention of the Court by appropriate process. The suggested impracticability of the respondent’s undertaking given to the Court does not arise.

12. [127]

    The respondent has not been doubly compensated by the earlier payment of workers compensation. She is now liable to repay those workers compensation payments and, by reason of her undertaking to the Court, has no defence to a claim by the workers compensation insurer to be repaid.

13. [128]

    Ground 5 should be dismissed.

Conclusion and orders

1. [129]

   For the forgoing reasons the appeal should be dismissed. I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellants to pay respondent’s costs as agreed or assessed.