Workers Compensation Nominal Insurer v Hill

1. [1]

   BASTEN JA: On 16 June 2010 Michel Carroll was killed by her de facto partner, Steven Leslie Hill. Both were employed by a family company, S L Hill & Associates Pty Ltd, which carried on its business of financial advising from the family home in Wamberal. The attack by Mr Hill was inspired by paranoid delusions and, having been charged with murder, he was found not guilty on the ground of mental illness. At the time of her death, Ms Carroll had two dependent children, one a teenage son from a previous relationship and the other a baby of a few weeks. The children made claims for workers compensation. The family company has long since been deregistered and the claims were resisted by the present appellant, the Workers Compensation Nominal Insurer.

2. [2]

   Pursuant to a determination made on 19 December 2018, an Arbitrator at the Workers Compensation Commission determined that the deceased had died as a result of injury arising out of and in the course of her employment and ordered payments in favour of the two children. On 16 January 2019 the appellant lodged an appeal against that determination. The appeal was dealt with without an oral hearing by Deputy President Wood. On 22 July 2019 the Deputy President made an inconsequential amendment to the name of one of the children in the determination, but otherwise dismissed the appeal. [1]

3. [3]

   By notice of appeal filed on 30 September 2019, the appellant commenced proceedings in this Court, appealing from the whole of the decision of the Deputy President.

Issues on appeal

1. [4]

   In Pioneer Studios Pty Ltd v Hills [2] this Court noted:

2. [5]

   As senior counsel for the appellant noted, for many people working from home, attendance at a workplace or carrying out work functions during usual business hours, will no longer be core elements of the course of employment. Senior counsel invited the Court to address the important changes to the operation of the Workers Compensation Act 1987 (NSW) in the context of work undertaken wholly or partly at home, [3] or remotely while on-call. [4]

3. [6]

   This invitation should be resisted. At least in the circumstances of this case, the issues are quintessentially factual, not legal. By way of contrast, the function of this Court is to decide appeals in accordance with s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”), which relevantly provides:

4. [7]

   It may appear that there are two possible constructions of this provision. On one, if the party is aggrieved by a final determination of the Presidential member, it would be open to raise any point of law material to that determination. On the other, it is the “decision” which must be in point of law and it is that decision in point of law, made by the Deputy President, which is the subject matter of the appeal. If the former reading were correct, the appellant would not be limited to issues which had been raised before the Deputy President; if the latter, it would appear that the appellant would be required to identify a decision, whether express or implicit, made in the course of the Commission hearing. It is at least unlikely that a matter not expressly raised in the Commission could be said to be the subject of a “decision” within the meaning of subs (5). Accordingly, the appellant would be limited to those matters which it had raised below. It should be noted, however, that some questions of law are inherent in any affirmative finding of fact. [5]

5. [8]

   This analysis follows that discussed in Watson v Qantas Airways Ltd. [6] However, in Kostas v HIA Insurance Services Pty Ltd [7] the High Court held that any factual finding by a tribunal “necessarily depended upon its first accepting that there was evidence to support the finding.” The plurality continued:

6. [9]

   The next question is how the principle operates. The ultimate finding by the Deputy President was not an affirmative finding, but a negative one, namely that she was not satisfied that there was error on the part of the arbitrator. On the other hand, the arbitrator was required to be affirmatively satisfied as to at least one of the limbs in the definition of “injury” in s 4, and that the employment was a “substantial contributing factor” to the injury, pursuant to s 9A of the Workers Compensation Act. She was so satisfied. In finding that the arbitrator did not err, the Deputy President must have been satisfied that there was evidence capable of supporting the relevant conclusions. That implicit decision in point of law was necessarily inherent in the finding that the arbitrator made no error in her fact finding. Accordingly, the question of law which should have been raised in this Court was as follows:

7. [10]

   It may be accepted that the appellant sought to adopt this approach by identifying the submissions before the Deputy President that there was “no evidence” to support particular findings of fact made by the arbitrator. Absent that characterisation, ground 1 was apt to be dismissed as not raising a decision of the Deputy President in point of law for consideration by this Court. [9]

8. [11]

   Bearing this limitation in mind, it is convenient to set out in full the grounds contained in the notice of appeal. In the proceedings before the Deputy President, and in this Court, Mr Hill was the first respondent (he took no part in the appeal in this Court), and the two boys were the second and third respondents. The grounds read:

9. [12]

   Ground 1, which did not in terms identify any decision in point of law, reflected, in particulars (a)-(c), the separate requirements of s 4 and s 9A of the Workers Compensation Act, which relevantly provide:

10. [13]

    It is convenient to deal with grounds 2 and 3, which do identify legal errors (albeit not in the terms of s 353), before addressing ground 1.

Ground 2: function of Deputy President

1. [14]

   As the appellant correctly recognised, the functions of the Deputy President in determining an appeal from a decision of the Commission constituted by an arbitrator are those set out in s 352 of the Workplace Injury Act. That section, so far as relevant, provides:

2. [15]

   Subsection (6) indicates a more limited scope for fresh evidence than the provision for “further evidence” under s 75A of the Supreme Court Act 1970 (NSW) with respect to an appeal “by way of rehearing”. The critical provision for present purposes is s 353(5). The scope of the function there identified is by no means easy to resolve in the abstract, as the Court recognised in Northern NSW Local Health Network v Heggie. [10] For example, the term “discretion” may be used to refer to a number of different legal concepts. [11] It may refer to the determination of where on a scale the correct result is to be found (as in sentencing), or it may simply refer to the process of fact-finding where an evaluative judgment is required.

3. [16]

   The appellant was content to identify the alleged errors identified in the notice of appeal to the Deputy President as either factual or legal. The issue was whether the Deputy President had taken an unduly narrow approach to her function with respect to such errors. The passage said to contain error appeared at the commencement of the section of her reasons headed “Discussion”, and read as follows:

4. [17]

   The appellant complained that the expressions in [245] did not adopt the language of s 352(5) but paraphrased the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir and Zwanenberg Ltd v Kerr. [12] This attribution was correct, but it did not follow that the Deputy President had erroneously identified the scope of her function. In written submissions, the appellant noted that Whiteley Muir “has been rejected”. [13] That too is true, but the rejection concerned the scope of an appeal by way of rehearing under s 75A of the Supreme Court Act. [14] Section 352(5) is in different terms. It is, as Sackville AJA noted in Heggie, clear that the Deputy President is not entitled to overturn a decision of an arbitrator unless satisfied that the decision was affected by an “error of fact, law or discretion”. [15] The Deputy President is not entitled to interfere on the ground that she thought that a different outcome was preferable. [16]

5. [18]

   It is clear from the context, namely the identification of the grounds of appeal by the Deputy President that, in her view, they were directed entirely to factual findings made by the arbitrator. Although this Court was taken to passages in the appellant’s submissions before the Deputy President to the effect that there was “no evidence” to support particular findings of fact, read in context that language did not seek to identify an error of law, but rather read as a rhetorical flourish in an attempt to identify error in relation to findings of primary fact. Nor did ground 2 allege such an error; rather it alleged error in the Deputy President proceeding on the basis that “she was not permitted to find error if the Arbitrator's findings were open to the Arbitrator, even if an appellate body might reach a different conclusion.”

6. [19]

   This was language used by the Deputy President in summarising the appellant’s submissions. [17] However, if she were wrong in this respect, and the appellant sought only to establish that there was no evidence rationally probative of a fact in issue, [18] then she applied a less demanding test. That did not demonstrate a misapprehension as to her appellate function.

7. [20]

   With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were “open” to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).

8. [21]

   The use of this language in the Commission is not novel. It came before the Court in Inghams Enterprises Pty Ltd v Sok. [19] In Sok, the Deputy President had described the appellate function of the Commission by reference to the language used by Barwick CJ in Whiteley Muir. [20] This Court held, after noting the amendment of the provision with effect from 1 February 2011, [21] and the difficulties in fixing clear linguistic boundaries to the concept of “error”, [22] that there was no wrong decision in point of law in identifying the scope of the Deputy President’s function in those terms. [23]

9. [22]

   Although the appellant did not refer to Sok in written submissions, nor, after the authority was identified in the respondent’s written submissions, in its reply, it did in oral submissions seek to distinguish the passage approved in Sok. The basis of distinction was that the Deputy President in Sok had, before quoting the language of Barwick CJ in Whiteley Muir, expressly noted that the question raised was “whether the appellant has, on appeal, established error of fact”, noting that such an error will be made out in the circumstances addressed in Whiteley Muir. In the present case the Deputy President had not referred at all to the statutory language.

10. [23]

    That submission was tantamount to saying that the Deputy President had not had regard to the fact that the statutory language required her to be satisfied of, relevantly, “any error of fact”. That was, however, to read one passage in the judgment out of context. In dealing with the first ground of appeal before her the Deputy President concluded:

11. [24]

    Although it is true that, as the appellant noted, the conclusions hark back to the earlier discussion of what constitutes a relevant error, it cannot be said that the language used by the Deputy President allows this case to be distinguished from Sok. So far as the substantive issue is concerned, once it is clear that the appellate tribunal is constrained by the need to be satisfied as to error of fact or law (or discretion) the articulation of that constraint in Whiteley Muir does not demonstrate error in point of law. There was, it should be noted, no challenge to the reasoning in Sok.

12. [25]

    Ground 2 must be rejected.

Ground 3: failure to address “critical element” as to causal connection

1. [26]

   Ground 3 alleged a failure by the Deputy President to address a “critical element” in the appellant’s appeal. There is no doubt that a failure to address “a substantial, clearly articulated argument relying on established facts” may constitute procedural unfairness. [24] However, it was necessary for the appellant to identify each element of this proposition and to show that the argument was not addressed.

2. [27]

   As explained in the appellant’s written submissions, the “critical element” was identified in the following passage of the reasons for determination, but not further addressed:

3. [28]

   The point raised in the last sentence in this passage was said to be the “critical element” which, having been identified, was then not considered. It was said that while there was a connection between Mr Hill’s employment and his delusions, [26] and (arguably) between his employment and his attack on Ms Carroll, the arbitrator had failed to address the critical question, which was “the causal connection between Ms Carroll’s employment and her death.” [27] The appellant submitted: [28]

4. [29]

   Ground 3 should be dismissed because it was based on a false premise. What was said not to be considered was indeed considered, both by the arbitrator and by the Deputy President, in some detail. The problem arises from taking one passage out of context. The “critical element” related to the causal link between Ms Carroll’s employment and her death. That was directly relevant to the issue under s 4 (did her death arise out of her employment) and the s 9A issue (was her employment a substantial contributing factor to her death). The alleged absence of a causal link between Mr Hill’s delusions and her death was addressed in both contexts.

5. [30]

   In further explanation of this “critical element” the appellant submitted orally that “delusions are not real” and therefore Mr Hill’s delusions could not be part of the conditions of Ms Carroll’s employment.

6. [31]

   The surprising proposition that, even if Mr Hill’s delusions were directly concerned with the deceased’s employment, there was no connection between her employment and her death, can be explained by reference to an earlier passage in the Deputy President’s determination, setting out the evidence of Dr Roberts, called by the appellant:

7. [32]

   This line of reasoning, summarised with clarity by the Deputy President, explained the submission that the delusional behaviour, which may have caused Ms Carroll’s death, was not part of her conditions of employment, because, by definition the delusions were false. The appellant submitted that, if one focused (as one should) on the role that the deceased played in the financial advising business run by the family company, one would reach the following conclusion:

8. [33]

   Authorities referred to below have long held that questions of causation are almost wholly an exercise in fact-finding; it is by no means clear that the submissions set out above involve any point of law. Nevertheless, it is appropriate to explain why, even in their own terms, they cannot be accepted.

9. [34]

   First, it is not in doubt that a person can suffer compensable harm as a result of a physical attack, verbal abuse, sexual harassment or bullying at work. The source of such conduct may be a co-worker or a supervisor. It is not uncommon for claims to be made for psychological injury resulting from steps taken on behalf of an employer, such as transfer, demotion, or even dismissal. Section 11A(1) of the Workers Compensation Act precludes compensation being payable for such an injury if it was “wholly or predominantly caused by reasonable action taken … on behalf of the employer”. Such an injury caused by conduct which would not be described as “reasonable action” is compensable. It does not matter whether the conduct was carried out on the basis of mistaken facts, or vindictively and without any justification (such as the refusal of a sexual advance). There is no reason to exclude delusional conduct from a potential cause of compensable harm. Section 11A is a constraint on payment of compensation for psychological injury, not physical injury, but the underlying logic must extend to physical injuries. In principle, the conduct of a co-worker or supervisor (Mr Hill was both) forms part of the employment conditions of the injured worker.

10. [35]

    In writing, the appellant further submitted:

11. [36]

    Not only are these not statements of law, but statements of fact; each of them is patently false. True it was that it was not a contractual condition of her employment that she work with the risk of sudden and violent attack, but in fact she did. The risk, which materialised, was part of a hostile working environment created by her co-worker and supervisor. The submission to the contrary is unsustainable and must be rejected.

12. [37]

    There may, of course, be domestic violence between couples who work from home in the same business which would not attract liability on the part of the employer to pay compensation, because the violence had no connection with the work conditions of either party. However, on the findings of fact, that was not this case. The findings of fact demonstrated a palpable and direct connection between Mr Hill’s delusions, Ms Carroll’s employment and the harm suffered by her. These findings were identified in the Deputy President’s reasons. For example, she summarised the arbitrator’s reasons with respect to the finding that the injury arose out of Ms Carroll’s employment in the following passage: [29]

13. [38]

    In short, a material, possibly major, part of Mr Hill’s delusions were directly based on his perceptions of Ms Carroll’s conduct in the course of her employment. As explained by the Deputy President:

14. [39]

    These and other passages in the Deputy President’s reasons, directly addressed the “critical element” raised by the appellant, removing the factual basis for ground 3. The ground must be rejected.

(a) in the course of employment

1. [40]

   The appellant’s written submissions focused attention on the succinctly stated finding made by the arbitrator that Ms Carroll “was either actually performing employment related duties at the time of her assault and her death or else was on-call”. [31] The Deputy President identified the challenge contained in ground 2 of the appeal before her as directed to the finding in these terms. She noted key aspects of the appellant’s submissions in the following passages:

2. [41]

   The reasons of the arbitrator in relation to whether the injury occurred in the course of employment commenced with the following statement of principle:

3. [42]

   Given that Ms Carroll was working from home and had a young baby to care for, and given uncertainties as to the precise time of death and where the death occurred, there was both expert and lay evidence to be reviewed. After undertaking a careful review of the evidence with respect to the time of death, she concluded that “the likely time of death was between 8:00am and 10:00am.” [33] She continued:

4. [43]

   The appellant sought to identify three errors of law involved in the finding of the Deputy President that there was no factual error on the part of the arbitrator, namely:

5. [44]

   A “no evidence” ground requires this Court to be satisfied that there was some material from which an inference could be drawn to support the impugned findings. As the Deputy President’s summary of the appellant’s argument clearly indicated, there was much uncertainty concerning the time at which Ms Carroll actually commenced work on the morning in question, but that inferences could be drawn from past practice, as to which her son gave evidence. On the finding as to the period within which the attack occurred, there appears it was equally probable that it occurred after 9am (the beginning of her standard working day), as before. There was evidence that Ms Carroll worked in her bedroom and that, on the previous morning, she had taken a call, which was likely to have been work-related, at 7.33am. There was evidence that she was required to be available to take work calls before 9am. It could not be said that there was no evidence capable of supporting the findings made.

(b) arising out of employment

1. [45]

   This first limb of the definition of “injury” in s 4 of the Workers Compensation Act invokes a causal element. [34] The arbitrator was satisfied that “the fact of her employment … was a predominant and potent cause of the injury to Ms Carroll”. The finding was based upon the fact that Mr Hill’s paranoid beliefs related to the way she performed her work duties, which thus led him to assault her.

2. [46]

   In addition to the issues addressed above in relation to the causal connection between an attack and the victim’s employment, it is convenient to note the approach adopted by this Court in Kelly v Secretary, Department of Family and Community Services although the focus of the decision was the standard of the causal link required by s 9A. The claimant, Ms Kelly, was a disability support worker in the Department of Ageing, Disability and Home Care. In the course of her employment, she was approached by a man who confronted her outside premises which she was attending to collect two residents with disabilities. The confrontation related to the man’s association with Ms Kelly’s daughter. As a result of the aggressive confrontation, she suffered a psychological injury.

3. [47]

   The Deputy President had upheld an appeal by the employing Department from the finding of the arbitrator that the claimant’s employment was a substantial contributing factor to the harm suffered. This Court understood that the Deputy President “would have been satisfied that the employment was a substantial contributing factor only if the subject matter of the dispute was to some extent employment-related.” [35] The judgment continued:

4. [48]

   The appellant did not deal with this case in its written submissions; in the course of its reply in this Court counsel noted that Kelly was distinguishable on the facts. That was true, but the construction of s 9A accepted in Kelly is inconsistent with the appellant’s submissions in this case. There was clear evidence of a causal link between Mr Hill’s subjective motivation, albeit a product of his illness, and their common employment. As s 9A strengthens the causal connection to be established between the employment and in the injury, [36] the reasoning in Kelly must apply in relation to the causal connection, not necessarily “substantial”, which forms the first limb of the definition of injury in s 4.

5. [49]

   The legal issue identified by the appellant was that this approach misinterpreted “that which is required to demonstrate that something arises out of an employment by attributing the delusions suffered by Mr Hill to the employment of Ms Carroll.” However, this was the “critical element” of the appellant’s case which, pursuant to ground 3, the appellant contended had not been addressed. The foregoing discussion with respect to ground 3 sets out the evidential basis for concluding that there was a causal connection between the attack upon Ms Carroll and her employment. It could not be said that there was no evidence to support the arbitrator’s finding in this regard. Accordingly, there was no legal error on the part of the Deputy President in rejecting the appeal in respect of this finding.

(c) substantial contributing factor

1. [50]

   Section 9A of the Workers Compensation Act, imposes a further constraint on the payment of compensation. In so far as its purpose is to strengthen the causal connection to be established between the employment and in the injury, [37] the issues are closely aligned with those which arise under the previous heading: both involve causal connection. The separate basis upon which it was sought to identify legal error on the part of the Deputy President was that she restricted her analysis of the arbitrator’s decision to see whether all relevant considerations were taken into account, and thus treated the arbitrator’s reliance on s 9A(2) factors as sufficient to justify the conclusion that s 9A(1) was satisfied, in circumstances where no reference was made to the requirement identified in s 9A(1).

2. [51]

   This challenge was misconceived. There could be no criticism of the arbitrator for taking into account the matters identified in s 9A(2), for the purpose of determining whether the employment of the victim was a substantial contributing factor to the injury. The submission that such an analysis “cannot be determinative” of the statutory test, if it is intended as a legal proposition, is not correct: in some circumstances, where no other factors are engaged, it can and probably will be determinative.

3. [52]

   The appellant further submitted that the arbitrator failed to consider: [38]

4. [53]

   These are all factual propositions; they do not, as the appellant submitted, define the “real question”. As matters of fact, they were not accepted by the arbitrator.

5. [54]

   To suggest that the arbitrator did not identify or address the criterion contained in s 9A(1) was simply wrong. She did so under the heading:

6. [55]

   The arbitrator then referred to a number of authorities in which the term “employment” had been considered and, the word “substantial” had been addressed, particularly in Badawi at [82]. The arbitrator turned to consider the s 9A(2) factors at [340]: a lengthy passage ensued in which each of the factors was addressed. Her conclusion expressed satisfaction that Ms Carroll’s employment “was a substantial contributing factor within the meaning of s 9A of the 1987 Act.” [39] It is clear that the arbitrator explicitly addressed the requirement in s 9A(1); the Deputy President would have been in error to find otherwise, which she did not do.

7. [56]

   The proposition that the arbitrator disregarded the considerations identified by the appellant above, cannot be accepted. In fact, each proposition was expressly rejected. As to the first matter, it is true that Ms Carroll was employed in undertaking clerical work; it may have been true that her environment was generally “peaceful”. But it was not “peaceful” on the day she was killed by her co-worker, and may not have been so at other times. As the arbitrator found, “[h]er duties required her to work with Mr Hill, who had a psychotic episode on 16 June 2010 and attacked and killed Ms Carroll.” [40] The same finding was a direct contradiction of the second proposition set out above from the appellant’s submissions. It cannot be said that the proposition, if put to the arbitrator, was not considered.

8. [57]

   In truth, the propositions set out above appear somewhat bizarre, unless each is understood as dependent on the third proposition, namely that Mr Hill’s delusions were “not part of [her] employment.” Indeed, that reading is supported by reference to the written submissions for the appellant placed before the Deputy President, dated 15 January 2019. However, that proposition has already been rejected as no more than a submission on the facts; to elevate it to a legal proposition would be directly inconsistent with the reasoning in Kelly.

9. [58]

   For these reasons, there was no legal error attending the rejection by the Deputy President of the three grounds of appeal raised before her and recapitulated in ground 1 in this Court.

Conclusions

1. [59]

   It was common ground that the appeal involved an amount of compensation in excess of $20,000 and, accordingly, did not require leave pursuant to s 353(4)(c). The appellant having failed on each ground of appeal, the appeal must be dismissed. No party addressed the Court with respect to costs of the appeal, but there is no apparent reason why costs should not follow the event.

2. [60]

   Accordingly, the Court should make the following orders:

   1. (1)

      Dismiss the appeal from the determination of Deputy President Wood in the Workers Compensation Commission given on 22 July 2019.

   2. (2)

      Order that the appellant pay the costs in this Court of the second and third respondents.

3. [61]

   PAYNE JA: I agree with Basten JA.

4. [62]

   SIMPSON AJA For the purposes of the Workers’ Compensation Act 1987 (NSW) (“the WC Act”), “injury” is relevantly defined in s 4(a) as:

5. [63]

   The WC Act goes on to make provision for the circumstances in which compensation will be payable for such injury, and to specify the benefits that are payable. By s 9A, no compensation is payable unless the employment is a substantial contributing factor to the injury.

6. [64]

   Among the benefits payable is compensation in a fixed sum, together with weekly payments, to dependants where death results from the injury: s 25.

7. [65]

   Where a dispute arises in relation to a claim for compensation the Workers’ Compensation Commission (“the Commission”) has jurisdiction to determine the dispute: Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”) s 288. Such a claim is determined, in the first instance, by an arbitrator: WIM Act, s 375. Pursuant to s 352 of the WIM Act an appeal lies from the decision of an arbitrator to a Presidential member of the Commission. The nature and scope of the appeal is spelled out in subs (5) of s 352 which provides:

8. [66]

   By s 353(1) a further appeal, against a decision of a Presidential Member, lies to this court, but only where:

Factual background

1. [67]

   In 2010 Ms Michel Carroll was employed by S L Hill & Associates Pty Ltd (“S L Hill”). So also was her de facto partner, Steven Hill. S L Hill administered a business of providing financial advice which was largely carried on from the residential premises occupied by Ms Carroll and Mr Hill. Also living in the premises were Ms Carroll’s son from a former relationship (Liam Carroll) and a baby a few weeks old (Charles Hill), the child of Mr Hill and Ms Carroll. Ms Carroll performed all of her work for the appellant from within those premises.

2. [68]

   By June 2010 Mr Hill was suffering from a mental illness, subsequently diagnosed as paranoid schizophrenia. He experienced delusions, among them delusions about the paternity of Charles Hill, and of Ms Carroll’s conduct, both work related and personal.

3. [69]

   At some time estimated to have been between 8 am and 10 am on 16 June 2010, acting on his delusions, Mr Hill used a hammer to kill Ms Carroll. She was then in the bedroom of their home, and was not dressed. Mr Hill was charged with murder but was acquitted on the ground of mental illness. He is now a forensic patient under the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW).

4. [70]

   On 14 July 2017 Mr Hill made an application for compensation under s 25 of the WC Act, to be apportioned between himself, Liam Carroll and Charles Hill. Mr Hill named SL Hill and Liam Carroll as respondents to the application.

5. [71]

   Subsequently, Liam Carroll was removed as a respondent and he and Charles Hill were named as applicants. Mr Hill withdrew his application to participate in any benefits payable. The application proceeded as an application by Liam Carroll and Charles Hill. It was referred to a Senior Arbitrator. The issues for determination in that proceeding included:

6. [72]

   The evidence put before the Senior Arbitrator was extensive. It included many statements by police who were called to the premises, statements from relatives of Ms Carroll concerning the behaviour of Mr Hill prior to her death, three statements and a statutory declaration of Liam Carroll, and photographs of the residence after the death was discovered. It also included detailed medical reports, the preponderance of which were psychiatric. Both the lay evidence and the psychiatric evidence examined the nature of the delusions experienced by Mr Hill. A psychiatrist, Professor Richard Furst, who examined Mr Hill on a number of occasions, expressed the view that while his employment with the appellant did not cause his schizophrenia:

7. [73]

   Other evidence detailed the nature and pattern of Ms Carroll’s work arrangements. Mr Hill gave a detailed account of Ms Carroll’s normal working day. Liam Carroll also described the way Ms Carroll worked, and the locations of the house in which she worked. There was one area of the house that he identified as Mr Carroll’s office, but he said that she also worked in various other areas of the house. Of particular relevance, he said that, in the later months of her pregnancy, and after the birth of Charles, she did most of her work in the bedroom. Paperwork and files were often in the room and regularly open on the bed. Ms Carroll often used her laptop while on the bed. Work calls were frequently taken there.

8. [74]

   On 16 January 2018 the Senior Arbitrator rejected the application and issued a Certificate of Determination in favour of the appellant. She was not satisfied that the injury suffered by Ms Carroll was inflicted in the course of her employment. Nor was she satisfied that it arose out of her employment. She doubted that the employment was a substantial contributing factor.

9. [75]

   An appeal to a Presidential member against that determination was successful: Carroll v S L Hill & Associates Pty Ltd [2018] NSWWCCPD 17. The President of the Commission revoked the Senior Arbitrator’s determination and remitted the matter for redetermination by a different Arbitrator.

10. [76]

    The application was then determined by Arbitrator Rimmer. No oral evidence was taken in that proceeding. On 19 December 2018 Arbitrator Rimmer found:

11. [77]

    Pursuant to s 352 of the WIM Act S L Hill appealed to a Presidential member, asserting error in respect of each finding. The appeal was heard by Deputy President Elizabeth Wood, who rejected each ground: S L Hill & Associates Pty Ltd (deregistered) v Hill [2019] NSWWCCPD 37. After a comprehensive review of the evidence, the submissions of the parties, and the reasons of the arbitrator, the Deputy President stated the approach to be taken to appeals under s 352, saying:

12. [78]

    She went on to discuss the competing positions of the parties, and reached the following conclusions:

13. [79]

    These were the relevant conclusions with respect to the appellant’s grounds that asserted error in the Arbitrator’s reasons with respect to the causal and temporal conclusions ([265] and [280]-[282]) between the injury and the employment and the further requirement that the employment be a substantial contributing factor to the injury ([292]). They were preceded by careful analysis of the arguments advanced on behalf of the parties and the relevant evidence. They amount to findings that the appellant had failed to establish that the decision of the Arbitrator was:

The appeal to this Court

1. [80]

   Pursuant to s 353 of the WIM Act the appellant appeals against this decision. As set out above, such an appeal lies only where the party is:

2. [81]

   The appellant has pleaded three grounds as follows:

3. [82]

   Ground 1, on its face, does not raise any “point of law”. The crux of the argument advanced on behalf of the appellant was that there was no evidence to support any of the three critical findings, each of which was a finding of fact. If this were, in truth, the appellant’s complaint, it could be expected to have been formulated as a ground of appeal. It was not. Ground 1 is clearly formulated as an attack on the facts as found by the Arbitrator, and endorsed by the Deputy President, and not on the process by which the Deputy President approached the task that was committed to her. An attack on findings of fact is impermissible as a ground of an appeal under s 353. Ground 1 makes no assertion of the absence of evidence to support the factual findings. That, no doubt, is because such a proposition would be unsustainable.

4. [83]

   In the circumstances of this case, the relevant facts could only be found by inference. There was an abundance of evidence of the work practices of Ms Carroll, and of Mr Hill, from which it could be inferred that, at the time Mr Hill attacked Ms Carroll, she was in her work place, and, at the very least, available on call for the purposes of her employment. That is sufficient to support the finding that the injury that caused her death arose in the course of her employment. And, to establish a causal connection for the purposes of s 4 and s 9A of the WC Act, there was an abundance of evidence that Mr Hill’s delusions derived from his and Ms Carroll’s common employment.

5. [84]

   In its written submissions the appellant sought to subsume Ground 1 in Ground 2, by which it asserts error in the approach taken to s 352 by the Deputy President as revealed in [245] of her reasons, set out above.

6. [85]

   Ground 1 should be rejected.

7. [86]

   The error “in point of law” for which the appellant contended lay in [245] of the Deputy President’s reasons (set out above). The principle there stated was drawn from the judgment of Barwick CJ in Whiteley Muir.

8. [87]

   The appellant contended, by reference to the judgment of Allsop J, (with whom Drummond and Mansfield JJ agreed), in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] 117 FCR 424; [2001] FCA 1833, that that reliance “constituted legal error” because Whiteley Muir had been “rejected” by the High Court in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9.

9. [88]

   It is correct that the restrictive approach to appeals against findings of fact stated in Whiteley Muir was not approved by the High Court in Warren v Coombes. That was specifically in relation to appeals under 75A of the Supreme Court Act 1970 (NSW), which, relevantly, then (as it does now) conferred on the appellate court the powers and duties of the first instance court including those of drawing inferences and making findings of fact, and, importantly, provided that the appeal is to be way of rehearing. In Branir, after considering conflicting views, the Court held that an appeal under Pt III, Div 2 of the Federal Court of Australia Act 1976 (Cth) was a rehearing. Thus, both decisions concerned the nature on appeal against finding of fact where the appeal is a rehearing. That significantly distinguishes those cases from this, where s 352 (5) expressly provides that the appeal is not a rehearing.

10. [89]

    The nature of an appeal under s 352 was radically altered with effect from 1 February 2011, by the introduction of the last sentence of subs (5). Previously, such an appeal had been a review: Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 at [15]. The variation thus affected must be given some weight. Certainly, it diminishes the relevance of the principles with respect to appeals against findings of fact stated in Warren v Coombes and Branir.

11. [90]

    It is not necessary to go further with this ground of appeal. The passage in the reasons on which this ground of appeal is founded is indistinguishable from the passage in the reasons in Inghams the subject of the appeal in that case. This Court held that the Deputy President in Inghams had “correctly identified the scope of his function”. There is no reason why this Court, as presently constituted, should depart from that conclusion.

12. [91]

    Ground 2 should be rejected.

13. [92]

    Ground 3 is limited to a complaint that, while the Deputy President noted a submission on behalf of the appellant that the Arbitrator’s (factual) finding of a causal connection between Mr Hill’s delusions and Ms Carroll’s employment, that did not demonstrate a connection with her injury. The evidence that supported the finding was that of Dr Furst, referred to above. The Deputy President did not fail to address this argument. She did so in various places, including:

14. [93]

    That is sufficient to dispose of Ground 3 which, like Grounds 1 and 2, should be rejected.

15. [94]

    For these reasons I agree with the orders proposed by Basten JA.