Ballina Shire Council v Knapp

1. [1]

   BASTEN JA: I agree with the reasons given by Payne JA for the orders made at the conclusion of the hearing of this appeal on 7 June 2019. One further issue may be noted.

2. [2]

   Although it is clear that the Deputy President exceeded her function in identifying and upholding the claim for compensation on a basis not within the matters which were the subject of the appeal, pursuant to s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the conclusions reached by the Deputy President were wrong in law.

3. [3]

   The arbitrator rightly dealt with the matter as a “journey claim” under s 10 of the Workers Compensation Act 1987 (NSW). The respondent was not undertaking duties in the course of his employment, within working hours, and at a place of work. If an injury in the course of travelling from home to work was an injury arising out of or in the course of employment for the purposes of s 4 of the Workers Compensation Act, s 10 would be otiose. That conclusion is not affected by the fact that he was making a telephone call to his supervisor, nor by the fact that he was using a mobile phone supplied by his employer. Even if the car had been supplied by his employer, the position would not be different.

4. [4]

   The Deputy President noted that the phrase “arising out of … employment” invokes a causal connection. That is no doubt correct, but the connection must be more than travelling from home to work. The Deputy President recognised that difficulty and expressly relied upon reasoning of the High Court in Hatzimanolis v ANI Corporation Ltd [1] and Comcare v PVYW. [2] Each case involved an “interval” claim, that is, a claim for injuries sustained between two intervals of employment while the employee was at a place required in order to continue or complete the employment duties at a future time. This was not an interval case. The concept of the course of employment was not to be expanded in this case. Further, the activity had to be one induced or encouraged by the employer. As the joint reasons in PVYW stated:

5. [5]

   It follows that, even had this been a legitimate subject of inquiry by the Deputy President, the reasoning adopted and the conclusion reached were in error. However, this conclusion is not necessary to support the Court’s orders, in the light of the concession, correctly made by the respondent, that the basis of the finding made by the Deputy President was outside the scope of the appeal.

6. [6]

   MACFARLAN JA: Payne JA’s judgment reflects my reasons for joining in the making of the orders that the Court made on 7 June 2019.

7. [7]

   PAYNE JA: On 7 June 2019, the Court heard argument in an appeal and cross-appeal from orders made by Deputy President Wood in the Workers Compensation Commission: Ballina Shire Council v Knapp [2018] NSWWCCPD 35.

8. [8]

   At the conclusion of the argument on 7 June 2019, the Court made the following orders:

9. [9]

   These are my reasons for joining in those orders.

Brief facts

1. [10]

   From February 2003, the respondent was employed by Ballina Shire Council as a plant operator, involving outdoor work around the Council area. He usually worked Monday to Friday and would travel to his workplace at Evans Head. At the time of the accident he was living in Evans Head. He agreed to work overtime as a traffic controller at road works on a Saturday.

2. [11]

   On Saturday 5 July 2014, at about 6.17am, the respondent was involved in a motor vehicle accident whilst driving from his residence to either the works depot, at Alstonville, or the day’s worksite at East Ballina. At the time of the motor vehicle accident he was making a mobile telephone call to his work supervisor, Mr Gibson, and was likely running behind schedule. The accident caused the deaths of two passengers in a car travelling in the opposite direction. The respondent suffered catastrophic injuries in the accident.

3. [12]

   The respondent was immediately taken to Gold Coast Hospital, where he remained until 18 September 2014. In February 2015, the respondent received a Court Attendance Notice to answer two charges of dangerous driving causing death. He pleaded guilty, and was sentenced by Wells DCJ in the District Court and served 12 months imprisonment. The respondent made a claim for workers compensation.

The hearing before the Arbitrator

1. [13]

   On 11 April 2018, Mr Bell, the Arbitrator, issued a Certificate of Determination with appended reasons. This certificate recorded:

2. [14]

   Section 4 of the Workers Compensation Act 1987 (NSW) defines “injury” and relevantly provides:

3. [15]

   In his reasons, the Arbitrator concluded that the respondent was on a journey within the meaning of s 10(1) of the Workers Compensation Act. The question determined by the Arbitrator was whether the respondent’s injury was attributable to “serious and wilful misconduct” within the meaning of s 10(1A) of the Workers Compensation Act which provides, relevantly:

4. [16]

   The Arbitrator’s findings on this issue were as follows:

The hearing before the Deputy President

1. [17]

   On 8 May 2018, the Council lodged an appeal against the Arbitrator’s decision. The six grounds of appeal were:

2. [18]

   There was no formal or informal notice of contention or other notice given by the respondent seeking to claim workers compensation for injury, other than in reliance on a journey claim under s 10 of the Workers Compensation Act.

3. [19]

   The Deputy President found error on the basis of Ground 1, in that the Arbitrator erred by failing to take account of the totality of the worker’s conduct that resulted in the accident for the following reasons:

   1. (1)

      it was not open to the Arbitrator to conclude that the road was damp, based on the witnesses’ equivocal evidence, and the effect (if any) of blood alcohol content was also excluded as a factor;

   2. (2)

      the Arbitrator failed to take into account factual matters that were put to him in submissions, namely that Mr Knapp was travelling at a relatively high speed and, while making a telephone call, took one hand off the wheel. Since the Arbitrator was required to take those matters into account and did not, error was established and the Arbitrator’s findings were revoked.

4. [20]

   The Deputy President concluded that:

5. [21]

   That conclusion, on the basis of the issues raised by the parties, was determinative of the only question before the Deputy President, being whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act.

6. [22]

   The Deputy President, however, went on to conduct a review of the evidence to determine whether Mr Knapp was entitled to workers compensation for injury, other than under s 10, relying on the decision of this Court in Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1.

7. [23]

   The Deputy President found that Mr Knapp’s conduct was conduct “arising out of employment”, as there was a direct causal link with his employment in that he had no reason other than employment to telephone his employer, he was using his work telephone and the only available inference is that the calls made were to discuss employment matters.

8. [24]

   The Deputy President found that as the injury arose out of employment the misconduct she had concluded occurred was irrelevant, purportedly applying Kassim v Busways Blacktown Pty Ltd (2003) 25 NSWCCR 450; [2003] NSWCC 6, Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10; 4 NSWCCR 8 and Tarry v Warringah Shire Council (1974) WCR (NSW) 1.

The grounds of appeal

1. [25]

   On 27 November 2018, the Council filed an amended notice of appeal. The grounds of appeal were:

2. [26]

   There was also a notice of contention which provided:

Determination of appeal

1. [27]

   Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) provided, relevantly:

2. [28]

   The Deputy President determined that Chubb Security provided her with authority to determine the case, even after she had made dispositive findings about the only issue before her.

3. [29]

   Santow AJA in Chubb Security said:

4. [30]

   The appellant’s case in this Court was that the only issue before the Deputy President was whether in determining that the respondent was entitled to compensation by reason of his s 10 journey claim the Arbitrator’s decision was affected by any error of fact, law or discretion. It was common ground on the appeal that if this ground of the notice of appeal was upheld it was unnecessary for this Court to deal with any other issues.

5. [31]

   In opening his oral submissions, Senior Counsel for the respondent, Mr Morris SC, with whom M Hammond and R A Coffey appeared, conceded that ground 3 of the notice of appeal should be upheld and the appeal allowed and the notice of contention should be dismissed:

6. [32]

   Senior Counsel’s concession was correctly made. When Chubb Security was decided the Presidential member was conducting a review within the meaning of s 352(5) as it then existed. At the time Chubb Security was decided, s 352(5) was in this form:

7. [33]

   The change in legislation in this case is significant. The appeal before the Deputy President was limited to a determination of whether the Arbitrator’s decision “was or was not affected by any error of fact, law or discretion, and to the correction of any such error”. The section specifically provided that the “appeal is not a review or new hearing”.

8. [34]

   The language of s 352(5) as it now appears, makes it clear that the dicta in Chubb relied upon by the Deputy President had no role to play in the appeal before her. The only question raised by the parties before the Deputy President was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act. Having dismissed that claim, in the circumstances of this case, the Deputy President had no jurisdiction to determine whether the respondent was entitled to compensation on some other basis.

Disposition of the cross-appeal

1. [35]

   The cross-appeal raises the powers of this Court on appeal. Section 353 of the WIM Act provides, relevantly:

2. [36]

   The jurisdiction of this Court is limited to correcting error “in point of law”. The notice of cross-appeal identified the following grounds:

3. [37]

   The cross-appellant did not identify in his written submissions any arguable error made by the Deputy President “in point of law”. The cross-appellant’s written submissions asserted that an error of fact finding can amount to an error of law. For this proposition the cross-appellant relied on Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [56] and [61] per McColl JA. That submission must be rejected. All that McColl JA was doing in those passages in Onesteel was explaining the well-known principle that a “no evidence ground” may be characterised as “a decision of a question with respect to a matter of law”: Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 at [59] (French CJ) and a “question of law”: Kostas at [90] - [91] (Hayne, Heydon, Crennan and Kiefel JJ).

4. [38]

   The relevant question is whether there was evidence available from which the Deputy President could draw inferences and make findings. Whether the evidence was sufficient was a matter for the Deputy President to determine, so long as the evidence taken into account could be described as rationally probative of the existence of a fact in issue. In Amaba v Booth [2010] NSWCA 344, Basten JA explained the “no evidence” ground thus:

5. [39]

   The only grounds addressed orally by the cross-appellant related to the speed at which he was driving at the time of the accident (ground 1) and whether he was holding a mobile telephone near his ear at the time of the accident (ground 1 and perhaps part of ground 6).

6. [40]

   In relation to the speeding finding addressed by ground 1, the point of law was said to be that “the document upon which the speed estimate was based, the expert report of Mr Parker, was based on an assumption that wasn't proved in the evidence”. Senior Counsel for the cross-appellant accepted that this issue was not raised before the Deputy President, which is itself a formidable hurdle to success on this point in this Court.

7. [41]

   In any event, there was ample evidence about speeding available to the Deputy President. That evidence included agreed facts tendered in the criminal case against the respondent and provided by the respondent to the Arbitrator and an expert report based on observations of a police officer, which had also been put before the Arbitrator by the respondent. The fact, assuming it be the fact, that inconsistent observations were made by another eye witness is not to the point. It could not be said there was “no evidence” supporting the Deputy President’s finding of speeding.

8. [42]

   The challenge to the Deputy President’s finding that the cross-appellant held his mobile telephone to his ear at the time of the accident, addressed by ground 1 and perhaps ground 6, does not raise any arguable error in point of law. On the evidence, the only way the cross-appellant could have made the telephone call he admitted he made was, as he further admitted, to take the phone in his hand and put it up to his ear. Senior counsel for the cross-appellant accepted that his client had deliberately used his mobile telephone immediately before the accident and that he expressed regret for that conduct at his sentencing hearing. Whether or not the conduct was, as was submitted, “in a sense, excusable or explicable in terms of him trying to contact his employer”, no error in point of law was identified in the determination made by the Deputy President.

9. [43]

   None of the remaining grounds, which were not addressed orally, gave rise to any error in point of law.

10. [44]

    Finally, it is noted that the parties agreed that no order as to costs was to be sought and the order for restitution sought in the notice of appeal was not pressed.