Compensation Court of New South Wales CITATION : Shroder v Matheny Management Services Pty Ltd [2001] NSWCC 114 PARTIES : Desi Shroder v Matheny Management Services Pty Ltd MATTER NUMBER(S) : 37368 of 2000 JUDGMENT OF: O'Toole J at 1 Proceedings to Obtain Compensation :- Periodic journey CATCHWORDS: Course of employment s 9A LEGISLATION CITED: Workers Compensation Act 1987 Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472; Hatzimanolis v ANI Corporation Ltd (1991-1992) 173 CLR 473; Henderson v Commissioner of Railways (W.A) (1937) 58 CLR 281; Humphrey Earle Ltd v Speechly (1951) 84 CLR 126; CASES CITED: Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740; Paterson v Paterson (1953) 89 CLR 212; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; The Commonwealth v Lyon (1979) 24 ALR 300; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 DATES OF HEARING: 09/04/01, 18/05/01 EX TEMPORE JUDGMENT DATE : 05/18/2001 FOR APPLICANT: Mr B Kelly instructed by Nagle & McGuire LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M Batten instructed by Vandervords JUDGMENT: 1. On 9 April 2001, I gave the applicant leave to amend the application for determination, filed by her attorneys on 4 May 2000 (application). Relevantly, the applicant pleads that on 1 November 1999, in the course of her employment at Cottonwood Place, Castle Hill, NSW (Cottonwood) or on a periodic journey from her place of employment at Cottonwood, she slipped on the respondent's wet floor (the fall) injuring her left arm and hand (injury) and that she is totally incapacitated thereby. In address, the applicant's counsel disclaims the applicant's allegation that the injury arose out of her employment. 2. The parties agree that between 1 November 1999 and 31 October 2000, the applicant's current weekly wage rate and probable weekly earnings were $420: she seeks that sum of weekly compensation pursuant to s 36, s 37, s 38 , s 39 and/or s 40 and an order pursuant to s 60 of the Act. It is common ground that the injury occurred after the applicant's sixty fifth birthday and therefore that, on 31 October 2000, the Act disentitles her to weekly compensation. 3. Relevantly, the respondent's answer, filed on 2 May 2001, denies that the injury occurred in the course of the applicant's employment or on a periodic journey. Alternatively, the respondent submits that in February 2000, if not prior thereto, the applicant's earning capacity was equal or "close to" her probable weekly earnings; that in cross-examination she was evasive, "dodging the question" whether the injury incapacitates her; and that if, contrary to its case, the injury occurred in the course of her employment, s 9A of the Act disentitles her to the weekly compensation she claims. 4. This hearing commenced during the Court's circuit to Nowra where the applicant and Mrs Matheny, the wife of the respondent's director, gave oral evidence. In accordance with the Court's usual practice the entire hearing including counsel's detailed final submissions this morning, is sound-recorded by the Court's contractor (contractor). Helpfully, the contractor promptly transcribed the applicant's and Mrs Matheny's depositions. The voluminous medical evidence is documentary, was admitted, ultimately, without objection and includes considerable common ground. Counsel assist the Court with lists of the authorities they addressed today. Consequently, it is unnecessary to reiterate each of the parties' arguments merely to ensure that it is noted. 5. Contrary to the respondent's submission, I have not drawn inferences adverse to the applicant's credit. A reader of her deposition who does not have my advantage of having observed her in the witness' box might form a different impression of her. Obviously, features of the applicant's and Mrs Matheny's speech and presentation which are crucial to my evaluation of the applicant's credit and reliability do not survive, and could not be expected to survive, in the transcript of their depositions: Paterson v Paterson (1953) 89 CLR 212 per Dixon CJ & Kitto J @ 218; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per Mahoney JA @ 273-4; Devries and Anor v Australian National Railways Commission and Anor (1993) 177 CLR 472 per Brennan, Gaudron & McHugh JJ @ 475-477; Deane & Dawson JJ @ 478-479. 6. The applicant's affect and presentation in the witness' box are consistent with her background and employment history. She is intelligent, articulate and has had a wide variety of occupations but she is unsophisticated. At one time or another the applicant performed clerical tasks but the majority of her work has been manual. The applicant's limited clerical role in the enterprises with her husband, and her unfamiliarity with electronic data processing, emerge clearly from her deposition. The applicant's physique is consistent with the types of domestic work and child care she performed for the respondent and for a prior employer/s. Her prolonged painful recovery from an incident similar to the fall and her partial recovery from the fall may well explain her reluctance to concede that her earning capacity has increased. 7. In isolation, the applicant's prompt concessions that throughout her employment with the respondent she occupied "the guest house" at Cottonwood (the guest house) might support the respondent's contention that the fall occurred inside her abode, but those concessions must be understood in the light of the evidence as a whole. Mrs Matheny's proper concessions seems to me to support the applicant's allegation that the fall occurred on a periodic journey. 8. The applicant's and Mrs Matheny's version of the interview at which the respondent offered and she accepted employment differs somewhat, but are in indirect speech and include considerable common ground. It seems to me that the parties' central arguments advance opposing constructions of undisputed evidence and that, contrary to the respondent's submission, the majority of the following facts I find is common ground or uncontradicted. 9. Cottonwood is a large suburban allotment. Within its boundaries are the three storey, free-standing guest house, a tennis court, a garage capable of accommodating three motor vehicles (garage) and a large free-standing residence (the main house) occupied by the Mathenys and their three children (the schoolchildren). The tennis court is in the vicinity of a short flight of steps (the steps) outside a door (guests' entrance) to the ground floor of the guest house (the ground floor). A path (the walkway) lies between the entrance to the rear of the main house (rear entrance), the garage, and the steps. An external door to the basement of the guest house (the basement) is in the vicinity of the steps. Mr Matheny occupies the basement with his office and wine cellar. 10. At relevant times, the Mathenys arranged the ground floor for the entertainment of their guests. Usually, the door to the guests' entrance was open or unlocked. The Mathenys stored provisions for entertaining their guests in a kitchen adjacent to a dining area, furnished with a table and chairs, near the guests' entrance. The Mathenys and their guests used a bathroom on the ground floor (first bathroom) and an adjacent whirlpool bath (the spa) which was counter-sunk into the polished flooring near a lobby (the lobby) inside the main door to the ground floor (the front door). Usually, the front door was locked. The Mathenys, their guests and a gardener whose duties included periodic cleaning of the spa entered and left the ground floor through the guests' entrance. 11. A staircase near the lobby (the staircase) provides access between the ground floor and the first floor of the guest house (the first floor). A bathroom on the first floor (the second bathroom) interconnects two bedrooms. The respondent or the Mathenys furnished one bedroom with a table, chairs, a bed and a television receiver (the housekeeper's bedroom). For periods prior to the applicant's employment with the respondent, the housekeeper's bedroom was occupied by a person/s who supervised and/or cared for the schoolchildren. The person/s who occupied the housekeeper's bedroom used the second bathroom. Intermittently, Mr Matheny's teenaged daughter occupied the second bedroom on the first floor (second bedroom) and used the second bathroom. 12. In response to a newspaper advertisement by the respondent, the applicant attended an interview with Mrs Matheny. At the conclusion of the interview, Mrs Matheny offered the applicant the position advertised by the respondent and, during that employment, the applicant's exclusive occupation of the housekeeper's bedroom. The respondent permitted the applicant's residence outside Cottonwood during that employment, but the distance between Cottonwood and the applicant's permanent residence near Nowra, the average weekly wages she was offered, and the times at which she was required to perform her duties for the respondent, were crucial to her accepting the respondent's offer of exclusive occupation of the housekeeper's bedroom. 13. The applicant accepted the respondent's offer of employment. The applicant thereby agreed that on school days, she would supervise the schoolchildren's preparations for school, that she would deliver them to and collect them from their school/s, that she would supervise their after-school activities, and that she would perform domestic work in the main house. The applicant agreed that from time to time, she would supervise the schoolchildren after 18.00 whilst Mrs Matheny kept social engagements. 14. The respondent provided the applicant with a key to the guests' entrance. She habitually used the guests' entrance to the ground floor but rarely had to use the key. At four or five weekly intervals between July 1999 and 1 November 1999, Mr Matheny's teenaged daughter visited Cottonwood briefly, occupied the second bedroom for an evening, and used the second bathroom. At other times between July 1999 and 15 November 1999, the applicant had exclusive use of the second bathroom. The respondent permitted the applicant's use of the kitchen and dining area when its use did not conflict with the ground floor's primary purpose of entertaining the Mathenys' guests. 15. Between July 1999 and 15 November 1999, the applicant occupied the housekeeper's bedroom. Until about 18.10 on 1 November 1999, she performed the duties she had agreed to perform for the respondent. The arrangement was of mutual convenience and benefit to both parties. Occasionally, the applicant supervised the schoolchildren after 18.00 whilst Mrs Matheny kept social engagements. The following day the respondent permitted the applicant's leave for a period equivalent to the period after 18.00 when she had supervised the schoolchildren. At weekends, the applicant kept social engagements and ate meals outside Cottonwood. She did not use the spa, the first bathroom, the second bedroom nor the basement. When the Mathenys entertained guests, the applicant refrained from using the kitchen and the dining area on the ground floor. 16. On schoolday mornings between July 1999 and 1 November 1999, the applicant left the housekeeper's bedroom, walked down the staircase, across the lobby and the ground floor. Frequently, she prepared her breakfast from food she had purchased with her own funds and had stored in the kitchen, and consumed her breakfast in the dining area. Shortly before 07.00, the applicant walked through the guests' entrance, down the steps, along the walkway and through the rear entrance. She supervised the schoolchildren's preparations for school and drove them to school. She returned to the main house where she performed domestic duties. About 12.00, she walked through the rear entrance, along the walkway, up the steps, through the guests' entrance, across the ground floor and the lobby, up the staircase and into the housekeeper's bedroom. About 15.00, she walked out of the housekeeper's bedroom, down the staircase, across the lobby and the ground floor, through the guests' entrance, down the steps and along the walkway. About 15.30, she collected the schoolchildren from school. Between about 16.00 and 18.00, she delivered the schoolchildren to the main house and supervised their after-school activities. 17. On schoolday evenings between July 1999 and 31 October 1999, the applicant completed her usual duties in the main house. Shortly after 18.00, she walked through the rear entrance, along the pathway, up the steps, through the guests' entrance, across the ground floor and the lobby, up the staircase, into the housekeeper's bedroom. 18. On the afternoon of 1 November 1999, Mrs Matheny prepared and furnished the applicant gratis with a plate of food. At the conclusion of the applicant's duties in the main house, she felt tired. Shortly after 18.10, she walked through the rear entrance, carrying the plate of food: she intended to make her usual journey to the housekeeper's bedroom where she intended to watch television whilst consuming the food provided by Mrs Matheny. The applicant walked along the walkway, up the steps, through the guests' entrance, across the ground floor and the lobby. The fall occurred near the staircase: the applicant subsequently realised that she had slipped on water which was lying on the polished flooring. 19. On the facts I find, I think it probable that at relevant times, the applicant's abode was the housekeeper's bedroom, and that the injury resulting from the fall occurred on a periodic journey between her workplace in the main house and her abode. If I were wrong in those conclusions of fact, the evidence would persuade me that the fall occurred in the course of the applicant's employment. 20. Applying the principles in Henderson v Commissioner of Railways (W.A.) (1937) 58 CLR 281 and Humphry Earle Ltd v Speechly (1951) 84 CLR 126, interpreted by the High Court of Australia in The Commonwealth v Lyon (1979) 24 ALR 300, and in Hatzimanolis v ANI Corporation Ltd (1991-1992) 173 CLR 473, it seems to me that throughout the applicant's employment, the respondent permitted, authorised, encouraged and expected her to reside in the housekeeper's bedroom. Mrs Matheny probably prepared and provided the plate of food at the respondent's cost and in the reasonable expectation that the applicant would consume the food outside the main house. Consequently, when the fall occurred, the applicant was doing something which the respondent authorised and expected her to do. 21. If, when the fall occurred, the applicant were not on a periodic journey but were in the course of her employment, s 9A of the Act would apply to this application. Conveniently, the decision of the Supreme Court of New South Wales, Court of Appeal in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 sets out the provisions of s 9A, and analyses the relationship between the High Court of Australia's decision in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 and the Bill which was enacted as s 9A. 22. In Mercer's Application to the High Court for Special Leave to Appeal against the Court of Appeal's decision, McHugh J was "by no means certain that the Court of Appeal has identified the relevant error of the [trial] judge [in this Court] or [that the Court of Appeal] itself has expressed a view as to the correct meaning of … section [9A]". Gaudron J was "not convinced the Court of Appeal correctly analysed the decision of Compensation Court Judge Bishop [sic] at first instance". Unfortunately, their Honours' refusal to grant Mercer Special Leave to Appeal to the High Court against the Court of Appeal's decision is of limited assistance in construing s 9A. I respectfully adopt the statement by McHugh J as the dilemma confronting this Court: "The problem is that it is hard to know what is the law of the State [of New South Wales] on this particular point". 23. Doing the best that I can with the Legislation which confers this Court's jurisdiction, and with limited guidance from the Superior Courts' decisions prior to Mercer concerning the application of s 9A, it seems to me that my finding that the fall and the resulting injury occurred in the course of the applicant's employment would not determine, per se, her entitlement to the weekly compensation she claims. Unless the applicant's employment, as defined in the authorities, were a substantial contributing factor to the injury resulting from the fall, s 9A would disentitle her to that compensation. If the facts were to support a conclusion that there was a substantial causative relationship between the fall, the resulting injury and the applicant's employment, s 9A would not disentitle her to weekly compensation 24. On the uncontradicted evidence in this application, it is reasonable to infer, and I do infer, that the fall resulted from the applicant's failure to notice, prior to the fall, the water lying on the respondent's polished flooring. The respondent did not suggest to the applicant and does not suggest to this Court that the applicant ought to have seen the water prior to the fall. The evidence is silent concerning the source of the water. The location of the water, the reflective surface of the respondent's flooring, and the applicant's carrying the plate of food provided by Mrs Matheny, seem to me to be reasonable explanations for the applicant's failure to notice the water, prior to the fall. I conclude that the applicant's employment was a substantial contributing factor to the injury resulting from the fall, and therefore, that s 9A does not disentitle her to the compensation she claims. 25. The fall fractured the applicant's distal left radius. The fracture, revealed in a series of radiological investigations, was not displaced significantly but its treatment included a rigid splint which became uncomfortable when the wrist swelled. I infer from Dr Giutronich's evidence that he shared the applicant's apprehension that her recovery from the injury would be slow and/or incomplete. 26. Dr Hughes' manipulation of the applicant's upper limb during his administration of a guanethidine block under anaesthesia, probably explains her shoulder pain. If Dr Simes' gloomy prognosis were conveyed to the applicant, her reluctance to use her arm would not be surprising. In February and March 2000, the applicant's disuse of her arm was evident. 27. By August 2000, symptoms of the injury had diminished. The applicant could move her hand relatively normally, and as she conceded to Dr Harvey, her cervical stiffness had disappeared. She still had pain in her left wrist, radiating into her fingers. Dr Harvey, who saw the applicant at the respondent's behest, opines that at relevant times the configuration of the applicant's shoulder was normal: that conclusion is based upon his symmetrical measurements of the applicant's upper limbs. In fact, the applicant is dominantly left-handed. 28. Contrary to my own impressions of the applicant, Dr Harvey seems to have formed an adverse opinion of her motivation. However, shortly before this hearing commenced, he opined a permanent loss of her arm. Dr Harvey specialises in conditions of the upper limb. Therefore, I accord his views appropriate weight. I am not asked to decide and I do not intend to decide whether there is a permanent loss of the applicant's arm, but Dr Harvey's opinion reinforces my conclusion from the remainder of the evidence that at relevant times, the injury and its sequelae diminished the applicant's earning capacity. 29. Doing the best I can with the whole of the evidence, I think it probable that between 1 November 1999 and 30 April 2000 the injury totally incapacitated the applicant. On the evidence I have to be arbitrary to a degree to determine the applicant's capacity between 1 May 2000 and 31 October 2000: she probably was fit for work including child care not involving strenuous or repetitive use of her dominant arm. 30. For those reasons, I find that: (1) On 1 November 1999 the applicant suffered injury to her dominant left arm on a periodic journey between her place of employment and her abode; (2) she was totally incapacitated thereby between 1 November 1999 and 30 April 2000; (3) she was partially incapacitated thereby between 1 May 2000 and 31 October 2000; (4) between 1 November 1999 and 30 April 2000 the current weekly wage rate was $420 (agreed); (5) at relevant times thereafter, probable weekly earnings averaged $420 (agreed) and the applicant's ability to earn averaged $250 per week. 31. There will be an award for the applicant pursuant to s 36 of $420 per week between 1 November 1999 and 30 April 2000. 32. In the exercise of the Court's discretion, there will be an award for the applicant pursuant to s 40 of $150 per week between 1 May 2000 and 31 October 2000, as appears proper in the circumstances of the case. 33. The respondent is to pay the applicant's medical and related expenses pursuant to s 60. 34. The respondent is to pay the applicant's costs of this application, including a second conference fee of $200. MR B KELLY instructed by Nagle & McGuire appeared for the applicant MR M BATTEN instructed by Vandervords appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.