New South Wales Court of Appeal CITATION: Le Brocq v Workcover [2008] NSWCA 125 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 26/05/2008 JUDGMENT DATE: 2 June 2008 JUDGMENT OF: Tobias JA at 1; Gzell J at 2; Rein J at 3 DECISION: 1. Appeal dismissed. 2. Appellant to pay Workcover's costs. CATCHWORDS: WORKERS COMPENSATION - No error of law in finding that employment was not a substantial contributing factor to appellant's injury - s 9A Workers Compensation Act LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Act 1987 CATEGORY: Principal judgment Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 Hope v The Council of the City of Bathurst (1980) 144 CLR 1 CASES CITED: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 McMahon v Lagana & Anor [2004] NSWCA 164 Hatzimanolis v ANI Corporation (1992) 173 CLR 473 Mercer v ANZ Banking Group Limited (2000) 20 NSWCCR 70 PARTIES: Marcus Le Brocq (Appellant) Workcover Authority of New South Wales (Respondent) FILE NUMBER(S): CA 550007/05 COUNSEL: I Roberts SC (Appellant) J Maconachie QC / D Saul (Respondent) SOLICITORS: Kingston Swift (Appellant) DLA Phillips Fox (Respondent) LOWER COURT JURISDICTION: Workers Compensation Commission LOWER COURT FILE NUMBER(S): WCC7626-06 LOWER COURT JUDICIAL OFFICER: Acting Deputy President Martin LOWER COURT DATE OF DECISION: 06/06/2007 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40424/2007 TOBIAS JA GZELL J REIN J 2 June 2008 Marcus Le Brocq v Workcover Authority of New South Wales Judgment 1 TOBIAS JA: I agree with Rein J. 2 GZELL J: I agree with Rein J. 3 REIN J: The Appellant (Mr Marcus Le Brocq) brought a claim against Australian Mushrooms Pty Ltd ("AMPL"), Workcover Authority of New South Wales ("Workcover") and Metro Mushrooms Pty Ltd ("Metro") in connection with an injury sustained by him on 18 September 2005, when the forklift he was driving toppled over. 4 An Arbitrator appointed in accordance with the Workplace Injury Management and Workers Compensation Act 1998 ("the WIMA") by an award handed down on 24 November 2006 rejected the Appellant's claim, finding that the injury did not arise out of or in the course of employment with AMPL or Metro. Workcover had been joined because AMPL was uninsured and Metro joined because AMPL was apparently a subsidiary of Metro. 5 The Appellant sought, and was given, leave to appeal. The learned Acting Deputy President of the Worker's Compensation Commission, Mr J Martin, concluded that the Arbitrator had fallen into error by finding that the injury to the plaintiff had not occurred in the course of employment with AMPL or Metro any of the three respondents. However, he held that the requirements of s 9A(1) of the Worker's Compensation Act 1987 ("the Act") for compensation to be payable had not been met, and hence made the same order as the Arbitrator had made. 6 S 9A of the Act is in the following terms: " No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies." (My emphasis). 7 The appellant challenges the decision of the Acting Deputy President. Accepting that the only basis for an appeal to this Court is on a point of law (s 353(1) of the WIMA) and accepting that whether or not employment was a substantial contributing factor to an injury is a question of fact (see Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46), the appellant argues that the Acting Deputy President misdirected himself as to the law to be applied in the fact finding exercise: see Hope v The Council of the City of Bathurst (1980) 144 CLR 1, Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139. 8 In McMahon v Lagana & Anor [2004] NSWCA 164 this Court noted that for there to be an error of law in this type of case "it must be either that the facts as found were so compelling that one can infer there was an error of law in interpretation of the provision; or that the Deputy President applied an incorrect criterion, or took into account an irrelevant consideration in reaching her conclusion": see [34] per Hodgson JA with whom Santow JA and Stein AJA concurred. The only ground advanced here is that the Acting Deputy President misdirected himself as to the law. 9 Workcover, by a Notice of Contention, challenges the Acting Deputy President's conclusion that the injury arose out of or in the course of employment, contending that the Arbitrator was correct to find that the Appellant was not acting in the course of his employment at the time he was injured, and further that he had abandoned his employment by his conduct. Workcover contends that the Acting Deputy President misapplied Hatzimanolis v ANI Corporation (1992) 173 CLR 473 and that the Arbitrator was correct in his conclusion that there was no sufficient connection of the activities in question with the employment. 10 Before the Arbitrator, there were some areas of contested fact, most particularly in relation to whether, as asserted by the Appellant, he had sought and obtained Mr Williams' permission to use AMPL's forklift to enable him to remove from the farm steel benches that had been offered to him by the proprietor of a welding business conducted on another part of the farm owned by a Mr Baker, which Mr Williams denied. There was also a divergence between Mr Williams' evidence as to the request of the Appellant on Friday afternoon that he clean the pathway and the trolleys (which Mr Williams thought would take about 45 minutes) and the Appellant's claim that Mr Williams had told him he had to do that work before 7.30am Monday. The Appellant was generally employed Monday to Friday as a Ggeneral Ffarm Hhand and some weekend work was required from time to time but not, according to Mr Williams, that weekend. There is no evidence from either the Appellant or Mr Williams that Mr Williams, or anyone else, asked the Appellant to work on 17 or 18 September 2005. 11 The Arbitrator expressed doubt as to whether the AMPL forklift was being used on AMPL's leased area. The Appellant had not asserted that it was and since the steel benches had been given to him by "Jamie" of Blue Mountains Welding the inference that the forklift accident occurred in an area on or next to the premises of Blue Mountains Welding and in any event not on AMPL's leased area, was strongly open. This is clearly a matter of fact. The Acting Deputy President, by referring to "from the property owned by Mr Baker" at Red Book page 114 V, seemed to accept that the steel benches were not located on that part of the farm leased by AMPL (see below at [10](6)) but nothing turns on this as we are concerned here only with a question of law based on the facts as determined by the Acting Deputy President.. 12 In [25] of his judgment the Acting Deputy President set out matters of "common ground", namely (and I have added numbering to his points): "(1) Australian Mushrooms occupied a portion of a farm owned by Mr Kerry Baker ('Mr Baker'). Blue Mountains Welding occupied another portion of the farm adjacent to that occupied by Australian Mushrooms. (2) Mr Le Brocq commenced employment with Australian Mushrooms as a farm general hand in August 2005. His duties included driving a forklift. (3) His employment might involve some weekend work, if needed. (4) There was no work scheduled for Mr Le Brocq on Friday, 16 September 2005. Around midday on that day Mr Le Brocq met Mr Williams at the Farm in order to pick up his pay. (5) Mr Williams left the Farm at some time in the early afternoon on Friday, 16 September 2005. Before leaving he asked Mr Le Brocq to clean the trolleys. Mr Le Brocq was still at the Farm when Mr Williams left. (6) Mr Le Brocq had told Mr Williams that he was given permission to take some steel benches, or metal racks, from the property owned by Mr Baker. (7) On Sunday, 18 September 2005 Mr Le Brocq was using Australian Mushrooms' forklift to remove the steel benches when he was injured. (8) At the time of the accident on 18 September 2005 Mr Le Brocq was not engaged in any work on behalf of his employer." 13 The Acting Deputy President, in [21]-[29], also sets out some other factual matters including points of difference between the Appellant and the Respondent's witnesses. He does not there express his findings in relation to those contentious matters including the question whether the Appellant was authorised to use the forklift but at [39] he appears to have implicitly accepted the Appellant's evidence with respect to that issue. 14 For the purposes of the appeal I proceed upon the factual findings (a) those noted expressly as "common ground" by the Acting Deputy President at [25] and, (b) those implicitly made in [39], that is (with numbering added): "(1) The evidence, as accepted by the Arbitrator, was that Mr Le Brocq was an employee of Australian Mushrooms. He was asked by Mr William to sterilise some trolleys by Monday 19 September 2005. As the Arbitrator found, there was a loose arrangement between Mr Le Brocq and Australian Mushrooms as to when he would perform his duties and in this regard Mr Le Brocq had a reasonable amount of autonomy. In my opinion the whole of the time Mr Le Brocq spent at the farm on 18 September 2005 is properly characterised as an overall period or episode of work. (2) At some stage during this period or episode of work, whilst the trolleys were soaking, Mr Le Brocq used his employer's forklift in order to move some steel benches. Although this work was done entirely for Mr Le Brocq's benefit, it was during an interval or interlude in his overall period or episode of work. (3) Mr Le Brocq was, either expressly or impliedly, induced or encouraged to use his employer's forklift for the purpose of moving the steel benches as was found by the Arbitrator in paragraph 47 of his decision. (4) Mr Le Brocq's conduct on 18 September 2005 did not amount to "gross misconduct" such as to take him outside the course of his employment. This was again found by the Arbitrator in paragraph 47 of his decision." 15 At [47] and [48] of his judgment, the Acting Deputy President said: "47 Mr Le Brocq was not performing work for his employer at the time he was injured. In fact he was performing work for himself. The only connection with his employment was being on the Farm at Yellow Rock and using his employer's forklift during an interval or interlude within an overall period of work. In my opinion it relevant that Mr Le Brocq was not "performing positive employment duties" but was "merely in an interval between such duties" when the injury occurred ( McMahon v Lagana [2004] NSWCA 164.) 48 I am of the opinion that Mr Le Brocq's employment was not a substantial contributing factor to his injury, for the purposes of section 9A of the 1987 Act." 16 The submissions on behalf of the Appellant identify the error of law said to have been made in the following terms: "It is clear from paragraphs 47 and 48 (Red Appeal Book page 120 G to K) that the Acting Deputy President must have regarded the fact that the appellant was not performing positive employment duties during an interval between such duties, as determinative of the issue he had to determine, rather than being one of the matters that may be relevant to whether the employment was a substantial contributing factor. In so doing he fell into legal error: see Mercer v ANZ Banking Group Limited (2000) 20 NSWCCR 70." 17 In Mercer, now reported as (2000) 48 NSWLR 740, the worker, during normal work hours as a bank teller, reached out for some sticky tape on a desk and felt extreme pain in her left knee, and fell to the ground, having suffered a lateral dislocation of the left patella. The Compensation Court Judge had found that the precise activity which the worker had been performing – i.e. picking up the tape from a desk – was something that could have occurred elsewhere – and "was not an activity with any employment characteristics about it" (extracted from [8] of Mercer). Mason P, with whom Meagher and Beazley JJA agreed, said at [35] that that finding: "… betrays legal error because the absence of 'employment characteristics' in the precise activity that led to the injury was treated as determinative." The Court remitted the proceedings to the Compensation Court for further hearing. 18 A second decision of this Court on s 9A of the Act is McMahon (supra.) In that matter the worker was employed as a deckhand on a fishing vessel. He lived on the vessel not only when it was at sea but also when moored. During a period when the vessel was moored at Ulladulla, he went to a hotel and on his way back to the vessel he got into a fistfight with a man. The worker had returned to the vessel and then came onto shore after being challenged by his assailant who by this time was armed with a machete and who then caused serious injury to the worker. 19 Hodgson JA in whose judgment Santow JA and Stein AJA concurred, accepted that although 'substantial' is an ordinary English word, whether employment was a substantial contributing factor to an injury "is a question informed by legal considerations" and "the ultimate decision is a finding of fact, and is a matter of impression and degree", referring to Dayton. 20 Hodgson JA rejected the worker's submission that by determining, in accordance with Hatzimanolis, that the injury did not occur in the course of employment, the Acting Deputy President had fallen into error. Nor, he held, had there been any error of law in concluding that the primary facts did not make the employment a substantial contributing factor as a matter of law. Hodgson JA said at [35]: "In my opinion, the question of whether the worker is performing positive employment duties or is merely in an interval between such duties, when the injury occurs, may be relevant to whether the employment was a substantial contributing factor to the injury; and it was relevant in this case: cf Mercer at [13]". 21 Hodgson JA thought that the fact that the worker was expected to live on the vessel could have supported a finding that employment was a substantial contributing factor, but he saw other countervailing factors including the circumstance that the appellant was not performing any positive duties and that the attendance at the hotel and subsequent going on to the wharf, even if considered as incidental to the circumstance of the residence, "were not themselves induced or encouraged by the employer". He did not regard the facts as so compelling as to indicate an error of law. The Court rejected the appeal. 22 There were two other matters upon which Hodgson JA commented. He saw the presence at the wharf in Ulladulla as a circumstance that showed the employment as having some causal relevance to the injury (and he disagreed with the way that the Deputy President had dealt with that point). He also expressed the view that the employer did induce or encourage the worker to live on the boat and hence be present in Ulladulla and noted that the relevant question was "whether the appellant's activities at the hotel and going onto the wharf can reasonably be considered so incidental to what was induced or encouraged by the employer as to be within that inducement or encouragement. That, in my opinion, is a question of fact and degree." 23 The Appellant's submissions assert that the fact that he was not performing positive employment duties is relevant but not determinative. The submissions accept that none of the matters in s 9A(2)(c), (d), (e) and (f) found by the Acting Deputy President to be irrelevant (see Red Book, p 119 X- 120 F) were relevant, but identify ten matters which it was contended would be relevant on a determination by this Court, should it be held that the Acting Deputy Present had erred viz: "(1) On Friday 16 September 2005 the appellant was asked by his employer to wash and disinfect some trolleys: Red Appeal Book page 114 A to D; (2) His employer directed the appellant to complete that work by Monday 19 September 2005: Red Appeal Book page 114 D to F and page 117 N to S; (3) For various reasons the appellant was unable to complete the work on the Friday: Red Appeal Book page 114 F to H; (4) On Sunday 18 September the appellant returned to the farm to finish cleaning the trolleys. He disinfected the trolleys and decided to leave them to soak before completing the job: Red Appeal Book page 114 H to J and page 117 S to U; (5) Whilst the trolleys were soaking the appellant commenced to use a forklift to move some steel benches that had been given to him earlier in the preceding week: Red Appeal Book page 114 D to F and H to J and page 117 S to U; (6) Whilst using the forklift, it rolled over, and the appellant was injured: Red Appeal Book page 114 H to J; (7) The place where the injury occurred was the employer's farm, where the appellant had earlier been disinfecting the trolleys: Red Appeal Book page 119 T to U; (8) The forklift which the appellant was using was his employer's: Red Appeal Book page 117 U to W; (9) The appellant's employer had either expressly or impliedly induced or encouraged the appellant to use the forklift for the purpose of moving the steel benches: Red Appeal Book page 117 U to W; (10) The moving of the benches with the forklift was not one of the appellant's employment duties: Red Appeal book page 112 O to P." 24 S 9A(4) requires the "employment concerned" to be a substantial contributing factor. In Mercer Mason P noted at [13] – [17] that one starts with the question of "what if anything the worker was in fact doing in his or her employment that caused or contributed to the injury", and then considers whether the employment was a contributing factor and, if so, to then consider the strength of the causal linkage between the injury and the contributing factor, to determine whether that factor is a substantial one. 25 Thus there is a need to determine what was the Appellant's employment and to determine whether the activity or task which led to the injury was an activity or task falling within the tasks required by virtue of the contract of employment or was incidental to those tasks; for example, taking lunch during the course of work. In this case it was conceded that at the time of his injury, the Appellant "was not engaged in any work on behalf of the employer": 112 O to P of the Red Appeal Book and see also 117 S to U where that finding was made. This case is quite different to Mercer where the employee was performing tasks that were part of her employment on the premises of her employer. It is quite clear that the work in which the Appellant was engaged, namely sorting through, and removing, benches for his own requirements, was not work being carried out on behalf of AMPL (or Metro). The finding that AMPL induced or encouraged the Appellant to use its forklift in response to his request did not, it appears, lead the Acting Deputy President to doubt the factual conclusion that the work performed by the Appellant was not to be viewed as work for, or an activity of, the employer and there was no suggestion made before us that there was an inconsistency in the two findings. 26 S 9A(3)(a) makes it clear that the fact that the injury arose out of, or in the course of, or arose both out of and in the course of employment is not of itself sufficient to make the worker's employment a substantial contributing factor. 27 Mr Roberts SC, who appeared for the Appellant, accepted that the Acting Deputy President, in noting at [47] of his judgment that it was relevant that the Appellant was not performing positive employment duties but was "merely in an interval between such duties" when the injury occurred, had not thereby fallen into error. However, although the Acting Deputy President had said that that matter was relevant and did not say that it was determinative, Mr Roberts submitted that it should be inferred that the Acting Deputy President, in coming to his conclusion that the Appellant's employment was not a substantial contributing factor, had erroneously ignored the findings to which reference is made in [10] and [12] above and treated the fact that the Appellant was not performing positive employment when the injury occurred as determinative. 28 I am of the view that the inference of legal error which the Appellant asks the Court to draw cannot be drawn. The Acting Deputy President had set out a few paragraphs earlier all the relevant facts (as he found them or as were agreed) in order to reach a conclusion that the injury occurred in the course of employment. Mr Roberts in oral submissions conceded that the Acting Deputy President had taken into account the fact that the injury occurred in the course of employment in reaching his conclusion in respect of s 9A of the Act. The conclusion expressed by the Acting Deputy President on whether the injury occurred in the course of employment was based upon a consideration of all of the matters which it was necessary to take into account (and all of the factual matters which the Appellant now submits should be taken into account) so that there is no warrant for asserting that the Acting Deputy President ignored those matters, when he added that there was one further matter which he regarded as relevant. It appears that, in assessing the degree to which the Appellant's employment was a substantial contributing factor, the Acting Deputy President regarded the fact that the injury occurred during an interval or interlude within an overall period of work and that the Appellant was not then engaged in any work on behalf of the employer, as of considerable significance. That was a conclusion clearly open to him on the facts as found. It does not bespeak error of law. 29 It is unnecessary for me to consider the Notice of Contention. Conclusion 30 I am not persuaded that the Acting Deputy President did not have regard to all of the factual findings which he had made in determining whether the injury arose out of the Appellant's employment with AMPL when considering whether s 9A of the Act precluded the claim. Indeed, I think it is clear from a perusal of [39] – [49] of the Acting Deputy President's judgment, that he did. It follows that in my view no legal error has been demonstrated to exist in the judgment appealed against. 31 Nothing was said on the subject of costs and in my view the usual order should be made, namely that the Appellant should pay the Respondent's costs of the appeal. 32 I would therefore propose the following orders: (1) Appeal dismissed (2) The Appellant to pay Workcover's costs. ********** 04/06/2008 - Judgment date amended - Paragraph(s) Headnotes 06/06/2008 - Representation amendment - Paragraph(s) Headnotes 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.