(1) Dismiss the appeal from the determination of Deputy President Wood in the Workers Compensation Commission given on 22 July 2019. (2) Order that the appellant pay the costs in this Court of the second and third respondents.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

headnote

[This headnote is not to be read as part of the judgment]

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 and the other a baby of a few weeks. The children made claims for workers compensation. The family company having been deregistered, the claims were resisted by the appellant, the Workers Compensation Nominal Insurer (“Nominal Insurer”).

On 19 December 2018, an arbitrator at the Workers Compensation Commission determined that Ms Carroll 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, in accordance with the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”). On 16 January 2019, the Nominal Insurer lodged an appeal against that determination under s 352 of the Workplace Injury Act. On 22 July 2019 Deputy President Wood dismissed the appeal.

The Nominal Insurer appealed the Deputy President’s decision to the Court of Appeal under s 353 of the Workplace Injury Act. That appeal was limited to a decision in a point of law.

The appeal raised four issues:

(i) the scope of an appeal from a decision of a Deputy President;

(ii) the scope of an appeal from an arbitrator to a Deputy President;

(iii) whether the Deputy President erred in holding that there was evidence to support the arbitrator’s findings as to the elements of the claim;

(iv) whether the Deputy President failed to hold that Mr Hill’s assault, being inspired by delusions, was causally connected to Ms Carroll’s employment.

The Court (Basten JA, Payne JA, Simpson AJA) dismissed the appeal and held:

As to issue (i):

1. The right of appeal to the Court extends to any decision in point of law, whether express or implicit, made in the course of the hearing before the Deputy President: [7], [61]. It can extend to a “no evidence” ground because any finding of fact necessarily depends upon first accepting that there was material capable of supporting the finding; what amounts to such material is a question of law: [9], [65].

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32; Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312, applied

2. The Deputy President not being satisfied that there was error on the part of the arbitrator, who was required to be affirmatively satisfied as to the elements of the claim, must have been satisfied that there was evidence capable of supporting each of the findings: [9], [61]. She did not err in point of law in so finding.

As to issue (ii):

3. The Deputy President was not entitled to uphold an appeal from an arbitrator unless satisfied as to any error of fact, law or discretion: s 352(5). Articulating that appellate function in language taken from Whiteley Muir and Zwanenberg Ltd v Kerr did not involve error: [17]; [61]; [91].

Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217 applied; Whiteley Muir and Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, discussed.

As to issue (iii):

4. Ground one did not raise any point of law: [13]; [61]; [84]. There was evidence to support the arbitrator’s findings that Ms Carroll’s death (i) occurred in the course of her employment: [44]; [61]; [84]; (ii) arose out of her employment and (iii) was a substantial contributing factor to her death: [49]; [56]; [61], [84].

As to issue (iv):

5. The Deputy President considered in detail whether Mr Hill’s assault was causally connected with Ms Carroll’s employment: [29]; [39]; [61]; [93]. The material before the arbitrator demonstrated a palpable and direct connection between Mr Hill’s delusions, Ms Carroll’s employment and her death: [37], [61], [93]. The Deputy President did not err in concluding that there was material before the arbitrator rationally probative of that causal connection. The fact that the connection involved a delusion did not prevent it being a causal connection: [37]-[38], [61], [93].

Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102, discussed.

Judgment

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. 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] 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

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

“[37] The core element of a worker's course of employment will be attendance at a workplace or carrying out work functions, during usual business hours. The nature of the core will vary depending on the nature of the work. Over the years, the boundaries have tended to erode. Thus it is now well accepted that social events (such as the office Christmas party) and recreational activities (such as trips on days off work for employees required to remain at remote locations) can well form part of the course of employment. … The fact that clear boundaries have been eroded does not mean that there are no boundaries; rather, the further from the core one moves the closer [the] scrutiny of the circumstances involved.”

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] 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:

353 Appeal against decision of Commission constituted by Presidential member

(1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.

…

(5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.

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] 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:

“What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law.”

Section 353 is not in identical terms to the appeal provision considered in Kostas, which dealt with an appeal with respect to a decision where “the tribunal decides a question with respect to a matter of law.” [8] Nevertheless, the principle identified in Kostas should be applied to an appeal under s 353.

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:

Did the Deputy President err in implicitly deciding that there was evidence capable of supporting the factual findings made by the arbitrator?

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] 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:

“1 The Deputy President erred in her conclusion that the second and third respondents were entitled to recover statutory workers compensation.

Particulars of Ground 1

(a) The Deputy President (and the Arbitrator) should have concluded that it was not established that Ms Carroll's injury (namely, her death) arose in the course of her employment.

(b) The Deputy President (and the Arbitrator) erred in concluding that Ms Carroll's injury (namely, her death) was one arising out of her employment.

(c) The Deputy President (and the Arbitrator) erred in concluding that Ms Carroll's employment was a substantial contributing factor to her injury (namely, her death).

2 The Deputy President erred in failing to carry out her statutory task pursuant to s 352 of the [Workplace Injury Act], and/or construed that task too narrowly, in that she proceeded 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.

3 The Deputy President erred in failing to consider and/or determine a critical element in the appellant's appeal to the Commission constituted by a Presidential member, namely, that a conclusion that the first respondent's delusions were connected with his employment did not have the consequence that there was a relevant or sufficient causal connection between Ms Carroll's employment and her injury (namely, her death).”

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:

4 Definition of “injury”

In this Act—

injury—

(a) means personal injury arising out of or in the course of employment,

…

9A 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.

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

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:

352 Appeal against decision of Commission constituted by Arbitrator

(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

…

(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.

…

(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.

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. 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:

“[244] The appellant contends that the Arbitrator erred in her factual determinations that she was satisfied that:

(a) Ms Carroll’s employment materially contributed to the injuries resulting in death;

(b) Ms Carroll was either actually performing her duties at the time of the assault, or otherwise was on call at the relevant time, and

(c) Ms Carroll’s employment was a substantial contributing factor to her injuries causing death.

[245] As the second respondent submits, in order for the Arbitrator’s decision to be disturbed on appeal, it must be shown that the Arbitrator overlooked material facts, gave too little weight to the evidence in deciding the inference to be drawn, or the available opposite inference was so preponderant that, in the views of the appellate court, the decision must be wrong. Those principles are well established, and have been considered and applied frequently in Presidential decisions in the Commission, as well as in other appellate courts.”

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] 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.” 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. 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). 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] 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. 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:

“[266] The appellant does not point to any error of the kind required in order to disturb the Arbitrator’s factual conclusion that Ms Carroll’s employment was a substantial contributing factor in the cause of her injury and subsequent death, so that Ms Carroll’s injury and death arose out of her employment.

[267] The first ground of appeal fails.”

In dealing with the second ground, the Deputy President stated:

“[280] Despite the Arbitrator’s misplaced references to passages in Hatzimanolis and PVYW, she did not apply those passages in her reasoning process, and her reasoning process was not, therefore, infected by legal error. …

…

[282] I have discussed the requirements necessary to establish the type of error in the fact-finding process that warrants appellate intervention in a factual decision made by a primary decision maker. I am not satisfied that the appellant has established relevant error in the Arbitrator’s finding of fact, reasoning, or determination that Ms Carroll was in the course of her employment by either having commenced work or at least being on call when the assault occurred.

[283] It follows that the appellant’s second ground of appeal fails.”

In dealing with the third ground, the Deputy President concluded:

“[292] The Arbitrator determined the question of whether Ms Carroll’s employment was a substantial contributing factor to the injuries resulting in death by considering the facts in this case, applying the principles set out in Badawi, and applying the terms of the legislation. The Arbitrator took into account other factors that played a part in the assault, and reading her reasons as a whole, appropriately accounted for those factors when ultimately deciding that Ms Carroll’s employment was a substantial contributing factor to her injuries and death.

[293] The appellant has not established error of the kind required to disturb the Arbitrator’s factual finding, which was open to her on the evidence, and this ground of appeal also fails.”

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. Ground 2 must be rejected.

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

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. 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:

“[140] In any event, the appellant submits, even if Dr Furst’s views in broad terms were accepted, the contribution of the personal relationship to the assault was a product of the [Mr Hill’s] employment and not Ms Carroll’s employment. The appellant contends that the work circumstances would have aggravated [Mr Hill’s] condition even if Ms Carroll was employed elsewhere, and in the absence of work-related delusions, potentially would have led to an assault on Ms Carroll. The appellant says that even on Dr Furst’s view, despite the fact that [Mr Hill] and Ms Carroll worked together, it was [Mr Hill’s] employment which may have contributed to the attack, not Ms Carroll’s employment, and both Dr Furst and the Arbitrator have omitted that fact, resulting in error.” [25]

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]

“Part of the delusions suffered by Mr Hill related generally to the work and business of the Employer. It may be accepted for the purposes of the argument that those delusions were related to Mr Hill's employment. But a connection cannot then be drawn between those delusions and Ms Carroll's employment.”

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. 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. 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:

“[133] The appellant submits that … Dr Roberts opined that the beliefs that caused [Mr Hill’s] distress were the product of his psychosis and did not come from reality. Further, Dr Roberts rejected Dr Furst’s opinion that the work stressors caused the delusions, because in his view, the substantial stressors would have been the result of the psychotic symptomology, and the beliefs arising out of that symptomology, rather than circumstances relating to matters of fact. The appellant asserts that the relationship to [Mr Hill’s] employment was incidental and the causative factor was the illness itself.

…

[136] Consequently, the appellant says, the second sentence of the Arbitrator’s reasons at [264], where the Arbitrator observed it was necessary to consider whether the paranoid beliefs about Ms Carroll’s work performance led to the assault, was an irrelevant consideration and led to error.”

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:

“44. There was no causal relationship between the assault and Ms Carroll's employment. The assault came about because of Mr Hill's delusions. It was never any part of Ms Carroll's clerical duties in a financial advising business to face a risk of injury of this kind.

45. The error in the approach is demonstrated by the Arbitrator's reference to an ‘indistinguishable’ risk faced by a psychiatric nurse within a mental health facility injured by an enraged patient …. That instance can be readily distinguished. The risk of injury in that case which was one directly related to the psychiatric nurse's own employment – it is a risk inherent in that particular kind of task. The reasons why the psychiatric nurse in that instance would succeed in a claim also explain why the present claim must fail.”

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. 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. In writing, the appellant further submitted:

“53. The Arbitrator did not undertake the appropriate analysis which would have required consideration of the following:

• Ms Carroll's employment was in clerical work in a peaceful environment;

• There was nothing in Ms Carroll's employment which placed her at risk of a sudden and violent attack;

• Mr Hill's delusions were not part of Ms Carroll's employment.”

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. 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]

“The Arbitrator referred to the belief which [Mr Hill] held that Ms Carroll was conspiring with ASIC and AMP to take away his clients and accreditation as a financial planner, accessing his computer, spying on him and recording his conversations. The Arbitrator referred to [Mr Hill’s] evidence that he became preoccupied and focussed on Ms Carroll’s activities which led him to suffer a new delusion that she was being unfaithful. The Arbitrator further referred to the evidence that [Mr Hill] required Ms Carroll to undertake a lie detector examination, paid for by [the employer] and principally in relation to employment issues, but included asking her about her fidelity.”

That evidence, the Deputy President recorded, was accepted by the arbitrator. [30]

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:

“[261] The fact that the beliefs were irrational, and the product of a disordered mind, does not mean that the connection between Ms Carroll’s employment and the assault that was motivated by those beliefs was ‘fanciful’ or even ‘tenuous’ ….

[262] The medical and lay evidence in this case provides a basis upon which it could be concluded that the first respondent’s delusional beliefs were founded upon his perception as to how Ms Carroll was conducting her employment activities, which was part of the causal link. The Arbitrator clearly identified that she needed to consider the fact of Ms Carroll’s employment, which included that Ms Carroll’s role was to deal with AMP, and that Ms Carroll was answerable to, and needed to deal with, [Mr Hill], who was also the appellant’s employee.”

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.

Ground 1: challenge to findings of fact

(a) in the course of employment

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:

“[178] The appellant submits that if there had been clear and uncontroversial evidence that Ms Carroll was working at the time of the assault, or if it was demonstrated that the assault occurred during her usual working day, then the appellant accepts that it would be likely that the respondents would be able to establish that Ms Carroll’s death would have occurred in the course of her employment.

[179] The appellant asserts that the question raised under this ground of appeal is whether the Arbitrator erred in determining that Ms Carroll’s death did occur in the course of her employment in circumstances where:

(a) the respondents bore the onus of proof, particularly having regard to the Arbitrator’s finding that the time of death encompassed a range of time within and outside of Ms Carroll’s usual working day;

(b) there was no evidence that Ms Carroll had started work that day, or that she was engaged in work related activities at the time of the assault, and

(c) the evidence of Ms Carroll’s flexible working arrangements was not evidence that she was “on call” in the relevant sense.

…

[184] The appellant points out that:

(a) Ms Carroll’s usual working day commenced at 9 am;

(b) the office was on a different floor;

(c) Ms Carroll was still in her pyjamas;

(d) there was no evidence that Ms Carroll had planned for any work that day, particularly any work prior to 9 am, and

(e) telephone and computer records disclosed no work related activity by Ms Carroll that day.”

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

“[275] When determining if an injury was suffered in the course of employment it is necessary to consider the temporal connection between the employment and the injury sustained. The course of employment extends beyond a worker’s normal hours and place of work, to ‘the natural incidents connected with the class of work’. If a worker ‘is doing something which is part of or is incidental to his service’, he is in the course of his employment: Whittingham v Commissioner of Railways (WA). [32] Therefore, service is not confined to the actual performance of the work that the worker is employment to do, but includes all things incidental to the performance of that work.”

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:

“[325] This results in the situation where if the time of death was between 9:00am and 10:00am death occurred during Ms Carroll’s normal working day or during a short recess in her working day. The question remains is whether Ms Carroll can be regarded as ‘on-call’ in the period between 8:00am and 9:00am.

[326] Liam’s evidence, which was not challenged, was that Ms Carroll’s work tasks on weekdays would continue throughout the day, starting from as early as 7:30 am and at time[s] she would be performing work as late as 9 pm. Mr Hill said that Ms Carroll’s ‘role required her to be at the premises during office hours and longer by arrangement and that they ‘…worked together full-time from Monday to Friday commencing around 9am and working through until 5pm, with a break between 12 and 1pm’. It was clear from Mr Hill’s statement that Ms Carroll often worked after 5:00pm supervising the telemarketers up until 2009. Mr Jeffrey Burrows who visited her in the long weekend before her death, stated that she answered calls from Mr Hill and then went downstairs to the office area for a period of time. I am satisfied that Ms Carroll worked for some of the long weekend when answering those calls.

[327] There is no specific evidence, however, clearly supporting the conclusion that Ms Carroll had commenced work tasks before 9:00am on 16 June 2010. No phone calls were made or received in that period and there is no record of any electronic communication or work on files that day. I accept that Ms Carroll did start work as early as 7:30am on some days and worked on occasions in weekends and in the evenings. On 15 June 2010 there were phone calls between Mr Hill and Ms Carroll commencing at 7:33am and then a call to Mr Hill’s phone from AMP Services at 8:21am on 15 June 2010 lasting 9 minutes and 38 seconds. The timing of these calls would suggest that it is likely that work matters were discussed by Ms Carroll and Mr Hill as early as 7:33am on 15 June 2010.

[328] On balance, I am satisfied that Ms Carroll was on-call from about 7:30am, and the fact that the bedroom contained work files supported the conclusion that from as early as 7:30am she worked in her bedroom doing office work and certainly while she had Charlie to feed and look after. Ms Carroll worked throughout the house and was expected to answer AMP phone calls whether Mr Hill was available or not. I therefore find that Ms Carroll was either actually performing employment related duties at the time of the assault and her death or else was on-call so as to satisfy s 4 of the 1987 Act. There was a sufficient temporal connection between Ms Carroll’s employment and her death to establish she was in the course of her employment when she was attacked by Mr Hill.”

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:

the mistake as to the function of the appeal under s 352 (which has already been addressed); there was “no evidence” to support the finding that Ms Carroll was “actually performing employment–related duties”, and there was no evidence to support the finding that Ms Carroll was “on call”.

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

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. 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. 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:

“[27] The subjective basis of an attack by one co-worker on another, during the course of their common employment may be a relevant factor in some cases, but in many it will not be. An example where it may be relevant is where two workers start a fight at a pub over a dispute unrelated to work, outside work hours, but continue the fight later during work hours. On the other hand, if a worker were sexually assaulted or harassed by a co-worker, the subjective motivation of the aggressor would be of little if any relevance. Where it is the common employment of two workers which leads to the outbreak of aggression in the course of the employment, in circumstances where such an incident would probably not have occurred absent the common employment, the source of the grievance felt by the aggressor is less likely to be relevant and less likely, if relevant, to carry significant weight.

[28] The Deputy President acted on the basis that there needed to be a substantial causal nexus between the grievance which motivated the aggressor and the nature of the employment of the appellant. That approach involved a restriction on the terms of s 9A which is not found within the language of the provision, nor does it arise by way of reasonable implication. To limit the scope of the inquiry in this way was an error with respect to the proper construction of the statutory requirement. The common employment was not ‘merely a temporal element’, of no substantial causal significance, nor was it correct to dismiss it as only giving rise to causation in the ‘but for’ sense.”

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. 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

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

“• Ms Carroll's employment was in clerical work in a peaceful environment;

• There was nothing in Ms Carroll's employment which placed her at risk of a sudden and violent attack;

• Mr Hill's delusions were not part of Ms Carroll's employment.”

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. 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:

“Was Ms Carroll’s employment a substantial contributing factor to her injury within section 9A of the 1987 Act?

[329] The next issue to be determined is whether Ms Carroll’s employment was a substantial contributing factor to her injury within in section 9A of the 1987 Act. It is not necessary that ‘a’ substantial contributing factor be ‘the’ contributing factor.”

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. 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. 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. 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

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. Accordingly, the Court should make the following orders:

Dismiss the appeal from the determination of Deputy President Wood in the Workers Compensation Commission given on 22 July 2019. Order that the appellant pay the costs in this Court of the second and third respondents.

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

“…personal injury arising out of or in the course of employment.”

It is generally accepted that “arising out of …” imports a causal connection between the injury and the employment, and that “in the course of” imports a temporal connection.

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

“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

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

“… a party … is aggrieved by a decision of the Presidential Member in point of law …”

Factual background

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. 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. 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). 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. 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:

whether Ms Carroll suffered an injury in the course of her employment;

whether Ms Carroll suffered an injury that arose out of her employment;

whether Ms Carroll’s employment was a substantial contributing factor to her injury.

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:

“…it is a substantive contributing factor in the aggravation, acceleration, exacerbation or deterioration of the symptoms of the disease, the products (that is of the aggravation of the underlying disease) being major depression and a defect of reasoning in the form of paranoid delusions about [Ms Carroll].”

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

that the injury that caused Ms Carroll’s death arose out of her employment ([274]);

that that injury arose in the course of Ms Carroll’s employment ([328]);

that Ms Carroll’s employment was a substantial contributing factor to her injury ([341])

Arbitrator Rimmer gave detailed reasons for each of these conclusions by reference to the extensive documentary evidence that was before her.

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:

“245 As the second respondent submits, in order for the Arbitrator’s decision to be disturbed on appeal, it must be shown that the Arbitrator overlooked material facts, gave too little weight to the evidence in deciding the inference to be drawn, or the available opposite inference was so preponderant that, in the views of the appellate court, the decision must be wrong. Those principles are well established, and have been considered and applied frequently in Presidential decisions in the Commission, as well as in other appellate courts.”

The Deputy President cited the judgment of Barwick CJ, with which McTiernan J agreed, in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 as the source of that principle.

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

“265 It was appropriate for the Arbitrator to consider the motive for the assault. The Arbitrator’s acceptance of the evidence that there was a causal connection between the assault and Ms Carroll’s employment that is the nature of her employment, the conditions of that employment, as well as its obligations, to which she clearly referred, was a factual determination based on the evidence before her. While an appellate court might form a different view, that is insufficient reason to disturb a factual finding.

…

280 …the Arbitrator approached the question of whether Ms Carroll was in the course of her employment by concluding that she was in the course of her employment either because the assault occurred after the time she always commenced work, or because it occurred during a time that she was expected to be available to take calls or perform other duties as required. The arbitrator arrived at her determination by looking at what were the natural incidents of what Ms Carroll usually did, what she was reasonably expected to do in the context of the family run business, and what she made herself available to do in the weeks leading up to the day of the assault. The totality of the evidence in such a fluid working arrangement at least supported that at the time of the assault, Ms Carroll was available to attend to calls or work matters arising, putting her “on call” and therefore in the course of her employment.

281. The Arbitrator’s approach was consistent with the High Court’s general observations of the principles in Danvers [Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529; [1969] HCA 64] and Hatzimanolis [Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21] … that the course of employment covers not only the actual work which a person was employed to do, or the circumstances of the particular occasion out of which the injury arose, but the general nature and circumstances of the injured worker’s employment.

282. I have discussed the requirements necessary to establish the type of error in the fact finding process that warrants appellate intervention in a factual decision made by a primary decision maker. I am not satisfied that the appellant has established relevant error in the Arbitrator’s finding of fact, reasoning, or determination that Ms Carroll was in the course of her employment by either having commenced work or at least being on call when the assault occurred.

…

292 The Arbitrator determined the question of whether Ms Carroll’s employment was a substantial contributing factor to the injuries resulting in death by considering the facts in this case, applying the principles set out in Badawi [Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd (2009) 75 NSWLR 503; [2009] NSWCA 324], and applying the terms of the legislation. The Arbitrator took into account other factors that played a part in the assault, and reading her reasons as a whole, appropriately accounted for those factors when ultimately deciding that Ms Carroll’s employment was a substantial contributing factor to her injuries and death.”

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:

“…affected by any error of fact, law or discretion …”

as required by s 352(5), in respect of any of the asserted errors.

The appeal to this Court

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:

“…aggrieved by a decision of the Presidential member in point of law”.

The appellant has pleaded three grounds as follows:

“1. The Deputy President erred in her conclusion that the second and third respondents were entitled to recover statutory workers compensation

Particulars of Ground 1

(a) The Deputy President (and the Arbitrator) should have concluded that it was not established that Ms Carroll’s injury (namely, her death) arose in the course of her employment.

(b) The Deputy President (and the Arbitrator) erred in concluding that Ms Carroll’s injury (namely, her death) was one arising out of her employment.

(c) The Deputy President (and the Arbitrator) erred in concluding that Ms Carroll’s employment was a substantial contributing factor to her injury (namely, her death).

2. The Deputy President erred in failing to carry out her statutory task pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998, and/or construed that task too narrowly, in that she proceeded 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.

3. The Deputy President erred in failing to consider and/or determine a critical element in the appellant's appeal to the Commission constituted by a Presidential member, namely, that a conclusion that the first respondent's delusions were connected with his employment did not have the consequence that there was a relevant or sufficient causal connection between Ms Carroll's employment and her injury (namely, her death).”

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. 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. 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. Ground 1 should be rejected.

Ground 2

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. 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. 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. 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. 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. Ground 2 should be rejected.

Ground 3

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:

“252. The Arbitrator also drew support from the medical evidence in reaching her conclusion that employment related matters, including the down turn of the business, and [Mr Hill’s] distrust of Ms Carroll in the performance of her role, were key factors influencing [Mr Hill’s] delusional beliefs. The Arbitrator gave clear and evidence based reasons for accepting the opinion provided by Dr Furst as to the motivation for the assault, and took into account Dr Robert’s view that ‘the delusional belief system would inevitably incorporate the experience of the person in whom the delusional belief system is occurring.’ That view imports into [Mr Hill’s] delusions and influence from circumstances in which [Mr Hill] found himself, that is, the spiralling downturn in his business, in which he believed, Ms Carroll played a significant part.

…

255 The identification of the motive for the assault was just one step in the Arbitrator’s endeavour to determine whether there was a causal connection between the assault causing Ms Carroll’s death, and the fact of Ms Carroll’s employment.

….

265 It was appropriate for the Arbitrator to consider the motive for the assaults. The Arbitrator’s acceptance of the evidence that there was a causal connection between the assault and Ms Carroll’s employment, that is the nature of her employment, the conditions of that employment, as well as its obligations, to which she clearly referred, was a factual determination based on the evidence before her. While an appellate court might form a different view, that is insufficient reason to disturb a factual finding.”

That is sufficient to dispose of Ground 3 which, like Grounds 1 and 2, should be rejected. For these reasons I agree with the orders proposed by Basten JA.

**********

Endnotes 1. S L Hill and Associates Pty Ltd (deregistered) v Hill [2019] NSWWCCPD 37. 2. [2012] NSWCA 324. 3. Written submissions, par 4. 4. Tcpt, CA, 06/03/20, pp 14(34)-(39), 15(10). 5. Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47] (Bryson JA). 6. (2009) 75 NSWLR 539; [2009] NSWCA 322 at [101]-[111]. 7. (2010) 241 CLR 390; [2010] HCA 32 at [90]-[91] (Hayne, Heydon, Crennan and Kiefel JJ). 8. Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67(1). 9. Kelly v Secretary, Department of Family and Community Services [2014] NSWCA 102 at [26]. 10. [2013] NSWCA 255; 12 DDCR 95 at [70]-[72] (Sackville AJA). 11. See Norbis v Norbis (1986) 161 CLR 513 at 518 (Mason and Deane JJ); [1986] HCA 17. 12. (1966) 39 ALJR 505 at 506, col 2 A-D. 13. Appellant’s written submissions, par 22, referring to Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [28] (Allsop J). 14. Warren v Coombes (1979) 142 CLR 531; 551; [1979] HCA 9. 15. Heggie at [70]. 16. Heggie at [72]. 17. Determination at [158], [160]. 18. Ballina Shire Council v Knapp [2019] NSWCA 146 at [38] (Payne JA); Amaba Pty Ltd v Booth [2010] NSWCA 344 at [23]. 19. [2014] NSWCA 217. 20. Sok at [30]. 21. Sok at [15]. 22. Sok at [24]. 23. Sok at [31] and [42]. 24. Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24] (Gummow and Callinan JJ). 25. The “first respondent” before the Commission was Mr Hill. 26. Appellant’s written submissions, par 59. 27. Appellant’s written submissions, par 56. 28. Appellant’s written submissions, par 59. 29. Determination at [82]. 30. Determination at [85]. 31. Arbitrator’s decision, par [328]. 32. (1931) 46 CLR 22; [1931] HCA 49. 33. Arbitrator’s reasons, par 324. 34. Badawi v Nexon Asia Pacific Pty Ltd (2009) 75 NSWLR 503; [2009] NSWCA 324 at [72] (Allsop P, Beazley JA and McColl JA). 35. Kelly at [26]. 36. Badawi at [80]. 37. Badawi at [80]. 38. Written submissions, par 53. 39. Arbitrator’s determination at [341]. 40. Arbitrator’s determination at [340(b)].

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