Decisions must rest on inferences drawn from known facts | Knezevic v Laticrete Pty Ltd [2018] NSWWCCPD 11

Jovo Knezevic (the deceased) was employed by Laticrete Pty Ltd (the respondent) as a technical sales representative. His duties required travelling to various locations and also to the respondent's premises in Moorebank.

Sometime prior to 12 June 2012, the respondent formed the opinion that the deceased's performance was unsatisfactory and that his employment would be terminated. A meeting was scheduled to take place with the deceased at 9 am on 12 June 2012 at the respondent's premises. The deceased attended the respondent's premises on the morning of 12 June 2012, however, the meeting did not commence because the deceased suddenly departed the premises. There was subsequent correspondence between the deceased, the respondent and the deceased's legal representative (Mr Zwar). It included correspondence from Mr Zwar to the respondent stating that the termination was unlawful and that the deceased was proceeding to attend to his work duties in accordance with his contract of employment.

At approximately 10 am on 13 June 2012, the deceased was travelling on the M7 when he pulled into the breakdown lane, exited the vehicle and was fatally struck by a truck travelling in the outermost lane of the M7.

The deceased's widow (the appellant) claimed the lump sum death benefit for herself and "on behalf of" three dependent children, as well as weekly payments for the dependent children pursuant to section 25 of the 1987 Act.

On 22 January 2015, the respondent issued a section 74 notice denying liability for death benefits. The matters in dispute included that the deceased's death did not arise out of or in the course of employment: section 4 of the 1987 Act.

The appellant commenced proceedings in the Workers Compensation Commission of New South Wales (the WCC) and the matter proceeded to an Arbitration hearing on 18 September 2017 before Arbitrator Sweeney (the Arbitrator).

In a Certificate of Determination dated 23 October 2017 (the COD), the Arbitrator entered an award for the respondent. The Arbitrator found that the deceased's employment with the respondent had not been terminated at the time of his death. However, the Arbitrator concluded that he was unable to draw an inference that the deceased was in the course of his employment at the time of his death.

The Arbitrator's decision was based on the following "speculative" conclusions:

• 10 am was an odd time for the deceased to be travelling on the M7 with the intention of starting work;

• If the deceased had been travelling to work, then he would have firstly contacted the respondent; and

• There was evidence that the deceased was going shopping at the time of his death.

Senior Constable Hurst (the Senior Constable) attended the accident scene and provided a typed statement on 16 August 2012 which was signed by him on 14 October 2012. It recorded that he discussed the circumstances leading up to the deceased's death with the deceased's father-in-law (Mr Myers). The statement recorded that Mr Myers told the Senior Constable that the deceased "was going shopping when he left the house"; however, this was not recorded in the Senior Constable's more contemporaneous notebook.
The appellant appealed the Arbitrator's decision. The grounds of appeal addressed the following issues:

• Ground 1 – The Arbitrator erred in finding that the deceased was not in the course of his employment at the time of his death; and

• Grounds 2 & 3 – The Arbitrator erred in drawing inferences that were not available on the facts or erred in failing to draw inferences that were available on the facts.

The Arbitrator's finding that the deceased's employment had not been terminated at the time of his death was not challenged on appeal.
The appellant was nominated as "Bronwyn Louise Knezevic in her own right and on behalf of Matthew James Knezevic, Lachlan David Knezevic and Montana Maree Knezevic". On 16 November 2017, the delegate of the Registrar of the WCC directed the appellant to file an amended appeal application correctly identifying the dependants who were under a legal incapacity. However, on 18 December 2017, the appellant filed an amended appeal application nominating herself only as the appellant. As a result, the dependent children were not a party to the proceedings.
 

On 19 March 2018, Deputy President Wood (the Deputy President) found that the Arbitrator's decision was affected by error because the Arbitrator drew inferences that were not available on the evidence. The Deputy President also noted that the three dependent children had a vested and competing interest in the outcome, but they were not party to the proceedings. As a result, the Deputy President revoked the COD and remitted the matter for re-determination by a different Arbitrator.

Ground 1 – The Arbitrator erred in finding that the deceased was not in the course of his employment at the time of his death
The Deputy President held that Ground 1 could not succeed as the Arbitrator did not make a finding that the deceased was not in the course of his employment at the time of his death. Alternatively, the conclusion reached by the Arbitrator was that he was unable to draw an inference that the deceased was in the course of his employment.

Grounds 2 & 3 – The Arbitrator erred in drawing inferences that were not available on the facts or erred in failing to draw inferences that were available on the facts.
The Deputy President confirmed that the appellant must establish that the Arbitrator made an error of fact, law or discretion for the appeal to succeed. It is not sufficient to establish that a different view is preferable [1].

The Deputy President did not consider 10 am an odd time for the deceased to be on the M7, having regard to his occupation. In particular, there was evidence from the appellant that the deceased would leave home later if he was visiting clients, and on 13 June 2012, the deceased had advised the appellant that he would be leaving later that day. Accordingly, the Deputy President held that it was not open to the Arbitrator to infer that the deceased was unlikely to be travelling to work at the time of the accident.

The Deputy President also did not accept the Arbitrator's observation that it was unlikely that the deceased would travel to the respondent's premises without first contacting them. In the Deputy President's view, it was "mere conjecture" that the deceased would contact the respondent in the circumstances.

The Deputy President considered that if the evidence of the Senior Constable was reliable, then it raised the probable inference that the deceased was not in the course of his employment at the time of his death. However, the Deputy President identified a number of issues in relation to the reliability of the Senior Constable's evidence which did not justify the weight accorded to it by the Arbitrator. In particular, there was no evidence of when Mr Myer told the Senior Constable that the deceased was going shopping which was relevant because Mr Myer had refused to provide a statement. The Deputy President therefore formed the view that the statement was likely a paraphrased recollection and might not be entirely accurate. It was also part of the deceased's duties to visit tile shops and the Deputy President considered that an intention to "visit shops" would not be inconsistent with the evidence of Mr Myers, the appellant or the Senior Constable.

The Deputy President concluded that the Arbitrator drew inferences that were not available on the evidence, and therefore, the Arbitrator's decision was erroneous.
 

A decision maker is not permitted to simply pick between available inferences. If an inference is drawn that is not available on the evidence, then the decision is erroneous. The ultimate conclusion of the decision maker must rest on inferences drawn from known facts.

All dependants must be joined to proceedings involving workers compensation death benefits, including any dependants under a legal incapacity such as minor children. The 2011 Rules also require the personal representative, if any, of the worker to be joined to the proceedings. Generally, any person who has an interest adverse to the applicant should be independently represented in WCC proceedings for death benefits.