CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Mavireddy v Hempel (Wattyl) Australia Pty Ltd [2023] NSWPIC 404	
		
APPLICANT:	Deepthi Mavireddy	
		
RESPONDENT:	Hempel (Wattyl) Australia Pty Ltd	
		
Member:	Diana Benk	
		
DATE OF DECISION:	10 August 2023	
		
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Applicant was a worker at the time of the injury; section 4; interpretation of condition precedent and employment contract; Perri v Coolangatta Investments Pty Ltd; whether action of attending an employment medical was an activity in the course of her employment or whether the applicant was a ‘volunteer’; Whittingham v Commissioner of Railways (WA) and Henderson v Cmr of Railways (WA); Held – the applicant was a worker at the time of attending the employers medical examination
 	
determinations made:	The Commission determines:
1.	Respondent to pay the applicant weekly benefits pursuant to s 36(1) and 37(1) of the Workers Compensation Act 1987 based on pre-injury average weekly earnings of $1,538.46 gross from 23 August 2022 to date and continuing as indexed (less credit for any payments already made).

STATEMENT OF REASONS
BACKGROUND
1.	Deepthi Mavireddy, the applicant, brings a claim against Hempel (Wattyl) Australia Pty Ltd, (the respondent) for weekly payments in respect of injury she suffered on 23 August 2022.
2.	Dispute notices were issued by the respondent and in due course the Application to Resolve a Dispute (ARD) and Reply were lodged with the Personal Injury Commission.
ISSUES FOR DETERMINATION
3.	The dispute notices declined liability on a number of grounds relevantly;
i)	The applicant was not a worker as defined in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the Act).
ii)	The injury did not arise out of the course of employment as required by s 4 of the Workers Compensation Act (1987 Act).
iii)	Employment was not a substantial contributing factor to the injury as required by s 9A of the 1987 Act.
iv)	Employment was not the main contributing factor to the contraction of disease as required by s 4(b) of the 1987 Act.
v)	That there is no total or partial incapacity resulting from an injury as required by s 33 of the 1987 Act.
4.	After submissions, the respondent withdrew the disputed claims with reference to ss 4, 4b 9A and 33 of the 1987 Act but maintained the dispute the applicant was not a ‘worker’ at the time of injury. 
5.	The respondent conceded during the course of the arbitration there was no dispute with regards to incapacity and pre-injury average weekly earnings (PIAWE). 
6.	Therefore, the only issue that I must determine is whether the applicant is a worker as defined in s 4 of the Act.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
7.	The matter was heard on 28 June 2023. As the issue is essentially a threshold dispute, conciliation was not possible, and I was asked to determine the matter. 
8.	The applicant was represented by Mr Tanner of Counsel, instructed by Mr Dinh. The respondent was represented by Mr Combe instructed by Mr Diakiw. A representative from the insurer was present. I heard submissions by the applicant and respondent. At the request of the applicant, leave was granted to provide written submissions in reply to the matters raised by the respondent. 

EVIDENCE
Documentary evidence
9.	The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination: 
(a)	ARD and attached documents;
(b)	Reply, and
(c)	applicant’s submissions in reply. 
Oral evidence
10.	No application was made in relation to oral evidence. 
EVIDENCE
11.	As the issue in dispute solely relates to whether the applicant was a worker, (the respondent abandoning all other issues raised in the dispute notice), my assessment will focus on whether the applicant was a ‘worker’ within the meaning of the Act when she injured herself during a medical examination undertaken at the request of the respondent on 23 August 2022.  This requires analysis of the employment contract/letter of offer. 
The letter of offer, the employment contract and events arising therefrom 
12.	In a letter dated 16 August 2022, the respondent formally offered the role of Payroll & Accounts Officer to the applicant on a permanent full-time basis with the commencement date being 29 August 2022, on a salary package of $88,400 (inclusive of superannuation) with the offer being recorded as being ‘conditional on a satisfactory medical assessment and completion of the Company’s recruitment process’. 
13.	The applicant signed the offer of employment on 17 August 2022.
14.	On 23 August 2022, the applicant attended an appointment arranged by the respondent at Sonic Health Care and was assessed by Dr Candice Chin who provided a report to the respondent on the same day, certifying the applicant was fit for the position subject to restrictions outlined, namely “avoid frequently ladder/stair climbing as per physio assessment”.
15.	The applicant claims that she injured her back during the course of the medical assessment. Medical certificates issued by her general practitioner continue to certify her as being incapacitated for work as a result of the injuries sustained in the employment medical. The respondent’s qualified evidence, Dr Hale considered:
‘…she did have a pre-existing pars defects and Grade I spondylolisthesis however, these changes are not the cause of her current symptoms. Her current symptoms are due to the disc prolapse which on the balance of probability is new. 
As a result, her symptoms are considered to be a consequence of her pre-employment medical assessment rather than a pre-existing condition’. 
16.	The report of Dr Shahzad dated 31 January 2023 makes similar findings and states the applicant is unfit to return to work. 
17.	In summary, the applicant’s injury and ongoing incapacity has been supported as being because of the employment medical. As the insurer no longer disputes this, no further discussion is necessary. 
SUBMISSIONS
Applicant’s submissions
18.	Extensive submissions were made by Mr Tanner with regards to the issue of ‘worker’, ss 4b and 9A of the Act, PIAWE and incapacity. On completion of those submissions, Mr Combe after taking instructions informed me the only issue pressed by the respondent is that of ‘worker’.
19.	In summary, the applicant submitted; 
(a)	the offer of employment was signed on 17 August 21022 and so it was at this point that both parties had legal rights and obligations to one another;
(b)	The signed offer of employment was accepted by the respondent. This acknowledgement being verified by its action in terminating the contract on 17 October 2022 with the payment of one week termination payment as per the letter of offer; 
(c)	that this situation should be distinguished from a situation where the applicant was required to be certified fit prior to any signed letter or engagement or employment offer. Here the offer of employment was subject to satisfactory completion of a medical assessment arranged by the respondent, but the obligation only arose after the applicant was interviewed and determined an appropriate candidate for the role; 
(d)	it was submitted than when considering the issue of ‘worker’, and whether injury was sustained during the course of employment, that I had to turn my mind to the principles established in case law relevantly;
(i)	Whittingham v Commissioner of Railways (WA) [1931] HCA 49, where Dixon J reasoned that whether a worker is injured in the course of employment depends upon the sufficiency of the connection between the employment and the thing done by the employee; “matter of degree in which time, place and circumstance, as well as practice, must be considered together with the conditions of the employment”. Dixon J continued … “There can no longer be any doubt that the accident must happen while the employee is doing something which is part of or incidental to his service.”; 
(ii)	Henderson v Cmr of Railways (WA) (1937) 58 CLR 281 in which Dixon J put forward the test that, when injuries do not arise during actual work, whether they arose during the course of employment should be determined by whether, when injured, the worker was doing something which the worker was “reasonably required, expected or authorised to do in order to carry out the actual duties…”
(iii)	Danvers v Cmr for Railways (NSW) (1969) 122 CLR 529 where injury was found to be in the course of employment as the workers presence was so consequential on, or incidental or ancillary to, the employment, that in being there, he was doing something in virtue of, or in pursuance of employment.
(iv)	Kavanagh v Cth (1960) 103 CLR “injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work”;
(e)	In summary, the mainstay of the submissions was that the action of attending the employment medical was:
(i)	not independent of her employment or disconnected from the employment offer;
(ii)	not an activity undertaken for her own benefit or of her own volition;
(iii)	was an activity in direct compliance with the employers request and her obligation under contract;
(iv)	was an assessment paid for by the respondent;
(v)	was a mandatory activity;
(vi)	was an activity that was incidental to the performance of the work that was ultimately to be done, and
(vii)	the circumstances of the injury fall within the terms of being in the course of employment but alternatively they could also be deemed to arise out of employment.
Respondent’s submissions
20.	In summary, the respondent submitted; 
(a)	The applicant is not a ‘worker’ within the definition of s 4 of the Act. There is no contact of service in existence as at 23 August 202 when the applicant underwent the employment medical. 
(b)	The written contract should determine the relationship of the parties. Here the terms offer employment, but the employment relationship does not eventuate until the ‘condition precedent’ is satisfied, that is the attendance at the employment medical, specifically the terms of the engagement contract state “this offer is conditional on a satisfactory medical assessment”. It follows that as the offer of employment was conditional upon that assessment, the contract cannot come into existence until the condition is fulfilled. 
(c)	It was submitted than when considering the issue of ‘worker’, I had to turn my mind to the principles established in case law. Relevantly it was submitted in order for the applicant to succeed on the issue of ‘worker’ she must establish that there was a contract between them, referring to the mutuality of obligation highlighted in Dietrich v Dare (1980) 30 ALR 407 and discussed by Roche DP in Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson [2013] NSWWCCPD 49 (Thompson). 
(d)	The attendance at the medical assessment was in the capacity of a volunteer as the applicant was not paid for her attendance and the circumstances are largely on par with the arrangement found by the Court of Appeal in Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 in which no contract of service was found between the parties.
(e)	It was submitted that the principles of contract law also form the base line for any employment contract, specifically as discussed in Thompson’s case the applicant has failed to establish the four essential features for a contract of employment, relevantly:
(i)	there can be no employment without a contract;
(ii)	the contract must involve work done by a person in performance of a contractual obligation to a second person. That is because the essence of a contract of service is the supply of the work and skill of the worker;
(iii)	there must be a wage or other remuneration, otherwise there will be no consideration, and
(iv)	there must be an obligation on one party to provide, and on the other party to undertake, work. (see The Modern Contract of Employment, Ian Neil SC and David Chin, 2012, Lawbook Co) [31].
(f)	Further, in Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1, the majority held that where parties have comprehensively committed the terms of their relationship to a written contract, the efficacy of which is not challenged on the basis that it is a sham or is otherwise ineffective under general law or statute, the characterisation of that relationship as one of employment or otherwise must proceed by reference to the rights and obligations of the parties under that contract. These rights and obligations are to be ascertained in accordance with established principles of contractual interpretation. Absent a suggestion that the contract has been varied, or that there has been conduct giving rise to an estoppel or waiver, a wide-ranging review of the parties' subsequent conduct is unnecessary and inappropriate. It was submitted that I must read the contract plainly.
(g)	Further in, Bence v Minster for Labour and Industry [1940] WCR (NSW) 39, if there is an offer of employment subject to a condition precedent, there is no contract until the offeree complied with that condition.
(h)	That in the absence of payment for attendance at the examination on 23 August 2023, it cannot be established that the applicant was acting in accordance with an employment contract.
(i)	A common sense reading of the offer of employment stated that the contact of employment was to commence on 29 August 2022 on conditions precedent being satisfied.
(j)	The satisfactory medical assessment is but the first step in the making of a valid offer and acceptance, the medical assessment of itself was not part of the formed contract.
(k)	The respondent accepts that there was ultimately a contract of employment entered into, but it did not eventuate until the applicant had attended upon and passed the medical examination. That examination was not incidental to her employment, but it was a condition precedent to the formation of a contract of employment.
(l)	It cannot be said that the attendance at the medical examination was in the scope of her employment or that it was preparatory or incidental to employment as there cannot be found that there was a contract of employment in existence as at 23 August 2022 for the sole reason that the offer of employment was conditional upon satisfactory medical attendance. 
(m)	The applicant attended the medical examination in the capacity of ‘mere volunteer’. 
(n)	The obligation to pay a salary does not commence until 29 August 2022 and so mutuality of obligation does not exist. 
(o)	In conclusion, the applicant was not engaged in any activity incidental to employment as there was no direction from the employer pursuant to a contract of service. 
Applicant’s submissions in reply
21.	In reply the applicant submitted;
(a)	the respondent’s argument is illogical as it does not dispute that it entered into an employment contract with the applicant, ultimately taking steps to terminate the contract when the applicant failed to present for duties; 
(b)	in offering employment to the applicant, the respondent stated in its letter dated 16 August 2022, “to accept this offer of employment, please review the enclosed documents and return a signed copy”.
(c)	that on endorsement of the contract on 17 August 2022, the acceptance of the respondent’s offer brought the contract of employment into existence and it is from this date that the parties became bound to comply with the terms and conditions recorded in the document “Offer of Employment”;
(d)	the respondent’s argument that no contract was entered into until a “condition precedent” (a satisfactory medical assessment) had been satisfied is artificial and misrepresents the law referring to Perri v Coolangatta Investments Pty Ltd [1982] HCA 29. The applicant acknowledges that the contest in that case related to a land transaction, however, submits the interpretation of contract formation and specifically any condition precedent and the impact on the parties right and obligations are relevant to all contractual disputes and specifically referred to the decision of each of the Justices relevantly: 
i)	Gibbs CJ discussed, at [3] of his decision, the status and effect of a condition precedent. As is plain from his Honour’s discussion, such a condition affects the performance of certain of the obligations of the parties pursuant to the contract; it does not affect the formation of the contract itself….It has sometimes proved difficult to decide whether a particular condition of a contract should be classified as a condition precedent or a condition subsequent, and as Profession Stoljar has pointed out in "The Contractual Concept of Condition", Law Quarterly Review, vol.69 (1953) 485, at p. 506, if the words "precedent" and "subsequent" are to make sense they must be connected with a definite point of reference; since they express a relationship in time, the question which must be asked is "Precedent to what? Subsequent to what?" However, provided the effect of a condition is clearly understood, its classification may be merely a matter of words. The condition in the present case was not a condition precedent to the formation of a binding contract. It is clear that a binding contract came into existence immediately upon signature, and that the parties to it were from that moment subject to certain obligations…
ii)	His Honour stated at [4], that description of a condition as “precedent” or “subsequent”, 
“probably does not matter in the present case whether the condition is described as ‘precedent’ or ‘subsequent’, provided that it is understood that its non-fulfilment did not prevent a binding contract from coming into existence but did have the effect that the respondent was under no obligation to complete the sale unless the condition was fulfilled or waived”. (emphasis added)
iii)	His Honour added: 
“I entirely agree. If it matters at all, the special condition in this case may be described with accuracy as either a condition subsequent to the formation of the contract or as a condition precedent to an obligation in either party to proceed to completion. The obligation to complete is contingent on the fulfilment of the condition, but in the meantime there is a conditional contract in existence from which neither party is at liberty to withdraw at will. Interim obligations were undertaken by both parties. The vendor had to make good its title to sell, and the purchasers were obliged to pay the deposit and make all reasonable efforts to bring about a sale of the Lilli Pilli property.” (emphasis added)
iv)	As Brennan J observed in Perri at [10], if a contingent event “does not occur because of the default of a party… the innocent party ordinarily has an option of avoiding the contract”.(emphasis added)
v)	His Honour referred with approval to the general principle stated in the decision of Taylor, Menzies and Owen JJ, in Gange v Sullivan (1966) 116 CLR, at [441]: 
"Whilst the effect of a condition must in every case depend upon the language in which it is expressed and a decision upon the meaning of one condition cannot determine the meaning of a different condition, the authorities cited do show a disposition on the part of courts to treat non-fulfilment of a condition such as that here under consideration as rendering a contract voidable rather than void in order to forestall a party to a contract from gaining some advantage from his own conduct in securing, or contributing to, the nonfulfillment of a condition bringing the contract to an end." (emphasis added)
vi)	Mason J discussed the status and effect of a condition precedent at [17] of his decision in Perri: 
“Generally speaking the court will tend to favour that construction which leads to the conclusion that a particular stipulation is a condition precedent to performance as against that which leads to the conclusion that the stipulation is a condition precedent to the formation or existence of a contract. In most cases it is artificial to say, in the face of the details settled upon by the parties, that there is no binding contract unless the event in question happens. Instead, it is appropriate in conformity with the mutual intention of the parties to say that there is a binding contract which makes the stipulated event a condition precedent to the duty of one party, or perhaps of both parties, to perform. Furthermore, it gives the courts greater scope in determining and adjusting the rights of the parties. For these reasons the condition will not be construed as a condition precedent to the formation of a contract unless the contract read as a whole plainly compels this conclusion.” (emphasis added)
(e)	The authority of Bence has no bearing on the current matter as that case did not involve offer or acceptance or the formation of a contract with a contingent condition;
(f)	Likewise the submission of Thompson’s case has no relevance in this matter as in the current matter there is no dispute as to the existence of a contract for service; 
(g)	The reference to the Teen Ranch case is of no relevance to this matter as the parties plainly intended to enter into legal relations as is evidenced by the need to terminate the contract, and
(h)	As to the mutuality principles in Dietrich, the contract clearly records the mutual obligations of the parties. 
FINDINGS AND CONCLUSION
22.	Overall, on the basis of the documentary evidence, I find:
i)	the respondent offered employment to the applicant on 16 August 2022 and reduced the conditions of that agreement to writing;
ii)	the applicant accepted the terms and conditions endorsing them on 17 August 2022;
iii)	the applicant attended a medical assessment as arranged by the respondent and as required by the employment contract on 23 August 2022 and sustained injury during the course of that employment medical;
iv)	the applicant reported injury to the respondent on 27 August 2022;
v)	on 5 October 2022, the applicant notified the respondent that she will not be resuming any work anytime soon, and
vi)	on 17 October 2022, the respondent terminated the contract of employment in writing. 
23.	The respondent reinforces that I must find that the applicant was not a worker at the time of the injury and that I must read the contract as being the written intention of the parties, that is that no employment relationship could be said to have commenced until 29 August 2022 and that any actions undertaken by the applicant prior to that date were in the capacity of the volunteer. 
24.	I disagree because:
(a)	the applicant only presented to the medical assessment at the direction of the respondent and so was not a volunteer to that activity; 
(b)	the time and place of the appointment were at the direction of the respondent;
(c)	the costs of the medical assessment were covered by the respondent;
(d)	whilst the applicant did not get paid for her attendance the plain reading of the contract suggests that the obligation was part and parcel of her obligation under the global contract of employment and its terms and conditions; 
(e)	had she not attended the assessment, it was open for the respondent to void the contract;
(f)	I find that the intention to create legal relations occurred when the applicant signed the letter of offer and returned it to the employer and the applicant had in fact complied with the obligations in the contract. It was from that point that both parties were subject to certain obligations. I also consider that the contract could be voidable had the applicant not presented herself to medical examination, however further discussion on this is redundant as it is clear that she did, and finally;
(g)	the plain reading of the contract accepted on 17 August 2022 in my interpretation establishes the mutual intention of the parties. I find that the parties have entered into legal relations on the date of acceptance of the contract. I further find that the condition precedent could render the contract voidable but not void from the date of acceptance had there been non-compliance. However, that did not eventuate.
(h)	The attendance at the medical assessment, was not a condition precedent to the formation or existence of the contract.
25.	I therefore find that at the date of the injury, the applicant was subject to an employment contract and was a ‘worker’ as she was “a person who has entered into or works under a contract of service with an employer” – s 4 of the Act. 
26.	I further find that the activity of attending the employment medical was an activity part or incidental to the contract of service and further reasonably required, expected or authorised to do and so consequential on, or incidental or ancillary to, the employment, that in being there, she was doing something in virtue of, or in pursuance of employment.
SUMMARY
27.	For the reasons outlined above, I find that the applicant is a worker. I accordingly make the orders set out on page 1 of the Certificate of Determination.