Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited

Court of Appeal (NSW)|2009-06-22|Before: Allsop P, Beazley JA, McColl JA, Basten JA

Background facts 3 The respondent's business is the implementation of new information technology for clients. The appellant was employed by the respondent as a Client Services Manager/Sales and Marketing Manager. This position required her to meet regularly with clients and design IT solutions for them. She was also expected, as part of her job, to increase the portfolio revenue for the respondent. Business trips were a usual and integral part of her work. A business trip was arranged to Perisher in July 2007. The purpose of the trip was to secure the business of Perisher Blue Pty Ltd (Perisher Blue) for the respondent. 4 The appellant travelled to Perisher on 26 July 2007, accompanied by her Supervisor, David Russell, who was the respondent's National Sales Manager. 5 Shortly after their arrival at Perisher, a business meeting was held attended by the appellant, Mr Russell, representatives from Perisher Blue, including Perisher Blue's Chief Technology Officer, David Allan, as well as representatives from two other organisations. It was part of the business plan in going to Perisher not only to make a formal presentation to Mr Allan and Perisher Blue's IT team, but also to socialise with them and other business associates. Mr Russell said that one of the key things that they wanted to do was extend the trip as long as possible and do as much with Mr Allan as they could whilst at Perisher. They spent the evening of 26 July socialising with Mr Allan and others as part of this plan. The respondent paid for the expenses of the appellant and Mr Russell associated with the socialising on that evening. 6 During the course of the evening, arrangements were made for the appellant and Mr Russell to ski with Mr Allan the following day. Mr Allan offered to pay for the hire of ski gear and equipment. As events turned out, Mr Allan did not ski on the following day because of other commitments. The appellant, her partner who had joined them in Perisher, and Mr Russell, decided to ski in any event. The hiring costs of skis and equipment were still met by Perisher Blue, but they paid for their own lift tickets. They booked ski lessons, for which they also paid themselves, which commenced at about 12.30 pm. Mr Russell's lesson was separate from the appellant and her partner, as he was a more advanced skier. 7 At about 2.30 pm on 27 July 2007, Mr Russell telephoned the appellant and requested that she join him back at the Perisher Valley Resort to discuss further matters before leaving Perisher on the 5 pm bus that day. The appellant was still on the mountain when she received the call. She commenced her way down from the mountain to meet Mr Russell, but fell and injured her left knee whilst skiing down. The appellant required significant treatment following the injury and also developed life threatening and severe blood clots in her lungs for which she also required extensive treatment. Her injuries and the extent of them were admitted, as was her total incapacity for work from the date of the accident until 22 October 2007. 8 Mr Russell, in an unsigned statement dated 17 September 2007 adduced in evidence before the Arbitrator, said that the opportunity to engage Perisher Blue as a client was very important for the respondent's business. He confirmed that Mr Allan was not able to ski with them on 27 July as arranged and that he, the appellant and the appellant's partner decided to ski themselves, including taking ski lessons. Mr Russell said that prior to the ski lessons which started at 12.30 pm, he, the appellant and her partner, variously skied, sat around, checked emails, had coffees and checked their phones for business information. 9 Mr Russell's lesson finished at about 2.15 pm. His evidence, which confirmed the appellant's evidence, was that he then skied back to Perisher Valley Resort. He rang the appellant at about 2.30 pm to ascertain where she was, as there were matters that he wanted to discuss with her before they left. On ascertaining that she was still at the top of the mountain, he asked her to come down and she told him she would do so immediately. Some little time afterwards, Mr Russell learned that the appellant had had the accident in which she sustained the injury to her knee. 10 The appellant's claim for weekly benefits under the Workers Compensation Act and for medical and treatment expenses was refused by the respondent's insurer on the basis that her injury had not occurred in the course of her employment. The respondent contended that at the time of the accident, the appellant was no longer meeting with the client, and had decided to undertake the ski lessons, which took her outside her employment. Accordingly, she was not entitled to compensation benefits in accordance with s 9. In this regard, it was the respondent's position that the appellant sustained the injury between two discrete periods of work, the first period ceasing when she last checked her emails on the Friday morning before taking skiing lessons with her partner. The respondent did not identify the second period, but it was presumably meant to be the period when the appellant and Mr Russell would have met after he requested her to come down from the mountain to discuss business matters. 11 Liability was also declined on the basis that the appellant's employment was not a substantial contributing factor to the injury within the meaning of s 9A, because she was not skiing with the client and was no longer fostering the relationship with the client, nor did she ski with her supervisor. The respondent also relied upon the fact that the appellant had paid for her own lift tickets and ski lessons as evidence that the employment was not a substantial contributing factor to her injury. 12 The Arbitrator upheld the appellant's claim and awarded her weekly payments of compensation and medical expenses. 13 The respondent appealed. On the appeal, the respondent conceded that the injury had occurred in the course of the appellant's employment and that the question in issue was whether the appellant's employment was a substantial contributing factor to the injury, as required by s 9A. The President upheld the appeal. The appellant appeals to this Court from that decision.

The legislation 14 The liability of employers to pay compensation is provided for in the Workers Compensation Act, Pt 2. Section 9 is as follows: " 9 Liability of employers for injuries received by workers - general

(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment." 15 "Injury", insofar as it is relevant in this case, is defined in s 4 to mean "personal injury arising out of or in the course of employment" and includes: "(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration …" 16 Section 9A provides: " 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.

(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following:

(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies."

Reasons of Keating DCJ 17 The President, at [65] of his reasons, considered that the Arbitrator had failed to consider or give sufficient weight to the recreational character of the skiing in which the appellant was engaged at the time of the injury in order to determine whether "it and therefore the employment, was a substantial contributing factor to the injury" other than to observe that the skiing was impliedly authorised and sanctioned by the respondent. 18 His Honour noted that in order to assess the strength and connection between the employment and injury, it was necessary to consider the terms of s 9A(2). Applying each of the paragraphs of that subsection to the facts, his Honour, at [67], made the following findings: "(a) In relation to ' the time and place of the injury ', the injury occurred at 2.30 pm on Friday 27 July 2007 when [the appellant] was skiing with her partner as she had 'time on [her] hands' (Mr Russell's statement at [29]). [See s 9A(2)(a).]

(b) In relation to ' the nature of the work performed and the particular tasks of that work ', [the appellant] was not performing any work activity at the time that she received the injury, but was skiing with her partner because they had 'time on [their] hands'. [See s 9A(2)(b).]

(d) In relation to ' the worker's state of health before the injury and the existence of any hereditary risks ', there was no evidence that [the appellant] had any problem with her left knee prior to the injury. [See s 9A(2)(e).]

(e) In considering ' the probability that the injury or a similar injury would have happened anyway ', it was highly unlikely that [the appellant] would have sustained the injury she did had she not been skiing. [See s 9A(2)(d).]

(f) In relation to ' the worker's lifestyle and his or her activities outside the workplace ', there is no evidence that [the appellant's] lifestyle caused or contributed to her injury. [See s 9A(2)(f).]" 19 His Honour considered, at [68], that once Mr Allan withdrew from the skiing arrangement, the appellant's own skiing was, at most, incidental to her employment. His Honour concluded therefore that the activity in which the appellant was engaged when she received her injury was not "work for, or an activity of, the employer": His Honour relied on Le Brocq v WorkCover Authority of NSW [2008] NSWCA 125; 6 DDCR 257 at [25] in reaching this conclusion. In Le Brocq, Rein J (Tobias JA and Gzell J agreeing) said, at [25] 264: "… there is a need to determine what was the Appellant's employment and to determine whether the activity or task which led to the injury was an activity or task falling within the tasks required by virtue of the contract of employment or was incidental to those tasks; for example, taking lunch during the course of work. In this case it was conceded that at the time of his injury, the Appellant 'was not engaged in any work on behalf of the employer' … This case is quite different to Mercer [ v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740] where the employee was performing tasks that were part of her employment on the premises of her employer. It is quite clear that the work in which the Appellant was engaged, namely sorting through, and removing, benches for his own requirements, was not work being carried out on behalf of [the employer]. The finding that [the employer] induced or encouraged the Appellant to use its forklift in response to his request did not, it appears, lead the Acting Deputy President to doubt the factual conclusion that the work performed by the Appellant was not to be viewed as work for, or an activity of, the employer and there was no suggestion made before us that there was an inconsistency in the two findings." 20 In the present case, the President found, at [68]-[69], that the skiing was primarily recreational and was not something that the appellant was required or expected to do once Mr Allan was unable to join her and Mr Russell. His Honour acknowledged that it was arguable the employment was a contributing factor to the injury, because it was the employment that had taken her to Perisher. His Honour observed, however, that the strength of the causal linkage was the critical factor in determining whether the employment was a "substantial contributing factor". His Honour found that on the facts the employment was not a "substantial contributing factor". In his Honour's opinion, the client having cancelled the skiing arrangement, the fact that the appellant bought her own ski lift pass, paid for her ski lessons and skied with her partner, contributed to change the character of the skiing activity to one that was primarily volitional and recreational, and significantly diminished the strength of the causal connection between the injury and the employment. His Honour concluded there was insufficient linkage in the circumstances of this case to justify a finding that s 9A had been satisfied. His Honour referred to Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46 at [22] 52 per Giles JA; and Farrelly v Qantas Airways Ltd [2001] NSWCC 162; 22 NSWCCR 331. 21 His Honour rejected that there was any strengthening of the causal linkage with the employment by the fact that Mr Russell had telephoned the appellant immediately before the injury and asked her to meet him to discuss employment matters. His Honour noted that there was no evidence that the appellant injured her knee because she was distracted by the telephone call, or because she was hurrying to meet Mr Russell. His Honour observed that even without the telephone call, the appellant was required to descend the mountain. He did not consider the call introduced any additional employment link, or sufficiently strengthened the causal link to the employment, so as to justify a finding under s 9A in the appellant's favour. 22 His Honour's various references to the "strength of the causal linkage" was a reference to the judgment of Giles JA in Dayton. However, the expression originally derived from Mercer, at [17] 745.

Errors of law contended on the appeal to this Court 23 The appellant contended that the President erred in law in the following respects: "(a) Failing to have regard to the actual employment in which the appellant was engaged at the time of her injury, as required by section 9A …, that is that the appellant was complying with a direction given to her by her superior to ski down the mountain to discuss with him matters relating to the purposes of the trip to Perisher Blue ('the business matters');

(b) Failing to have regard to the particular tasks being performed by the appellant at the time of her injury, contrary to section 9A(2)(b) …, that is that the appellant was, at the time her injury, in the act of skiing down the mountain to discuss with her superior the business matters, in accordance with a direction given to her by her superior;

(c) Taking into account an irrelevant matter when considering whether the appellant's employment was a substantial contributing factor to her injury in that he considered the nature of the appellant's activities in the period of time leading up to the point in time when she complied with a direction from her superior to ski down the mountain to discuss business matters;

(d) Taking into account an irrelevant matter when considering whether the appellant's employment was a substantial contributing factor to her injury, in that he considered that the appellant would have been required to ' descend the mountain in any event ';

(e) Failing to find that, in the circumstances, the appellant's employment was a substantial contributing factor to her injury, when the uncontested facts upon which the appeal was considered could lead to no other conclusion than that the appellant's employment was a substantial contributing factor to her injury." 24 In support of her submissions, the appellant relied in large measure upon the decision of this Court in Mercer, especially at [22] 746, in which Mason P delivered the leading judgment, Meagher and Beazley JJA agreeing. Mason P, in that paragraph, said: "The worker correctly submits that the words 'employment concerned' in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant. The ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of 'a substantial contributing factor to an injury' is exegeted in subsections (2) and (3) of s9A." 25 The respondent submitted that the President's conclusion involved a finding of fact only, so that the appellant is not entitled to relief from this Court.

Leave to re-argue Mercer 26 The appeal was heard together with the appeal in Watson v Qantas Airways Limited [2009] NSWCA 322 before a bench of five judges, to deal, in particular, with the proper construction of s 9A and the decision of this Court in Mercer. 27 In the Watson appeal, the respondent filed a notice of contention alleging that if the appellant's injury in that case was found to have been suffered in the course of or to have arisen out of the employment within the meaning of s 9, then such injury was not compensable by reason of the operation of the Workers Compensation Act, s 9A. In that regard, it was contended that if Mercer is understood to be authority for the proposition that where an injury arises out of employment that employment will be a substantial contributing factor to the injury, then Mercer was wrong and leave to re-argue the decision would be sought (Watson Orange Book 22). 28 On the hearing of the Watson appeal, the appellant submitted that Mercer did not stand for such proposition. Rather, the appellant submitted that it correctly stood for the proposition stated in the headnote which was in the following terms: "The construction of s9A leaves a broad area within which the personal judgment of the individual judge as to what is 'substantial' may be determinative. Section 9A does not require that the employment must be 'the' substantial contributing cause, nor does it attempt to exclude disposition or susceptibility to a particular condition. However, the absence of 'employment characteristics' in the precise activity that led to the injury should not be treated as determinative."

(The headnote is a compilation of various statements in Mason P's judgment. It is correct so far as it goes.) 29 Special leave to appeal to the High Court was refused in ANZ Banking Group Limited v Mercer S 143/2000 [2001] HCA Trans 26 (16 February 2001). However, in the course of the special leave application, McHugh J commented that it was unclear what test Mason P was using in determining the meaning of the phrase "substantial contributing factor" in s 9A. 30 Although Mercer has been accepted as the seminal authority on the meaning of that phrase in s 9A, Giles JA, in Dayton commented, at [24], that he had some difficulty in gaining clear guidance from the decision as to the meaning of "substantial" in s 9A(1). As this present Court was constituted to consider whether Mercer was wrongly decided, it is necessary to review Mercer and the decisions which have applied it.

Mercer v ANZ Banking Group Ltd 31 In Mercer, the appellant worker suffered an injury in circumstances where she had been attending to a customer in the course of her employment as a bank teller and went to her supervisor's desk to get some sticky tape. As she reached to get the sticky tape she suddenly felt extreme pain in her left knee and fell. In falling, she twisted, rotated her knee and suffered a lateral dislocation of the left patella (Mercer at [4] 743). About 20 years previous to the injury at work, the appellant had dislocated her patella while playing netball. She was treated and her symptoms went away after a few weeks and the appellant thereafter resumed her normal activities without further problems. 32 As it turned out, the appellant had a constitutional abnormality in her left knee and probably also in her right. It was that constitutional abnormality that had predisposed the left knee to dislocate. The trial judge considered that the injury occurred without any specific traumatic or atypical features about the movement that she made at the time. Rather, the appellant was engaging in a routine type of movement, with her legs against the side of the table, and she twisted her hips and upper body reaching for the sticky tape in a routine way. The trial judge found that there was no doubt that the injury had been sustained in the course of the appellant's employment. He rejected, however, that the employment was a substantial contributing factor to the injury. He said: "… However, the precise activity she was carrying out viz picking something up from a table, was a type of activity that could have occurred elsewhere, for example at home, in a department store or while out at dinner with friends. It was not an activity with any employment characteristics about it. The constitutional state of the patella was a substantial contributing factor requiring as it did very little provocation for the dislocation to occur. The mere fact that the applicant did what she did when she did it is not sufficient of itself to make the employment a substantial contributing factor to the injury. In the relativities of things it was more a coincidence than a contribution." 33 On the appeal, Mason P observed that s 9A had been introduced to modify the effect of Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310. In that case, the plaintiff worker had collapsed at work after a rupture of a cerebral aneurism. The aneurism was a congenital weakness. The High Court, by majority, held that the worker had suffered personal injury in the course of employment and therefore had received an injury within the meaning of s 4. 34 In his Second Reading Speech to Parliament, the Attorney-General, in introducing the Bill containing the proposed s 9A, described the proposed section as intending to: "… limit compensation coverage to situations where employment is a substantial contributing factor to the worker's injury or disease.

This is in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work .

The amendments specify that the weaker test of considering whether an injury arose out of or in the course of employment will no longer be enough by itself.

Questions relevant to whether employment was a substantial factor in a worker's injury can include the time and place of the injury, the nature and duration of the work, whether it was merely a coincidence that the injury occurred at work and the extent of any non-employment contributing factors. (Parliamentary Debates, Legislative Council, 26 November 1996 at pp 6509-6510)" (Emphases added) 35 In Mercer, Mason P noted, at [13] 745, that it was common ground between the parties that when s 9A spoke of "the employment concerned" being "a substantial contributing factor to the injury", the legislature was dealing with what the worker in fact does in the employment, that is, the inquiry is as to what the worker was doing in his or her employment that caused or contributed to the "injury" as defined in s 4: see Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; 110 CLR 626 at [4], 632-3 per Kitto J (Taylor and Owen JJ agreeing) and at [11] 641 per Windeyer J. 36 Mason P's reasoning as to the meaning of substantial contributing factor is then contained, relevantly, as follows at [31]-[32] 747-748: "[31] … it was relevant for his Honour to have recorded … that the precise activity that led to the appellant's workplace injury was a type of activity that could have occurred elsewhere, for example at home. This type of information is required to be taken into account by s 9A(2)(d). However, nothing in s 9A makes this determinative. The continuing presence of the words 'arising out of or in the course of employment' in the definition of 'injury' means that it is not essential that the worker prove that employment created any 'special danger': contrast Thom v Sinclair [1917] AC 127 at 142; Craske v Wigan [1909] 2 KB 635 at 637, 'employment risk' or 'added peril'; Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 at 68. Accordingly, I respectfully disagree with the reasoning of Burke CCJ in Dayton (at [111]-[116]) which drew upon these English cases.

[32] In the present case Bishop CCJ held … that the addition of the word 'substantial' to 'contributing factor' in s 9A, combined with the provisions in subs (3), led to the conclusion that 'a substantial contributing factor' is as stringent a concept as that of 'arising out of' the employment, if not more so. I do not agree. The requirement that employment be a contributing factor to the 'injury' is not equivalent to the expression 'arising out of the employment'. It is not easy to apply a causation requirement to a provision which continues to define 'injury' as including injury arising in the course of employment. However, work has to be found for all of the words used, unless this proves an impossible task. Section 9A(3)(a) does not preclude this, because it goes no further than deeming employment not to be a substantial contributing factor to an injury 'merely because' the injury arose in the course of the worker's employment etc." 37 At [35] 748, Mason P reiterated that the trial judge had treated the absence of employment characteristics as being determinative against the employment being a substantial contributing factor to the appellant's injury. His Honour held that the trial judge erred in law in doing so. 38 Mason P commented, at [37] 748-749, by way of a final observation, that the construction he had given to s 9A may mean that there is a broad area within which the personal judgment of individual judges as to what amounts to "substantial" in a particular case may be determinative. His Honour said if that be so then that was the effect of the language used in the legislation. His Honour observed that in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; 42 FLR 331, Deane J had said at 382, 348: "The difficulties and uncertainties which the use of the word ['substantial'] is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling [[1948] AC 291 at 317] where, after holding that, in the context there under consideration, the meaning of the word was equivalent to 'considerable, solid or big', he said: 'Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case …'" 39 Mason P considered that his approach to the construction of the section had also been taken by Ashley J in Popovski v Ericsson Australia Pty Ltd [1998] VSC 61.

Popovski 40 In Popovski, the appellant worker, during the course of her employment, was exposed to the inhalation of gases and dust containing lead. The product used by the employer contained a warning label that the product carried with it possible health dangers in particular the risk of abnormal pregnancy. The appellant's son was born with severe physical defects and died within about 18 months. Shortly after her son's birth, the appellant had a blood analysis done that was reported as showing that she had an elevated level of lead in her blood. The results of the blood test were conveyed to the appellant and this confirmed her suspicions that it was her exposure to the fumes and dust that had led to her son's birth defects. However, the test results were inaccurate and later blood tests did not disclose any elevated lead levels. Notwithstanding the later test results, the appellant felt extremely guilty that she had been exposed to lead at work whilst pregnant and was eventually diagnosed as suffering a morbid grief reaction with moderate to severe depression. 41 The appellant's entitlement to compensation was governed by the Accident Compensation Act 1985 (Vic), s 82(1). That section provided: " Entitlement to compensation

82(1) If there is caused to a worker an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act."

Injury was defined in s 5 to mean physical or mental injury and included: "(b) a disease contracted by a worker in the course of the worker's employment whether at or away from the place of employment and to which the employment was a significant contributing factor." 42 Section 5(1B) provided that in determining whether a worker's employment was "a significant contributing factor" to an injury, factors which essentially are in the same terms as s 9A(2) (other than the second sentence of the introduction in s 9A(2)) were required to be taken into account. 43 Ashley J, in considering the meaning of "significant contributing factor", said: "[51] I turn to the precise question which was determined in Favelle Mort v Murray [[1976] HCA 13; 133 CLR 580] - the meaning of the definition of 'injury' in the legislation there under consideration. Barwick CJ, Stephen and Mason JJ all said that the requirement suggested by the words 'to which the employment was a contributing factor' was less stringent than was suggested by the concept 'arising out of' an employment. Mason J made the point that there was every reason for giving different words a different meaning. How do these conclusions bear, if at all, upon the words 'to which the employment was a significant contributing factor'?

[52] In my opinion the following propositions may be stated: first, the present language by intention and effect requires a more substantial causal link between employment and injury than did the language considered by the High Court in [ Favelle Mort ].

[53] Second, there remains a distinction between the concepts of injury 'to which the employment was a significant contributing factor' and injury 'arising out of' employment. What Mason J said in [ Favelle Mort ] about the use of different language holds good.

[54] Third, the requirement that injury 'arise out of' employment remains more stringent than the requirement that employment be 'a significant contributing factor' to injury. It is possible to envisage situations in which injury might not satisfy the former test yet would satisfy the latter test. It might be the case, to take an example, that a man struck directly by a bolt of lightning at his work place would not (consonant with the old authorities) suffer injury arising out of his employment; but that his employment - regardless that his duties did not require him to be at the critical place at the critical time - would be a significant contributing factor to his injury." 44 Finally, it should be observed that Ashley J considered that the word "contributing" in the phrase "significant contributing factor" meant "of considerable amount or effect": see at [79]. 45 The decision of Ashley J was overturned by the Court of Appeal (Ericsson Pty Ltd v Popovski [2000] 1 VR 260), but in a way that did not comment on the paragraphs in Ashley J's reasons quoted by Mason P. 46 Mason P in Mercer, at [34] 748, agreed with the third proposition in Popovski, which had its source in Ashley J's view of what was said in Favelle Mort.

Decisions subsequent to Mercer 47 Mercer has been considered and applied by this Court on a number of occasions. 48 The following propositions distilled from Mercer in respect of the operation of s 9A have been accepted as correct and can be taken to be uncontroversial:

(1) The strength of the causal linkage between the employment concerned and the injury is the question in issue: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [106] 299 per McColl JA (Mason P and Beazley JA agreeing).

(2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [36] per Santow JA (Beazley and Ipp JJA agreeing).

(3) Both s 4 and s 9A require independent satisfaction: McMahon v Lagana (t/as The Vessel "Nimble II") [2004] NSWCA 164; 4 DDCR 348 at [25] 355 and [33] 356 per Hodgson JA (Santow JA and Stein AJA agreeing) and Larson v Commissioner of Police [2004] NSWCA 126; 3 DDCR 365 at [38] 378 per Tobias JA (Mason P and Santow JA agreeing).

(4) Section 9A requires that the employment concerned be " a substantial contributing factor to the injury ". The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [49] 216 per Spigelman CJ (Hodgson and Bryson JJA agreeing); and Dayton at [22] per Giles JA.

(5) Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge: Hevi Lift at [105]-[106] 299 per McColl JA (Mason P and Beazley JA agreeing).

(6) Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634 at [56] 646 per Basten JA (Giles and McColl JJA agreeing); WorkCover Authority of NSW v Walsh [2004] NSWCA 186 at [99]; McMahon v Lagana at [32] per Hodgson JA (Santow JA and Stein AJA agreeing), Dayton at [22] per Giles JA and Murray v Shillingsworth [2006] NSWCA 367 at [65] per Einstein J.

(7) The phrase " employment concerned " in s 9A(1) bears the same meaning as " employment " in the phrase " arising out of or in the course of employment ": Mercer at [13] 745 and Federal Broom at 632-633. We agree. 49 Aspects of the content and operation of s 9A and of the decision in Mercer are, however, less than clear. In Mercer, Mason P expressed the view that the requirement that the injury "arise out of" employment was "more stringent" than the requirement that employment be "a significant contributing factor" to the injury. His Honour also appeared to adopt the language of Deane J in Tillmanns Butcheries at 382, in the context of a quite different statute, that "substantial" meant "more than minimal, large or great". The tension in these two propositions led Giles JA in Dayton to express his reservation as to whether clear guidance could be obtained as to the meaning of "substantial" in s 9A(1) from Mercer. It is convenient to set out what Giles JA said about the difficulty he saw (at [23]): "In [Mercer] it was said that the trial judge's adoption of the meaning 'more than minimal, large or great' was 'the correct approach, remembering that [the] word is used in a relative sense, recognising that other causative factors may be present' [at [27] 747]. It was said that this interpretation of 'substantial' accorded with the Attorney General's second reading speech, in which the limitation to where employment is a substantial contributing factor to the worker's injury was described as 'in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work' [at [28] 747]. And it was also said that 'a substantial contributing factor' is not a concept as stringent as or more stringent than that of 'arising out of' the employment, and it appeared to be accepted that a worker's employment would be a significant contributing factor to his injury if he was struck by a bolt of lightning at his work place." 50 This last reference to being "struck by a bolt of lightning" was a reference to Mason P's endorsement, at [33] 748, of Ashley J's comments, at [54], in Popovski, about which we have our own reservations, as explained later. Giles JA did not find it necessary to himself attribute some meaning to the word "substantial" in s 9A(1), as he considered that the trial judge's finding which was challenged on the appeal was a finding of fact in respect of which there could be no appeal. 51 In Dayton, Meagher JA observed, at [16], that the word "substantial" was a word of plain English "understood by anyone who is not a judge". He saw no point in attempting to add to the judicial ponderings as to its meaning. He added that: "… nobody in their senses would regard a cause which could be correctly categorised as very 'minor' as 'substantial'." 52 His Honour was also of the opinion that the finding in question was a finding of fact. 53 In Dayton, Davies AJA referred to the meaning of the word "substantial" in the Trade Practices Act 1974 (Cth), s 45D as construed by Deane J in Tillmanns Butcheries, where his Honour said, at 382: "In the phrase 'substantial loss or damage', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big." 54 Davies AJA, at [37], considered that in the context of s 9A, the words "substantial contributing factor" required that compensation was only to be paid where the employment could be said to have contributed to the injury "in a manner that is real and of substance". His Honour considered that the section was intended to exclude those cases where, as a matter of practical reality, the contribution of the employment to the injury was of, or had "little substance". His Honour concluded, at [38]: "So interpreted, the section appears to me to have a clearer and more appropriate application than if the word 'substantial' were used in the sense of words such as 'serious', 'weighty' , 'important' , 'sizeable' or 'large' , terms to which the trial Judge referred. The word 'substantial' may be used appropriately in a range of circumstances. A matter which is large or weighty is also substantial. However, a matter may be substantial without necessarily being large or weighty. In s 9A, it is sufficient that the contribution be substantial." 55 His Honour also noted, at [39], that a decision as to what is or is not "substantial" would not readily be set aside by the appellate court, particularly one where the jurisdiction was limited to errors or law. This comment is redolent of the comment made by Mason P, that the determination of what is "substantial" involves an evaluative exercise by the trial judge. 56 Neither Meagher JA nor Davies AJA referred to Mercer. 57 The apparent difficulty with Mercer led to a view that a finding that injury arose out of or in the course of employment necessarily satisfied the requirement of a substantial contributing factor. This proposition was rejected in ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 by Mason P himself (Meagher and Handley JJA agreeing) saying, at [17], that: "… nothing in [ Muscat v Woolworths Ltd (2000) NSWCCR 16 and Healy v Delta Electricity (2000) 20 NSWCCR 491] suggested that s 9A is satisfied merely because the injury arose out of or in the course of employment. Nor does Mercer ." 58 As Mason P remarked, s 9A(3)(a) explicitly states that a finding that the injury arose out of or in the course of employment is not in itself a basis for a finding of "substantial contributing factor". His Honour's comments were intended to put to rest the trial judge's misconception that as the worker's injuries arose out of or in the course of his employment the test of "substantial contributing factor" in s 9A was necessarily satisfied, an approach that the trial judge in ICM Agriculture thought the Compensation Court had taken in the decisions that had followed Mercer. Both parties to that appeal acknowledged that the trial judge had misunderstood Mercer and the subsequent Compensation Court decisions. 59 We have made reference to ICM Agriculture because the point raised in seeking leave to reargue Mercer was to the same effect, that is, Mercer stood for the proposition that that where an injury arises out of employment, that employment will necessarily be a substantial contributing factor to the injury. There is apparently some continuing misconception as to what Mercer said on this point, which may derive from the commentary in Mills Workers Compensation Practice New South Wales, at para WCA 4.5 at 964. There is no basis for the misconception. The correct position was clarified in ICM Agriculture, if that was needed and that position has been reaffirmed in McMahon v Lagana. 60 However, there remains the uncertainty as to what Mercer does say about the meaning of "substantial contributing cause" raised by Giles JA in Dayton and alluded to by McHugh J on the Special Leave Application in Mercer. There is also the question which we suspect is at the heart of the continuing uncertainty in this area as to the difference in concept and degree between an injury arising out of the employment and employment being a substantial contributing cause to an injury. There is also conflicting authority as to whether "substantial" means "large, weighty or big" (Mercer, followed in the extempore judgment of Bulga Coal Management Pty Ltd v Sager [2004] NSWCA 443), or "real and of substance" (Dayton per Davies AJA).

Authorities referred to in Mercer and Popovski 61 Both Mason P in Mercer and Ashley J in Popovski referred to earlier authorities that dealt with legislation that required that the employment be a contributing factor to the injury: see Federal Broom and Favelle Mort. 62 In Federal Broom the worker, who suffered from chronic schizophrenia, sustained muscle strain when she dropped a box that was too heavy for her to hold. Her physical injuries caused her to be incapacitated. She was paid workers compensation during this period. However, her mental disease became acute after the accident and remained so up until the time of the hearing. Prior to that date, her schizophrenia had been mostly latent for some years before the accident. Her employer denied that the worker was incapacitated for work and also alleged that any incapacity from which she was suffering was not the result of any injury arising out of or in the course of her employment. The worker was awarded compensation by the trial judge. 63 The employer's appeal to the Court of Appeal was dismissed: Federal Broom Co Pty Ltd v Semlitch [1964] NSWR 511. The employer then appealed to the High Court. That appeal was also dismissed. The relevant part of the definition of injury in issue was: "… the aggravation, acceleration, exacerbation or deterioration of any disease where the employment was a contributing factor to such aggravation, exacerbation or deterioration". (Emphasis added) 64 On the appeal to the Court of Appeal, Else-Mitchell J (dissenting) considered that if the incident in which the worker sustained her physical injuries had aggravated, exacerbated or caused deterioration of an existing psychosis, it was that incident and not the employment, or any factor in the employment, that contributed to the aggravation. On appeal to the High Court Kitto J (with whom Taylor and Owen JJ agreed) rejected this reasoning. Kitto J said, at [4], 632-633: "[This] treats the word 'employment' in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of fact by saying simply that the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. It is in that sense that I should understand the language of the definition." 65 Windeyer J took a similar approach. His Honour said, at [11] 641: "When the Act speaks of 'the employment ' as a contributing factor it refers not to the fact of being employed but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed." 66 Windeyer J concluded, at 642, that the incident at work which precipitated or stimulated, however irrationally, the worsening of the worker's schizophrenic condition, "could be regarded as a factor contributing to it". His Honour acknowledged that whilst her condition may have deteriorated sooner or later, or some other incident might have provided a precipitating event for such deterioration, it was in fact the event at work that in fact did so. That was sufficient. 67 In Mercer, Mason P relied upon the reasoning of Kitto J and Windeyer J when he said, at [13] 745: "It is common ground between the parties and well established by earlier authority that, when s9A(1) speaks of 'the employment concerned' being a substantial contributing factor to the injury, the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment: see Federal Broom at 632-3, 641. In other words, one starts with the actual and not the hypothetical, with what (if anything) the worker was in fact doing in his or her employment that caused or contributed to the 'injury' as defined in s4. See also Stanton-Cook [ v TAFE Commission (NSW) [1999] NSWCC5; 17 NSWCCR 632]."

Favelle Mort v Murray 68 In Favelle Mort, the respondent worker was engaged by his employer to work as a trouble shooter supervising the setting up and functioning of eight of the employer's cranes that had been specially designed for use on the construction of the World Trade Centre in New York. He was required to be on call at all times. Upon his return to Sydney about 15 months later, he was diagnosed as having contracted viral meningo-encephalitis. It was found that he had contracted the disease in New York. The question for the court was whether the employment was a contributing factor within the disease so as to bring it within the definition of para (a) of injury, which in the relevant legislation was in the following terms: "'Injury' means personal injury arising out of or in the course of employment, and includes -

(a) a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor ." (Emphasis added) 69 The employer argued that the second limb of paragraph (a) of the statutory definition of injury, that is, "and to which the employment was a contributing factor" was virtually synonymous with the concept of causation introduced by the words "arising out of the employment". Mason J rejected this submission, observing that it was based upon observations that had been made in Smith v Australian Woollen Mills Limited [1933] HCA 60; 50 CLR 504 at 516, which in turn had applied the approach taken by the House of Lords in respect of a similar provision: see, for example, Thom v Sinclair [1917] AC 127. His Honour considered that that line of distinction was too narrow. He continued, at 598: "Although par. (a) of the statutory definition now under consideration contemplates a requirement additional to that signified by the words 'in the course of', the requirement suggested by the words 'to which the employment was a contributing factor' is not as stringent as that suggested by the concept 'arising out of' the employment which, as I have said, has been understood to identify something perhaps closer in association than the proximate cause of the injury. The language of the second limb of par. (a) in the statutory definition indicates that all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or the proximate cause of the injury. (Emphasis added)

This construction of the definition is to be preferred to the appellant's suggestion that the language in par. (a) should be given a meaning identical with, or similar to, the concept expressed by the words 'arising out of'. There is every reason for giving the statutory definition a different meaning; had it been intended to express the concept enshrined elsewhere in the Act the traditional formula would have been used."

See also similar views of Barwick CJ at 585 and Stephen J at 594. 70 The highlighted portion in this passage would appear to be the genesis of the comment of Mason P in Mercer at [32] (see at [36] above). It was also the basis for Ashley J's comment in Popovski at [54]. However, Mason P had earlier commented, at [25] 746, that given the different statutory provision under consideration in Favelle Mort there was: "… an obvious danger in applying discussion as to the meaning of 'a contributing factor' in this definition to the meaning of 'a substantial contributing factor' in the context of s 9A, with the additional guidance to be found in subsections (2) and (3) of that section". 71 These were wise words. The words in Favelle Mort were "a contributing factor", not "a substantial contributing factor". The former phrase can be seen to cover peripheral, as well as more important contributing factors. One can, in that context, readily understand the views expressed in Favelle Mort. We do not find any assistance in Favelle Mort so far as the construction of s 9A is concerned, except that the words of the section have to be given work to do, different from the expression "arising out of or in the course of employment", in the definition of injury in s 4, referentially included in s 9 by the reference to "injury".

" arising out of … employment " 72 Section 4 defines injury as "personal injury arising out of or in the course of employment". The use of the disjunctive is significant, in that two quite different tests are involved, one or other of which is sufficient to be satisfied for the purposes of s 9. It is established that the second limb of the definition "in the course of employment" involves a temporal element and does not of itself contain a causative element. It was for that reason that Mr Zickar succeeded when his congenital aneurism ruptured when he was at work: Zickar v MGH Plastic Industries Pty. Difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but that arises not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances. The principles were stated in Hatzimanolis v ANI Corporation Limited [1992] HCA 21; 173 CLR 473: see the discussion in Watson v Qantas Airways Limited. 73 The meaning of "arising out of … employment" is settled. In Nunan v Cockatoo Island Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 in what is sometimes still referred to as the authoritative decision on the phrase the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a common sense approach to the application of the phrase, noting that it involved a causative element. In doing so, their Honours, at 123, endorsed the comments of Lord Wright in Dover Navigation Co v Craig [1940] AC 190 at 199 that the Act was a remedial Act intended to give rights to workers that were more extensive than common law rights and which used non-technical language in doing so. As Lord Wright said: "Nothing could be simpler than the words 'arising out of and in the course of employment.' It is clear that there are two conditions to be fulfilled. What arises 'in the course' of the employment is to be distinguished from what arises 'out of the employment'. The former words relate to time conditioned by reference to the man's service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified." 74 Their Honours also endorsed the comments of Lord Maugham at 193 in the same case in considering whether the death in that case arose out of applicant's employment: "The authorities show, if authorities are needed on that point, that the words connote a certain degree of causal relation between the accident and the employment. It is impossible to define in positive terms the degree of that causal connection …" 75 Their Honours concluded, at 124, that a worker would have established that an injury arose out of employment: "… if it appears … that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury …" 76 In Nunan, the applicant employee was assaulted by a fellow employee in circumstances where he had ignored a request by the fellow employee to clean some paint brushes in another area after the applicant had inadvertently splashed paint on to the enamel work that the fellow employee was undertaking. There was no dispute that the injury thus sustained was sustained in the course of the employment. Jordan CJ and Roper J held that the applicant's injury arose out of the employment. In doing so, they noted that the question whether a particular injury arose out of the employment was a matter to be inferred from the facts as a matter of common sense. In doing so, they rejected the need for the employment to expose the worker to some special danger. Whether that was a necessary circumstance or not depended on the particular facts of the case. Their Honour's views, expressed by reference to circumstances in which an employee might be assaulted at work is found in the following passage, at 124: "We have been referred to a number of cases in which there have been claims arising out of assaults on workers. These do not stand in a class by themselves, but are all instances of applications of the language of the Act to the facts of particular cases." 77 In Smith v Australian Woollen Mills Limited [1933] HCA 60; 50 CLR 504, Starke J, at 517-518, stated the following propositions: "1. The expression 'arising out of' imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation. Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do - out of his service ( Stewart v. Metropolitan Water, Sewerage and Drainage Board , and the cases there cited).

An injury does not cease to arise out of the employment because its remote cause is the ideopathic condition of the injured man. The ideopathic condition must be dissociated from the other facts ( Wicks v. Dowell & Co ).

An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment ( Upton v. Great Central Railway Co ; Brooker v. Thomas Borthwick & Sons (Aus.) Ltd. )." (Citations omitted) 78 Starke J's reference to Stewart v Metropolitan Water Sewerage and Drainage Board [1932] HCA 45; 48 CLR 216 was a reference to his own judgment in that case, where his Honour had stated the requirement of a causal relationship between the employment and the injury. His Honour drawing from a line of English cases noted, however, that it did not require a direct or physical connection and that it was not sufficient to show that, but for the employment, the worker would not have been at the scene of the accident. 79 The necessity for there to be a causal element between the employment and the injury when determining whether a worker sustained injury arising out of employment, has been consistently confirmed by the High Court and this Court: see Tarry v Warringah Shire Council [1974] 48 WCR (NSW) 1 where Hutley JA endorsed the statements of principle in South Maitland Railways Pty Limited v James [1943] HCA 5; 67 CLR 496; Weston v Great Boulder Gold Mines Limited [1964] HCA 59; 112 CLR 30 and Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547. Glass JA also endorsed the statement of principle as expressed by the Court in Nunan. This is so regardless of whether s 4 (or its relevant equivalent) under consideration was in its present disjunctive form, or was in its previous form, where both "arising out of", and "in the course of" employment had to be established. Samuels JA agreed with both Hutley JA and Glass JA.

" Substantial contributing factor " 80 It was not disputed that the requirement imposed by s 9A that the "employment concerned" was a "substantial contributing factor" involves a causative element. The language of the provision makes that plain. The question is whether it is a different or added requirement to that involved in that limb of s 4, which defines injury as "arising out of employment"? 81 Causation is a fact-laden conclusion which the courts have been told must be based on common sense: March v Stramare (E & MH) Pty Limited [1991] HCA 12; 171 CLR 506; and Nunan. It is not possible and indeed would be incorrect, therefore, to lay down a principle which can be applied unbendingly to all cases. Nonetheless, we consider the following observations should be made. 82 First, and perhaps most importantly, the word "substantial", must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context: IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585 at [154] 617 per Gummow, Hayne and Heydon JJ. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a "remote or tenuous connection with work". This was the purpose the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, "substantial" as it appears in s 9A means "in a manner that is real and of substance" and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, "little substance". We agree with his Honour that it is not useful to search for or use other terms, such as "large", or "weighty", or by way of further example, other concepts such as "predominant". We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: "a substantial contributing factor". The "proper link" in the legislative context was a causal connection expressed by the words "a substantial contributing factor", meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue. 83 Secondly, we respectfully disagree with Mason P's observation (notwithstanding that Beazley JA agreed with it at the time) that the causal requirement in s 9A is less stringent than that in s 9 (as read with s 4). If it were, there would be no point in s 9A extending to both limbs of the definition of injury. We have explained the source of Mason P's views in the comments in Favelle Mort on a different phrase ("a contributing factor"). As Mason P observed in Mercer, there is an incongruity in having a double causation test, one in s 9 and one in s 9A. However, the legislature, in seeking to remedy the lack of causal connection with employment that the second limb of s 4 has, that is, "in the course of employment", must be taken to have seen the need to ensure that the connection of the employment with the injury under either limb was "substantial". Had it restricted the s 9A requirement to "the course of employment" limb, it is possible that the required connection with the employment would have been different, depending upon which limb of s 4 was engaged. Notwithstanding that the legislative consequence is cumbersome to a degree, the intention is clear. 84 Mason P's observation in this regard is also inconsistent with the Second Reading Speech in which the Attorney-General referred to the test in s 4 as being "the weaker test", although, as we have said, whether that is so in a particular case will depend on the facts. This is not to use the Second Reading Speech to formulate the meaning of words used by Parliament. Sufficient strength and utility comes from the Second Reading Speech in its identifying the mischief to which s 9A was directed: the confining of the causal relationship from "arising out of" or "in the course of" by requiring employment to be "a substantial contributing factor". 85 It should be said, however, that there may be circumstances where the factors considered necessary and sufficient to satisfy the test "arising out of employment" for the purposes of s 9, are sufficient to satisfy the test in s 9A. Whether that is so will depend on the facts. Both are factual questions. The question under each section is differently expressed and must be considered separately. It is not sufficient to find that injury arose out of "employment" and to thereby be able to conclude that the employment concerned was a "substantial contributing factor". Such a reasoning process is expressly proscribed by s 9A(3).

Error of law 86 The Workplace Injury Management and Workers Compensation Act, s 353, provides for an appeal "in point of law". That phrase is one of several legislative phrases used to prohibit an appeal from a factual finding. It is not necessary in this case to determine the precise content or scope of the phrase "appeal … in point of law", as the appellant's case is that his Honour erred in law in misconceiving the ambit of the phrase, "the employment concerned" in s 9A and therefore, in failing to comply with s 9A(1) and, further, in misconceiving what was encompassed in s 9A(2)(b). 87 In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Glass JA (Samuels JA agreeing) examined the circumstances in which a finding amounts to a finding of fact so as not to be reviewable on an appeal limited to error of law. His Honour distinguished those circumstances from those in which an error of law was involved. His Honour said, at 156-157: "It is … pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.

A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55. The decision here assailed is not of that character."

His Honour continued at 157-158: "Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55)." 88 See also Collector of Customs v Agfa Gevaert Limited [1996] HCA 36; 186 CLR 389; and Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tankers Pty Ltd [1993] FCA 322; 43 FCR 280.

Did the President err in point of law? 89 The President, in determining whether the appellant was entitled to compensation, was required under s 9A(1) to determine whether "the employment concerned was a substantial contributing factor to the injury". In undertaking that task, the President was required to take into account the matters specified in s 9A(2). Those factors are matters that the legislature has determined are relevant to the question whether the employment concerned is a substantial contributing factor to the injury. To the extent that the matters specified in paras (a)-(f) are relevant to the case under decision, they must be taken into account and applied according to their terms. A decision maker is not confined to the matters specified in s 9A(2) and may take into account other factors that are relevant to the determination of the question in issue: viz, whether the employment concerned was substantial contributing factor to the injury. 90 In this case, the paragraphs of s 9A(2) that are relevant are paras (a), (b) and (d). The other circumstance that was relevant, to the extent that it was not covered by para (a) as we explain below, was that shortly before the injury occurred, the appellant had been skiing, recreationally, with her partner, in circumstances where she was doing so with the express authority of her employer and where she was required to respond to work related matters as and when required. She was effectively on call during this period. 91 The starting point for the President's determination was that the appellant had sustained injury in the course of her employment. That was a matter that had been conceded, but its relevance remained fundamental to the task that the President was required to undertake under s 9A. It remained fundamental because, as we have already explained, "employment" for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A. By that, we are not saying that the tests under the two sets of provisions, that is, s 9 and s 4 on the one hand and s 9A on the other, are the same. We have already explained that s 9A involves a different test than that which arises under the earlier provisions. 92 The appellant's course of employment had taken her to Perisher where she was required to attend to her employer's business by way of business meetings, setting up social contacts and undertaking any activity incidental to that, such as engaging in discussions with her supervisor in relation to the business opportunity that was the subject of the visit. She was required to attend to her employment as and when required by her supervisor. During the course of those employment activities, the appellant was also entitled to engage in personal activities: eating, sleeping, shopping, relaxing, and recreational activities such as skiing. 93 The location of the appellant's employment at the time of the accident was somewhat exotic. It was certainly not the backyard of a factory complex. But it is necessary to view the location of the appellant's accident in the context that the accident occurred whilst she was in the course of her employment and that she was required during the course of that employment to attend to her employer's bidding. As the facts reveal, the appellant sustained her injury when, in the course of her employment, she was leaving one place, that is, the ski slopes, where she was not engaged in a particular employment task, to return to the Resort, which was the principal site where the respondent's business was relevantly being conducted, to discuss matters in relation to the very business that had brought her to Perisher. She was doing so at her supervisor's specific request. 94 The President made specific findings in respect of each of the paragraphs of s 9A(2). His Honour found that paras (c), (e) (which he mistakenly dealt with as the specification in para (d)) and (f) had no particular application and no complaint is made about that aspect of his Honour's reasons. Complaint is made however, that his Honour erred in his finding in respect of para (a), that the injury occurred when the appellant was skiing with her partner. As we have indicated above and refer to more fully in relation to para (b), we consider that finding was wrong, because the appellant was not skiing with her partner when the injury occurred. It is likely, however, that was a wrong factual finding in respect of which there is no appeal. In this case, the error in point of law, if there is one, is to be found in his Honour's finding in respect of para (b). 95 It is convenient to set out again the President's finding in respect of para (b), so that it can be understood in the context of the question under consideration, that is, whether his Honour erred in point of law in his determination that the employment concerned was not a substantial contributing factor to the injury. His Honour said, at [67], in respect of "the nature of the work [being] performed and the particular tasks of that work", that the appellant "was not performing any work activity at the time that she received the injury, but was skiing with her partner because they had 'time on [their] hands'". 96 This finding can be seen as a logical extension of the finding in respect of para (a), that the appellant was skiing at the time that she sustained her injury. The respondent submitted that this finding was also a finding of fact and thus immune from appellate review under the Workplace Injury Management and Workers Compensation Act, s 353. That submission would succeed if the legislature, in para (b), was directing attention to what the appellant was in fact doing at the time the injury occurred, even if the factual finding in that regard was wrong. However, s 9A(2)(b) directs attention not to what the employee was doing when the injury occurred, but to "the nature of the work performed and the particular tasks of that work", that is, of the employment concerned. It is s 9A(2)(a) which directs attention, in part at least, to what the employee was in fact doing at the time of the injury, because it requires an identification of the time and place of injury. 97 If an employee is injured during an interval or interlude in the employment, a matter that will be identified through the identification of the time and place of injury in para (a), then what the employee is doing during such interval or interlude is a consideration to which the decision maker will have regard in determining whether the employment is a substantial contributing factor to the injury. In this case, it was at least arguably relevant to the determination whether the employment was a substantial contributing factor to the injury that shortly before the injury occurred, the appellant had been skiing, recreationally, with her partner, because she had time on her hands. We say arguably, because on the view of the facts we have taken it would be contentious as to whether the injury occurred during an interval in her employment. In making this comment, we stress that our view of the facts is irrelevant to the determination of the appeal, unless there is a demonstrated error in point of law. 98 When the President came to consider s 9A(2)(b), he was required to consider the nature of the work being performed and the particular tasks of that work. Although para (b) does not replicate the language of s 9A(1), that is, "the employment concerned", work is performed as part of the employment concerned. Indeed, work has no other relevance or context in the legislative scheme, other than being work in the employment, and in respect of which compensation may be payable if an injury arises out of or during the course of the employment. In our opinion, para (b) is directed to the work performed and the particular tasks of the employment, and not to an activity occurring during an interval or interlude in the employment: as to which see generally Hatzimanolis and the discussion thereof in Watson v Qantas. As we have said, the consideration of what occurred during an interlude in the employment falls for consideration elsewhere. It is not the circumstance that calls for consideration under para (b). Nor does para (b) deal with activities during the course of employment but which cannot be said to be within an interval or interlude within the course of employment (which is the relevant circumstance here) but which are not employment related. 99 In our opinion, the President did not have regard to the nature of the work performed or the particular tasks of that work in determining whether the employment concerned was a substantial contributing factor to the injury for the purposes of s 9A. Rather, he had regard to the recreational skiing activity. As we have said that activity fell for consideration elsewhere, possibly but not only under para (a). The fact that immediately prior to responding to the direction of her supervisor to return to the Resort to discuss business, the appellant had been skiing in a recreational capacity and that at some stage she would have had to descend the mountain, were likely to be considerations relevant to the determination to be made under s 9A(1). However, the skiing was not "the employment concerned". Nor was it an aspect of the work that the appellant performed, or a particular task of her work within the meaning of para (b). 100 In our opinion, the President's failure to consider para (b) by reference to the work performed and the particular tasks of that work involved a misconstruction of the provision and as such involved error in point of law. 101 We have also reached the conclusion that even leaving aside s 9A(2)(b), the President erred in the manner in which he undertook the statutory task required under s 9A(1). Section 9A(1) requires a determination as to whether the employment is a substantial contributing factor to the injury. The determination so called for is not performed in a case such as this by looking at the recreational activity and then seeing whether any aspect of the employment concerned might have strengthened the linkage with that employment. Rather, a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account. 102 However, to approach the question in s 9A from the perspective of the non-employment activity undertaken during an interval in the employment, rather than from the perspective of the employment concerned, was to misunderstand the statutory test. 103 Before going to the President's reasons which we consider demonstrate this error, it is useful to consider an example which might be seen as a more routine or traditional case of an injury occurring in the course of employment. Take the case of a storeman who is required to unload goods in the course of his employment. Assume a case where the delivery van is late and the storeman is told by his supervisor that as there is nothing immediate to do, he can go to the staffroom until called. The staffroom is notoriously a place where employees play cards, as this storeman does while waiting for the delivery van. If the storeman responds to his supervisor's call when the delivery van arrives and is injured when he trips over his chair in the staffroom, or whilst walking to the loading dock, there would be little difficulty, one would think, in finding that the employment was a substantial contributing factor to the injury. The circumstances in which the appellant's injury occurred were no different in concept from that of the storeman hypothesised above, save that that the accident in that example happened on the employer's premises. That would be a matter to be considered in determining whether the employment was a substantial contributing factor. 104 Bringing the matter back to the President's reasons, the error in the President's application of s 9A is found in [65]-[70] of his reasons, but is perhaps most readily seen in [70]. In that paragraph, his Honour said: "I have carefully considered whether the casual [sic] linkage with the employment was strengthened by the fact that immediately before the injury [the appellant] took a telephone call from Mr Russell, who asked her to meet with him to discuss additional aspects of the business proposal prior to their departing on the coach to the airport. [The appellant] responded to this request immediately and she injured her knee while skiing to meet Mr Russell. There is, however, no evidence that [the appellant] was injured because she was distracted by the telephone call or because she was hurrying to meet him. To the contrary her evidence was that she agreed to meet with him and commenced to ski down the mountain and fell. With or without the telephone call from Mr Russell, [the appellant] would have descended the mountain in any event, and I do not consider that the telephone call from Mr Russell introduces any additional employment link, or sufficiently strengthens the causal link to the employment, to justify a finding under section 9A in favour of [the appellant]." 105 It is apparent from this passage that the President was not considering the employment concerned, nor what the appellant was doing at the time of the accident, which was going to meet her supervisor to discuss business matters in direct response to the supervisor's request. Rather, the President was considering some other activity that had preceded the accident and was seeking a linkage with the employment from the standpoint of that preceding activity. In our opinion, this is a incorrect application of s 9A. Section 9A requires a consideration of "the employment concerned" to ascertain whether it was a substantial contributing factor to the injury given the relevant circumstances in which the injury occurred, including the matters in s 9A(2). His Honour's comment that there was no question of the appellant being distracted by the telephone call from Mr Russell, or of hurrying, is perhaps the most obvious indication that he was looking at the preceding recreational activity, and looking to see if there was a link back to the employment. 106 Likewise, we consider that the President's consideration that the appellant was going to have to descend the mountain anyway, had she not received the call from Mr Russell, also involves a misapplication of the statutory test. If we revert again to the example of the storeman, the fact that the storeman would have had to walk out through the loading dock when he left the premises at the end of work, would be irrelevant to the consideration whether the employment was a substantial contributing factor to his injury, sustained when he responded to the boss' call. 107 It follows from the above that we consider the President erred in point of law and the appeal should be allowed. That raises the question of what should be the outcome of the appeal. If only one answer could be given to the question whether the employment concerned was a substantial contributing factor, the President would have erred in law in any event. It is necessary, therefore, to revisit briefly the test that has to be applied under s 9A, that is, an applicant for compensation has to establish that the employment concerned is a substantial contributing factor to the injury. Once it is accepted that "substantial"' in this case means "in a manner that is real or of substance" and that the language of the section is not to be confused by interpretations such as "big" or "weighty", the only answer is that the contribution of the employment concerned was real or of substance. How else could the contribution of the employment be described, we ask rhetorically? We have already set out all the integers of that employment. The fact there was a recreational aspect of the skiing during the course of the employment does not diminish the contribution of the employment as being real or of substance. This is particularly so when the skiing was authorised by the employer and expressly subject to the employer's requirements. 108 Accordingly, we propose the following orders:

Set aside the decision of the Workers Compensation Commission (the Commission) made on 14 July 2008;

Remit the matter to the Commission for determination in accordance with these reasons that the employment concerned was a substantial contributing factor to the injury;

The respondent pay the appellant's costs. The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled. 109 BASTEN JA: In July 2007 Ms Badawi ("the claimant") visited the Perisher Valley ski resort as part of the respondent's sales team, seeking information technology business from the manager of the resort. On the second day of the visit, the claimant fell whilst skiing, suffering a significant injury. The question was whether she was entitled to compensation under the Workers Compensation Act 1987 (NSW), s 9, in respect of the injury. Reversing the decision of an arbitrator, the President of the Commission (Keating DCJ) rejected her claim: Nexon Asia Pacific Pty Ltd v Badawi [2008] NSWWCCPD 72. 110 The factual background, so far as relevant to the appeal, is set out in the joint judgment of Allsop P, Beazley and McColl JJA. Orders should be made as proposed by their Honours.

111 The claimant's entitlement depended on the satisfaction of one of two limbs of the definition of "injury" in s 4 of the Workers Compensation Act, namely that the injury was one arising (a) out of, or (b) in the course of her employment. In addition, her entitlement was conditional upon "the employment concerned" being "a substantial contributing factor to the injury": s 9A(1). The injury may arise at or away from the "place of employment": s 9(2). 112 The two limbs of the definition in s 4 are commonly found in legislation as it has existed over more than a hundred years in this country and in the UK. In some places and at some times the limbs have been expressed conjunctively, rather than disjunctively. When expressed conjunctively, compensation was only payable where the temporal element (in the course of) and the causal (arising out of) element were both satisfied. When, as in the present form of s 4, the limbs operate disjunctively, an injury suffered in the course of employment would give rise to an entitlement to compensation despite any lack of causal connection with the employment. Thus, a worker who suffered a cerebral aneurism while at work, as a result of a congenital susceptibility, without the employment playing any part in the injury, was able to recover compensation: Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310. The subsequent inclusion of s 9A was designed to prevent such claims, where the employment concerned was not "a substantial contributing factor". Because the two limbs in s 4 remain alternatives, the injury may still arise outside the course of employment, but whether in or out of the course of employment, it must have a substantial causal connection with the employment. 113 Whether the phrase "a substantial contributing factor" envisages a different standard to that created by reference to an injury arising "out of" employment would only be relevant if the standard were lower. On the basis that a substantial contributing factor is at least as stringent a causal connection as that found in the first limb in s 4, it would seem that the relevant causal connection will be satisfied if s 9A is satisfied. To the extent that this Court held in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740 at [32] that the test of substantial contributing factor in s 9A was not "as stringent" as the test of "arising out of" the employment, Mercer should not be followed. (The test imposed by s 9A is intended to be more stringent: s 9A(3).) 114 Because the injury to the claimant concededly occurred "in the course of employment", the only question for determination by the Commission in the present case was the nature of the causal connection. The satisfaction of that test, having regard to the relevant circumstances of the case, some of which are identified in s 9A(2), would usually constitute a finding of fact and, as such, would be unimpeachable under the Workplace Injury Management and Workers Compensation Act 1988 (NSW) ("the Workplace Injury Act"), s 353. However, the conclusion reached in the present case, that the relevant causal connection was not satisfied, is open to challenge if the claimant can identify an erroneous "decision of the Presidential member in point of law": s 353(1). In the present case the claimant must show that the President identified for himself a legally incorrect approach to the question posed by s 9A(1). 115 There are many circumstances in which questions of causation cannot adequately be resolved by application of a "but for" test. That is because the correct approach to causation is infused with policy considerations which may be specific to a particular statutory context. As this Court explained in Yallourn Electricity Ltd v Enron Australia Finance Pty Ltd (In liq) [2005] NSWCA 326; (2006) Aust Contract R 90-229: "34 The idea that the legal concept of causation is not co-extensive with scientific or philosophical notions of causation, but is 'tempered by the making of value judgments and the infusion of policy considerations' is well established in tort law, but need not be restricted to that area of discourse: see March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 516-517 (Mason CJ). … 36 Similar explanations may be found in relation to equivalent phrases such as 'because of', 'by reason of' and 'on the ground of': see, eg, Purvis v New South Wales (2003) 217 CLR 92, at [7]-[8] (Gleeson CJ), [139]-[163] (McHugh and Kirby JJ) and [225], [231] and [234]-[236] (Gummow, Hayne and Heydon JJ). Further, as noted by French J in Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 at 299G, in relation to the connection between persecution and a relevant ground in the Refugees Convention: 'The question whether a particular causal connection between persecution and membership of a group attracts Convention protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention.'" 116 A similar point was made by Lord Hoffmann in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 31 that "one cannot give a commonsense answer to a question of causation for the purpose of attributing responsibility under some rule", a principle accepted by Hayne J in Chappel v Hart [1998] HCA 55; 195 CLR 232 at [122]; see also Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 at [45] (Gummow and Hayne JJ). 117 An injury which has been held to have occurred in the course of employment may arise from one or more of a number of causes. A non-inclusive list of categories which involve a degree of overlap, may include:

(a) the conduct of the employer; (b) the conduct of the worker; (c) the conduct of third parties; (d) the nature or condition of plant or equipment, and (e) the unsafe system of work adopted by the employer. 118 The primary question raised in this case is not directly concerned with the phrase "a substantial contributing factor" but the phrase "the employment concerned". That is because, relevantly for present purposes, the only substantial contributing factor to the injury was the action of the claimant in skiing down the slope. Given that s 9A imposes a limitation upon an entitlement arising under s 9(1), which provision picks up the term "injury" as defined in s 4, the phrase "employment concerned" should be understood as a reference to the "employment" identified in s 4 out of which the injury arose or in the course of which the injury occurred. Once it is conceded that the injury occurred "in the course of employment" it might be thought that, where the injury arose out of an activity of the claimant alone, that activity must have been in the course of employment. (This was not a case in which the claimant was involved in misconduct or in any way engaged in an activity beyond those authorised and encouraged by the employer: see [113]-[117] above.) If that analysis is correct, the employment must have been a substantial contributing factor. If so, the approach of the Deputy President was erroneous. 119 What is "in the course of" employment may require analysis in cases in which that issue arises. This is not such a case, because the respondent had conceded in the Commission that the injury arose "in the course of" employment: at [114] above. 120 Cases dealing with what may be "in the course of" employment have variously discussed the "actual work" the person was employed to do, "the natural incidents connected with the class of work" which the worker was employed to do and whether something was "reasonably required, expected or authorised" in order to carry out his or her "actual duties": see discussion in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 at 478-479 (Mason CJ, Deane, Dawson and McHugh JJ). The joint judgment continued at 482: "A striking feature of the recent cases which have held that an injury occurring in an interval between periods of actual work was within the course of employment is that in almost all of them the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way." 121 As the facts of Zickar demonstrate, the temporal finding may not entail an answer, or even give rise to an inference in relation to, the question of causal connection where the apparent cause of the injury is a pre-existing weakness or medical condition which is not aggravated by the employment. Similar issues of causation may arise in circumstances where a substantial contributing factor is the conduct of a third party whose involvement is unrelated to the employment: see, eg, McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348 in which a hand on a fishing boat was assaulted whilst in port and living on the boat. Where it is the very activity of the claimant, which was the conduct authorised, encouraged or permitted by the employer (and in this case, the conduct exhibited all of those characteristics), the conclusion that the employment was a substantial contributing factor to the injury is the only conclusion reasonably open. 122 As explained in the joint judgment in Hatzimanolis, 173 CLR at 484: "Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer had induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred within the course of employment, regard must always be had to the general nature, terms and circumstances of the employment 'and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen' [ Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537]." 123 The critical factor which led the Commission to a different view was the conclusion that the claimant was not "performing any work activity at the time that she received the injury, but was skiing with her partner because they had 'time on [their] hands'": at 67. This is, however, to answer the wrong question. It focuses not on the connection between the employment and the injury, but on the closeness of the connection between the activity of the claimant giving rise to the injury and her duties as an employee, a question potentially relevant to the conceded issue, namely that the injury had arisen in the course of her employment. 124 The error is demonstrated by the discussion in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632-633, in the judgment of Kitto J. His Honour was addressing that part of the definition of "injury" in the predecessor to the current legislation, which included the aggravation etc of a disease where "the employment was a contributing factor to such aggravation …". In considering the grounds identified by the dissenting judge in the Court below and relied upon by the appellant, his Honour said: "The second ground treats the word 'employment' in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work." 125 His Honour rejected that approach in the following terms: "With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation … of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc." 126 The same approach should be adopted with respect to the application of s 9A. The concept of "the employment concerned" is not to be restricted to the activities in carrying out the actual duties required of the employee, nor is it to be constrained by an assessment of the benefits which might be obtained by the employer from the activity in question. 127 The conclusion that "employment" has the same meaning in s 9A(1) as in the definition of "injury" in s 4 is supported by the reference in Mercer, 48 NSWLR 740 at [13], adopting the passage in the judgment of Kitto J in Semlitch set out above. However, in that passage in Mercer, Mason P stated that "the legislation is not referring to the fact of being employed, but to what the worker in fact does in the employment". That, however, is not the distinction drawn in Semlitch; rather, in the passage set out at [124] above, Kitto J was at pains to reject the suggestion that employment was "something distinct both from the fact of the employment … and from any consequence of the employment". Subject to that understanding, Mercer is authority for the proposition that one is not required, in applying s 9A(1), to identify some "inherent features or essential incidents of" the employment and reject as not part of the employment, factors which are merely incidental to those features or incidents. 128 Thus, subject to one qualification, if the conduct out of which the injury arose occurred in the course of employment and was the effective cause of the injury (there being no pre-existing condition or involvement of another person) the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury. 129 The qualification arises with respect to activities occurring during an interval or interlude within a period of employment. Such activities may fall within the course of employment, or they may fall outside it. If the employer has organised a particular activity and has induced or encouraged the worker to spend the interval in a particular way, the activity will fall within the course of employment, unless there was gross misconduct taking the employee outside the course of his or her employment. (Stating the matter in these terms does not indicate the precise boundaries of the qualification, but identifies an activity which falls well within the principle explained in Hatzimanolis.) 130 The question is then whether s 9A adopts a different approach to the activity, albeit an activity within the course of employment, if it occurred during an interval or interlude. Subsection (1), which merely refers to "the employment concerned" does not suggest such a differential approach. 131 Subsection (2) is less clear: some of the "examples" suggest it may be appropriate to have regard to the "nature of the work" and to distinguish some "particular tasks" from others, although in what way and for what purpose is not self-evident. Indeed, this provision does not purport to mandate what matters are to be taken into account, but merely identifies a number of "examples of matters to be taken into account". Because the wider class is not specified, it seems unlikely that these examples were intended to be mandatory. Nor will they always be relevant. What are the mandatory considerations, disregard of which will constitute error of law, must be inferred from the subject matter, scope and purpose of the provision, including by reference to s 9A(2). More importantly, those matters should not be read as excluding from the concept of "the employment concerned" all activities which are not within the inherent features or essential incidents of the employment. The apparent purpose in including s 9A in the Workers Compensation Act was to impose a causal connection of a substantial kind between the employment and the injury, not to restrict in some way the concept of "the employment". 132 Subsection (3) states that the employment is not to be regarded as a substantial contributing factor "merely because" the injury both arose out of and in the course of the employment. In relation to the course of employment, it is well understood that the causal connection will involve an additional element; in relation to an injury arising "out of" the employment, the inference may be that the test of a "substantial contributing factor" is a stronger causal requirement. These considerations are not directed to the present issue. 133 In a practical sense, and in cases to which s 9A applies, the alternative tests in the opening words of s 4 will be irrelevant: satisfaction of s 9A(1) is a necessary and sufficient condition for a compensable "injury". (There are of course other separate requirements.) Furthermore, the statement that satisfaction of one or both of the s 4 tests will not as such satisfy s 9A(1), is not to preclude satisfaction of all three tests by reliance on the same facts. In many, if not most, cases of compensable injury, that will be so. The facts which satisfy the causal connection between employment and injury required by s 9A will also satisfy the test of "arising out of" in s 4 and, if the injury also occurred in the course of employment, the same facts will be those which satisfy that test. Where the key fact is an activity carried on by the claimant, that will be the key element in each test. 134 Of greater potential significance is sub-s (4), which excludes the operation of s 9A in respect of an injury to which, amongst others, s 11 applies. Section 11 is in the following terms: " 11 Recess claims If a worker on any day on which the worker has attended at the worker's place of employment pursuant to the worker's contract of service …: (a) is temporarily absent from that place on that day during any ordinary recess or authorised absence, (b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and (c) receives a personal injury during that absence, the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly." 135 Not all intervals or interludes, in the Hatzimanolis sense, will fall within s 11. Indeed, it may be inferred that the trip to Wittenoom Gorge did not, because there was no reference to s 11 in that case. The fact that the more stringent requirements of s 9A do not apply to "recess claims" makes it unlikely that they would have a differential (and more stringent) effect on activities which arose in an interval, but nevertheless were within the course of employment, and those activities which arose in the course of employment more narrowly identified. This conclusion receives support from a consideration of the amendments introduced in relation to related provisions in Pt 2 of the Workers Compensation Act at the time s 9A was introduced: see WorkCover Legislation Amendment Act 1996 (NSW), Sch 1.2 and 1.3. In particular, s 10, "Journey claims", was also excluded from the operation of s 9A, but was the subject of its own new controls which replaced a preclusion of recovery in the case of the fault of the worker, with the less stringent test of "the serious and wilful misconduct of the worker". For these internal reasons, the preferable construction of s 9A is that it does not seek to differentiate between activities arising within the course of employment so that some may be found to be substantial contributing factors and others not. 136 A contrary approach would give rise to increased uncertainty as to what activities were compensable and what were not. It might require investigation as to the extent to which the activity was related to the "core" purpose of the employment and the subjective purposes of the employer in encouraging and organising the activity. Unless the statute clearly intended such a result, it should not be so construed. To adopt the language of Kitto J in Semlitch, the Court should not refine upon the phrase "the employment concerned" too much. 137 I agree with the orders proposed in the joint judgment. 138 HANDLEY AJA: In this appeal I have had the benefit of reading the reasons for judgment of Allsop P, Beazley and McColl JJA (the joint judgment) and those of Basten JA. I agree with paras 1-79 of the joint judgment, but I am respectfully unable to agree that the President of the Commission erred in finding that the appellant's employment was not a substantial contributing factor to her injury, and that the primary facts found by the President entitle this Court to direct the Commission to make an award for the appellant. 139 This Court is bound by the findings of primary fact below unless any are vitiated by legal error. The only relevant basis for finding such an error in this case is a lack of evidence capable of supporting the primary finding. In my opinion, with respect to the joint view [94], the President's finding that the appellant was skiing with her partner when she was injured [67(a)] was supported by evidence. 140 The appellant said in her oral evidence (Red 234) that at 1230 she and her boyfriend had gone off to a skiing lesson which lasted for an hour and 45 minutes. Mr Russell, her supervisor, said in his statement (Red 133) that the appellant and her partner were together in the beginner's group for their ski lesson. When he telephoned her about 2:30 p.m. to ask her to join him for a business discussion she said "they had just finished their class" and she was at the top of the mountain having just got off the ski lift (Red 108). Her partner later told him that she had hung up from the phone call and had gone to ski and lost her footing immediately (Red 134). The appellant said in her statement that she was assisted from the mountain by her partner (Red 11). In my opinion the inference drawn by the President that the appellant was skiing with her partner when she fell was amply supported by this evidence. 141 I agree with much of the reasoning in paras [80]-[107] of the joint judgment and will confine my reasons to the questions on which I am unable to agree. The plurality state [96] that "it is s9A(2)(a) which directs attention, in part at least, to what the employee was in fact doing at the time of the injury." That paragraph however says nothing about the activities of the worker at the time and place of injury. 142 The plurality state [96] that s9A(2)(b) is not directed to what the employee was doing at the time of the injury but to "the employment concerned". The President had earlier set out the links between the appellant's employment and her skiing activities [58]. Where, as here, the injury occurred during an interval in an overall period of work, and the worker was not performing work when she was injured, the tribunal of fact does not ask itself the wrong question by making findings about the worker's activity at the time of the injury. The plurality consider that such findings are irrelevant to the question under para (b) but I cannot see why positive findings as to the worker's actual activities at the time of the injury and findings that she was not working at that time are irrelevant. 143 As the plurality accept [80], [81], [85] a finding that the injury arose in the course of the employment does not mandate a finding that the employment was a substantial contributing factor. The test is one of causation, that is the causation of the injury. The fact that the appellant's employment took her to Perisher, and allowed her time off for recreation while she was there were not causes of her injury. 144 The plurality conclude [99] that the President did not have regard to the nature of the work performed and the particular tasks of the work but had regard to the appellant's recreational activity. Properly understood the President's conclusions in para (b) of [67] did not involve the egregious error of treating the appellant's skiing as "the employment concerned", or an aspect of the work performed, or one of its tasks. The President's positive finding about the recreational activity imports a negative which he had earlier made in positive form [58]. 145 The President considered but rejected as sufficient additional causative factors the appellant's response to Mr Russell's phone call summoning her to a meeting at the foot of the mountain. He found [70] that the appellant had to ski down the mountain in any event, and there was no evidence that she was distracted by the call, or was hurrying. Findings that the appellant was on call and was responding to a call when she was injured, and that these did not "strengthen the causal linkage" between the injury and the employment are factual decisions on the strength of the causal link. 146 The plurality also discern legal error [101], [102], [105] because the President looked at the recreational activity and its links with the employment rather than looking at the employment and the circumstances surrounding the injury. They also discern error [105] because the President did not "consider" that the appellant was skiing to meet her superior to discuss business matters. 147 In my respectful opinion the difference between reasoning forward from employment to injury, or back from injury to employment, cannot constitute legal error. A causative link can be examined either in prospect or in retrospect but in any event there was no legal error because, as Glass JA said, in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156: "… It is … pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law." 148 In any event the President did consider the very question he is said to have overlooked. In [70] he referred to the telephone call from Mr Russell, his request for a meeting on business, the appellant's immediate response, and the injury to her knee when skiing to meet him. The President considered that these did not establish a substantial contributing factor to her injury. The plurality disagree, but in my respectful opinion the difference is one of fact. I ask rhetorically whether the appellant's employment would have been a substantial contributing factor if she had been injured shortly before the phone call. 149 I cannot see the force of the example about the storeman who was injured on his employer's premises when proceeding from the staff room where he had been playing cards to a place where he would commence active duties [103], [106]. He would be injured on and by his employer's premises. As Starke J said in Smith v Australian Woollen Mills Ltd [1933] HCA 60; 50 CLR 504, 518: "An injury which arises directly out of the circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment." 150 In my opinion there is a fundamental difference for the purposes of s9A between an injury which occurs during actual work, or on the employer's premises, and one which occurs during an interval between periods of work, or within an overall period of work. It is much more difficult to find that the employment was a substantial contributing factor in the latter situation. Previous decisions of this Court in interval cases are relatively few namely McMahon v Lagana [2004] NSWCA 164; Haider v JP Morgan Holdings Aust Ltd [2007] NSWCA 158; and Le Brocq v WorkCover [2008] NSWCA 125. In each of those cases the applicants failed in the Commission and this Court dismissed appeals because there was no error of law. Although none of them established any legal principle of general application they illustrate the difficulties facing an applicant who is injured during an interval between periods of work, or within an overall period of work. 151 I respectfully agree with the plurality [82] that the appropriate meaning of substantial in the context of s9A means "real and of substance", but cannot agree that this is no more than a synonym for "not remote or tenuous". The negative test imported by the latter necessarily excludes a finding that the employment was a substantial contributing factor, but a finding that the employment was not a remote or tenuous contributing factor is not equivalent in my opinion to a finding that it was a substantial one. The reference to a remote or tenuous connection in the Second Reading Speech does not purport to be more than illustrative, and that phrase should not be substituted for the statutory text. 152 It follows from the above that I am unable to agree that this is a case where "the primary facts found necessarily fall within … a statutory description": Azzopardi (1985) 4 NSWLR 139, 156 per Glass JA. 153 I also have the misfortune to defer from the conclusions of Basten JA [120], [127] that if an injury occurs during an interval between periods of work or within an overall period of work in the course of an activity which the employer has authorised, encouraged, or permitted and there was no misconduct "the conclusion that the employment was a substantial contributing factor to the injury is the only conclusion reasonably open". 154 I also cannot agree, for the reasons already given, that the President erred [122] in focusing on the closeness of the connection between the appellant's recreational activity and her duties as an employee. I do not understand the reasons of Kitto J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, 632 to support that view. His Honour's remarks were directed to "occurrences in the course of work", and "some incident … to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed", situations which are not presently relevant. 155 In my opinion an error of law was not established and the appeal should be dismissed with costs.

16/04/2010 - Typographical error - Paragraph(s) 112

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Suitors' Fund Act 1951(NSW)

Trade Practices Act 1974(Cth)

WorkCover Legislation Amendment Act 1996(NSW)

Workplace Injury Management and Workers Compensation Act 1988(NSW)

CITATION: Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 This decision has been amended. Please see the end of the judgment for a list of the amendments.

ANZ Banking Group Limited v Mercer S 143/2000 [2001] HCA Trans 26 (16 February 2001) Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bulga Coal Management Pty Ltd v Sager [2004] NSWCA 443 Chappel v Hart [1998] HCA 55; 195 CLR 232 Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 Collector of Customs v Agfa Gevaert Limited [1996] HCA 36; 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd and Pressure Tankers Pty Ltd [1993] FCA 322; 43 FCR 280 Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46 Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 Dover Navigation Co v Craig [1940] AC 190 Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Ericsson Pty Ltd v Popovski [2000] 1 VR 260 Farrelly v Qantas Airways Ltd [2001] NSWCC 162; 22 NSWCCR 331 Federal Broom Company Pty Limited v Semlitch [1964] NSWR 511 Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634 Hatzimanolis v ANI Corporation Limited [1992] HCA 21; 173 CLR 473 Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585 ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 Kavanagh v Commonwealth [1960] HCA 25; 103 CLR 547 CASES CITED: Larson v Commissioner of Police [2004] NSWCA 126; 3 DDCR 365 Le Brocq v WorkCover Authority of NSW [2008] NSWCA 125; 6 DDCR 257 March v Stramare (E & MH) Pty Limited [1991] HCA 12; 171 CLR 506 McMahon v Lagana (t/as The Vessel "Nimble II") [2004] NSWCA 164; 4 DDCR 348 Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 Murray v Shillingsworth [2006] NSWCA 367 Nexon Asia Pacific Pty Ltd v Badawi [2008] NSWWCCPD 72 Nunan v Cockatoo Island Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 Smith v Australian Woollen Mills Limited [1933] HCA 60; 50 CLR 504 South Maitland Railways Pty Limited v James [1943] HCA 5; 67 CLR 496 Stewart v Metropolitan Water Sewerage and Drainage Board [1932] HCA 45; 48 CLR 216 Tarry v Warringah Shire Council [1974] 48 WCR (NSW) 1 Thom v Sinclair [1917] AC 127 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367; 42 FLR 331 Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 Watson v Qantas Airways Limited [2009] NSWCA 322 Weston v Great Boulder Gold Mines Limited [1964] HCA 59; 112 CLR 30 WorkCover Authority of NSW v Walsh [2004] NSWCA 186 Yallourn Electricity Ltd v Enron Australia Finance Pty Ltd (In liq) [2005] NSWCA 326; (2006) Aust Contract R 90-229 Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310

LOWER COURT MEDIUM NEUTRAL CITATION: Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd v Badawi [2008] NSWWCCPD 72

The meaning of an injury "arising out of" employment for the purpose of ss 4 and 9 is settled. An injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to the injury. The phrase involves a causative element and is to be inferred from the facts as a matter of common sense: [73] - [76]. 3. The phrase "substantial contributing factor" in s 9A also involves a causative element. It is a different or added requirement to the "arising out of" employment limb of ss 4 and 9, however the causal connection required for s 9A is not less stringent than that found in s 9. Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed: [80] - [85].

Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473, applied. Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348, referred to.

(2000) 20 NSWCCR 491

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