12In Vetter at [6], the High Court (per Gleeson CJ, Gummow and Callinan JJ) described the effect of s 10 of the WC Act, as follows:
The effect of the section is relevantly this. The worker will be entitled to compensation if he or she suffers injury on a journey between the workplace and home. A daily or other periodic journey between those places will be a journey to which the section applies... The sustaining of an injury during or after any interruption of, or deviation from a journey which would otherwise be a relevant journey will also disentitle a worker to compensation unless the risk of injury not be materially increased because of the interruption or deviation.
13Vetter concerned a matter in which a worker regularly interrupted her periodic journey from her place of work to her residence by visiting her grandmother. On one such occasion she suffered an injury whilst travelling from her grandmother's residence to home. The High Court held that the resolution of the question as to whether the worker was entitled to make the journey claim under s 10 of the WC Act, notwithstanding that interruption, was not to be determined by asking the question whether there were one or two journeys. In that sense, the question in Vetter revolved around the provisions of s 10(2) of the WC Act. (See the analysis of the Court in [29] and [32].)
14If the conclusion of the Commissioner at [21] of his decision was predicated upon the basis proscribed in Vetter, then, plainly, there would be an error requiring correction on appeal. However, notwithstanding the Commissioner employing the language of "first journey" and "second journey" in that section of his decision dealing with the journey claim, we do not consider that the Commissioner's decision turned upon such considerations but, rather, whether the appellant was at the time of his injury undertaking a journey which had the character of a journey between his place of abode and place of work. (See the discussion in Vetter at [29].)
15When analysed in this way, we consider that the Commissioner reached the correct conclusion in relation to the journey claim. This conclusion is based upon three reasons:
1.The provisions of s 10(4) are strict in nature and limit journey claims to those where the worker receives an injury between, relevantly in this case, the boundary of the home premises and the boundary of the employer's premises. The forward journey only commences at the boundary of the place of abode: Athval Management: Calvert v Sodden (1994) 10 NSWCCR 139; and Williams v Ducon Condenser Limited (1949) WCR 122 at 126. From the facts of this matter, the Commissioner was entitled, on the evidence, to conclude that the appellant had not crossed the boundary of his property at the time he received his injury.
2.The question of intention is, in this respect, irrelevant. Even if it was, upon the test in Athval Management, the requisite intention at the time of the injury was for the appellant to return to his wife to give her a farewell kiss.
3.The appellant is correct in submitting that treating the appellant's travel on the day in question as multiple, discrete journeys would require a strained construction of s 10(3)(a) of the WC Act. This difficulty arises, however, only if the circular trip from the appellant's place of abode to his return to that destination (without ever reaching his place of work) is treated as an interruption for the purposes of s 10(2). We do not consider that this conclusion may be reached. The circumstances of this matter do not conform factually with those found in a line of authorities to which we were taken. In those matters, there was an interruption or deviation between the place of abode and place of work. In this case, the deviation or interruption was not one undertaken co-extensively with the journey to work, such as a stop over mid-course or a deviation in the route for some other purpose, but, rather, as one occasioned by an intention to return to the place of abode for the particular purpose of collecting the forgotten glasses case. In other words, the appellant aborted the journey. In this sense, it is proper, in our view, to treat the circumstances of this matter as not one falling within the provisions of s 10(2) but, rather, as an abandonment of the journey. This conclusion is consistent, in our view, with the findings made by the Commissioner that, at the time the appellant received the injury, he was inside the boundary of his place of abode and that his injury was, thereby, caught by the terms of s 10(4).
16This conclusion does not exhaust the issues arising on the appeal, as the appellant made an alternative contention based on ss 4, 9 and 9A of the WC Act.
17The basis upon which the appellant advanced this aspect of his case is not entirely clear. The appellant advanced his contention, in part, in reliance upon ss 4 and 9 of the WC Act. We have previously set out s 4 in which 'injury' is defined as meaning "personal injury arising out of or in the course of employment". In Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd [2009] NSWCA 324; (2009) 7 DDCR 75 at [72], the NSW Court of Appeal (per Allsop P, Beazley and McColl JJA) found the preposition "or" in s 4 is disjunctive. The Court found that the use of the disjunctive was significant in that quite different tests were involved "one or the other of which is sufficient to be satisfied for the purposes of s 9". The second limb of the definition "in the course of employment" involved a temporal element and did not itself contain a causative element. The meaning of "arising out of ... employment" involved a causative element (see at [73]) creating a "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" (at [79]).
18In relation to the expression "arising out of" employment, their Honours referred to the judgment of Starke J in Smith v Australian Woollen Mills [1933] HCA 60; (1933) 50 CLR 504 (at 517 to 518) in the following passage from the Badawi judgment (at [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).
2.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).
3.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).
19The submission of the appellant vacillated between reliance upon both limbs of the definition or merely one limb, namely, "in the course of employment".
20A difficulty for the appellant's case, in this respect, is that neither limb of the definition fits comfortably with the notion of the appellant, at the time of his injury, being involved in a journey (in the sense of his journey claim).
21Before further considering that matter, it is appropriate to consider in some greater depth the provisions of s 9A of the WC Act. The following aspects of the judgment in Badawi are relevant in that respect, at [80] to [83]:
[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...
[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 of 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.
22As to particular aspects of the operation of s 9A(2), we refer to the following passages from Badawi at [89], [90], [96], [97], [101], [102] and [107]:
[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.
...
[96] ... 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.
...
[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.
...
[107] ... 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.
23The NSW Court of Appeal applied those tests to actual circumstances under consideration in Badawi in the following passages from the judgment (at [103], [105] and [106]):
[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.
...
[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.
24There were two prongs to the decision of the Commissioner, in this respect. First, the injury did not arise "out of [the appellant's] employment" (we shall consider both limbs of s 4). The second was that his "employment was not a substantial contributing factor".
25We do not consider the appellant demonstrated that his injury arose during the course of his employment. The appellant's case was predicated upon the basis that he sought to obtain the glasses and USB for the purposes of later using them in his employment, that is, when he reached his place of work. The reference to the police vehicle being left running and the radio turned on did not establish, as a matter of proof, that the appellant was undertaking his duties, per se. Some reference was made to the police officer being available for duty in those circumstances, but the appellant bore the onus to establish, as a matter of evidence, that in those circumstances the officer was in the course of his employment and did not do so.
26Both s 4 of the WC Act (with respect to the expression "arising out of") and s 9A require an assessment of causation. For the purpose of s 9A, the relevant considerations, in this matter, are the factors identified in s 9A(2)(a) and (b).
27We do not consider there was a causal connection between the appellant's injury and his employment. As we have observed, without more, the fact of the appellant having commenced, but abandoned his journey to return to his abode, with his engine running and radio connected, does not establish, as a matter of fact, that he was in the course of his employment or doing anything arising out of the course of his employment. Taking the appellant's case at its highest, the injury occurred whilst recovering instruments which may have been used in his employment. This was not, however, at the place of work but both geographically and temporally at a different place, namely, his place of abode. He was not authorised to undertake work at his home and his activities there bore no direct relationship, on the evidence, to any work assignment. In any event, the injury, in reality, occurred whilst the appellant was undertaking a non-employment activity: averting the return to his police vehicle to give his wife a kiss.
28Even if there was some element of employment involved, we do not consider that it was a sufficient contributing factor. The primary activity the appellant was engaged in, when injured, was a non-employment one. The connection between the collection of his glasses and USB and his employment was both remote and tenuous.