Hegedis v Carlton & United Breweries [2000] VSC 380

9. The first question in this proceeding, which is an appeal brought pursuant to s. 109 of the Magistrates' Court Act 1989, is whether the 1992 formula should be given operation in all cases in which entitlement to compensation depends upon s. 82(1).

12. Specifically, the question arises in the case of a worker who suffered a laceration to his hand whilst peeling an apple in the course of a paid work break, he then being in an amenities room at his employer's premises, use of that room being encouraged by the employer in more than one way.

15. The learned Magistrate, who on 12 October 1999 dismissed the appellant's claim for compensation (it related only to medical and like expenses) held that the worker had suffered injury as defined by s. 5 of the Act in that he had suffered "physical injury" within the opening words of the definition. So much is not in dispute.

18. The learned Magistrate held that the worker had suffered injury in the course of his employment. That conclusion, again, is not in dispute. For injury to occur in the course of the employment, of course, no causal relationship between injury and the employment is necessary: Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547 at 556 per Dixon CJ, see also at 558-559 per Fullagar J and at 576 per Menzies J.

21. The learned Magistrate, critically, held that for the injury to be compensable the appellant must establish not only that he had suffered injury arising in the course of his employment but that his employment was a significant contributing factor (implicitly, to the injury); and that he had not satisfied this last requirement. Senior counsel for the appellant submitted that, either because the meaning of s. 82(1) is clear when subjected to ordinary principles of construction, or else because it is ambiguous and ambiguity should be resolved in a way favourable to his client, the 1992 formula should be held not to apply to an injury of the type suffered by the worker - so called "injury in the primary sense". It was enough that it occurred in the course of the employment. Senior counsel for the respondents submitted, to the contrary, that on the application of ordinary principles of construction the 1992 formula applies in all cases in which the entitlement to compensation depends upon s. 82(1).

24. The issue thus identified involves an obvious question of statutory construction. It was contended for the appellant and denied for the respondents that the learned Magistrate had misdirected himself.

27. Another issue was debated before me. Having found that the 1992 formula applied in the appellant's case, his Worship gave meaning to the phrase. Senior counsel for the appellant submitted that in doing so the learned Magistrate had misdirected himself. The misdirection was said to consist, at least in part, of an impermissible adoption of portions of the Minister's Second Reading Speech as if the speech formed part of the statute. Further according to the appellant's submission, in the circumstances of the case the learned Magistrate was bound (always assuming that the 1992 formula applied) to have made a determination favourable to the appellant.

30. Senior counsel for the respondents submitted, to the contrary, that there had been no misdirection; and that the finding of fact made by the learned Magistrate had been open, it not being for this court to interfere with such a finding.

34. Before the 1992 amending Act the definition of "injury" in s. 5 of the Act was as follows:

" 'injury' means any physical or mental injury and without limiting the generality of the foregoing includes

(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 contributing factor; and

(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker's employment was a contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration."

41. The reference to "physical injury" comprehended not only injury by trauma in the ordinary sense, but - though rarely in practice - internal injury of the kind illustrated by Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547; Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19; Accident Compensation Commission v McIntosh [1991] VicRp 65; [1991] 2 VR 253, Zickar v MGH Plastic Industries Pty Ltd (1996) 188 CLR 310 and (very recently) Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45.

44. Section 82(1), before and since 1992 , has contained the qualifying formula "injury arising out of or in the course of any employment". The disjunctive "or" replaced the conjunctive "and" in the predecessor legislation in 1946.

47. For many years before the 1992 Act, then, physical injury in either of the senses described above was compensable simply if it was caused to a worker in the course of his or her employment; and, as I have said, for injury to be caused in the course of employment required no causal relationship between injury and employment. Moreover, as time passed the conception of what was embraced by the course of employment extended. See, for example, Fitzgerald v Ainsby Rubber Co [1987] VicRp 39; [1987] VR 437 per O'Bryan J at 440-442 and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473 at 484 per Mason CJ, Deane, Dawson & McHugh JJ. The consequence is that the circumstances in which injury in the primary sense was compensable because it occurred in the course of employment progressively expanded.

50. I return to the definition of injury, and focus on paragraphs (b) and (c). From 1965 in the case of the predecessor legislation, and from 1985 in the case of the Act, the definition of injury contained varying versions of those paragraphs. The law is clear that proof that the employment was a contributing factor to the contraction of a disease, or to the recurrence, aggravation, acceleration etc. of pre-existing injury or disease, and proof that injury arose out of an employment, were not proof of one and the same thing. See Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 per Mason CJ at 598, where his Honour said that the former prescribed a less stringent requirement (of causation) than the latter. See also per Barwick CJ at 585 and Stephen J at 594 in that case. On the other hand, the two concepts are closely related, and in practice proof of one would be likely to be proof of the other.

53. Before the 1992 Act, then, the framework of the legislation I have described it was long established. Some injuries, to constitute injury as defined, required a measure of employment contribution. Others did not. Some injuries were compensable simply if they had a temporal connection with employment. Others were compensable if they arose out of employment, even if a temporal connection was absent. All this Parliament must be taken to have known when it embarked upon the 1992 amending legislation.

56. Against the background described, what did the 1992 Act do; and what did it not do?

59. First, it introduced the adjective "significant" into paragraphs (b) and (c) of the definition of "injury". But it effected no change to the definition so far as injury in the primary sense or injury falling within paragraph (a) were concerned.

"(1B) In determining for the purposes of this Act whether a worker's employment was a "significant contributing factor" to an injury

(a) the duration of the worker's current employment; and

(d) the probable development of the injury occurring if that employment had not taken place; and

(g) the activities of the worker outside the workplace

74. The subsection prescribes matters which must be taken into account in determining whether employment was a significant contributing factor to an injury. It does not purport to exhaust the matters which may be taken into account. Nonetheless, the factors specified have, in my opinion, this present relevance: although "injury" is not confined by the subsection, the factors specified are for the most part - if not entirely - pertinent to paragraph (b) and (c) type injuries; and possibly paragraph (a) injuries. They are not obviously relevant to physical injury in the primary sense - a fortiori physical injury by external trauma.

77. Further in respect of s.5(1B), it is here convenient to note that it sets up matters which must be taken into account in determining whether a worker's employment was a significant contributing factor to injury. It says nothing about determination whether employment of a particular nature was a significant contributing factor to injury or disease - a concept made relevant by 1992 amendments to ss. 82(6) and 86 of the Act, and the 1992 substitution which introduced s. 135A(2)(a).

80. Third, the definition of "medical question" in s. 5(1) of the Act was in one paragraph - (b) - amended by the insertion of the adjective "significant." That was the only provision in the Act, other than in the definition of injury, where the adjective alone was inserted into the Act. The question in its original form, I add, clearly had connection with paragraphs (b) and (c) of the definition of injury. In Isuzu General Motors Australia Ltd. & Anor v Jordon [2000] VSCA 63 Phillips JA at [10] left open the issue whether the question might have assisted in determining whether in some circumstances at least there had occurred injury in the primary sense which was compensable under s.82(1). It is unnecessary in this case to conjecture what such circumstances might be. It is enough to note, as I have done, the obvious connection between question (b) and paragraphs (b) and (c) of the definition of injury in their pre 1992 form.

83. Fourth, what I have called the 1992 formula was inserted into s. 82(1). But s.82(1) otherwise remained unaltered. There continued in the sub-section, as a criterion for compensability of injury, the circumstance that injury occurred in the course of employment.

86. Fifth, ss.82(6) and 86 were amended by insertion of the formula "and if employment of that nature was a significant contributing factor."

89. Sixth, s.135A(2)(a) was introduced. It could rightly, if colloquially, be described as being in a class of its own. This is what it says:

"(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment -

(a) if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992;"

94. Section 135A(2) has been considered by this Court more than once. The particular problem created by the insertion into paragraph (a) of the formula "if employment of that nature was a significant contributing factor" has never been considered. It appears, understandably, that the particular problem has been carefully put to one side. Senior counsel for the appellant, before me, pointed to the apparent absurdity of the provision as an instance of a 1992 amendment which, far from disclosing Parliament's presumed intention relevant to the issue of construction presently in dispute, revealed confusion, uncertainty and ambiguity.

97. Seventh - this was a provision referred to by senior counsel for the respondents - new objects of the Act were introduced by a substituted s.3. Whilst previous well-meaning objects were preserved, counsel particularly drew attention to two new objects. Thus:

"(e) to ensure workers compensation costs are contained so as to minimise the burden on Victorian businesses"; and "(h) to establish and maintain a fully-funded scheme."

101. Eighth - these were other provisions referred to by senior counsel for the respondents - the introductory portions of ss.98(1) and 99(1) were amended substantially to the same effect. In the case of s.98(1) this was omitted:

"In addition to any other compensation payable under this Act, a worker who in the course of the worker's employment suffers an injury mentioned in the Table in this sub-section is entitled to compensation equal to -".

"A worker who suffers an injury which entitled the worker to compensation is, in respect of an injury mentioned in the Table to this sub-section, entitled to compensation equal to - ".

109. In the case of s.99, reference to injury "arising out of or in the course of the employment" was replaced by reference to injury "which entitles a worker to compensation".

112. So much for the 1992 amending provisions to which counsel referred me. Then, as to the proper approach to construing s.82(1) in its amended form, the position is, for the most part at least, clear: construction depends upon the words of the provision itself read and understood in context. If, so analysed, construction of the provision is clear, recourse should not be had to parliamentary debates to seek to create an ambiguity: Rizza v Fluor Daniel GTI (Australia) Pty. Ltd. [1998] VSCA 131; [1999] 1 VR 405 at 414 per Chernov JA. If, however, analysis of the provision, in context, leaves its construction doubtful, recourse may be had to parliamentary debates - most particularly a Second Reading Speech - to discern the purpose or object of the legislation. Even if a court believes that such purpose or object is sufficiently clear from the words of an Act, it may nonetheless refer to parliamentary debates to ensure that the interpretation reached is not apparently inconsistent with the purpose or object of legislation as revealed by the debates: R. v Boucher [1995] VicRp 7; [1995] 1 VR 110 at 124-125.

115. In construction of workers compensation legislation, which has been regarded as being remedial in character, there is a long-established principle that in the event of ambiguity a construction favourable to the worker should be adopted: Wilson v Wilson's Tile Works Pty. Ltd. (1960) 104 CLR 328 per Fullagar J at 335; Dodd v Executive Air Services Pty. Ltd. [1975] VicRp 66; [1975] VR 668 at 679 per Newton J. and at 682 per Norris J. That approach has continued until modern times: Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1 at 6 per Mason CJ, Brennan and Toohey JJ, and at 9 per Deane and Gaudron JJ. (who dissented in the result, but not upon the point of principle); Borovac v Corporate Ventures Pty. Ltd. (1995) 12 NSWCCR 84 at 89 per Mahoney JA. It has continued notwithstanding a tendency across jurisdictions to reduce the ambit of compensability of injury. It is not a vehicle for discovering ambiguity where none exists. It could not be used to set at nought the effect of s.35(a) of the Interpretation of Legislation Act 1984. But unless and until a court of the highest authority decides that the principle is irreconcilable with the modern conception of workers' compensation legislation, it appears to me that the principle continues to have a legitimate area of operation.

118. In the present case senior counsel for the appellant submitted it was clear on a reading of the Act that the 1992 formula attached only to paragraph (b) and (c) injuries. But if that was not so, in resolving ambiguity regard should be had to the purpose or object of the legislation as revealed by the Second Reading Speech; and that speech clearly enough evidenced an intention that the 1992 formula should be so confined.

121. The learned Magistrate in fact referred to the Second Reading Speech. Senior counsel for the respondents submitted that it had been proper for him to do so. By reference to Boucher he accepted that recourse to the Second Reading Speech was permissible.

124. For reasons that I shall set out in a moment I consider that the proper construction of s.82(1) is not clear, and that there is ambiguity. It is proper to seek assistance from the Second Reading Speech as to the purpose or object underlying the amendment. This is what the responsible Minister said, in part:

". . . the Bill alters the definition of injuries which are compensable under workers compensation legislation. To be compensable by WorkCover, a worker's employment must now be a 'significant' contributing factor to an injury or disease. Journey accidents will not be compensable under WorkCover."

Under the heading "Definition of Injury" he went on:

"The definition of injury is tightened so that a worker's employment must now be a significant contributing factor to the disease, or the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease. The word 'significant' has been included in the definition of injury and elsewhere in the Act to emphasise the point that workplace injuries will be compensable under WorkCover only if there is a strong connection between work and the injury.

Under WorkCare, a worker only had to show that the workplace contributed in some way to the injury. This is not strong enough. Under WorkCover, a worker will now have to establish that the worker's employment has been more than just one of many contributing factors. It must be a significant contributing factor.

This means that for an injury or disease to be compensable under WorkCover, the actual performance of a work function must be a significant cause of the injury or disease, not just that a worker's condition occurred, developed or worsened while the worker was in the workplace - for example, due to a degenerative condition.

133. Pertinent amendments, the necessary approach in principle, and pertinent parts of the Second Reading Speech having been set out, it is now possible to resolve the issue of construction.

136. If s.82(1) was considered superficially, and apart from other amendments effected in 1992, it might well be said that on its face it disclosed an intention that a worker's employment must be a significant contributing factor to all injuries whose compensability was to be determined under that provision.

139. According to the submissions of senior counsel for the respondents that was the correct construction. He contended that:

* The amendment of s.82(1) was part of a coherent series of amendments designed to reduce the ambit of compensability of injuries.

* The amendment of s.3 of the Act to include objects (e) and (h) showed that the then-incoming government was determined to reduce the cost of the accident compensation system. Reducing the ambit of compensability of injuries was central to achieving that purpose.

* This was not a case where careless amendment was effected, by contrast with the situation which arose in QBE Workers Compensation (Vic.) Ltd. v Freisleben & Anor. [1999] VSCA 207 - see particularly per Tadgell JA at [19]. Parliament's considered scheme included discrete amendment to, or insertion of, a number of sections: 5(1), 5(1A) 5(1B), 82(1), (2) and (6), 86, 98 and 99.

* Parliament should be taken to have had in mind the then recent decision in McIntosh, and to have aimed amendments at such situations.

* If it had been intended that the 1992 formula only apply to paragraph (b) and (c) injuries it would have been enough to amend the definition of "injury" - as was done. On the appellant's submission the 1992 formula was surplusage. Principles of construction required all the words in the statute to be given meaning.

147. It is convenient to pause and reflect upon those submissions.

150. It is evidently the case that Parliament was concerned to cut the cost of the accident compensation system; and to do so in part by restricting the circumstances in which injury (using the word in a non-technical sense) would be compensable. But the question remains, what restriction was imposed?

153. Next, it is true that in the Act of 1992 a number of sections were amended discretely. This was not a one-section amendment of many sections, where almost by accident a particular section was amended in a way that made no sense. Compare Freisleben, supra. On the other hand, respondents' counsel understandably conceded that "We don't dispute the proposition that whoever drafted a lot of this legislation had a shortage of understanding of all the concepts of accident compensation"; and my later analysis of the amendments leaves at least the gravest doubt whether they should be described as a coherent series of amendments which unambiguously restricted the circumstances in which injury (again used non-technically) would be compensable.

156. Next, there is not the slightest reason to believe that parliament had McIntosh in mind when effecting the 1992 amendments, or, for that matter, injuries of the McIntosh kind. McIntosh was decided in August 1990. The amending Act was introduced abut two years later. McIntosh was then old news. It was not mentioned by the Minister. Nor were injuries of that type identified as a problem which the amendments sought to remedy. That is not surprising. Anyone with familiarity with workers compensation knows that such injuries are rarely alleged, let alone established. Necessary consideration of the relevant statutory regime and of the facts on a case by case basis has led to that being the situation.

159. Next again, I think it is clear that the ss.98 and 99 point was not a good one. Section 98 in its pre-1992 form was odd. It referred only to course of employment injuries. Its peculiarity was noted by a Judge of the old Accident Compensation Tribunal. Amendment was obviously necessary. The form of amendment adopted made use of the criterion of entitlement to compensation rather than the phrase "arising out of or in the course of employment". That was explicable not only as a simple choice of words but also because entitlement to compensation might arise otherwise than by way of s.82(1), in circumstances where compensability would not be established by injury arising out of or in the course of employment. See s.82(6). The same may be said of s.99. There, ss.82(6) and 86 would be pertinent.

162. Finally, it is true to say that, on the appellant's argument, the insertion of the 1992 formula into s.82(1) was strictly unnecessary. It would have been enough to amend paragraphs (b) and (c) of the definition of injury; for "injury" where used in s.82(1) refers to injury as defined. (About this last matter there was no debate. Ever since a definition of "injury" was introduced into the predecessor legislation in 1946 reference to injury in the main operative provision has been held to mean injury as defined).

165. Senior counsel for the appellant submitted, however, that the 1992 formula did carry some meaning where used in s.82 (1). It reinforced the effect of the changes to paragraphs (b) and (c) of the definition. Amendment has sometimes been perceived to have had such an operation. The words of a statute should all be given meaning; but the way in which they are given meaning is another thing. See the observations of Marks, J. in Entwistle v Parks [1991] VicRp 24; [1991] 1 VR 317 at 318 and of Tadgell JA in Freisleben, supra at [19].

168. I said earlier that, on superficial consideration, and apart from other 1992 amendments, s.82(1) as then amended might well be said on its face to disclose an intention that a worker's employment must be a significant contributing factor to all injuries whose compensability fell to be determined under that provision. Closer reading of the legislation, however, at the least casts very substantial doubt upon the correctness of that construction, and gives substantial support for a different construction. It does so for these reasons:

171. First, the effect of amendment to the definition of injury in 1992 was that a requirement that employment be a significant contributing factor to injury (in fact, to the contraction of disease or to the recurrence, aggravation, acceleration etc. of pre-existing injury or disease) was imposed in respect of paragraph (b) and (c) injuries. No other change was made. So, paragraph (a) injuries already had a particular causal requirement - see the s.5(1) definition of "industrial deafness" - which was not altered in 1992; whilst injuries in the primary sense were unaffected by the 1992 amendment.

174. If "injury" where used in s.82(1) is given its extended meaning (injury in that section meaning injury as defined) then:

* the requirement that employment be a significant contributing factor is repeated in the case of paragraph (b) and (c) injuries - those injuries having already passed that test; and

* if the requirement is to apply to injuries in the primary sense then a causal nexus with the employment is made obligatory not by amendment of the definition of injury - a definition which was amended in 1992 - but by amendment of the main operative provision of the Act; whilst, if the requirement is to apply to paragraph (a) injuries, then it is imposed not by amendment either of the definition of injury or the definition of industrial deafness, but by amendment of that operative provision - a new and additional causal requirement thus becoming obligatory.

179. To read the 1992 formula to apply to injuries in the primary sense, simply considering the several matters to which I have so far drawn attention, seems to me to involve a doubtful process of construction.

182. Second, consider s.5(1B). As I said earlier, the matters which are required to be considered in determining whether a worker's employment was a significant contributing factor to an injury have apparent relevance to injuries of paragraph (b) and (c) types (and perhaps also to injuries of paragraph (a) type). The subsection does not support a construction of the 1992 formula which would give it application to injuries in the primary sense, a fortiori cases of physical injury by external trauma.

185. Third, consider the fact that s.82(1) was not amended to delete, as a disjunctive entitlement to compensability of injury, injury caused to a worker in the course of his or her employment. If the 1992 formula be held to apply to injuries in the primary sense occurring in the course of a worker's employment, the concept of course of employment injuries - importing no causal connection with employment - would all but disappear. Not entirely so. There is a perceived difference between injury arising out of the employment and injury to which the employment is a contributing factor - a difference which should be considered to persist notwithstanding insertion of the adjective "significant". My observations in that connection in Popovski v Ericsson (Australia) Ltd. [1998] VSC 61 at [51]- [55], were unaffected by the fate of the appeal in that matter. They were supported to some extent by judgment of what Phillips JA said in Jordon (supra) at [10]. Their validity was not dismissed by the observations of Winneke P. in TGT Transport v Zammit [2000] VSCA 162 at [30]. They were referred to with approval by Mason P in Mercer v ANZ Banking Group Ltd (Court of Appeal, New South Wales, judgment 31 May 2000). Nonetheless, save in pretty exceptional cases the causal requirement imported by the phrase "arising out of the employment" and that imported by the requirement that employment be a significant contributing factor to injury will cover the same ground. If s.82(1) be construed to require that injuries in the primary sense satisfy the latter requirement, why let the disjunctive course of employment qualification of compensability remain? In passing, note also that s.83(1) was left in a form compatible with the retention of the disjunctive formulation of s.82(1) and (2).

188. Fourth, in my opinion in cannot be said that other 1992 amendments disclosed a clear working-out of legislative intent that injuries in the primary sense arising in the course of a worker's employment should not be compensable by reason of that circumstance alone.

191. So, ss.82(6) and 86 do not deal with injuries arising out of or in the course of employment. There the criterion of compensability is that injury or disease be due to the nature of employment. It may be said that the 1992 amendments to those sections were apparently intended to reinforce that particular criterion of compensability - although it is clear, regrettably, that the particular amendments were thoroughly confused. The problems posed by those amendments are not, however, presently relevant. The key point is that the ss. 82(6) and 86 amendments do not bear upon the present issue.

194. Then, as to s.135A(2)(a), little need be added to what I have already said. It confuses windows of compensability afforded by ss.82(1) and (6) and 86. I do not consider that it assists a conclusion favourable to the construction advanced for the respondents.

197. All in all, I am strongly of opinion that, at best for the respondents, consideration of s.82(1) in context leaves its true construction uncertain. I consider that the balance lies in favour of a construction that the 1992 formula refers only to paragraph (b) and (c) injuries. Does the Second Reading Speech assist one way or the other?

200. The Minister began by saying that the Bill altered the definition of injuries which were compensable under the Act. So it did - with respect to paragraph (b) and (c) injuries.

203. Then he said that to be compensable a worker's employment must now be a "significant" contributing factor to an injury or disease. I should have thought that this was, in context, plainly a reference to paragraph (b) and (c) injuries - the requirement that employment be a contributing factor to injury being upgraded to a requirement that employment be a "significant" contributing factor. The same notion appears from the Minister's reference to the definition being "tightened". That was plainly a reference to paragraph (b) and (c) injuries.

206. The Minister said that the word "significant" had been included in the definition of injury and elsewhere in the Act to emphasise the point that workplace injuries would be compensable only if there was a strong connection between work and injury. In fact, the word "significant" was only inserted (save in the definition of injury) on one occasion - in paragraph (b) of the definition of "medical question". On the other hand, the 1992 formula and other somewhat similar formulas were inserted into the various sections of the Act which I have identified. Putting that inaccuracy in the Minister's speech to one side, his reference to "workplace injuries" would be wide enough to embrace injuries in the primary sense. But I consider that it should not be understood so widely having regard to what preceded and what followed it.

209. According to the Minister, under WorkCare a worker only had to show that the workplace contributed in some way to the injury. This was not strong enough. The Minister's reference to "workplace" was misplaced. But, importantly, he was obviously referring to paragraph (b) and (c) injuries. That understanding colours what he said immediately thereafter.

212. Finally, the Minister said that for "an injury or disease" to be compensable the actual performance of a work function must be a significant cause of the injury or disease, not just that a worker's condition occurred, developed or worsened while the worker was in the workplace - for example, due to a degenerative condition. The reference to "injury or disease" was wide enough to include injuries in the primary sense. So also it might be said that, considered alone, the reference to it being insufficient that a condition occurred etc. while the worker was in the workplace was apt to address course of employment injuries. On the other hand, the emphasis in the passage just cited was the need for a "work function" to be a "significant cause" of injury or disease; and the references to "condition" and particularly "degenerative condition" were appropriate to paragraph (b) and (c) injuries.

215. All in all, I consider that the Second Reading Speech favours the construction advanced for the appellant - that is, that the disclosed purpose or object underlying the pertinent amendments was to ensure, in the case of paragraph (b) and (c) injuries, that compensability depended upon a worker's employment being a significant contributing factor thereto; but that it was not such a purpose or object to impose that requirement in the case of injuries in the primary sense. Consideration of the pertinent provisions and the Second Reading Speech thus leads to the conclusion that the 1992 formula should be construed to refer to those injuries. The same result would follow if the Wilson Tile Works principle was applied to the legislation, which in my opinion is evidently ambiguous.

218. The construction which I prefer means, of course, that the 1992 formula does no more than reinforce an outcome already dictated by amendment of the definition of injury. But even if I had accepted the construction advanced for the respondents the phrase would have had (in part) that effect.

221. It remains to say five things in the present connection. First, it is not really surprising that in the 1992 amendments the legislature focussed upon paragraph (b) and (c) injuries (and, discretely but confusedly s.82(6) injuries and s.86 diseases). For it will be infrequent, in the case of physical injury caused by external trauma, that the injury does not arise out of the employment, or that, in ordinary parlance, the employment is not a significant contributing factor to the occurrence of the injury; whilst McIntosh injuries are, as I earlier said, infrequently alleged - let alone established.

224. Second, in Zammit (supra) the Court of Appeal considered, though as obiter dicta, the interrelationship between ss.82(2) and 83(1) in their post 1992 form; and in doing so considered also the amendment to the definition of injury. The judgment of the learned President at [30] shows that the Court proposed a reconciliation of ss.82(2) and 83(1) which left what I have called the 1992 formula with some work to do. Its effect was, as the President said, that injuries "arising from underlying causes, such as aneurysm or heart attack etc. would still have to be shown to have a strong connection with the deemed employment". The proposed solution was perceived "to better promote the legislative intention, evinced by the amendments to the definition of injury, that it is only injuries emanating from underlying causes which should have to be shown to have a strong connection with the worker's employment". It is, I think, clear that the reference to "injuries emanating from underlying causes" was a reference to paragraph (b) and (c) injuries.

227. What was said in Zammit, obiter dicta or not, would not conclude the present matter. But it seems to me that the Court of Appeal's construction of the provisions which were there in issue favours the conclusion that I have reached.

230. Concerning Zammit I should finally note that judgment was delivered after I had reserved my judgment. I gave counsel the opportunity of making submissions concerning its impact upon this appeal. Counsel for the respondents submitted that the decision had no bearing on the determination of the appeal, that the remarks of Winneke P at [30] were not necessary to the decision, and that the respondents did not accept the approach to s. 83(1) proposed by the Court of Appeal. Counsel for the appellant, to the contrary, submitted - essentially by reference to passages that I have cited - that the learned President's observations assisted his client.

233. Third, in Popovski (supra), which was not a course of employment case and which unarguably required reference to paragraph (b) or (c) of the definition of injury, I observed, obiter, that "the possible operation of the added words in s.82(1) appears to be very limited". What I then said - see at [21] - could not be said to run counter to the conclusion that I have now reached upon full consideration of the matter.

236. Fourth, in Mercer (supra) the New South Wales Court of Appeal considered a provision which, though far removed from either s. 5(1B) or s. 82(1), was intended to have the effect that injuries were to be compensable only if they passed a "substantial contributing factor" test. The issue now before me did not in substance arise. It was common ground that the provision in question was a response to Zickar - that is, that it was intended to address at least some physical injuries in the primary sense.

239. Fifth, the conclusion that I have reached means that the appellant was entitled to an order in his favour. I should make such an order. Strictly it is unnecessary, then, to consider the second main question which was argued. But in case there is an appeal I should do so. Everything that I shall say in dealing with that question assumes that the 1992 formula does apply to a physical injuries arising in the course of a worker's employment. I shall not hereafter repeat that assumption.

243. It was permissible for the learned Magistrate to seek to ascertain the object or purpose of the pertinent 1992 amendments by referring to the Second Reading Speech. But it was important to construe the legislation - particularly what I have called the 1992 formula - according to its language.

246. His Worship concluded that the 1992 formula applied to injuries in the primary sense. So it became necessary for him to give meaning to the requirement that "the worker's employment" be a significant factor (to the injury).

249. His Worship correctly recognised, by reference to Hatzimanolis, supra, that employment consists of more than a worker performing his or her job (it is for that reason that the "course of employment" has been exposed to have a very broad reach).

252. His Worship next referred to Pandazis v. Champton Pty. Ltd. (County Court of Victoria, No. 9702973, judgment 20 November 1998). In that case, Judge Strong concluded that a worker had suffered injury whilst in the course of his employment. At the time of injury the plaintiff had been present at the employer's premises, waiting to be picked up at the end of a working day. The learned Judge held that this was an activity "incidental" to employment. For that reason, in the period that the plaintiff was so waiting, he was in the course of his employment.

255. But, his Honour queried, did the mere fact that the plaintiff had suffered traumatic injury in the course of his employment render the employment a significant contributing factor to the injury? The answer which he gave was this: Although mere presence at the place where injury occurs would usually be enough to sustain a conclusion that injury arose out of employment (and, implicitly, for that reason would satisfy the significant contributing factor test), in the instant case the "but for" test did not supply a sufficient connection. The Minister's Speech had revealed that injury must occur whilst the worker was performing a "work function". That was "an expression surely wide enough to involve practically any activity traditionally regarded as 'incidental' to employment". But mere presence at the workplace not involving a "work function" was insufficient. Not often would it be the case that a worker present at the workplace would not also be performing a function which was at least "incidental" to his or her employment in the traditional sense. But there must be a causal connection between the "work function" and the injury. In the instant case it was incidental to the worker's employment, and therefore within the course of his employment, that he was waiting at the employer's premises to be picked up. But he was injured when he reached over the boundary fence of the premises to examine a pile of rubbish and injured his hand. There was no sufficient connection between that worker being in the course of his employment at the critical time and his suffering injury. So the claim must fail.

"The language of the relevant Minister in the second reading speech (supra) clearly indicated that Parliament intended that all injuries of whatever kind were only to be compensable where the employment had been a significant factor in the injury. The additional words inserted by the 1992 Act must be taken into account, they do not happily sit with matters which are merely incidental to an employment unless at the time of injury some employment duty is being carried out. In these circumstances the 1992 amendments changed the generality of the meaning of incidental matters which occurred in the course of or arose out of employment, and added something further which must be established before an injured worker qualifies for compensation, namely a causative requirement of the employment being a significant contributing factor, that is to say the employment significantly contributed to the occurrence of the injury. The plaintiff's mere presence at the workplace is in my opinion insufficient to attract the operation of s.82(1), there must also be a causal connection between a work function and the injury sustained in order to find that his employment was a significant contributing factor. The plaintiff had brought into the workplace the Swiss army knife, it was not an implement provided by the employer, nor was it necessary in order to assist him in carrying out a work function. The manner in which he was cutting the apple was on the evidence inherently dangerous, the plaintiff had created a situation in which he could injure himself."

262. On the basis of that analysis his Worship found that the employment was not a significant contributing factor to the injury. He had, I should say, earlier mentioned s.5(1B) of the Act. But he did not explain its application (whether contributory or otherwise) to resolution of the claim.

265. According to the submission of senior counsel for the appellant the learned Magistrate wrongly imported a requirement that there be a causal connection between a "work function" and injury sustained. He equated a "work function" with "some employment duty". The notions of "work function" and "some employment duty" confined "employment" too narrowly. The error in part was attributable to his Worship interpreting the requirement that employment be a significant contributing factor to injury by focussing upon what the Minister had said - particularly the reference to "work function".

268. Senior counsel for the respondents submitted that the learned Magistrate's reference to "work function" in the passage that I have cited was shorthand for the concept of "work function" which Judge Strong had formulated in Pandazis and to which the learned Magistrate had earlier referred. To that formulation no objection could be taken.

271. It is not at all clear to me that the learned Magistrate, when referring to "work function" in the passage cited, was referring to the formulation adopted in Pandazis. The references in the passage cited to "some employment duty ... being carried out", and "carrying out a work function" suggest to me that his Worship did apply a more confined test than that formulated by the Judge. In that event, the formulation was too narrow, and the learned Magistrate misdirected himself. Injury can arise out of employment even though a worker is not at the time of injury performing a work function in the sense of carrying out an employment duty. That being so, it follows that employment could be a significant factor to injury even though a worker was not at the time of injury performing a work function so confined.

274. The problem arose, I think, because the learned Magistrate, in effect, treated s.82(1) as relevantly reading: "and if the actual performance of a work function was a significant contributing factor" in lieu of the words actually appearing. That led on to an examination of what "work function" comprehended; and about that the formulations of the learned judge in Pandazis and his Worship diverged.

277. The attempt to paraphrase the language of s. 82(1), then, resulted in it being given a faulty construction. Where does that lead?

280. Counsel for the appellant submitted, upon the learned Magistrate's findings, that his Worship could only have concluded that the worker's employment had been a significant contributing factor to the injury. Subject to consideration of that submission, in my opinion the matter would have to be remitted for reconsideration unless it could be said that the learned Magistrate was constrained to reach the ultimate conclusion that he did.

283. I do not agree with the submission for the appellant that I noted a moment ago. To accept that submission would really involve a conclusion that the concepts of injury arising in the course of the employment and injury to which the employment was a significant contributing factor were co-extensive in their operation. Favelle Mort (supra) shows - although the worker succeeded in that case - that such a conclusion ought not be reached (as to the circumstances which there made out the required contribution see Barwick CJ at 584, Mason J at 599 and [on a narrow conception of "the employment"] Jacobs J at 601). Upon the supposition, then, that the latter concept is made relevant by s. 82(1) to an injury in the primary sense arising in the course of a worker's employment, for the legislation to state that concept as a cumulative requirement would make no sense.

286. Moreover, the causal requirement established by the 1992 formula is similar to, but not identical with, the causal requirement established by the phrase "arising out of ... the employment". Under the law as it stood before the disjunctive "or" replaced the conjunctive "and" in the predecessor of s. 82(1) it was not the case that all injuries which were caused in the course of employment were injuries which arose out of the employment.

289. Counsel for the appellant submitted that it would be anomalous if a physical injury sustained during an activity in circumstances protected by s. 83(1) was compensable (see Zammit ), yet such an injury sustained during an activity occurring in the course of employment was not compensable. The court, counsel submitted, should construe the requirement imposed by the 1992 formula so as not to produce such an anomaly.

292. It may be conceded that different outcomes in the two postulated situations would be anomalous. But I do not agree that the content of the 1992 formula can be determined by the fact that, by a legislative quirk, such an anomaly is permitted.

295. It follows from what I have said that, in the case of injury to a worker arising in the course of the worker's employment, the required causal nexus with the employment is not established simply because the injury was sustained in the course of the employment. As to the content of the necessary employment nexus it is enough to say that in determining whether it has been satisfied in a particular case the boundaries of "the employment" in that case must be defined, and that it will then be helpful to consider whether the circumstances in which injury was sustained justify a conclusion - according to long-established principles (as to which see Hill and Bingeman, Principles of the law of Workers' Compensation, Chapter 4) - that injury arose out of the employment. That will not in every case provide the answer - because, as the authorities on balance suggest, the test imposed by the phrase "arising out of the employment" and the test imposed by what I have called the 1992 formula are not identical. Nonetheless, reference to the former test will provide a working basis upon which to determine the presence or absence of the required causal connection with employment in most cases.

298. It can be said that only infrequently in the case of physical injury caused by external trauma arising in the course of a worker's employment will the necessary causal element not be established. In cases of injury sustained on an employer's premises in the course of a meal break it is easy to conjecture circumstances in which a conclusion should be reached that the employment was a significant contributing factor to injury. In the present case, however, the question which arises is this: given the misdirection that I earlier identified, was the learned Magistrate nonetheless constrained to reach the conclusion that he did upon the findings that he made?

301. In my opinion the learned Magistrate, correctly directing himself, might well have concluded that the Appellant had failed to establish that the employment was a significant contributing factor to the injury. But I am unable to say that his Worship was bound to reach that conclusion.

304. So, if my conclusion concerning the first main question was incorrect, I would uphold the appellant's contention that the learned Magistrate misdirected himself as to the meaning of the 1992 formula. I would further conclude that, applying a correct test, he was not constrained to reach the conclusion that he did. In those circumstances it would be necessary, in my opinion, to remit the matter for redetermination.

308. Subject to anything that counsel might wish to submit, I shall make orders and give a direction in accordance with the following minutes. The direction arises out of my ruling on 2 May 2000.

1. Direct that, pursuant to R. 58.13 of Chapter 1 the following questions be considered and determined on the hearing of the appeal:

1. There having been caused to the appellant a 'physical injury' within the meaning of the definition of 'injury' found in s. 5(1) of the Accident Compensation Act 1985 (Reprint No.8), whether in the circumstances the learned Magistrate -

(a) misdirected himself in requiring an affirmative answer to the question 'whether his employment was a significant contributing factor' before the appellant could became entitled to compensation by reference to the provisions of s.82(1) of the Act?

(b) misdirected himself in accepting that 'Parliament intended that all injuries of whatever kind were only to be compensable where the employment had been a significant contributing factor in the injury', in that by reference to s. 82(1) of the Act Parliament showed no such intention in relation to the appellant's injury;

(c) erred in his construction of s. 82(1) of the Act, in that the Magistrate took account of an irrelevant consideration, namely, whether the employment was or was not a significant contributing factor;

(d) having found that the appellant's injury 'arose in the course of his employment', the learned Magistrate was bound to find that s. 82(1) conferred an entitlement to compensation upon the appellant.

2. Whether the learned Magistrate was bound to find that 'the employment was a significant contributing factor' in that Magistrate's findings led only to the result that employment was the sole contributing factor, alternatively a significant contributing factor.

3. Whether in the circumstances the learned Magistrate misdirected himself in determining that the appellant's 'mere presence at the workplace is in my opinion insufficient to attract the operation of s. 82(1), there must also be causal connection between a work function and the injury sustained in order to find that his employment was a significant contributing factor', in that if the Magistrate had not misdirected himself it is likely that the appellant's claim would not have been dismissed.

4. Whether the learned Magistrate misdirected himself in referring to and/or relying upon the language of the Minister in the Second Reading Speech -

(b) in interpreting and applying the provisions of the Accident Compensation Act 1985 as amended,

in that as a result the learned Magistrate misconstrued the provisions of s. 82(1) and misapplied those provisions in the circumstances of this case.

3. The final order of the Magistrates' Court made on 12 October 1999 be set aside. In lieu thereof order that defendants pay:

1. the reasonable costs of the medical and like services received by the plaintiff because of the injury;

4. Respondents pay appellant's costs of the appeal, including reserved costs.