SUBMISSIONS
20 Mr. Harrington for the appellant submitted that the Deputy President had made three errors of law.
21 First, her finding that the injury was in the course of employment on the ground discussed in Hatzimanolis, involving a real connection between the employment and the injury, was of itself sufficient to establish that the employment was a substantial contributing factor, at least unless there was some excluding factor such as misconduct by the employee. No such excluding factor was suggested here.
22 Second, Mr. Harrington submitted that the findings of primary fact by the Deputy President were such that the statutory requirement of substantial contribution, if correctly interpreted, must be satisfied: cf. Hope v. Bathurst City Council (1980) 144 CLR 1. In particular, he submitted that on those findings, the appellant was by reason of his employment exposed to greater risk of injury of the kind he suffered because he was residing, not in a secure house, but in a boat next to a public wharf, and because the circumstances of his work and residence were such as would encourage him to spend time away from the place of residence in places such as hotels. Mr. Harrington submitted that this was a stronger case of causation by employment than Hatzimanolis, or McCurry v. Lamb (1992) 8 NSWCCR 556 or Inverell Shire Council v. Lewis (1992) 8 NSWCCR 562.
23 Third, Mr. Harrington submitted that the primary judge was in error in holding that there needed to be a causal connection between the injury and active duties performed on behalf of the employer. He submitted that, where injury was from a cause external to the employment, the question of whether the worker was actually performing positive duties was irrelevant. He referred to Mercer v. ANZ Banking Group Ltd. (2000) 48 NSWLR 740. He submitted that work would have been less of a contributing factor than in the present case if an employee performing active duties in a factory environment were to be injured by a deranged non-employee coming onto the factory premises, because in that case the employment would not have increased the exposure to such a risk, as it did in the present case.
24 Finally, Mr. Harrington submitted that the Deputy President's reasons were inadequate.
25 For the respondent, Mr. Kearns SC submitted that s.9A, and especially s.9A(3), makes it clear that the question whether employment is a substantial contributing factor to the injury is a separate question from whether the injury is in the course of employment: cf. ICM Agriculture Pty. Limited v. Perry [2002] NSWCA 257 at [17].
26 Mr. Kearns submitted that "substantial" is an ordinary English word; and that the findings of fact by the Deputy President that the employment was a minor contributing factor and not a substantial contributing factor involved no error of law: see Dayton v. Coles Supermarkets Pty. Limited [2001] NSWCA 153 at [16] and [29].
27 Mr. Kearns submitted that the ratio of Mercer appears at par.[35] of that decision as follows:
I now return to the critical passage in the judgment under appeal. It is set out at [8] above. In my view, this betrays legal error because the absence of "employment characteristics" in the precise activity that led to the injury was treated as determinative. This is made clear by the concluding sentences (at 274):
"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."
28 That is, the ratio was that it was wrong to treat the absence of "employment characteristics" in the precise activity that led to the injury as being determinative, rather than merely a factor to be taken into account. What was important was the overall extent of the causal link: see also Mercer at [27].
29 On the Notice of Contention point, Mr. Kearns submitted that the Deputy President made an error of law in the second-last dot point of the paragraph quoted in that she did not address the question required to be addressed by Hatzimanolis, namely, given that the injury occurred in an interval or interlude occurring within an overall period of employment, had the employer expressly or impliedly induced or encouraged the worker to spend the interval at a particular place or in a particular way: cf. TGT Transport v. Zammit [2000] VSCA 162 at [37] to [38]. Here, it could not be said that the employer induced or encouraged the worker to go to a hotel, to there become involved in an argument and a fist fight with the assailant, and later to go onto the wharf to continue his dealings with the assailant.
30 In reply, Mr. Harrington submitted that, although "substantial" was an ordinary English word, construction of the provision still required appreciation of legal issues relevant to that construction.
31 On the Notice of Contention, he submitted that the employer undoubtedly induced or encouraged the appellant to live on the boat, and the other events were reasonably incidental to these circumstances, as had been the case in Lamb and Lewis. In the former case, a worker was shot while in bed with a female employee in lodgings provided by the employer; and in the latter case, the worker was shot when attending a social activity in a caravan park, away from the caravan in which the worker was residing pursuant to arrangements made by the employer.