MERCER v ANZ BANKING GROUP

COUNSEL : Appellant: A J Katzmann SC/B G McManamey Respondent: J E Maconachie QC/P L Perry SOLICITORS : Appellant: Stacks Respondent: Hickson Wisewoulds CATCHWORDS : Workers compensation - injury occurring in the course of or arising out of employment - employment as a substantial contributing factor to the injury - probability that a similar injury would have happened anyway - Workers Compensation Act 1987 s9A - remote or tenuous connection between employment and injury - definition of "injury" - absence of employment characteristics in the injury - interpretation of "substantial". (D) LEGISLATION CITED : Workers Compensation Act 1987 DECISION : Appeal allowed - award set aside - proceedings remitted for further hearing

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40024/99

MASON P MEAGHER JA BEAZLEY JA

The appellant worker suffered injury in 1997 in the course of her employment as a bank teller. She was attending to a customer and went to a desk to get some sticky tape. She reached out to the left and suddenly felt extreme pain in her left knee and fell to the ground. She had twisted, rotating her knee and she suffered a lateral dislocation of the left patella. She returned to normal work duties almost a month later, but suffered ongoing pain and limited movement in playing sports.

The worker's claim for compensation failed because, despite the injury occurring in the course of employment, the employment concerned was held not to be a substantial contributing factor to the injury. The trial judge at the Compensation Court applied s9A of the Workers Compensation Act 1987 (the Act), a provision which applies to work injuries received on or after 12 January 1997.

Section 9A provides: (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.

(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 of or in the course of, or arose both out of and in the course of, the worker's employment, The trial judge found that while the applicant's injury arose in the course of her employment, the precise activity she was carrying out was one that could have occurred anywhere else. It was not an activity with any employment characteristics about it. The appellant also had an existing constitutional abnormality making such a fall more likely. The mere fact that the applicant suffered the injury at work was not sufficient in itself to make the employment a substantial contributing factor to in the injury. It was more a coincidence that a contribution.

HELD, (by Mason P, Meagher JA and Beazley JA) allowing the appeal with costs and remitting the proceedings for further hearing in the Compensation Court:

The trial judge erred in holding that "a substantial contributing factor" is as stringent a concept as that of "arising out of" the employment. It is possible to envisage situations in which injury might not satisfy the former test yet would satisfy the latter test.

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.

Maher v Brambles Australia Ltd (1998) 17 NSWCCR 334 (Neilson CCJ) (referred); Stanton-Cook v TAFE Commission (NSW) 17 NSWCCR 335 (Neilson CCJ) (referred); Sip v Denerton Pty Ltd unreported, 4 June 1999 (Walker CCJ) (referred); Harpur v State Rail Authority unreported, 24 January 2000 (Burke CCJ); Dayton v Coles Supermarkets Pty Ltd unreported, 29 March 2000 (Burke CCJ); Stewart v NSW Police Service (1998) 17 NSWCCR 202 (Neilson CCJ) (referred); Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (referred); Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 (referred); Favelle Mort Ltd v Murray (1976) 133 CLR 580 (followed); Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 (referred); Wong v Silkfield Pty Ltd (1999) 73 ALJR 1427 (referred); University of Tasmania v Cane (1994) 4 Tas R 156 (referred); Thom v Sinclair [1917] AC 127 (distinguished); Craske v Wigan [1909] 2 KB 635 (distinguished); Plumb v Cobden Flour Mills Co Ltd [1914] AC 62 (distinguished); Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 (considered).

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40024/99

MASON P MEAGHER JA BEAZLEY JA

KAREN ELIZABETH MERCER v ANZ BANKING GROUP LIMITED JUDGMENT

1 MASON P: A worker's claim for compensation failed because, despite the injury occurring in the course of employment, the employment concerned with the injury was held not to be a substantial contributing factor to the injury (Mercer v ANZ Banking Group Ltd (1998) 17 NSWCCR 264). Bishop CCJ applied s9A of the Workers Compensation Act 1987 (the Act), a provision which applies to work injuries received on or after 12 January 1997. 2 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):

(b) the nature of the work performed and the particular tasks of that work,

(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. 3 Section 9A has been considered on a number of occasions in the Compensation Court (see, eg Maher v Brambles Australia Ltd (1998) 17 NSWCCR 334 (Neilson CCJ), Stanton-Cook v TAFE Commission (NSW) 17 NSWCCR 632 (Neilson CCJ), Sip v Denerton Pty Ltd unreported, 4 June 1999 (Walker CCJ); Harpur v State Rail Authority unreported, 24 January 2000 (Burke CCJ); Dayton v Coles Supermarkets Pty Ltd unreported, 29 March 2000 (Burke CCJ). Assistance may also be derived from judicial discussion of the expression "a substantial cause" in (the then) s11A(1)(a) of the Act, a provision inserted at the same time as s9A (see eg Stewart v NSW Police Service (1998) 17 NSWCCR 202 (Neilson CCJ)). These decisions reveal differing views about these provisions. This appears to be the first occasion that the matter has come to this Court. 4 The appellant worker, who was born in 1964, suffered injury on 28 April 1997 in the course of her employment as a bank teller. She was attending to a customer and went to her supervisor's desk to get some sticky tape. She reached out to the left and suddenly felt extreme pain in her left knee and fell to the ground. She had twisted, rotating her knee and she suffered a lateral dislocation of the left patella. 5 An ambulance was called and the worker was taken to hospital where the knee was manipulated under anaesthetic. She was given a brace and physiotherapy. She returned to normal work duties almost a month later. On her return to work she still had pain but there was gradual improvement. The knee now sometimes gets sore after exercise and in cold weather. She can still play sports such as touch football and tennis, but she finds quick changes of direction a problem because she feels that her knee may give way. There has, however, been no subsequent dislocation. 6 The learned trial judge found the facts of the work injury as I have summarised them. He also implicitly accepted the worker's evidence that there was nothing material in her prior health save for the fact that in about 1977 she suffered an injury to her left knee while playing netball. The patella had been dislocated and was reduced by the attending ambulance officer. The symptoms went away after a few weeks and the appellant resumed normal school and sporting activities. 7 The medical evidence was noted and, in a section headed Factual Findings, his Honour held (at 268-9): 15. Firstly it is established that the applicant has a constitutional abnormality in her left knee and probably in her right as well. The observations of Drs Hopcroft, Drew and Opie lead to this conclusion together with the appellant's own evidence of the excessive mobility of her right patella which she had noted in the past compared to her left. I accept the evidence in the medical material that the nature of this constitutional abnormality was such as to predispose the applicant's left knee at least to dislocation. 16. Secondly I find that the applicant's movement in reaching over the desk to pick up the sticky tape was a routine type of movement which did not have any specific traumatic or atypical features related to it. The applicant's own description was outlined above. This was that her legs were against the side of the table and she slightly twisted her hips and upper body as she reached for the article. Such an account is more consistent with the history recorded by Dr Drew referred to above and his comment that the dislocation occurred without any particular provocation. Dr Davis' assessment of a rotational stress with the knee semi-flexed does not seem established on the evidence. A degree of rotation must have occurred but on balance it was a routine type of activity. 8 I pass over his Honour's discussion of the legal principles at this stage. The judgment concluded (at 274): 32. There is no doubt that the applicant received personal injury in the course of her employment within the meaning of s4. 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 in 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. There must accordingly be an award for the respondent.

9 The respondent accepts that the worker suffered a personal injury in the course of her employment and that the employment contributed to that injury. However, the respondent contends that the connection was not "substantial" within s9A. More particularly, it is submitted that the trial judge's conclusion to that effect betrays no error of law and is therefore beyond correction in this Court. This appeal is relevantly limited to a point of law (Compensation Court Act 1984, s32).

Some common ground 10 Section 9A was introduced to modify the effect of Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310. 11 In Zickar, the High Court held that a worker who collapsed at work after the rupture of a cerebral aneurism had suffered a "personal injury" (within the definition in s4 of the Act) in the course of employment notwithstanding that the aneurism was a congenital weakness. It was not necessary to show that the injury arose "out of" employment. 12 The Bill containing what became s9A was described by the Attorney General and Minister for Industrial Relations in his Second Reading speech as a Bill 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 pp6509-6510)

13 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 Co Pty Ltd v Semlitch (1964) 110 CLR 626 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.

The construction of s9A 14 Section 9A cannot be confined, as the appellant somewhat faintly submitted, to cases of disease. It extends, in terms, to "injury" which is defined in s4 to include personal injury arising out of or in the course of employment. Zickar itself was a case involving personal injury, albeit internal. 15 Section 9A itself casts considerable light upon its own scope. Thus, subs (2) offers non-exhaustive examples of matters capable of being taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury. Subsection (3) mentions two matters that are not determinative. And subs (4) excludes journey claims (s10), recess claims (s11) and claims by trade union representatives (s12). 16 There may be more than one substantial contributing factor to a single injury. Section 9A(1) speaks of "a substantial contributing factor" and not "the substantial contributing factor" . 17 The word "substantial" qualifies "contributing factor", thereby indicating that it is the strength of the causal linkage that is in question.

Various submissions considered and rejected 18 The appellant submits that Bishop CCJ applied the wrong test for determining whether the injury was one to which the employment concerned was a substantial contributing factor. The appellant also submits that his Honour had regard to matters that were irrelevant and failed to have regard to matters that were relevant. These general submissions were developed in the more particular ones that are about to be addressed. 19 The appellant cites Federal Broom Co Pty Ltd v Semlitch. There Kitto J (with whom Taylor and Owen JJ agreed) was critical of an aspect of the reasoning of Else-Mitchell J in the court below where his Honour had treated the word "employment" in the definition of "injury" (at 632) : as something distinct both from the fact of the employment of the worker and from any consequence of the employment and confine[d] it … to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work.

20 In the same case, Windeyer J said (at 641): I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. 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. 21 The appellant submits that Bishop CCJ erred when he cited and applied the passage in the judgment of Windeyer J as distinct from that of the judgment of Kitto J. I confess that I see no difference of substance between the two judgments on this point. Each of their Honours was accepting that what Kitto J described as "the inherent features or essential incidents of the employment" was relevant, employment in this context being a reference to the worker's actual contract of employment. But the thrust of the two passages was to emphasize that "employment" in the context extended to what the worker was in fact doing in his or her employment. 22 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. 23 Bishop CCJ did not err in this regard. He clearly understood that the event which caused the injury was an act done in the worker's employment and he held that the injury was itself suffered in the course of the worker's employment within the meaning of s4. 24 The appellant further submits that Bishop CCJ erred in his understanding of the concept of "a substantial contributing factor to the injury". It is submitted that he erred in his statement that "the mere fact that the applicant did what she did when she did … is not sufficient of itself to make the employment a substantial contributing factor to the injury". This is said to overlook the guidance in various judgments in Favelle Mort Ltd v Murray (1976) 133 CLR 580. 25 The provision in question in Favelle Mort was the definition of "injury" in s6 of the Workers' Compensation Act 1926 which included "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". There is 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 s9A, with the additional guidance to be found in subsections (2) and (3) of that section. 26 The term "substantial" may have various shades of meaning. Having regard to the context, it may mean "large or weighty" or "real or of substance as distinct from ephemeral or nominal" (Tillmanns Butchery Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 348 per Deane J; Wong v Silkfield Pty Ltd (1999) 73 ALJR 1427 at [27]). 27 Here the word "substantial" qualifies "contributing factor". Obviously it is the extent of the causal link which is at issue. Judge Bishop recognised this. At par 29 of his judgment he held that the meaning to be adopted was that "substantial" meant "more than minimal, large or great". In my view this was the correct approach, remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be "the" substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane (1994) 4 Tas R 156). 28 This interpretation of "substantial" accords with the Attorney General's Second Reading speech set out above (par 12). 29 The appellant submits that whether or not the activity causing injury can occur outside the workplace is an irrelevant consideration. I disagree. Section 9A(2) requires the Court to take into account 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 (par (d)). 30 The appellant also submits that the trial judge erred in failing to take into account a relevant consideration, namely the lack of symptoms in the knee for 20 years before the injury. There is no merit in this proposition. The injury is referred to. Its possible capacity to predispose the worker to risk of further injury was not overlooked. A substantial contributing factor is not equivalent to an injury arising out of employment 31 As indicated above, it was relevant for his Honour to have recorded (par 8, above) 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 s9A(2)(d). However, nothing in s9A 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 (at [31]) that the addition of the word "substantial" to "contributing factor" in s9A, 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. 33 This, in effect, was the view taken by Ashley J of the Supreme Court of Victoria in Popovski v Ericsson Australia Pty Ltd [1998] VSC 61 in construing s82(1) of the Accident Compensation Act 1985 (Vic), which gives a right of compensation to a worker caused "an injury arising out of or in the course of any employment and if the worker's employment was a significant contributing factor" . His Honour said: [51] I turn to the precise question which was determined in Favelle Mort v Murray - 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 v Murray . [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 v Murray 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.

34 In the present case Bishop CCJ agreed with the first two propositions, but disagreed with the third. It will be apparent that I am of a different view. 35 I now return to the critical passage in the judgment under appeal. It is set out at par 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: The mere fact that the applicant did what she did when she did it is not sufficient in 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.

36 The award in favour of the respondent must be set aside and the proceedings remitted to the Compensation Court for further determination. 37 It may be thought that this construction of s9A leaves a broad area within which the personal judgment of the individual judge as to what is "substantial" may be determinative. So be it, if the legislation uses this language. In Tillmanns, Deane J pointed out (at 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 work 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….

38 I propose the following orders: 1. Appeal allowed.

2. Set aside the award in favour of the respondent made on 15 December 1998. 3. Remit the proceedings for further hearing in the Compensation Court. 4. Respondent to pay appellant's costs of the appeal and to have a Certificate under the Suitors' Fund Act if qualified. 39 MEAGHER JA: I agree with Mason P. 40 BEAZLEY JA: I agree with Mason P.

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