JUDGMENT OF: His Honour Deputy President Judge Calligeros

Rejection of a claim for compensation - The worker became ill after eating food he had brought to work from his home during an authorised break - The worker told his manager he was feeling unwell - After some time had passed the manager told the worker he would take him to receive medical attention - Whilst walking down some stairs to go to the manager's car the worker lost consciousness, fell and fractured his C1 vertebra - The parties disagree about whether employment was a significant contributing cause of the injury - HELD: The injury arose in the course of employment and employment was a significant contributing cause of the injury - The symptoms that caused the applicant to lose consciousness and being on the stairs at that time are both significant contributing causes of the injury - Employment does not need to be the only significant contributing cause of an injury or the most significant contributing cause of an injury - The stairs are a characteristic feature of the place of employment and played a causally significant role in causing the C1 fracture.

Stewart v Metropolitan Water, Sewerage and Drainage Board [1932] HCA 45; (1932) 48 CLR 216

Simpson v London, Midland and Scottish Railway Company (1931) AC 351

Lawrence v George Matthews (1924) Ltd (1929) 1 KB 1

Smith v Australian Woollen Mills Ltd [1933] HCA 60; (1933) 50 CLR 504 Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316

Comcare v Canute [2005] FCAFC 262

Comcare v Sahu-Khan [2007] FCA 15

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323

Epple v Comcare [1996] AATA 178

The State of South Australia v Roberts [2018] SASCFC 25

Lander v British United Shoe Machinery Co. (1933) 149 LT 395

Lancashire and Yorkshire Railway Co. v Highley [1917] UKHL 509; (1917) AC 352

Upton v Great Central Railway Co. (1924) AC 302

Brooker v Thomas Borthwick & Sons (Aus.) Ltd. (1933) AC 669

Ward v State of SA (Department for Primary Industries and Regions SA (PIRSA)) [2016] SAET 28

1. Jamey Sorn, the applicant in this proceeding, is employed by Hardkou Pty Ltd trading as Subway Meats. Mr Sorn sustained a broken neck at work in unusual circumstances. Soon after eating some food during an authorised break, Mr Sorn began to feel unwell. He told Mr Markou, a director of the employer and the person he reported to, that he felt unwell. Mr Markou decided to take Mr Sorn to the doctor. Whilst walking down some stairs to get to Mr Markou's car, Mr Sorn passed out, fell down the stairs and fractured his C1 vertebra (the injury). Mr Sorn's claim for compensation has been rejected by the respondent and he seeks review of that decision.
2. Given the seriousness of the injury, Mr Sorn has made a good recovery. He has returned to work on full-time alternate duties. The employer kept paying Mr Sorn sick leave after his entitlement was exhausted and for the duration of Mr Sorn's absence from work. Mr Sorn has gratefully acknowledged the support and assistance given to him by the employer. Mr Sorn and Mr Markou have a very good working relationship.
3. The basis for the rejection of the claim, and the issue between Mr Sorn and the respondent compensating authority, is whether employment was a significant contributing cause of the injury as required by s 7(2)(a) of the Return to Work Act 2014 (RTW Act).

1. Mr Sorn commenced working for the employer 7 years ago as a process worker. He was promoted and is now a production supervisor. He commences his working day at 3:30am and finishes at about 12:30pm.
2. On 6 February 2024 Mr Sorn attended his place of employment and went about performing his normal work duties. At about 8:15am whilst on a designated break, he ate some rice, eggs and fish cakes that his mother had cooked. Soon afterwards he began to feel itchiness all over his body. His face and ears felt like they were swelling. He went to the bathroom and noticed that his face was red and puffy. His brother, who also works for the employer, told Mr Sorn that he looked unwell.
3. After talking with his brother, Mr Sorn went up some stairs to tell Mr Markou that he was feeling unwell. Mr Markou's office is on the first floor of the premises in which Mr Sorn works. Mr Sorn said he saw Mr Markou about one hour after he commenced feeling unwell but later agreed it was more like 30 minutes based on a medical note. Mr Markou said he did not think Mr Sorn looked too bad but suggested that he sit down in the lunchroom, which was also upstairs, to see if his symptoms improved. Whilst he was in the lunchroom, another worker gave Mr Sorn an antihistamine tablet. After taking the tablet, Mr Sorn felt worse and started to feel faint. Mr Markou came to see how Mr Sorn was feeling. Mr Sorn said he was no better. Mr Markou said he would take him to a doctor.
4. Whilst the employer has filed a Notice to be Heard and Mr Markou has provided an affidavit, the employer did not wish to participate in the hearing. Mr Markou made himself available for cross-examination in relation to his affidavit at the request of Mr Sorn and the respondent.
5. Mr Sorn asserted in his affidavit that Mr Markou told him to go downstairs and he would meet him there. Mr Markou disagreed. Mr Sorn modified his affidavit at the outset of the hearing to withdraw that assertion.
6. Mr Markou deposed that he told Mr Sorn to wait for him while he shut down his computer and fetched his car keys because he intended for Mr Sorn to remain where he was so he could be accompanied down the stairs.
7. In oral evidence Mr Sorn said he did not believe that Mr Markou told him to not go down the stairs or to remain where he was when Mr Markou went to shut down his computer and get his keys. In cross-examination Mr Sorn said it was possible that Mr Markou did say those things to him.
8. In cross-examination, Mr Markou estimated that he saw Mr Sorn again some 10 to 20 minutes after he first suggested to Mr Sorn to sit down in the lunchroom. He said that Mr Sorn's face looked less swollen than it had earlier, but Mr Sorn had become very pale. The following exchange about what preceded the fall took place in cross-examination:[1]

MR WARREN: What I want to suggest is that you didn't expressly tell Mr Sorn to wait where he was.

WITNESS: I did. I told him, "Just wait one sec, and I'll get my stuff, and we'll go."

MR WARREN: You didn't tell him to wait where he was standing though?

WITNESS: I didn't tell him, no, "Don't move an inch," or anything like that. I just said, "Look, mate. Just wait one second. I'll go get my stuff, and we'll go."

MR WARREN: And you didn't tell him not to go down the stairs did you expressly?

WITNESS: No.

MR WARREN: And at some stage he was going to have to go down the stairs, wasn't he?

WITNESS: With me, because he wasn't looking good, I thought, "I'll go walk him down the stairs. We'll go in the car together."

MR WARREN: But you didn't expressly tell him that you'd walk him down the stairs, did you?

WITNESS: No.

MR WARREN: And you didn't expressly tell him, as I said, that he wasn't to use the stairs without you?

WITNESS: Correct.

MR WARREN: And you didn't expressly tell him that he was to wait where he was standing?

WITNESS: Correct.

MR WARREN: What you said was, "Wait a second, and I'll take you to the doctor"?

WITNESS: That's right.

MR WARREN: And you didn't expressly go on to give him an explanation as to why he should wait?

WITNESS: No.

MR WARREN: In terms of getting keys or computers, did you?

WITNESS: No. I just said, "I'll get my stuff, and we'll go."

MR WARREN: But you didn't specifically say, "I'll turn my computer off," for example, did you?

WITNESS: I can't recall whether I said I'd turn my computer off, but I do remember saying, "Look, let me just get my stuff, and we'll go."

MR WARREN: And it was no surprise to you that when you looked up that he'd moved off, was it?

WITNESS: It was. So what happened was, because I had my back turned to get my bits and pieces, and then I heard a noise and I turned around, and I thought, "Where the fuck is Jamey?" And then it was that point that I thought, "Oh, shit, I hope it's not what I think it is."

MR WARREN: But in terms of that surprise, it wasn't because you'd expressly asked him to say where he was and he was defying a direction of yours, was it?

WITNESS: No, it wasn't that I gave him a direction, but it just - I had made the assumption that when I said just wait for me, you know, and I'll get my stuff, that he'd actually just wait where he was rather than wait anywhere else.

MR WARREN: So you didn't witness whatever happened.

WITNESS: No.

1. Mr Markou explained that part of Mr Sorn's fall was captured on closed circuit television. Mr Markou did not see the fall himself, but he heard it. He said the CCTV footage showed Mr Sorn start to wobble and then fall down the stairs. Mr Markou said that the stairs were metal and there were nine steps from the landing Mr Sorn fell from to the ground floor. Mr Sorn put the vertical distance of the fall at 1.5 metres while Mr Markou said it was 1.8 metres. Mr Markou said that the horizontal distance from the landing to the ground floor was about 2.5 metres or perhaps a bit more.
2. Mr Paul Carney, neurosurgeon, provided a report in which he stated:[2]

I am not clear as to the legal definitions of work caused but I consider it can be stated with confidence that had this episode occurred in a location not at the top of a staircase, he probably would have suffered minimal if any injury. His injuries are a consequence of his falling down the stairs at work.

...

A fall down 9 steel steps is capable of causing the reported C1 spinal fracture. Whilst it can be asserted that he might have suffered the loss of consciousness elsewhere due to his food allergy, this would not have resulted in this injury had he not been standing at the top of a flight of steel stairs at work, and apparently unassisted.

...

However, I consider it incontrovertible that he would not have suffered a C1 fracture had he not been at work at the top of a flight of steps, it is not his food allergy or loss of consciousness which caused this injury, but the fall down the steps.

1. Mr Carney was not cross-examined by the respondent.

1. Relevantly to this matter, s 7 of the RTW Act provides:

(1) This Act applies to an injury if (and only if) it arises from employment.

(2) Subject to this section, an injury arises from employment if -

(a) in the case of a physical injury - the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury; and ...

(5) For the purposes of this Act, a worker's employment includes -

(a) attendance at the worker's place of employment on a working day but before the day's work begins in order to prepare, or be ready, for work; and

(b) attendance at the worker's place of employment during an authorised break from work; and

(c) attendance at the worker's place of employment but after work ends for the day while the worker is preparing to leave, or in the process of leaving, the place; and

(d) attendance at an educational institution under the terms of an apprenticeship or other legal obligation, or at the employer's request or with the employer's approval; and

(e) attendance at a place to receive a medical service, to obtain a medical report or certificate (or to be examined for the purpose), to receive recovery/return to work services or for the purposes of a recovery/return to work plan, or to apply for, or receive, compensation for a work injury.

1. Mr Warren KC submitted that Mr Sorn was a reliable witness whose account should be accepted. He added that Mr Markou was also a reliable witness and the only difference between their accounts was the words that were spoken just prior to Mr Markou gathering his belongings before taking Mr Sorn to see a doctor. In relation to whatever other purpose may have attached to going down the stairs, Mr Warren submitted that Mr Sorn had to descend the stairs to get to Mr Markou's car.
2. Mr Warren submitted it was clear that Mr Sorn's injury arose out of or in the course of employment. He commented that while only one of the two limbs of arising from employment needs to be satisfied, the causal and the temporal limb are both satisfied by these facts. He then addressed whether employment was a significant contributing cause of the injury.
3. Mr Warren submitted that in telling Mr Sorn he would take him to see a doctor, Mr Markou had authorised a break in employment in the sense contemplated by s 7(5)(b) of the RTW Act after the authorised break in which Mr Sorn consumed food.
4. Mr Warren referred to the following passage in Stewart v Metropolitan Water, Sewerage and Drainage Board:[3]

It seems to us that Simpson's Case[4] is a strong authority in favour of the appellant. The accident was "unexplained," and yet, as Lord Tomlin pointed out,[5] "where the evidence establishes that in the course of his employment the workman was properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment." ...What is really the same principle is stated by Russell L.J. in Lawrence v. George Matthews (1924) Ltd.[6] as follows: - "Sufficient causal relation or causal connection between the accident and the employment is established if the man's employment brought him to the particular spot where the accident occurred, and the spot in fact turns out to be a dangerous spot. If such a locality risk is established, then the accident 'arises out of' the employment, even though the risk which caused the accident was neither necessarily incident to the performance of the man's work, nor one to which he was abnormally subjected."

We think that some confusion has been caused by a misunderstanding of Lord Justice Russell's phrase "if the man's employment brought him to the particular spot." This cannot mean that there has to exist any special duty to be at the particular place of the accident...

1. Mr Warren submitted that employment took Mr Sorn to a place that was dangerous in light of him losing consciousness. In analysing Stewart and the English cases referred to by it, Mr Warren said:[7]

So the reference there is to a place to which some risk particular thereto attaches and proof of the character of the place is often afforded by the occurrence of the accident. The place turns out to be a place of special danger when one considers all of the facts and circumstances... in that particular case there was a risk of the explosion of the kerosene stove in use and that risk was borne by those who were close to the stove. Here we say there's a particular risk to a person who is feeling faint or unwell, and it's borne by the person who is so feeling at the top of the stairs.

1. Next Mr Warren referred to Smith v Australian Woollen Mills Ltd,[8] a case where the worker had a diabetic episode at work, fainted and fractured two ribs when he fell on an iron guard rail that surrounded the edge of the platform he was working on, beyond which machines operated. The High Court held that the injury arose from employment and placed emphasis upon the worker falling against a physical object at work. Mr Warren also made reference to a number of authorities cited in Smith.
2. Given the facts and given Mr Carney's opinion, Mr Warren submitted that the stairs were a characteristic of the workplace and were a primary cause of the injury, acknowledging that the food allergy and the episode of fainting were also causative. The presence of other causes did not prevent employment, and the stairs in particular, from being a significant contributing cause of the injury.
3. Mr d'Assumpção, counsel for the Corporation, submitted that the "significant contributing cause" requirement in s 7(2)(a) is highly fact-dependant and took issue with areas of disagreement between witnesses and records such as the SA Ambulance Service patient clinical record, the Royal Adelaide Hospital (RAH) visit record and discharge summary and the records of Dr Asad who saw Mr Sorn 21 days after the fall.
4. It was submitted by Mr d'Assumpção there were reasons other than being taken to see a doctor that explained why Mr Sorn went downstairs, one of which was to wash his face, as mentioned in a medical note. Regardless of that, it was said there is a high degree of uncertainty about what Mr Sorn was doing at the time of the fall, and the connection between employment and the fall.
5. It was also submitted by Mr d'Assumpção there is a difference between reporting to an employer to seek leave from continuing to perform employment duties because of sickness and reporting to an employer because a worker might need some instruction or require some input. This case was said to fall in the former category.
6. Mr d'Assumpção submitted that the significant contributing cause test is an additional casual requirement to the requirement that an injury must arise from employment. He said the word "significant" imports a stringent causal requirement, that is a requirement that is "at the upper end" of such requirements.[9] Reference was made to Federal Broom Co Pty Ltd v Semlitch,[10] where Windeyer J said:[11]

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.

1. Mr d'Assumpção cited three Federal Court decisions.
2. In Treloar v Australian Telecommunications Commission,[12] the Full Federal Court unanimously held that the exposure of a postal worker to sunlight in the course of his employment was a "contributing factor to the contraction of the disease" in issue, which was a malignant melanoma. The Full Federal Court observed that there was no requirement that the contribution be causally significant or material as the Judge below had found. The Full Federal Court referred to Semlitch, which concerned NSW legislation that was in the same terms as the legislation in issue in Treloar. The Court said of Windeyer J's judgment:[13]

Again, it may be observed that, in this consideration of the relevant wording of the section, his Honour, like Kitto J, did not find it necessary to characterise "the contributing factor" in any way such as to require that it be "material" or "significant", "effective" or the like. Indeed his Honour said (at p643):

"Law when concerned with fixing responsibility

upon persons often seeks for the 'effective cause' or the 'proximate cause' of an event. But here all the statute requires is 'a contributing factor'."

1. In Treloar the Full Federal Court said this about the condition imposed by the Judge below:[14]

The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.

1. In Comcare v Canute,[15] the Full Federal Court considered whether a consequential injury should be treated as an impairment created by the initial injury, or as a separate and discrete injury. The majority, French and Stone JJ, referred to that passage from Treloar immediately above and to a Second Reading Speech of the Commonwealth House of Representatives in relation to an amendment to the legislation in issue in Canute which required employment to contribute "in a material degree" to the contraction of a disease.[16]
2. Comcare v Sahu-Khan[17] concerns whether employment contributed to or aggravated a bilateral shoulder condition "in a material degree". Of that requirement, Finn J said:[18]

The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of "disease" in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word "material" imposes an "evaluative threshold" below which a causal connection may be disregarded.

What is problematic is identifying where that threshold lies. Treloar's case set its own threshold of sorts for satisfying the 1971 Act's "contributing factor" requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as "material": see eg Repatriation Commission v Bendy [1989] FCA 170; (1989) 10 AAR 323 at 325. That usage is not how the term "material" in the phrase "in a material degree" is used in the SRC Act. The legislative history of this definition makes this plain.

1. Mr d'Assumpção also referred to Epple v Comcare,[19] a decision of the Administrative Appeals Tribunal. The worker claimed compensation for breaking a tooth whilst eating peanuts at work. The Full Tribunal referred to Treloar and said the following:[20]

... It could not be said that Mr Epple was at work exposed to a state of affairs to which he would otherwise not have been exposed, as the applicant in Treloar (supra) had been. There was no condition in which the applicant's work was to be performed which created an exposure contributing to the fracture of his tooth. Eating peanuts could not be said to have added anything to the performance of Mr Epple's duties. The causal connection between eating peanuts, work and a breakage of Mr Epple's tooth could not be established even taking the current wide beneficial view of what material contribution means.

1. The respondent accepts that the injury arose in the course of employment.
2. I find that Mr Sorn suffered an allergic reaction or food poisoning after eating food at his workplace on 6 February 2024. The sequence of events suggests that is probably what occurred. If there is another explanation for the symptoms, it does not matter because there is no evidence of the symptoms being caused by, or in any way related to, Mr Sorn's employment.
3. Mr Sorn and Mr Markou were both honest and reliable witnesses. I accept the evidence of each of them because there is no material conflict between their accounts. Mr Sorn withdrew an assertion that Mr Markou told him to go down the stairs and wait for him. In cross-examination Mr Markou agreed that while he told Mr Sorn to 'hang around' while he gathered things from his office and intended that Mr Sorn wait for him before going down the stairs, he did not tell Mr Sorn not to walk down the stairs or to wait for him to return. It should be remembered that Mr Sorn was feeling very unwell so it is not surprising that he may not have understood what Mr Markou had intended.
4. I am not persuaded that the medical records relied upon by the respondent contradict Mr Sorn's account in any material way. The RAH entire visit record talks of Mr Sorn resting for 10 minutes and then going downstairs to the toilet to wash his face. Mr Sorn gave that history after the trauma of fainting and breaking his neck. It is not surprising that he may not have mentioned that the main reason for going down the stairs was to get to Mr Markou's car. Even if Mr Sorn did plan to wash his face prior to being taken to a doctor, that does not change or qualify the fact that the main reason Mr Sorn went down the stairs when he did was to facilitate Mr Markou's direction to see a doctor. That observation is self-evident. Mr Sorn may have wanted to wash his face or use the toilet before getting in the car. If that was one reason why Mr Sorn went downstairs, it does not qualify the finding I make that the main reason for him going down the stairs was to get into Mr Markou's car in order to be taken to a doctor.
5. The medical evidence in relation to causation is clear. Mr Carney is of the view that if Mr Sorn had passed out on a flat surface rather than the stairs, he would not have sustained a C1 fracture. He was not challenged about that. I accept that evidence. I disregard what Dr Carney says in the last part of the extract of his report set out above. Those comments go beyond medical expertise to legal causation and the relative contributions or non-contributions of various potential causes in issue here.
6. In The State of South Australia v Roberts,[21] Parker J with whom Kourakis CJ and Blue J agreed said the following:[22]

While each of the words in the phrase "and the employment was a significant contributing cause of the injury" is important, in the context of the present appeal, the key word is "significant". The Macquarie Dictionary relevantly defines the word "significant" to mean "important, of consequence" while the Oxford English Dictionary provides the following relevant definition "sufficiently great or important to be worthy of attention; noteworthy; consequential; influential". (Footnotes omitted.)

1. Parker J reasoned that a contributing cause of an injury will be significant if it is an important or influential cause. His Honour observed that the use of the indefinite article in s 7(2)(a) indicates there may be more than one significant contributing cause of an injury and that the cause relied upon does not have to be the most significant contributing cause. In terms of the object of the test, Parker J said:[23]

I consider that the Deputy President correctly concluded that the object of the "significant contributing cause" test is to disallow claims where an injury arose out of or in the course of employment but the employment was not in any real or meaningful sense responsible for the injury.

1. Some of the authorities referred to are of limited assistance to these facts. Stewart and the English authorities therein referred concern dangerous places. I appreciate that the stairs that Mr Sorn fell down were dangerous to someone who had lost consciousness, but most of the authorities referred to in Stewart concern situations that are objectively dangerous without any contribution from the worker by reason of his physical state at the time of the injury. Having said that, the facts in Smith are remarkably similar to the facts of this case. I will return to Smith.
2. The Federal Court cases relied upon by the respondent feature a different causal requirement to that in s 7(2)(a). In Roberts, Parker J warned of the danger of construing a statutory provision by analogy. Regard must be had to the language of s 7(2)(a) in its ordinary and everyday meaning as well as to the statutory context and purpose of s 7(2)(a).
3. There is no causal relationship between the injury and the employment in Epple let alone a relationship between a characteristic feature of the workplace and the broken tooth. Prior to the RTW Act commencing, s 30(2)(b) of the Workers Rehabilitation and Compensation Act 1986 applied to injuries that arose in the course of employment and provided that in such cases, the employment also had to contribute to the injury. The facts of Epple do not satisfy that requirement or s 7(2)(a).
4. If Mr Sorn was injured during an authorised break within the meaning of s 7(5)(b) of the RTW Act, that does not remove the need to satisfy the significant contributing cause requirement in s 7(2)(a). Section 7(5) defines, and potentially extends, what constitutes "employment" for the purpose of whether an injury arises out of or in the course of employment. While an injury will be taken to have arisen from employment if the circumstances in s 7(5) arise, a worker must still prove that employment was a significant contributing cause of that injury.
5. The worker in Smith became unwell and fell at work due to an autogenous cause not related to employment. The injury was found to have arisen from employment because the fall brought the worker into contact with a characteristic feature of the workplace. While Smith was not concerned with whether employment was a significant contributing cause of the injury, the reasoning of the plurality is also relevant to that issue:[24]

In these circumstances, we think we should not follow the reasoning in Lander's Case.[25] We think that if an additional element or consideration is needed before it can be said that a workman's injury arises out of his employment when the injury is occasioned by his falling, through causes personal to himself, against some physical object where he is at work, that additional element or consideration is to be found, not necessarily in risks of injury inherent in the place, but also in the character of the thing, physical contact with which causes the injury. If the workman's fall brings him into contact with something which, like plant or machinery, is peculiar to the work or occupation, and is not common both to industrial and private life, then the reason for his suffering includes the important circumstance that but for doing the particular piece of work which he was in fact performing he would not have experienced that particular sort of injury. We think that the reasoning disclosed by the citations we have made from Lord Sumner,[26] Lord Haldane[27] and Lord Atkin[28] requires the conclusion that, because the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work, a feature, in this case, characteristic of the conditions of employment and not to be found in ordinary life, the employment materially contributed to the injury, which accordingly arose out of it.

1. In Ward v State of SA (Department for Primary Industries and Regions SA (PIRSA)),[29] the worker suffered a seizure whilst working on a boat. His work colleagues placed the worker in the recovery position. When the worker became conscious again, he felt severe pain in his ankle. The ankle was fractured. It was found that the fracture occurred whilst the worker was unconscious and being moved by his colleagues. The Deputy President held that s 7(2)(a) was satisfied. Although employment was not responsible for the seizure, employment had the worker positioned at the front of the boat and needing to be moved after he collapsed.
2. In Roberts Parker J agreed with some key observations made in Ward:[30]

I also consider that the Deputy President was correct in adopting the analysis by Gilchrist DPJ in Ward v The State of SA. Gilchrist DPJ correctly stated that the word "significant" in s 7 is an ordinary word that requires the fact-finder to make an evaluative judgement as to whether or not there is a sufficiency of connection between the worker's employment and the injury to permit the conclusion that the worker's employment was a significant contributing cause of the injury. Gilchrist DPJ also correctly recognised that there can be multiple contributing causes of an injury. One or more of those causes may be very important, but a cause that is less important can nevertheless be a "significant contributing cause."

1. In this case, Mr Sorn went upstairs to tell Mr Markou that he felt unwell. He could have gone home and asked someone else to tell Mr Markou he was unwell. Instead, Mr Sorn told Mr Markou he felt unwell in person. That required him to go up the stairs. Mr Markou told Mr Sorn to remain in the lunchroom, came back to see how Mr Sorn was a short time later and then decided to take Mr Sorn to get medical attention. Mr Sorn had to go down the stairs to get into Mr Markou's car. That led to Mr Sorn being on the stairs when he fell. The symptoms that led to Mr Sorn losing consciousness and Mr Sorn's employment were both partly responsible for him being on the stairs at the time of the fall.
2. One relevant cause of the injury is the symptoms experienced by Mr Sorn after he consumed food at work on 6 February 2024. Those symptoms caused Mr Sorn to lose consciousness and fall. Another relevant cause of the injury is the stairs Mr Sorn was descending when he lost consciousness. The physical nature of the stairs combined with the fall caused the injury. While the symptoms may be the primary or most influential cause of the injury, the stairs are nonetheless a significant contributing cause in my view. As Mr Carney said, Mr Sorn's C1 vertebra would not have been fractured had he not been standing at the top of a flight of steel stairs when he lost consciousness.
3. Mr Warren was correct to submit that the stairs are a characteristic of the place of employment that played an important role in relation to the occurrence of the injury. In my view the claim should succeed because that characteristic feature played a significant role in causing the fracture of the C1 vertebra. As the High Court said in Smith, "the form, nature and extent of the injury sustained when the appellant fell were determined by a characteristic feature of the premises where he was obliged to work".[31]
4. The statutory purpose of the significant contributing cause requirement referred to in Roberts is not offended because the injury is not an opportunistic one. By that I mean the injury is not one that employment is not in any real or meaningful sense responsible for.
5. For those reasons I would set aside the decision under review and substitute it with an order that the C1 vertebral fracture sustained by the applicant on 6 February 2024 is a work injury. Mr Sorn is entitled to weekly payments, interest on arrears under s 65 of the RTW Act and reimbursement of medical expenses reasonably incurred in consequence of the work injury. The orders should acknowledge and make provision for sick leave having been paid for all absences from work to date.
6. The parties have 14 days in which to submit an agreed form of orders failing which the matter will be listed for a directions hearing.

[2] Report dated 4 November 2024, Trial Book 51-54, 52-53.

[3] [1932] HCA 45; (1932) 48 CLR 216, 223-224.

[4] Simpson v London, Midland and Scottish Railway Company (1931) AC 351.

[6] (1929) 1 KB 1, 19.

[8] [1933] HCA 60; (1933) 50 CLR 504.

[10] [1964] HCA 34; (1964) 110 CLR 626.

[12] [1990] FCA 511; (1990) 26 FCR 316.

[15] [2005] FCAFC 262.

[17] [2007] FCA 15.

[19] [1996] AATA 178.

[21] [2018] SASCFC 25.

[24] [1933] HCA 60; (1933) 50 CLR 504, 515-516.

[25] Lander v British United Shoe Machinery Co. (1933) 149 LT 395.

[26] Lancashire and Yorkshire Railway Co. v Highley [1917] UKHL 509; (1917) AC 352, 372.

[27] Upton v Great Central Railway Co. (1924) AC 302, 308.

[28] Brooker v Thomas Borthwick & Sons (Aus.) Ltd. (1933) AC 669, 676-677.

[29] [2016] SAET 28.

[30] [2018] SASCFC 25 [114].

[31] [1933] HCA 60; (1933) 50 CLR 504, 516.