Supreme Court of Tasmania|1994-06-03|Before: Slicer JJ

University of Tasmania v Mary-Anne Cane [1994] TASSC 73; (1994) 4 Tas R 156 (3 June 1994)

Workers' Compensation - For what injuries compensation is payable - The Workers Compensation Act 1988, s25(1)(b) - The word "employment" bears the same meaning wherever enacted in s25(1)(b) - Both include the performance of that which the worker is employed to do and all that which is incidental or ancillary to the employment - Order of Workers' Compensation Commissioner quashed.

COX J I have had the advantage of reading the reasons for judgment prepared by Wright and Slicer JJ. I agree with them and their conclusion that the appeal should be dismissed.

WRIGHT J On 4 November 1992 the respondent, an employee of the University of Tasmania, made a claim for workers' compensation pursuant to the provisions of the Workers Compensation Act 1988 ("the Act"). The respondent claimed that she was suffering a disability caused by an injury which was a disease arising out of and in the course of her employment and to which her employment contributed to a substantial degree. On this basis it was claimed that she had an entitlement to compensation pursuant to the provisions of the Act, s25(1)(b).

2. The relevant facts are as follows. The respondent started work at the University of Tasmania as a trainee office assistant in the Buildings Branch on 19 September 1983. She worked for a time in another department and was then transferred to the Conservatorium of Music on 26 August 1985. Her duty statement records that she was there employed as a general typist, receptionist and telephonist. In 1989 another female employee commenced work at the Conservatorium of Music. This woman was referred to in evidence by the respondent as her supervisor. Although there may be some doubt as to whether this was her correct designation, she appears to have exercised some control over the respondent's performance of her duties. The respondent developed what the learned Workers' Compensation Commissioner described as a "personality clash" with her supervisor and thereafter for a period of about one year the respondent went to work in another department. However she returned to the Conservatorium of Music in January 1992.

3. The respondent's relationship with her supervisor, her perception that her workload was unfairly increased by her supervisor's frequent absences on union business, and the supervisor's work relationship with the departmental head were such that the appellant developed a generalised anxiety disorder producing both physical and non-physical symptoms. The progression of this disorder was such that she felt unable to continue working. She sought and received a medical certificate stating that she was incapacitated from working by reason of a stress related illness. After she lodged her claim for compensation, the learned Workers' Compensation Commissioner determined that there was a genuine dispute between the worker and the employer and that consequently compensation was not to be paid. On 7 February 1993 the respondent applied for payment of compensation pursuant to the Act, s42.

4. On 14 May 1993 the learned Workers' Compensation Commissioner determined that "the claim is not compensable under the terms of the Workers Compensation Act 1988 and it will be dismissed". The learned Commissioner found as a fact that the respondent suffered from an anxiety disorder and that her condition arose out of and in the course of her employment. However, he was not satisfied that her employment contributed to a substantial degree to the incapacitating disease.

5. The respondent appealed against the learned Commissioner's determination and that appeal came on for hearing before Underwood J on 9 September 1993. On 15 September 1993 his Honour upheld the appeal and quashed the learned Commissioner's order. The University of Tasmania now appeals against that decision.

6. There were four original grounds of appeal, all of which called into question the meaning and application of the Act, s25(1)(b). The appellant applied to add a further ground of appeal during the course of the hearing before this Court. That application was opposed. The appellant sought to allege that the appeal from the learned Commissioner to Underwood J was not upon a question of law and was thus incompetent having regard to the provisions of the Act, s63. If this proposed ground of appeal were to succeed it would go to the validity, not only of the appeal to Underwood J, but also to the validity of the present appeal. If the appeal to Underwood J was incompetent the only course available to this Court would be to dismiss the present appeal on that ground. We could not properly embark upon a determination of the same substantive issues as engaged Underwood J's attention. In this sense the proposed new ground goes to jurisdiction and is accordingly an issue which we are bound to consider once the question has been raised whether or not that question is incorporated in a formal ground of appeal. I reach this conclusion with some reluctance because it is an altogether too frequent occurrence in this Court that grounds of appeal are added at the hearing and an appeal thereafter proceeds on grounds which bear little, if any, relationship to those included in the original notice of appeal. Often applications to amend are not opposed but I suspect that in most cases this is because counsel for the respondent perceives that amendments are readily allowed. Speaking for myself I think that amendments should not be allowed as a matter of course. To do so will often add substantially to a respondent's costs and submissions prepared on the basis of the original grounds may have to be modified substantially or even abandoned. Fresh efforts at short notice often necessitating long hours of research and preparation may have to be undertaken. This is simply unfair. Practices which encourage the incomplete consideration of the real substance of an appeal before a notice of appeal is filed and served are to be discouraged. For these reasons I would not be disposed to allow the amendment sought in this case, but I would also make it perfectly clear that in my view, there is no substance in the proposed ground in any event. Whilst it is trite to say that the outcome of this matter depends on its own unusual facts, it is plain that the learned Commissioner's understanding of the scope and meaning of s25(1)(b) was at the heart of his decision. The appeal to the Supreme Court plainly involved a question of law. I turn therefore to the substance of the present appeal.

7. Mr Kable QC, counsel for the appellant submitted that in order to receive workers' compensation pursuant to s25(1)(b), a worker must prove:

(a) that he (or she) has suffered an injury which is a disease;

(b) that such injury arose out of his (or her) employment;

(c) that such injury arose in the course of such employment; and

(d) that such injury was a disease to which the employment contributed

to a substantial degree.

These propositions are plainly correct and were not disputed.

8. Mr Kable reminded us that the requirement that a worker prove that his employment has contributed to a substantial degree to the disease contracted by him is a requirement additional to those which existed in the Workers' Compensation Act, 1927.

In the course of delivering his decision the learned Commissioner said:

"I have reached the conclusion that the worker has perceived that she

is receiving no support in the course of her employment. Not only does

have a personality clash with her supervisor, but she perceives her head of

department as a weak and ineffectual man. She also perceives her head of

department and her supervisor to be in a better work relationship that

is with either of them. I am not satisfied that during the periods of

absence of her supervisor this worker was called upon to do anything more

than may have already been contained within her duty statement save and

except where she took upon herself to do these things. At that time I

no doubt that culminating in the episode with the chocolates this worker

and her supervisor had not been co-habiting peacefully in the work

environment. In that sense I prefer, having listened to the worker, the

conclusions reached by the psychiatrist in UNI2 and dated the 4th of

December, 1992 that her anxiety disorder is more due to her failure to

adapt to what appears to be reasonable attempts to adjust her occupation

a particular need. Any stress that she suffers from therefore has not been

contributed to a substantial degree by her employment. It has undoubtedly

arisen out of and in the course of the employment because by moving to a

different department her stress levels have lessened. However, it is the

way that she is reacting to her inability to perform her duties

harmoniously with her fellow employee that is causing her stress. It is

not the workplace itself, ie not the employment itself which is

contributing to a substantial degree to that stress. Lest it might be

thought that it is obvious that her presence in that particular office is

causing her stress and that would amount to contribution to a substantial

degree, in my view it has to be that her duties are contributing to a

substantial degree to that stress. I see nothing in the evidence which

convinces me that on the balance of probabilities it is more probable

not that it is her duties, and the performance of them, that is causing her

the stress. In plain words it is my view that her stress is caused by her

inability to get on, for whatever reason, with her supervisor and her head

of department. Although this arises out of that relationship, an

employment relationship, it is not the employment which contributes to a

substantial degree to the stress. Indeed this is not meant as a criticism

of the worker. On the evidence before me she performs her duties and

functions adequately in a situation where I have no doubt she is from

to time under increased work load." (Emphasis added).

9. It was agreed by counsel that the final sentence in the above passage was a reference to the respondent's work duties at the time of the hearing before the learned Commissioner and not those which existed at the time of the onset of her stress related illness. There is however one further ambiguity in the above passage which I have some difficulty in resolving. The learned Commissioner said, "It is not the workplace itself, ie not the employment itself which is contributing to a substantial degree to that stress". He immediately followed this observation with the comment, "Lest it might be thought that it is obvious that her presence in that particular office is causing her stress and that would amount to contribution to a substantial degree, in my view it has to be that her duties are contributing to a substantial degree to that stress." If by this the learned Commissioner was conceding that the worker's presence in a particular work environment was the obvious source of her stress (and I think he was) it is a strange juxtaposition to have such an utterance following immediately upon the proposition that "it is not the work place itself ... which is contributing" etc. I think the learned Commissioner may have intended to say "it is the work place itself ...". I cannot be sure of this of course, but put in this way it appears to me to be a finding much more consistent with the view which he then formulated viz, that he must be satisfied that it is her duties and her performance of them which he must be able to find as the cause of her condition before being able to find an entitlement to compensation in her favour.

10. Mr Kable submitted that the learned Commissioner's findings amount to a determination that the respondent's condition arose solely from her own unreal perceptions as to what was going on around her and her resultant self persuasion that she was psychiatrically disordered as a consequence. I reject this as an accurate assessment of the learned Commissioner's findings and I accept Miss Lambert's submission that in the passages italicised in the above excerpt from the learned Commissioner's reasons, it can be seen that he was clearly of the view that there were chronic frictions between the respondent and her supervisor and head of department. If therefore, as submitted, her stress condition was a consequence of a volatile and disharmonious work relationship of some duration, it seems to me to be an inevitable conclusion that the stress was caused by her employment. In my opinion the same conclusion would follow if, as the learned Commissioner appears to suggest, the illness arose in consequence of the worker's over sensitive reaction to her work environment consisting not only of the physical characteristics of inert structures but also the behaviour of her co-workers and superiors.

11. Entitlement to workers' compensation does not depend upon the establishment of fault or lack of sensitivity or concern on the part of the employer. It is essentially a question of causation. Unlike legislation in other jurisdictions, a Tasmanian worker who shows that her disease arose out of her employment, must also establish that such disease was one to which her employment contributed to a "substantial" degree. Other State and Commonwealth legislation allows recovery by a worker if the relevant employment was "a" contributing factor or if that employment contributed to a "material degree" to the relevant disability. "Substantial" has many synonyms and can take on different meanings according to its usage. In Tilmann's Butcheries Pty Ltd v AMIEU [1979] FCA 85; (1979) 42 FLR 331, the Federal Court was concerned to determine whether conduct by the respondents had been engaged in for the purpose of causing "substantial" loss or damage. Bowen CJ at 338-339 observed:

"The word 'substantial' would certainly seem to require loss or damage

that is more than trivial or minimal. According to one meaning of the

word the loss or damage would have to be considerable (see Palser v

Grinling (1948) AC 291, at pp 316-317). However, the word is

quantitatively imprecise; it cannot be said that it requires any specific

level of loss or damage. No doubt in the context in which it appears the

word imports a notion of relativity, that is to say, one needs to know

something of the circumstances of the business affected before one can

arrive at a conclusion whether the loss or damage in question should be

regarded as substantial in relation to that business."

"The word 'substantial' is not only susceptible of ambiguity: it is a

word calculated to conceal a lack of precision. In the phrase

'substantial loss or damage', it can, in an appropriate context, mean

or of substance as distinct from ephemeral or nominal. It can also mean

large, weighty or big. It can be used in a relative sense or can

12. In my opinion the word "substantial" as used in the Act, s25(1)(b) is used in a relative sense. There is a recognition that there may be other causes for the disease. Indeed, it may be possible to say in any given circumstances that there are a number of "substantial" factors causing a particular condition. The accent is on contribution. The Act does not require that employment must be "the" substantial cause of the disease.

13. There was no suggestion in the present case that family, domestic or other stressors contributed to the respondent's condition. I think Miss Lambert was correct when she submitted that on the basis of the evidence accepted by the learned Commissioner, the only factor leading to disability other than the respondent's unusual susceptibility to her work situation, was the work situation itself.

14. There was no dispute that the learned Commissioner was correct in finding that the respondent suffered an injury which was a disease. Indeed, this was specifically conceded by counsel for the University in the proceedings before the Commissioner. Nor was it disputed that the learned Commissioner was correct in finding that such disease was one "arising out of and in the course of her employment" as required by the Act, s25(1)(b).

15. As I have pointed out on a previous occasion (Pasminco Australia Ltd v Fairchild 57/1991) the Tasmanian legislation is somewhat out of step with modern Workers Compensation Acts in other Australian jurisdictions in that it requires proof that the relevant injury or disease arose "out of and in the course of" employment. Recognising therefore that both these concomitants were necessarily present in the circumstances now under discussion and that there were no additional causes other than those already identified to which either the appellant or the respondent attributed the respondent's mental condition, I find myself in agreement with Underwood J's observation that "on the facts of this case it is a little hard to understand how the Commissioner could have been satisfied that the injury, which is a disease, arose out of and in the course of her employment but not satisfied that the employment contributed to that injury to a substantial degree". Mr Kable submitted that a finding that a worker has suffered an injury which is a disease arising out of and in the course of his or her employment does not involve a finding that the employment has been a causative factor in the onset of the disease. Therefore, he argued, there was no inconsistency in the learned Commissioner's finding that the respondent's disease arose out of and in the course of her employment whilst also finding that her employment did not contribute substantially to the disease. This however is contrary to what has been said in cases of high authority and is plainly incorrect. It must be remembered that the phrase "arising out of and in the course of employment": is used conjunctively in the Tasmanian legislation and not disjunctively as it appears in other jurisdictions. As Dixon CJ said in Kavanagh v The Commonwealth [1960] HCA 25; (1959-1960) 103 CLR 547 at 556:

"Few, if any, expressions had received so much judicial consideration

and in so many jurisdictions as had the words 'personal injury by

arising out of and in the course of the employment'. Repeatedly the

contrast had been made between the effect of the words 'out of' and the

effect of the words 'in the course of'. Whatever language was chosen to

institute the contrast the first expression was treated as requiring a

causal connexion between the employment or its incidents and the second

requiring that the pursuit of the employment should be an accompanying

condition. I have seen nothing to suggest that within the expression 'in

the course of the employment,' there had been discovered any element of

causal relation with the employment and its incidents. To prescribe that

element was considered to be the work of the words 'arising out of'. It

was thus natural for this Court to say after the word 'or' had been

substituted for 'and' in the Western Australian provision that the result

of English authority was 'to show that the words "arising in the course

the employment" describe a condition which is satisfied if the accident

happens while the workman is doing something in the exercise of his

functions although it is no more than an adjunct to or an incident of his

service'. That was said in Pearson v Fremantle Harbour Trust (1929) 42

CLR 320, at pp 329, 330."

16. Scrutiny of the learned Commissioner's reasons demonstrates that he reached the conclusion he did on the basis that the meaning of "employment" secondly occurring in s25(1)(b) was restricted to employment "duties" and did not extend to other matters. Miss Lambert pointed out that the learned Commissioner's concept of employment appears to have undergone a pronounced change as he moved from the first to the second limb of s25(1)(b). As Mason J (as he then was) observed in Registrar of Titles (WA) v Franzon [1975] HCA 41; (1976) 50 ALJR 4 at 6, "it is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise" and as Hodges J said in Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; (1915) VLR 450 at 452, that rule applies with particular force to words contained in the same section of an Act. He added, "there ought to be very strong reasons present before the court holds that words in one part of the section have a different meaning from the same words appearing in another part of the same section."

17. There are many cases in which the word "employment" as used in the phrase "arising out of and in the course of employment" or similar phrases has been interpreted as extending beyond mere duties of employment to matters naturally incidental to the contract of employment. See for example Charles R Davidson and Co v McRobb (1918) AC 304 at 321 per Lord Dunedin. However the cases referred to by counsel, in nearly all instances, were dealing with circumstances wholly dissimilar from the present case and are thus of no great assistance in coming to a conclusion as to the meaning of "employment" in the Tasmanian section.

18. In addition to those cases which followed Charles R Davidson and Co v McRobb (supra) there is another line of authority dealing with "employment" as that term has been used in legislation similar to the second limb of s25(1)(b). The foremost of these is Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 where Kitto J said at 632-633:

"Where it is possible to identify as a contributing factor to the

aggravation, acceleration, exacerbation or deterioration of a disease

incident or state of affairs to which the worker was exposed in the

performance of his duties and to which he would not otherwise have been

exposed, I see no misuse of English in condensing the statement of the

saying simply that the employment was a contributing factor to the

aggravation etc."

"I pass then to the next, and I think more difficult, question, was

this aggravation or deterioration contributed to by her employment?

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. In this case it was said that

the employment was a contributing factor in the worsening of the disease,

because the applicant focussed her delusions of pain and discomfort upon

her right side which she believed she had hurt when lifting a tea chest

in the course of her work. A minor physical strain she magnified in her

irrational imagination into a serious and continuing derangement of her

internal organs. The incident directed, or re-directed, her

hypochondriacal attention to her abdominal muscles. But said the

appellant, all that it did was to focus her existing delusional

tendencies in a particular way: it was a cause of her condition only in

the sense that it acted as a precipitant. That may be true:

nevertheless, Doctor Ellard agreed that 'something obviously happened in

December to her to cause a change in her way of life'.

The question involved is difficult. Can the event to which a disordered

mind irrationally attributes physical suffering, that is real to the

patient but delusional, be properly called a contributing factor?

Ordinary concepts of cause and consequence are perhaps not applicable.

Yet it seems to me that the incident which precipitated or stimulated,

however irrationally, the worsening of her condition could be regarded as

a factor contributing to it. It was said that in any event she might

broken down sooner or later: that some other incident might have provided

a focus for her delusions. But it was this event at work that in fact

19. These passages from the judgments in the Federal Broom case were also discussed by the Full Court of the Federal Court in Treloar v Telecom [1990] FCA 511; (1990) 97 ALR 321 at 327-328. The court was there dealing with a "material" contributing factor, rather than a "substantial" contributing factor, as in our legislation. In this context the court held that "all that is required is that the relevant aspects of the employment add their measure to the creation of the condition ... They must in truth, be part of the cause." The arguments put to us by Mr Kable appear to me to be strikingly similar to those which were put to and accepted by the Administrative Appeals Tribunal in O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. However, on appeal, those arguments were convincingly rejected by Pincus J at 158-159. In his concluding remarks at 159, Pincus J said :

"When the tribunal says that problems were 'generated by the

respondent himself', that seems to mean, by the condition from which he

suffered. It is, of course, not the law that mental conditions caused by

employment are compensable only if there is unusual stress or extra

stimulus, although no doubt the absence of such stress would make it more

difficult to show a causal connection between a mental condition and the

employment. Nor is it the law that only neurotic conditions arising in

circumstances in which an ordinary man of normal personality would become

neurotic (if there are such circumstances) are compensable."

20. I think that the approach of Kitto, Windeyer and Pincus JJ provide helpful guidance in considering the appropriate outcome to the present appeal.

21. In my opinion Underwood J was correct when he said "on the facts as found by the Commissioner a proper application of the law could have resulted only in a finding that the (respondent's) employment had contributed to a substantial degree to the injury which the Commissioner found arose out of and in the course of her employment".

SLICER J The appeal concerns the application of the Workers Compensation Act 1988, s25(1)(b). The respondent, a worker at the University of Tasmania, had claimed that she suffered from a disability by reason of a general anxiety disorder which prevented her from continuing with employment. The medical evidence was supportive of the view that the onset of the disorder was a result of personality conflict associated with her place of employment. Her claim was dismissed by the Workers Compensation Commissioner who found that although she in fact suffered from an anxiety disorder which was associated with the course of her employment, it was not compensable because the employment did not contribute to a substantial degree to its occurrence.

2. The learned Commissioner made the following findings:

- the worker perceived she was being ordered to perform more than her

prescribed duties and received no support in her role;

- most, if not all, of her additional duties were voluntarily assumed;

- she was in conflict with her supervisor;

- she was reacting to her inability to perform her duties harmoniously

with her fellow employee and as a consequence suffered stress; and

- she suffered from an anxiety disorder which was the product of

stress.

3. The Commissioner, at 5-6 of his reasons, drew the following conclusions from those primary findings:

" ... her anxiety disorder is more due to her failure to adapt to what

appears to be reasonable attempts to adjust her occupation to a

need. Any stress that she suffers from therefore has not been contributed

to a substantial degree by her employment. It has undoubtedly arisen out

of and in the course of the employment ... However ... It is not the

workplace itself, ie not the employment itself which is contributing to a

substantial degree to that stress ... in my view it has to be that her

duties are contributing to a substantial degree to that stress. ... In

plain words it is my view that her stress is caused by her inability to

get on, for whatever reason, with her supervisor and her head of

department. Although this arises out of that relationship, an employment

relationship, it is not the employment which contributes to a substantial

degree to the stress."

4. The respondent appealed against the finding that her incapacity was not compensable.

5. Underwood J concluded that the determination of the Commissioner constituted an error of law and quashed the order of the Commissioner. His reasoning was to the effect that "there was no question of the degree of contribution." He adopted the construction of the term "employment" as "meaning not only the performance of the actual work which a person is required to do, but includes 'the natural incidents connected with the class of work'", citing Charles R Davidson and Co v McRobb (1918) AC 304 at 321; Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22; Kavanagh v The Commonwealth [1960] HCA 25; (1960) 103 CLR 547; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1991-1992) 173 CLR 473 in support of that proposition. Having observed that "the documentary psychiatric evidence suggested that no other cause and the Commissioner's reason for judgment refer to no other cause" he concluded that the Commissioner was in error in holding the view that employment "secondly enacted in s25(1)(b) was confined to the performance of work the appellant was required to do by the terms of her duty statement and did not include all that was reasonably incidental to or ancillary to the performance of those duties". In his Honour's view:

"The finding that the stress 'arises out of that relationship, an

employment relationship' is of necessity, a finding that the

employment caused the stress disorder."

6. The appellant sought leave in order to add a fresh ground of appeal namely:

"The learned primary judge erred in law in failing to dismiss the

appeal in consequence of the fact that the appeal did not relate to a

determination order ruling or direction of the Commissioner in point of

law."

7. It could not be said that there had been any challenge to the findings of fact made by the Commissioner. The appeal was in relation to the meaning of the term employment and the conclusions reached as a result of the application of legal principles by the Commissioner. It is not necessary to examine the issue in any more detail since I am not disposed to grant leave so as to permit the amendment. The ground is directed at the jurisdiction of the judge from whom the appeal is made. No issue was taken as to jurisdiction at the time of the original appeal. No issue was taken in the Notice of Appeal as originally formulated. Leave should be refused.

"1 The learned primary judge erred in law in holding that the learned

commissioner was in error in finding that the employment of the worker

not contribute to a substantial degree to any injury which was a disease

suffered by the worker.

2 The learned primary judge erred in law in failing to give any or any

sufficient meaning to the words 'to which (her) employment contributed to

a substantial degree' contained in section 25(1)(b) of the Workers

Compensation Act 1988.

3 The learned primary judge erred in law in holding that in a case where

the workers' perception of her workload and her treatment at the hands of

the supervisor and department head (fellow employees) caused an anxiety

disorder and resultant incapacity for work, that the perception of the

worker of their circumstances, without more, entitles the worker to

workers compensation pursuant to section 25(1)(b) of the Workers

Compensation Act 1988.

4 The learned primary judge erred in law in holding that the word

'employment' wherever enacted in section 25(1)(b) included all that was

reasonably incidental to or ancillary to the performance of the duties of

employment."

"25 - (1) If in any employment -

...

(b) a worker suffers an injury, which is a disease, arising out of and in

the course of his employment and to which his employment contributed to a

substantial degree, his employer is, except as is otherwise provided by

this Act, liable to pay compensation in accordance with this Act "

10. The term "to which his employment contributed to a substantial degree" did not appear in the Workers' Compensation Act 1927. The term should be interpreted "liberally and practically" (see Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195). The contention of the appellant was to the effect that the "substantial cause" was internal to the worker and the external stressors, being incidental to that process could not be regarded as substantial contributors. The argument, in part, is dependent on different meanings being given to the word "employment" as it separately appears in s25(1)(b).

11. The legislation requires a causative link between the employment and the incapacity. It differs from other legislative schemes in requiring a "substantial degree" of causation. But it does not seek to quantify the term in an absolute sense. It does not attempt to fix a percentage or exclude the operation of other contributory factors. It does not attempt to exclude predisposition or susceptibility to a particular condition. The term relates directly to the work related cause requiring it to be more than trivial or inconsequential. It is relative to the cause and is not to be taken as one component to be compared with and weighed against other possible causes. The word itself is not quantitive in relation to the whole. See Tilmann's Butcheries Pty Ltd v AMIEU [1979] FCA 85; (1979) 42 FLR 331.

12. In this case the evidence established that there was no other cause. The respondent may well have had a predisposition to react adversely to stress and may have been more sensitive than others to the events which acted as stressors. But all of the circumstances which gave rise to the result occurred at her workplace and involved her fellow employees.

13. The second contention advanced on behalf of the appellant concerned the term "arising out of and in the course of employment". In the Tasmanian legislation the phrase is conjunctive and not disjunctive as it would be regarded if the word "or" was substituted. See Kavanagh v The Commonwealth (supra).

14. The phrase extends beyond prescribed or allocated duties of employment and extends to matters incidental to the contract of employment. If a physical injury caused by a fellow employee during a tea break (eg the spilling of a cup of coffee) is compensable then psychological harm caused by the unthinking or uncaring conduct of another could properly be said to be included especially if it related to the manner and form of the performance of the duties of employment. See O'Neill v Commonwealth Banking Corporation (1987) 75 ALR 154. The appropriate test is whether there exists:

"... some incident or state of affairs to which the worker was exposed

in the performance of his duties and to which he would not otherwise be

exposed.

Kitto J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at

632-3.

15. The contention that the word employment secondly appearing in s25(1)(b) bears a separate meaning to that first appearing should only be accepted if it is apparent in the clearest and most obvious way. Normal principles of statutory interpretation are to the effect that:

"... it is a sound rule of construction to give the same meaning to

the same words appearing in different parts of the statute unless there

reason to do otherwise."

Mason J in Registrar of Titles (WA) v Franzon [1975] HCA 41; (1976) 50 ALJR 4 at 6.

16. In the context of this legislation the words should bear the same meaning. The incapacity must arise out of and in the course of employment which in turn must be a substantial cause. The term secondly appearing is governed by the word substantial and in turn relates directly to the term as first used. To construe it otherwise would confine the injury to that only occurring during the performance of a specified task, ie one directly involved in the process of production, maintenance, management or distribution. The interpretation would not be in accordance with the legislative scheme.

17. In my opinion the conclusion reached by Underwood J was correct and the appeal should be dismissed.

Workers Compensation Act 1988

Compensation Act 1988

Workers' Compensation Act 1927

University of Tasmania v Mary-Anne Cane [1994] TASSC 73;

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

University of Tasmania v Mary-Anne Cane [1994] TASSC 73; (1994) 4 Tas R 156 (3 June 1994)

Parties

Legislation Cited (3)

Cases Cited (9)