Judgment date: 29 July 2011
Van Wessem v Entertainment Outlet Pty Limited (2011) NSWCA 214
NSW Court of Appeal1
- Mr Van Wessem (deceased worker) was killed whilst cycling on Bobbin Head Road in Kuringai National Park. His widow subsequently made a claim for death benefits pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act).
- A Workers Compensation Commission Arbitrator initially rejected the widow's claim and President Keating affirmed the decision on appeal. Whilst it was found that the deceased worker, the sole director of the respondent, was in the course of his employment (s 4) when cycling with a friend on the weekend, both the Arbitrator and President Keating did not consider that the deceased worker's employment with the respondent was a substantial contributing factor pursuant to s 9A of the 1987 Act.
- Upon appeal, the Court of Appeal found there to be no error of law and confirmed President Keating's decision that the deceased worker's employment with the respondent was not a substantial contributing factor to his death.
- The Court of Appeal dismissed the appeal with costs.
The deceased worker was the sole working director of the respondent. The deceased worker had an exclusive contract with Aussie Home Loans Pty Limited to provide advice and act as a mortgage broker for its clients.
The deceased worker had no office or business premises to conduct his work. He worked from home making contact with clients by using his mobile phone and email. The deceased worker was effectively "on call" and this work required him to be available to attend to calls between 9.00 am to 8.00 pm on weekdays and 9.00 am to 5.00 pm on weekends. The deceased worker alone determined how and when his contractual obligations with Aussie Home Loans would be satisfied.
On 15 February 2009, the deceased worker was fatally injured whilst riding his bicycle.
The deceased worker's widow (appellant), made a claim for death benefits pursuant to s 25 of the 1987 Act. Liability for the claim was declined.
The appellant commenced proceedings in the NSW Workers Compensation Commission (Commission). At first instance, the Arbitrator found that the deceased worker sustained an injury during the course of his employment pursuant to s 4 of the 1987 Act, although his employment was not a substantial contributing factor to his death as required by s 9A.
The appellant appealed the decision of the Arbitrator. On appeal, the President upheld the primary decision of the Arbitrator.
The appellant appealed to the Court of Appeal.
Appeal to NSW CA
The Court of Appeal dismissed the appellant's appeal.
In his leading judgment (with Hodgson JA and Handley AJA in agreement), Giles JA considered the application of Badawi v Nexon Asia Pacific Pty Limited2 (Badawi) to proceedings in the Commission.
Essentially, his Honour held that the nature of the deceased worker's work played no role in his accident as it did not require him to go cycling. His Honour concurred that unlike cases such as Da Ros v Qantas Airways Limited3 and Badawi, this was not a case where the deceased worker's employment required him to be at any particular place at a particular time when he was working, or to work in remote locations or otherwise exposed the deceased worker to a risk to which he would not have otherwise been exposed.
In her submissions, the appellant argued that, on the basis of the Court of Appeal's decision in Da Ros, given that the deceased worker was on his bicycle at the time of death, "it would appear to follow that employment concerned was a substantial contributing factor".
The factual circumstances of Da Ros were distinguished from the circumstances of the current case. It was noted that in Da Ros, the worker, a pilot, was in Los Angeles on "slip time" between flights when he was knocked off his bicycle and suffered injuries. In Da Ros, the Court of Appeal found that the correct causal connection required by the phrase "a substantial contributing factor" was one that was "real and of substance". As such, the worker pilot's employment with Qantas Airways Limited was found to have been a substantial contributing factor to his injuries.
Accordingly, it appears that the significant distinguishing factor in this case from Da Ros was evident in s 9A(2)(d) of the 1987 Act, namely that:
Essentially, the incident to which the worker in Da Ros was exposed was in the course of his employment and was one to which he would not otherwise have been exposed. His Honour stated that Da Ros did "not support normally moving from injury in the course of employment to the employment concerned being a substantial contributing factor to the injury. Causation is a quite different concept from temporal occurrence".
In fact, at paragraph 29, his Honour stated that:
His Honour also noted the "uncontroversial propositions" as set out by Allsop P and Beazley and McColl JJA in Badawi  included:
When insurers are determining whether the injury occurred in the course of employment and whether the employment was a substantial contributing factor to the injury or death, a thorough analysis of the facts and details must be undertaken.
The Court of Appeal confirmed that the correct approach to analysing substantial contributing factor is as outlined in the decision of Badawi.
The decision indicates that whilst s 4 appears to encompass modern, flexible work arrangements, the requirements of s 9A continue to make it essential, in each case, to satisfy the test of whether employment was a substantial contributing factor.
1 Giles JA, Hodgson JA and Handley AJA
2  NSWCA 324; (2009) 75 NSWLR 503
3  NSWCA 98; (2010) 8 DDCR 103
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