Van Wessem v Entertainment Outlet Pty Ltd  NSWCA
In New South Wales a worker must establish that he / she
suffered an 'injury' (defined to include a
personal injury arising out of or in the course of employment) and
that his / her employment was a 'substantial contributing
factor' to the injury in accordance with s9A of the
Workers Compensation Act 1987.
In Da Ros v Qantas Airways Limited  NSWCA 89
Basten JA of the Court of Appeal implied that it follows, almost as
a matter of course, that where a person is injured in the course of
employment, the employment must be a substantial contributing
factor to the injury. Such an approach implied a narrower
construction to that formulated by the Court of Appeal in
Badawi v Nexon Asia Pacific Pty Limited  NSWCA
In Van Wessem the Court of Appeal rejected a submission
that, once it is established that injury occurred in the course of
employment, it will normally follow that employment was a
substantial contributing factor in terms of s9A. The Court
emphasised that s9A imports a concept of causation which is quite
different to the concept of a temporal occurrence.
Van Wessem ('the worker') was
the sole working director of Entertainment Outlet Pty Ltd. The
company entered into a contract with Aussie Home Loans Pty Ltd to
act as a mortgage broker for its clients. Aussie Home Loans
supplied referrals to the worker from potential customers. The
contract required the worker to follow up those referrals by
telephone within two hours and make any necessary arrangements to
visit the clients. The worker was effectively 'on call' at
all times. He had no office or business premises. He used a laptop
computer and mobile phone to conduct business wherever he happened
He often worked outside normal working hours and frequently
worked on weekends. He was an active man and an avid bicycle rider.
He often made and received business calls whilst cycling.
The worker was killed in a motor vehicle accident on Sunday, 15
February 2009 whilst cycling in the Ku-ring-gai National Park. On
the morning of the accident, the worker had been in contact with a
potential client shortly before undertaking the bicycle ride. His
diary indicated that he intended to either call or meet the client
later that day. He had his phone with him at the time of the
The worker's wife claimed death benefits compensation. A WCC
arbitrator initially rejected the claim. President Keating affirmed
the decision on appeal. The President found that the injury
occurred in the course of the worker's employment. However,
employment was not a substantial contributing factor to the
Mrs Van Wessem appealed from the President's decision on a
point of law. The sole issue was whether s9A was satisfied.
Court of Appeal
Giles JA (with whom Hodgson JA and Handley AJA agreed) dismissed
It was submitted by Mrs Van Wessem that, once it was established
that an injury occurred in the course of employment, it would
normally follow that employment was a substantial contributing
factor. His Honour said that this submission was not 'well
founded'. In accordance with the decision in Badawi, the
fact of the injury arising out of or in the course of employment is
relevant but not determinative of itself. The 'course of
employment' is a temporal concept. 'Causation' is
a quite different concept from temporal occurrence.
Although the observations made by Basten JA in Da Ross may have
held good on the facts of that case, 'it does not support
normally moving from injury in the course of employment to the
employment concerned being a substantial contributing factor to the
It is clear from this decision that Badawi remains the
authoritative pronouncement on s9A. That decision is to be
preferred to the narrower construction implied in Da Ros.
The fact that the injury arises out of or in the course of
employment is relevant, but not determinative of itself. A worker
must independently establish 'injury' and that
employment is a substantial contributing factor to the injury.
In other words, s9A has some real work to do. Section 9A
requires an evaluation of the strength of the causal linkage
between the employment and the injury. In Van Wessem, the
nature of the work played no role in the accident. The work did not
require the worker to go cycling. The fact that the worker had been
a regular cyclist and had adopted a practice of cycling on the
particular route three times each week indicated that his
employment was not a factor, let alone a substantial contributing
factor, to the injury.
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3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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