Australia: Employment as a substantial contributing factor

Legal Directions
Last Updated: 30 September 2011
Article by Robert McKenna

Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214


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 [2010] 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 [2009] NSWCA 324.

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 to be.

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 accident.

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 injury.

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 the appeal. 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 injury'.


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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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