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 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
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
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
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
'Causation' is a quite different concept from
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
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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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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