Australia: Workers Compensation - Court of Appeal confirms requirement of s9A "substantial contributing factor" to be "real and of substance"

Last Updated: 6 May 2010
Article by Michael Poulos and Todd Kirchner

Da Ros v Qantas Airways Limited [2010] NSWCA 89

NSW Court of Appeal1

In Brief

The Court of Appeal has confirmed that for the purpose of Section 9A of the Workers Compensation Act 1987, "substantial contributing factor" means "real and of substance".


On 9 September 2005 the worker, a flight attendant, was in Los Angeles, USA on 'slip time' between flights. Whilst returning to accommodation provided by Qantas (employer), the worker was knocked off his bicycle and suffered injuries.

At all material times, the worker was in the city of Los Angeles occupying hotel accommodation provided by the employer. The employer encouraged the worker to familiarise himself with slip ports and to remain active in the accommodation provided. The employer also required employees to maintain physical fitness.

The worker brought a claim under the 1987 Act and on 2 January 2009, the Workers Compensation Commission dismissed the claim. Upon appeal to the Deputy President, the worker's appeal was dismissed as the Deputy President did not consider that the applicant's employment was a substantial contributing factor to the injury.

The Deputy President made reference to the consideration of s 9A in Dayton v Coles Supermarkets Pty Ltd2 and concluded:

"The employment factors in the present matter which may be seen as being to some extent causative include those matters which I have set out at [92(i)-(v), (viii) and (x)]. Those factors, relative to the negligent conduct of the courier bicycle rider cannot in my view be said to be 'important'. Such factors were not serious, weighty, sizeable or large as addressed by his Honour Judge Burke in Dayton. In the circumstances I conclude that the Appellant's claim in respect of compensation benefits is defeated by application of section 9A to all relevant facts."

NSW Court of Appeal Decision

The worker appealed on the grounds that the Deputy President erred in his construction and application of s 9A of the 1987 Act. The Court of Appeal's decision was delivered by Basten JA, with whom Tobias JA and McColl JA agreed.

The Court of Appeal held that the Deputy President had erred firstly in his use of the phrase "serious, weighty, sizeable or large" as a substitute for the statutory term, "substantial". In noting the recent Court of Appeal determination in Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd3 the Court held that the use of such language:

"may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context".

The correct causal connection required by the phrase "a substantial contributing factor" is one that was "real and of substance"1. (It was noted that the Deputy President did not have the benefit of the Court of Appeal determination in Badawi at the time of his decision).

The second error arose from what the Deputy President referred to as "employment factors". Those factors were to be weighed against the other causal element, which was seen to be the negligent riding of the other cyclist. That, however, was not the exercise required by s 9A.

The "employment concerned" as referred to in s 9A(1) is the same concept as the "employment" referred to in s 4(a) when determining whether the injury arose "in the course of employment". In the decision of Federal Broom Co Pty Ltd v Semlitch4, Kitto J rejected the proposition that the word "employment" in the definition of injury was confined to "the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work".

The collision with the courier was an incident to which the worker was exposed in the course of his employment and to which he would not otherwise have been exposed. As it was one of two contributing factors (the other being the presence of the courier at the same place at the same time), Basten JA found it difficult to understand why it would not be a substantial contributing factor.

Basten JA concluded that the Deputy President erred in introducing qualifying epithets into the statutory language which had the effect of increasing the strength of the causal connection beyond that required by the word "substantial". Secondly, he applied an additional requirement which diminished the connection between the activity giving rise to the injury and the employment.

The Deputy President adopted an erroneous construction of s 9A and thus erred in point of law. The circumstances found by the Commission were amenable to only one inference, namely that the appellant's employment was a substantial contributing factor to his injury.


Whilst confirming the Court of Appeal's determination in Badawi, this decision adds to the continuing restrictions upon which liability may be declined pursuant to s 9A. When considering the causal connection of s 9A, insurers will not be able to asses the causal connection by weighing "employment factors" such as whether the activity constituted an essential incident of the employment.

The Court of Appeal reinforced that for the purpose of s 9A, the correct meaning of the term "substantial" is to be read as "of real and of substance" and not "serious, weighty, sizable or large".

1 Tobias JA, McColl JA; Basten JA.
2 [2000] 19 NSWCCR 526.
3 [2009] NSWCA 324. at 82.
4 [1964] HCA 34; 110 CLR 626 at 632-633.

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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