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
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 Deputy President made reference to the consideration of s 9A
in Dayton v Coles Supermarkets Pty Ltd2 and
"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
"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
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 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
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
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
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".
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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