Kimber v Chief Executive, Department of Treasury and Finance - [2021] SASCA 133

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
KIMBER v CHIEF EXECUTIVE, DEPARTMENT OF TREASURY AND FINANCE, FOR CHIEF EXECUTIVE, DEPARTMENT FOR HEALTH AND WELLBEING (SA AMBULANCE SERVICE)
[2021] SASCA 133
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
11 November 2021
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - ARISING IN COURSE OF EMPLOYMENT
Application for permission to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal. The Full Bench unanimously allowed an appeal from a decision of a single member of the Tribunal, which had held that a worker’s injury was an eligible injury within the meaning of cl S6.35.4 of the SA Ambulance Service Award.
The worker sustained an injury to his lower back during his course of employment as a paramedic. The circumstances in which he sustained that injury were that while transferring a patient from a stretcher to a bed, he suddenly twisted and lunged toward the stretcher to prevent it from collapsing. The worker sought additional compensation under Schedule 6 of the Award, on the basis that the injury was eligible injury for the purposes of that Schedule.
The issues on appeal are whether:
• it was open to the trial judge to construe the phrase ‘dangerous situation’ in cl S6.35.4 as ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’;
• it was open to the Full Bench to describe the phrase ‘dangerous situation’ in cl S6.35.4 as a situation ‘dangerous in the sense of being full of danger or risk, or having a relatively high degree of risk’;
• it was open to the Full Bench to describe cl S6.35.3 as being ‘directed to work environments and activities which expose officers to a high or very high degree of risk’; and
• the relevant activity which was required to be inherently unsafe for the purposes of the cl S6.35.3 was ‘patient transfer’ generically described, and not the activity in the circumstances in which it was carried out at the time of injury or the particular activity which was causative of the injury.
Held (by the Court): granting permission to appeal but dismissing the appeal:
1. It was not open to the trial judge to construe the phrase ‘dangerous situation’ in cl S6.35.4 as ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’. To posit that the phrase ‘dangerous situation’ in cl S6.35.4 extends to situations of low risk but potentially significant consequences, carries a prospect of circularity. The trial judge’s description of the concept of ‘dangerous situation’ as ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’ does not offer any criterion to avoid this potential circularity. That description also fails to recognise that, having regard to the context and the manifest purpose of cl S6.35.3, the clause is directed to an elevated circumstance of risk associated with the profession of paramedicine, higher than the ordinary incidence of risk which might reasonably be mitigated by the employer.
2. In describing the concept of ‘dangerous situation’, none of the descriptors deployed by the Full Bench was unavailable. The descriptors express that the phrase ‘dangerous situation’ in cl S6.35.4 connotes a situation of heightened risk over and above ordinary exigencies of risk capable of being addressed by policies and procedures. It was open to the Full Bench to describe the phrase ‘dangerous situation’ in cl S6.35.4 as a situation ‘dangerous in the sense of being full of danger or risk, or having a relatively high degree of risk’.
3. The two conditions appeared in cl S6.35.3 are descriptors of environments that can properly be described as high risk. The Full Bench identified the concept of ‘high to very high degree of risk' by reference to the descriptors in cl s6.35.3 itself. It was open to the Full Bench to describe cl S6.35.3 as being ‘directed to work environments and activities which expose officers to a high or very high degree of risk’.
4. To hold the relevant activity to be the activity in the circumstances in which it was carried out at the time of the injury, and the particular activity which was causative of the injury, would render the mere fact of the injury sufficient to satisfy both limbs of the test. The relevant activity which was required to be inherently unsafe for the purpose of cl S6.35.3 was ‘patient transfer’, generically described.
Workers Rehabilitation and Compensation Act 1986 (SA); Workers Compensation Act 1987 (NSW); Return to Work Act 2014 (SA), referred to.
Todd Kimber v Chief Executive, Department of Premier and Cabinet, for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) [2020] SAET 82; Chief Executive, Department of the Premier and Cabinet, for Chief Executive, Department for Health and Wellbeing (SA Ambulance Service) [2021] SAET 71; Return to Work SA v Agnew [2020] SASCFC 79; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Hope v Bathurst City Council (1980) 144 CLR 1; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47; Farmer v Cotton's Trustees [1915] AC 932; Commissioner of Taxation v Miller (1946) 73 CLR 93; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; Edwards (Inspector of Taxes) v Bairstow [1956] AC 14; Vetter (1999) 18 NSWCCR 34; Brutus v Cozens [1973] AC 854; Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72; Kucks v CSR Limited (1996) 66 IR 182; Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54, considered.

KIMBER v CHIEF EXECUTIVE, DEPARTMENT OF TREASURY AND FINANCE, FOR CHIEF EXECUTIVE, DEPARTMENT FOR HEALTH AND WELLBEING (SA AMBULANCE SERVICE)
[2021] SASCA 133
Court of Appeal – Civil: Livesey P, Bleby and David JJA

THE COURT: This is an application for permission to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal. It concerns the interpretation of a clause that in 2018 was inserted as part of Schedule 6 of the SA Ambulance Service Award, entitled, ‘Additional compensation for certain work-related injuries or illnesses’.
The insertion of Schedule 6 followed the repeal, in 2015, of the Workers Rehabilitation and Compensation Act 1986 (SA), and the enactment of its successor, the Return to Work Act 2014 (SA). The new Act imposes limits upon entitlement to weekly payments and medical expenses that did not apply under the old Act. Specifically, other than in the case of seriously injured workers, an entitlement to weekly payments is limited to two years’ incapacity following the work injury. Entitlement to medical expenses is limited to a period ending one year after the cessation of entitlement to weekly payments.
In 2018, the Award was varied to insert clause 42. That clause provides that on and from the operative date of 30 September 1987, the employer must pay and/or provide benefits pursuant to Schedule 6 of the Award. Relevantly, Schedule 6 provides for additional compensation for ‘eligible injuries’. Part 3 of Schedule 6 then defines ‘eligible injuries’:
PART 3 – ELIGIBLE INJURIES
Only eligible officers can have eligible injuries
S6.33 An injury is not an eligible injury unless the injured officer is an eligible officer.
Temporal connection to employment
S6.34 An eligible injury arises out of or in the course of the eligible officer:
S6.34.1being on duty; or
S6.34.2lawfully performing the duties of an officer; or
S6.34.3genuinely believing that they are exercising duties of an officer.
Causal connection to the nature of ambulance work
S6.35 To be an eligible injury the injury must have:
S6.35.1resulted from conduct directed at the officer that is or appears to be a criminal offence; and/or
S6.35.2occurred as a direct and immediate result of conduct that is or appears to be a criminal offence; and/or
S6.35.3occurred while the officer was on active duty and suffered an injury as a result of:
S6.35.3.1the uncontrolled or unpredictable work environment; and
S6.35.3.2having to engage in activity(s) which were inherently unsafe; and/or
S6.35.4occurred in other circumstances where the officer is placed in a dangerous situation (however psychiatric injuries are only eligible injuries pursuant to S6.35.4 if they are caused as a consequence of a specific incident or incidents).
The questions raised on the present appeal concern the interpretation of cll S6.35.3 and S6.35.4, in the following way.
On 25 September 2012, the appellant, Mr Todd Kimber, sustained a work‑related injury to his lower back. By reason of the limits imposed by the Return to Work Act 2014 (SA), his entitlement to weekly payments compensation ceased on 28 June 2017. His entitlement to compensation for medical expenses ceased on 28 June 2018.
Mr Kimber claimed compensation pursuant to Schedule 6. On 10 July 2018, the respondent determined that he did not meet the criteria in the Schedule and did not approve the application for compensation. Mr Kimber sought a review in the Tribunal. On 8 May 2020, a Deputy President of the Tribunal found that Mr Kimber’s injury occurred in circumstances where he was placed in a dangerous situation within the meaning of cl S6.35.4.[1] The respondent appealed, and on 13 April 2021, the Full Bench of the Tribunal allowed the appeal, set aside the decision of the Deputy President and confirmed the decision under review dated 10 July 2018.[2]
[1] [2020] SAET 82.
[2] [2021] SAET 71.
Mr Kimber now seeks permission to appeal to this Court on a question of law. A question of the correct construction of a term of an Award ordinarily raises a question of law. In the present case, there was some dispute as to the questions of law that were properly raised on the Notice of Appeal and, depending on the answer, whether permission to appeal should be given. It is necessary to understand how these disputes are said to arise.
Background
The Deputy President on review adopted the statement of facts provided by counsel for Mr Kimber, which were not disputed by the respondent. The relevant facts as set out are as follows:
4.    As at 25 September 2012, the applicant was a paramedic employed by SAAS, and was covered in that employment by the Award.
5.    On 25 September 2012, the applicant suffered an injury to his back while working in that employment.
6.    Immediately prior to the injury occurring, the applicant and his partner were attending a patient who was lying on a stretcher in a single bed room at the Millicent hospital. The applicant and his partner were to transfer the patient to the bed in that room.
7.    The applicant and his partner lowered the stretcher to half its normal height in a controlled fashion. During this time, the applicant and his partner were on either side of the stretcher and facing the stretcher.
8.    The applicant then turned 90° and took a pace forward so that he was adjacent the stretcher and facing forward.
9.    As he did so, he heard the click of the stretcher as if it were being further lowered by his partner. There had been no warning of this further lowering. Fearing that the patient would fall from the stretcher as it lowered or collapsed, the applicant twisted suddenly back towards the stretcher, and bent down and forward as he did so, and caught the rail of the stretcher near the handrail, to prevent the stretcher from lowering in an uncontrolled way.
10. As he did so, the applicant immediately felt a bolt of pain in his lower back, radiating to his upper back and down his left leg.
11. The pain progressed during the next hour until the applicant could not continue working. He went to hospital to be examined.
12. As a result of the above occurrence, the applicant sustained a prolapse to his L4/5, L5/S1 and T7/8 vertebral discs, with consequent symptoms in his left leg, skin irritation and scarring resulting from medication, and psychological sequelae.
13. The applicant’s injuries were accepted as compensable under the Workers Rehabilitation and Compensation Act 1986 (the repealed Act). The applicant was paid weekly payments of compensation until 28 June 2017, and compensated for medical expenses until 28 June 2018, pursuant to the provisions of the repealed Act.
14. The applicant lodged a claim for benefits pursuant to Schedule 6 of the Award on 1 June 2018. That claim was rejected by the respondent on 10 July 2018, on the ground that the applicant’s injury was not an eligible injury within the meaning of clause S 6.35 of Schedule 6.
The Deputy President noted the oral evidence of Mr Kimber that he had experienced a stretcher of the same make (a Ferno stretcher) completely collapsing on one occasion and, on at least half a dozen other occasions, failing at half height and lowering to the next stage, below that intended.[3] He recorded the applicant’s evidence to the effect that he had not been prepared for his colleague to lower the stretcher because she had not communicated with him. He then made the following additional findings:[4]
Officers received training in manual handling, and lowering a stretcher should be a coordinated effort with the other officer by counting numbers or consecutive words like “ready, set, lower”.
I find that the applicant sustained injury when he twisted and bent down and forward to catch the stretcher to avoid it lowering without adequate control.
[3] [2020] SAET 82 at [3].
[4] [2020] SAET 82 at [5]-[6].
The respondent on the appeal submitted that the Full Bench had made a further finding of fact, that the ‘lowering’ of the stretcher related to the foot end of the stretcher only.[5] However, this fact was not in dispute. The appellant had not suggested at trial that the lowering action related to the patient’s upper body. This procedure (done properly) was to enable the patient to get off the stretcher.
[5] [2021] SAET 71 at [69].
In circumstances where it was common ground, the reference in paragraph 9 of the statement of facts to the stretcher being ‘lowered’ and ‘lowering’ is necessarily a reference to only the foot end of the stretcher being lowered.
Mr Kimber’s case at trial was that he suffered an ‘eligible injury’ within the meaning of cl S6.35, in that it occurred in circumstances contemplated by cl S6.35.3 or cl S6.35.4. The Deputy President found that the circumstances did not come within the scope of cl S6.35.3. He found that the phrase in that clause, ‘activity(s) which were inherently unsafe’ was directed at the characteristics of the activity, rather than the manner in which the activity was carried out. Here, the relevant activity was that of transferring a patient from a stretcher to a bed.[6]
[6] [2020] SAET 82 at [37].
As to cl S6.35.4, he interpreted ‘dangerous situation’ to mean ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’.[7] Applying that interpretation, he held that the injury did occur in circumstances where Mr Kimber was placed in a ‘dangerous situation’ as contemplated by cl S6.35.4:[8]
I find that the lowering of the stretcher without warning was in the applicant’s immediate presence, and was an action by a colleague with whom the applicant was working on the joint task of transferring a patient from the stretcher. The applicant and his colleague were jointly involved in the use and operation of the stretcher, with care to be taken of the patient in the course of the transfer. With the stretcher being lowered without warning, the applicant was placed in the situation of responding quickly to the unexpected lowering of the stretcher. He suddenly twisted and bent forward to take hold of the stretcher to protect the patient on the stretcher. In so doing he was exposed to a risk of injury or harm, compared with normal manual handling procedures and normal communications for operating the stretcher. I find the situation was a dangerous situation, and the applicant was placed in a dangerous situation.
[7] [2020] SAET 82 at [55].
[8] [2020] SAET 82 at [57].
The respondent appealed to the Full Bench of the Tribunal. Mr Kimber filed a Notice of Alternate Contentions. The Notice of Alternate Contentions pursued the claim that the injury occurred in circumstances contemplated by cl S6.35.3. The Full Bench dismissed the Notice, upholding the Deputy President’s conclusion that the patient transfer was not an inherently unsafe activity, and was not performed in an uncontrolled or unpredictable work environment.[9]
[9] [2021] SAET 71 at [86]-[88].
However, the Full Bench allowed the respondent’s appeal, holding that the injury did not occur in circumstances where Mr Kimber was placed in a dangerous situation within the meaning of cl S6.35.4. President Dolphin held:[10]
In my view, S6.35.4 is reserved for situations of real danger – of peril or jeopardy – rather than instances of mere or theoretical risk. What is to be understood to be a “dangerous situation” is to be determined on the facts of each case.
[10] [2021] SAET 71 at [56] (Dolphin PJ, Kelly DPJ agreeing).
Similarly, Calligeros DPJ held that the language and context of cl S6.35, read as a whole, suggested that Schedule 6 applies ‘when there is a high or very high degree of risk of injury to an officer, not just when “there is a risk of harm or injury to an officer” as stated [by the Deputy President at first instance]’.[11]
[11] [2021] SAET 71 at [93] (Calligeros DPJ, Kelly DPJ agreeing).
Applying that understanding of heightened risk, the Full Bench held the circumstances in which Mr Kimber was injured did not amount to a ‘dangerous situation’ within the meaning of cl S6.35.4.[12]
[12] [2021] SAET 71 at [57] (Dolphin PJ); [95] (Calligeros DPJ); [100] (Kelly DPJ).
The Notice of Appeal
The Notice of Appeal challenges the Full Bench’s constructions of both cll S6.35.3 and S6.35.4. The grounds are, for the most part, expressed as complaints that the Full Bench erred in various aspects with respect to the construction of cl S6.35. Grounds so expressed do raise questions of law. However, it is important to be clear as to the questions of law that are properly raised.
Grounds 1 and 2 complain of a step in the process of construction of Schedule 6, as a whole:
1. The Full South Australian Employment Tribunal in Court Session as the South Australian Employment Court (“the Court”) erred in finding that Deputy President Cole at first instance misconstrued Schedule 6 of the SA Ambulance Service Award (“the Award”) and in particular by finding that Deputy President Cole “misconstrued the ambit of clause s6.35 of the Award by understating the degree of risk or danger required” at [95].
2. The Court erred in its construction of clause s6.35 of the Award in finding that Schedule 6 only applies “when there is a high or very high degree of risk of [sic] injury to an officer” at [93].

Ground 3 then complains of the application of this misconstruction of the ‘ambit’ of Schedule 6 to cl S6.35.4:
3. The Court erred in its construction of clause s6.35.4 of the Award in that:
3.1the Court erred at [96] by construing the phrase “dangerous situation” in the clause s 6.35.4 as being a situation “dangerous in the sense of being full of danger or risk, or having a relatively high degree of risk”;
3.2the Court erred at [96] by distinguishing between dangerous and non-dangerous situations by reference to the concept of an emergency situation;
3.3the Court erred at [97] by importing notion [sic] of negligence and culpability of a tortfeasor and causation into the construction of clause s6.35.4, which concepts are irrelevant to its construction.
Grounds of appeal that take the form of complaint that the tribunal ‘erred’ in taking a particular approach can provide suitable grounds of complaint to support a question of law. However, this form of language in a notice of appeal can tend to obscure any question of law that might be properly raised.
The complaint in Ground 1 faithfully reproduces a statement by Calligeros DPJ in the course of his Honour’s reasoning.[13] However, while this statement was expressed as a criticism of the primary judge’s approach to cl S6.35 as a whole, in context, the only statement by the primary judge to which it can possibly be referring is the following, which focused on cl S6.35.4:[14]
In my view, dangerous situation as it appears in S6.35.4 means a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties.
[13] [2021] SAET 71 at [95] (Calligeros DPJ).
[14] [2020] SAET 82 at [55] (Cole DPJ).
This is then confirmed by Calligeros DPJ’s exposition of the criticism:[15]
The failure of the stretcher to deploy correctly and the lack of communication between Mr Kimber and the other officer performing the transfer did not give rise to a “dangerous situation” within the meaning of cl S6.35.4. That construction is too broad in my view and does [sic: not] have proper regard to the context of cl S6.35 read as a whole.
[15] [2021] SAET 71 at [95] (Calligeros DPJ).
The difficulty with Ground 1 is that, on its face, it complains about one step taken by Calligeros DPJ in the process of construction of cl S6.35.4. That does not mean necessarily that no question of law is raised, but it does make it difficult to identify with precision a question of law, the answer to which is capable of founding relief. As it is, however, the impugned statement by Calligeros DPJ was made in a context that engaged directly with the construction of cl S6.35.4, when determining whether that clause was capable of applying to the facts as found.
Generally speaking, whether facts as found fall within the provision of an enactment, properly construed, is a question of law.[16] In Vetter v Lake Macquarie City Council,[17] the High Court explained:[18]
[16] Hope v Bathurst City Council (1980) 144 CLR 1 at 7 (Mason J, Gibbs, Stephen, Murphy and Aickin JJ agreeing); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
[17] (2001) 202 CLR 439.
[18] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[25] (Gleeson CJ, Gummow and Callinan JJ).
Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law[19]. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General[20]:
“[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law”.
In his speech in Edwards (Inspector of Taxes) v Bairstow[21] Lord Radcliffe identified an error of law as arising if "the true and only reasonable conclusion contradicts the determination". Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) discussed the matter comprehensively and stated the law on this topic in this country as follows in Hope v Bathurst City Council[22]:
“Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation[23], where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees[24], which was adopted by Latham CJ in Commissioner of Taxation v Miller[25], that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said[26]:
‘'… this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The "facts" referred to by Lord Parker … are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally – so far as I can see, always – be a question of law.’
However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v Cozens[27] was just such a case. The only question raised was whether the appellant's behaviour was 'insulting'. As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.”
(Footnotes in original)
[19] Vetter (1999) 18 NSWCCR 34 at 48 [44]-[45].
[20] (1940) 40 SR (NSW) 126 at 138.
[21] [1956] AC 14 at 36.
[22] (1980) 144 CLR 1 at 7.
[23] (1956) 96 CLR 47 at 51.
[24] [1915] AC 922 at 932.
[25] (1946) 73 CLR 93 at 97.
[26] (1956) 96 CLR 47 at 51.
[27] [1973] AC 854.
In Vetter, the construction exercise related to sections of the Workers Compensation Act1987 (NSW) concerning the ambit of a worker’s journey from the place of work to home. A worker had been injured in the course of a journey that she took periodically first to her grandmother’s house, and then home. The trial judge had characterised the journey as coming within the description in the Act. An appeal lay to the Court of Appeal on a question of law. A majority of the Court of Appeal held that the trial judge erred in finding that the worker had made a single journey, which they held to be the necessary requirement of the legislation. That is, they held that the facts as found did not come within the scope of the section.
The High Court held:[28]
A journey may sometimes aptly be described in more than one way. This is perhaps such a case, but because the trial judge's description or characterisation was one reasonably available description, the majority in the Court of Appeal erred in insisting on the different description that they did.
[28] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [31] (Gleeson CJ, Gummow and Callinan JJ).
Vetter illustrates the nature of the enquiry engaged by Ground 1 in the present case where the appeal is limited to a question of law. Specifically, the enquiry is directed at whether the trial judge’s description or characterisation of the concept of ‘dangerous situation’ in cl S6.35.4 was an available description.
The complaint in Ground 1 is a complaint about the Full Bench finding error on the part of the primary judge. That is to say, the Full Bench found that on the facts as found by the primary judge, the injury sustained by Mr Kimber did not occur in ‘circumstances where [Mr Kimber] was placed in a dangerous situation’. It reasoned that the primary judge had erroneously expanded the concept of ‘dangerous situation’ to one of ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’.
Applying the reasoning of the High Court in Vetter, an appropriate and potentially the most useful question of law could have been fashioned to ask:
On the facts as found by the trial judge, were the circumstances in which Mr Kimber was injured incapable of being characterised as circumstances where he was placed in a dangerous situation within the meaning of cl S6.35.4?
However, this is not the question asked by Ground 1. The complaint of error in Ground 1 does, however, for the reasons set out above, raise an anterior question of law, not linked to the findings of fact, being a pure question of construction:
Whether, on its proper construction, it was open to construe the phrase ‘dangerous situation’ in cl S6.35.4 as ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’.
If the answer to this is ‘yes’, the conclusion would follow that the Full Bench erred. Ground 1 would be established. Relief would be limited to remitting the matter to the Full Bench to determine the matter in accordance with that answer. If the answer is that it was ‘not open’, the conclusion would follow that the Full Bench did not err in this respect. The ground would not establish a basis for setting aside the decision.
In this way, Ground 1 can be understood as giving rise to a question of law. It would have been preferable for the question of law to be stated in the Notice of Appeal. However, we are satisfied that it properly arises in the terms described above.
Grounds 2 and 3 engage with the other side of the coin, that is, with the narrower description that the Full Bench held was invoked by the phrase, ‘dangerous situation’. As with Ground 1, Ground 2 engages with a step in the reasoning of the Full Bench as to the construction of cl S6.35 as a whole. That reasoning appears at [93] of Calligeros DPJ’s reasons but, in context, it is again directed to the primary judge’s approach to the construction of cl S6.35.4. Given that context, for the purposes of identifying a question of law, the ground can be read together with Ground 3.1, which complains of that narrower construction of cl S6.35.4.
Applying the approach described above, Grounds 2 and 3.1 on their face raise a question of law that may be cast in the following terms:
Whether, on its proper construction, the phrase ‘dangerous situation’ in cl S6.35.4 is limited to a situation ‘dangerous in the sense of being full of danger or risk, or of having a relatively high degree of risk’.
This question of law only arises if the question of law raised by Ground 1 is answered in the negative. That is to say, if it was not open to the trial judge to construe the phrase ‘dangerous situation’ in cl S6.35.4 in the broad way that he did, the question still arises whether the Full Bench was correct to limit the construction of the same phrase to the narrow description that it used.
This creates a further issue. While the question arising on Ground 1 has utility, in that the answer will determine the correctness of the decision of the Full Bench to overturn the decision of the primary judge, the second question as phrased above amounts to an open-ended invitation to construe the phrase ‘dangerous situation’, without resolving whether the phrase was capable of applying to the facts as found.
The difficulty is that it is one thing to say that a posited description or characterisation of a phrase is available. Consistently with the High Court’s observation in Vetter, however, more than one description may well be apposite in the construction of a phrase in an instrument. The different descriptive phrasing employed by Dolphin PJ in this case illustrates the point.[29] For this Court, on an appeal on a question of law, to consider limiting the available description to the phrase deployed by the Full Bench would be to risk committing the very error committed by the Court of Appeal that the High Court identified in Vetter.
[29] [2021] SAET 71 at [56].
However, a different question of law can also be said to arise. Ground 2 employs problematic language, in that it limits the enquiry to only the description used by Calligeros DPJ. Ground 3.1 on its own, however, supports a question of law that can be framed as follows:
Whether, on its proper construction, it was open to the Full Bench to describe the phrase ‘dangerous situation’ in cl S6.35.4 as a situation ‘dangerous in the sense of being full of danger or risk, or of having a relatively high degree of risk’.
A positive answer would have the effect of causing Ground 3.1 to be dismissed. A negative answer, however, would be accompanied by reasons that would necessarily have to explain the limits to any description applicable to the phrase. The result would be that the matter would be remitted to be determined in accordance with those reasons. It would not be determinative of the entire matter.
That is not ideal. Senior counsel for the respondent urged the Court against embarking on a course that simply amounted to construing the word ‘dangerous’ in the context of the Award, as by itself, that could not determine the outcome. That is a reasonable observation. It highlights the need for care in formulating questions of law. However, in circumstances where a negative answer to the question that has been raised would be accompanied by reasons that would then guide consideration of the clause on a remittal, there remains utility in answering this question.
Finally, Grounds 3.2 and 3.3 are complaints of error of reasoning on the part of the Full Bench. They are best understood as grounds of complaint in support of the question of law raised by Ground 3.1, in that they complain of error in the Full Bench’s reasoning in support of the construction it articulated.
This discussion illustrates the importance of formulating questions of law on a notice of appeal carefully. The question of law that is asked, or that is sufficiently able to be discerned from the grounds, can have significant consequences for the outcome of the appeal. In this matter, Grounds 1 to 3 raise questions of law related to the construction of cl S6.35.4, divorced from the facts as found. By contrast, a question of law that asked whether the facts as fully found fell within the provision of the clause would have had the potential to determine the outcome of the entire matter, without the need for a remittal in the event of an answer favourable to the applicant.[30]
[30] See, e.g., Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 (Glass JA); Hope v Bathurst City Council (1980) 144 CLR 1 at 7 (Mason J, Gibbs, Stephen, Murphy and Aickin JJ agreeing); Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 379 (Sheppard and Burchett JJ).
We turn to the questions of law raised on Grounds 1 and 3 of the Notice of Appeal.
Whether, on its proper construction, it was open to construe the phrase ‘dangerous situation’ in cl S6.35.4 as ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’
The starting point for any exercise of construction of an industrial award, as Calligeros DPJ recognised, is the principle encapsulated in the statement of the Full Federal Court in Qube Ports Pty Ltd v Maritime Union of Australia:[31]
There are well developed principles concerning the construction of industrial awards and agreements, which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.
The principles were reviewed recently by Tracey J in Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54 at [29]-[41]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the Court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and, in doing so, avoid a narrow or pedantic approach. In particular, the Court takes account of the circumstance that the drafters of the agreement were likely of a “practical bent of mind” and likely to have been concerned with expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the Court will prefer a construction which gives effect to the presumed purpose of the parties.
[31] [2018] FCAFC 72 at [64]-[65] (White J, Mortimer and Bromwch JJ agreeing).
Earlier, in Kucks v CSR Limited, Madgwick J commented:[32]
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
[32] (1996) 66 IR 182 at 184. See further Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57] (French J).
Here, the approach requires a practical construction of the phrase ‘other circumstances where the officer is placed in in a dangerous situation’, in the context of the whole of cl S6.35. That practical construction looks to the circumstance that Schedule 6 provides a regime of compensation over and above that now provided for in the Return to Work Act 2014 (SA), on account of the particular character of the work undertaken by paramedics that distinguishes the exigencies of their workplace from most others.
The starting point of the applicant was that clause S6.35.4 addresses a type of circumstance that is alternative and additional to those provided for by the descriptions in cll S6.35.1 to S6.35.3. While in one sense that is obvious, in that it is a truth represented by the very fact of the additional clause, it is not a particularly helpful observation. This being an industrial award rather than a statutory instrument, the four clauses might not easily be characterised as establishing a genus of the type that is a recognised technique of statutory drafting. Nevertheless, the whole of cl S6.35 provides a helpful context in which to view the practical intention of cl S6.35.4.
Clause S6.35.1 is concerned with apparently criminal conduct directed at the officer. Clause S6.35.2 is also concerned with apparently criminal conduct, although it has a broader scope. The combination of these two clauses illustrates an important point about the construction of industrial awards. The second of these would appear to include any conduct that falls within the first. Reading the clauses narrowly or pedantically would tend to highlight the strict redundancy of the first clause.

Reading the clauses from a practical, industrial perspective in the context of the practice of paramedicine, on the other hand, suggests that the drafters focused first on the prospect of officers being placed directly in harm’s way by criminal conduct, and then being injured on account of criminal conduct not necessarily directed at them. While there is a textual redundancy inherent in the combination of these clauses, they together highlight an industrial purpose of providing heightened compensatory protection for the various possibilities of exposure of an officer to injury by criminal conduct, starting with direct, criminal threats.
Clause S6.35.3 then expands the reach of ‘eligible injury’ further, with a description that will include some scenarios envisaged by the first two clauses. This clause requires that the officer must have been on active duty, that the injury was a result of the uncontrolled or unpredictable work environment and the officer had to engage in an activity that was inherently unsafe. As with the first two clauses, the focus is on matters that aggravate risk in the workplace and where injury results from those circumstances of aggravated risk.
Clause S6.35.4 is then concerned with where the injury ‘occurred in other circumstances where the officer is placed in a dangerous situation’. A natural reading of the clause suggests that this is a catch-all clause for dangerous situations other than the dangerous situations described in the first three clauses. That is, the first three clauses identify anticipated circumstances where officers can be placed in a ‘dangerous situation’, described by reference to circumstances of heightened risk. Clause S6.35.4 covers other dangerous situations not specified. A practical reading suggests that, in context, the focus of the whole clause is on heightened risk presented by the circumstances in question.
In Return to Work SA v Agnew,[33] the Full Court cautioned against construing the Return to Work Act 2014 (SA) ‘beneficially’ in favour of claimants in light of the objects set out in the Act. The Act looks to strike a balance between the interests of employers and workers, supporting injured workers financially but also ensuring that the social and economic costs of work injuries to the State and community is reduced.[34] The authorities identified above relating to the construction of industrial awards provide no less reason to reject any premise of ‘beneficial’ construction in favour of the worker.
[33] [2020] SASCFC 79.
[34] [2020] SASCFC 79 at [27]-[28] (Stanley J, Peek and Nicholson JJ agreeing).
As the applicant observed, the Full Bench placed some reliance on the definition of ‘dangerous’ in the Macquarie Dictionary, which includes the definition, ‘full of danger or risk’. The applicant pointed to further dictionary definitions, such as appears in the Oxford English Dictionary, being ‘able or likely to cause harm or injury’. He submitted that a complete understanding of the definition extends the concept to situations where there is a low risk, but this risk is of significant harm, or a high risk, but only of moderate harm.
To this end, he relied on the observation by the High Court in Burnie Port Authority v General Jones Pty Ltd,[35] as to what might be characterised as a ‘dangerous’ substance or activity for the purposes of an occupier’s liability in the law of negligence:[36]
The fact that a particular substance or a particular activity can be seen to be “inherently” or “of itself” likely to do serious injury or cause serious damage will, of course, ordinarily make characterization as “dangerous” more readily apparent. That fact does not, however, provide a criterion of what is and what is not dangerous for the purpose of determining whether the duty of a person in occupation or control of premises to take care to avoid injury or damage outside the premises is or is not a delegable one. It suffices for that purpose that the combined effect of the magnitude of the foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage if an accident does occur is such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions in relation to it.
[35] (1994) 179 CLR 520.
[36] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 558-559 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
This case illustrates that the concept of ‘dangerous’ is capable of extending to a description of this nature, but otherwise does not assist. The present exercise is not concerned with identifying a duty of care. It is concerned with an extension, by industrial award, of a no-fault compensatory regime.
The characterisation of the necessary risk is therefore not assisted by an attempt to draw an equation with circumstances that place obligations on the employer (or anyone else) to take precautionary action to prevent or ameliorate the incidence of risk. Reading the whole of cl S6.35 from a practical perspective, the clause is concerned with compensation for injuries that occur in circumstances of risk that go beyond those ordinary risks of employment that might reasonably be ameliorated by policies and procedures. It recognises that paramedics face circumstances of heightened risk by reason of the character of their workplace, notwithstanding the protective measures that can be expected to be in place.
In addition, to posit that the phrase ‘dangerous situation’ in cl S6.35.4 extends to situations of low risk but potentially significant consequences, carries a prospect of circularity, that the occurrence of injury might be taken to be demonstrative of it having occurred in a dangerous situation. The applicant accepted that a ‘dangerous situation’ could not, in context, extend to all situations of risk, or else every situation would be ‘dangerous’.
A potential difficulty with the description applied by the primary judge to the concept of ‘dangerous situation’, that is, ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’, is that it does not offer any criterion for avoiding this circularity. More generally, it fails to recognise that having regard to the context and manifest purpose of cl S6.35.4, the clause is directed to an elevated circumstance of risk, higher than the ordinary incidence of risk which might reasonably be mitigated by the employer. It is directed to the heightened risks associated with the profession of paramedicine.
For this reason, the Full Bench did not err in holding that the Deputy President at first instance had misconstrued the ambit of clause S6.35.4 by understating the degree of risk or danger required.[37] We answer the question of law raised by Ground 1 by saying that on its proper construction, it was not open to construe the phrase ‘dangerous situation’ in cl S6.35.4 as ‘a situation which gives rise to risk of harm or injury to an officer carrying out his or her duties’. The phrase has a narrower scope than is allowed for by that description.
Whether, on its proper construction, it was open to the Full Bench to describe the phrase ‘dangerous situation’ in cl S6.35.4 as a situation ‘dangerous in the sense of being full of danger or risk, or having a relatively high degree of risk’
[37] [2021] SAET 71 at [95]; Notice of Appeal, Ground 1.
As explained above, this question presents the other side of the coin. Whether the description applied by the primary judge was too broad is one question; whether the description applied by the Full Bench was too narrow, is another.
This question can, however, be answered fairly shortly. As explained in the first part of these reasons, the question of law that is appropriate for permission is not whether the description applied by the Full Bench was the only one open, but simply whether it was open.
Deputy President Calligeros deployed two descriptive phrases. The second of these might be thought to have a broader reach than the first. President Dolphin used a slightly different description again. Bearing in mind that these are descriptions, not definitions, and having regard to the purposive and contextual considerations discussed above, we are not prepared to find that any of these descriptions is unavailable. They express that the phrase ‘dangerous situation’ in cl S6.35.4 connotes a situation of heightened risk over and above ordinary exigencies of risk capable of being addressed by policies and procedures.
Grounds 3.2 and 3.3 are complaints about the reasoning of the Full Bench in construing cl S6.35.4. Ground 3.2 attacks the following paragraph of Calligeros DPJ’s reasons:[38]
Mr Blewett’s submission that driving an ambulance at any time is a “dangerous situation” helps to illustrate the distinction I seek to draw. While there is a risk of being injured in a motor vehicle on a public road at any time, it does not follow that travelling in a motor vehicle at all times is dangerous in the sense of being full of danger or risk, or of having a relatively high degree of risk. A risk of injury exists when performing many daily activities, like using a sharp knife or a lawnmower. In contrast to driving in a normal way, and by that I mean like most other law abiding drivers, when an ambulance is called to respond to an emergency it may need [to] be driven at a speed greater than the speed limit and travel through red lights or into the path of oncoming traffic. While officers are no-doubt trained how to drive in an emergency so as to minimise the risk of a collision, an emergency situation is to my mind unpredictable, perhaps even inherently unsafe, and can properly be said to be a dangerous situation to be placed in.
[38] [2021] SAET 71 at [96].
Mr Roder QC, for the applicant, did not pursue the argument that driving an ambulance in ordinary traffic would be a ‘dangerous situation’ within the meaning of the clause. Bearing that in mind, this illustration was unremarkable. The situation of emergency described in the passage may well be appropriately regarded as a ‘dangerous situation’ within the meaning of the clause, although it is not necessary to decide.
Deputy President Calligeros then said:[39]
The law recognizes different degrees of risk and culpability in any number of contexts. Driving a vehicle “without due care and attention” is less culpable than driving a vehicle “recklessly or at a speed or in a manner which is dangerous to any person”. A tortfeasor does not escape liability for a negligent action that causes injury simply because subsequent medical treatment is performed negligently and causes further injury and loss. However, if there is a “grave lack of skill or care on the part of the doctor, or the treatment is “inexcusably bad”, then negligent treatment may break the chain of causation.
(Footnotes omitted)
[39] [2021] SAET 71 at [97].
We agree that this paragraph references circumstances not directly applicable to the construction of the Award. However, we interpret it as doing nothing more than explicating the observation that legal recognition of different degrees of risk, and attaching different consequences to risks so realised, is hardly unknown. We do not interpret it as importing a notion of culpability into the assessment of risk. Of course, where a situation involves some sort of culpable conduct on the part of a person (including the employer), this may assist in identifying the degree of risk.
There was some debate at the hearing as to whether, on the description adopted by the Full Bench, there was any scenario capable of engaging cl S6.35.4 independently of the others. Again, it is necessary not to be too pedantic in separating out the scope of the respective clauses. The respondent offered the scenario of lowering someone from a helicopter onto a cliff face which, by reason of the controlled environment in which it occurs, may not satisfy cl S6.35.3.
That is a helpful example for present purposes, but we would not, in any event, consider the lack of a realistic example to be fatal, especially given the common ground covered by cl S6.35.1 and S6.35.2. Again, Schedule 6 is a practical document, designed by practical, industrially minded people to meet a type of exigency particular to the practice of paramedicine.
We therefore answer the question raised by Ground 3 by saying that it was open to the Full Bench to describe the phrase ‘dangerous situation’ in cl S6.35.4 as a situation ‘dangerous in the sense of being full of danger or risk, or having a relatively high degree of risk’.
The questions of law raised in respect of Clause S6.35.3
Ground 4 complains of the application of the misconstruction of the ‘ambit’ of Schedule 6 (the subject of Grounds 1 and 2) to cl S6.35.3:
4. The Court erred in dismissing the Notice of Alternate Contentions filed on behalf of the appellant in that:
4.1the Court misconstrued clause s6.35.3 in finding at [84] that the clause is “directed to work environments and activities which expose officers to a high or very [high] degree of risk”;
4.2the Court erred in finding at [86] that the relevant activity which is required to be inherently unsafe for the purposes of the clause, is the activity engaged in at the relevant time, generically described (patient transfer), and not the activity in the circumstances in which it was carried out at the time of injury, and not the particular activity which was causative of injury.
For the reasons discussed above, Ground 4.1 also raises questions of law at the level of construction of the clause, not at the level of its application to the facts as found. It raises a question of a similar import to that raised by Ground 3.1, and can be expressed as follows:
Whether, on its proper construction, it was open to the Full Bench to describe cl S6.35.3 as being ‘directed to work environments and activities which expose officers to a high or very high degree of risk’.
The words of Calligeros DPJ the subject of complaint appear in the context of his Honour agreeing with the primary judge that cl S6.35 as a whole is not directed to the ordinary incidents of ambulance work, such as transferring a patient from a stretcher to a bed. He said:[40]
I respectfully agree with those observations. Manual Handling involves a risk of injury, even when precautions are taken to minimise that risk. However, cl S6.35.3 is directed to work environments and activities which expose officers to a high or very high degree of risk. Uncontrolled or unpredictable work environments by their very nature give rise to a high risk of injury. Engaging in an activity which is inherently unsafe whilst in an uncontrolled or unpredictable environment gives rise to an even higher risk of injury. It may not be possible to satisfactorily mitigate risk when, for example, treating a patient in a fire, a flood, a violent demonstration, or when confronted by drug affected bystanders.
Clauses S6.35.1 to S6.35.3 describe circumstances where there is a high or very high risk of injury to an officer having regard to the environment worked in and/or the activity being undertaken.
[40] [2021] SAET 71 at [84]-[85].
The point to be taken from this is that the Deputy President identified the concepts of ‘high to very high degree of risk’ by reference to the descriptors in cl S6.35.3 itself. As identified above, the conditions of an uncontrolled or unpredictable work environment and having to engage in activity(s) which were inherently unsafe are descriptors of environments that can properly be described as high risk. We answer the question raised by Ground 4.1 by saying that it was open to the Full Bench to describe cl S6.35.3 in this way.
Ground 4.2 raises a question of law of a different character. It focuses on the facts as found, being the activity of patient transfer. It complains about the following passage of the judgment of Calligeros DPJ:[41]
The patient transfer in issue was not an inherently unsafe activity, and was not performed in an uncontrolled or unpredictable work environment. Ambulance officers receive training in how to perform patient transfers. While there may have been a lack of communication and a mechanical malfunction during the transfer, those things do not make performing a patient transfer inherently unsafe. Many daily activities like using a knife to prepare food or operating a lawnmower can result in injury if insufficient care and attention is paid to the performance of the activity. To my mind and inherently unsafe activity is one where even when care and attention are exercised, the activity cannot be said to be safe to perform.
[41] [2021] SAET 71.
The question arising on this ground of appeal is not merely one of construction. It can be expressed as follows:
Whether, on the facts as fully found, the relevant activity which was required to be inherently unsafe for the purposes of the clause, was ‘patient transfer’ generically described and not the activity in the circumstances in which it was carried out at the time of injury, and not the particular activity which was causative of the injury.
The Full Bench described the patient transfer in issue as being the relevant activity, but it assessed the question of whether it was ‘inherently unsafe’ at the level of abstraction of the general activity, rather than the activity as executed in the particular circumstances. Having regard to the context and purpose of the clause as a whole, discussed above, this was an orthodox approach. To hold the relevant activity to be the activity in the circumstances in which it was carried out at the time of injury, and the particular activity which was causative of the injury, would render the mere fact of the injury sufficient to satisfy both limbs of the test. The context and manifest purpose of the clause deny a construction that would give rise to such a circular outcome.
That difficulty with the applicant’s approach is reinforced by use of the descriptor ‘inherently’. On its natural reading, this is a description of the character of an activity, recognisable at the point of embarkation of the activity, not the immediate exigencies of its execution.
Further, as the respondent submitted, the relevant activity is an activity in which the officer is ‘having’ to engage. Mr Kimber was not required to twist and lunge in the event of his apprehension that the stretcher might collapse. He was required to carry out the patient transfer.
The Full Bench therefore did not err in its reasoning in the paragraphs set out above. We answer the question of law raised on this ground by saying that on the facts as fully found, the relevant activity which was required to be inherently unsafe for the purposes of cl S6.35.3, was ‘patient transfer’ generically described.
Conclusion
We therefore grant permission to appeal on Grounds 1, 3 and 4, on the basis that they raise questions of law that are appropriate for this Court to answer. We refuse permission to appeal on Ground 2, on the basis that the question of law it raises has little, if any utility. We dismiss the appeal.