KAREN ELIZABETH MERCER v AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED
JUDGMENT OF:
Mason P at 1; Meagher JA at 39; Beazley JA at 40
LOWER COURT JURISDICTION :
Compensation Court
LOWER COURT FILE NUMBER(S) :
CC 30455/97
LOWER COURT JUDICIAL OFFICER :
Bishop CCJ
COUNSEL:
Appellant: A J Katzmann SC/B G McManamey Respondent: J E Maconachie QC/P L Perry
SOLICITORS:
Appellant: Stacks Respondent: Hickson Wisewoulds
CATCHWORDS:
Workers compensation - injury occurring in the course of or arising out of employment - employment as a substantial contributing factor to the injury - probability that a similar injury would have happened anyway - Workers Compensation Act 1987 s9A - remote or tenuous connection between employment and injury - definition of "injury" - absence of employment characteristics in the injury - interpretation of "substantial". (D)
Appeal allowed - award set aside - proceedings remitted for further hearing
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40024/99
MASON P MEAGHER JA BEAZLEY JA
Wednesday 31 May 2000
MERCER v ANZ BANKING GROUP LTD
The appellant worker suffered injury in 1997 in the course of her employment as a bank teller. She was attending to a customer and went to a desk to get some sticky tape. She reached out to the left and suddenly felt extreme pain in her left knee and fell to the ground. She had twisted, rotating her knee and she suffered a lateral dislocation of the left patella. She returned to normal work duties almost a month later, but suffered ongoing pain and limited movement in playing sports.
The worker’s claim for compensation failed because, despite the injury occurring in the course of employment, the employment concerned was held not to be a substantial contributing factor to the injury. The trial judge at the Compensation Court applied s9A of the Workers Compensation Act 1987 (the Act), a provision which applies to work injuries received on or after 12 January 1997.
Section 9A provides:
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose of or in the course of, or arose both out of and in the course of, the worker’s employment,
The trial judge found that while the applicant’s injury arose in the course of her employment, the precise activity she was carrying out was one that could have occurred anywhere else. It was not an activity with any employment characteristics about it. The appellant also had an existing constitutional abnormality…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Mercer v ANZ Banking Group Ltd [2000] NSWCA 138
Case
[2000] NSWCA 138
Decision Date
CaseChat Overview and Summary
Mercer (the appellant) brought proceedings against ANZ Banking Group Ltd (the respondent) in the New South Wales Court of Appeal. The dispute concerned a claim for workers compensation for an injury allegedly sustained by the appellant in the course of or arising out of their employment with the respondent.
The primary legal issues before the Court of Appeal were whether the appellant's employment was a substantial contributing factor to their injury, and how the Workers Compensation Act 1987 (NSW) s 9A should be interpreted in circumstances where a similar injury might have occurred irrespective of employment. The Court also considered the definition of "injury" within the Act and whether the injury lacked employment characteristics, as well as the meaning of the word "substantial" in this context.
The Court of Appeal allowed the appeal, setting aside the award made in the primary proceedings. The Court reasoned that the primary judge had erred in their interpretation and application of s 9A of the Workers Compensation Act 1987 (NSW). The Court found that the connection between the appellant's employment and the injury was too remote or tenuous to satisfy the statutory requirement that employment be a substantial contributing factor. Consequently, the proceedings were remitted for further hearing.
Orders
Orders of the court
Appeal allowed - award set aside - proceedings remitted for further hearing