Seal v Transfield Services (Australia) Pty Ltd - [2010] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SEAL v TRANSFIELD SERVICES (AUSTRALIA) PTY LTD
[2010] SASCFC 44
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)
29 October 2010
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - CAUSAL RELATION BETWEEN INJURY AND INCAPACITY OR DEATH - NEW INTERVENING FORCE - GENERAL PRINCIPLES
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - CAUSAL RELATION BETWEEN INJURY AND INCAPACITY OR DEATH - GENERALLY
Appeal from decision of the Full Bench of the Workers Compensation Tribunal upholding decision of single Deputy President of the Tribunal, that employer was entitled to cease weekly payments to employee on the basis that employee had breached the obligation of mutuality - where employee's partial incapacity for work resulted from work injury - where employee's total incapacity for work consequent upon alcohol dependence - whether employee's conduct constituted a breach of the obligation of mutuality within the meaning of section 36 of the Workers Rehabilitation and Compensation Act 1986 - whether Full Bench had erred in articulation and application of the principle of the "obligation of mutuality" - whether Full Bench had erred in postulating hypothetical prospective reasonable employer when considering whether employee breached the obligation of mutuality - whether Deputy President had erred by not drawing an adverse inference against the compensation authority for its failure to adduce evidence on the question of the unavailability of an employment position - whether Deputy President had erred in concluding that worker's compensable disability had not caused his alcohol dependence and subsequent total incapacity for work - discussion of principle of "obligation of mutuality".
Held: (Gray & Kourakis JJ) Appeal dismissed - Full Bench correctly articulated and applied the principle of the obligation of mutuality - employee breached his obligation of mutuality as due to alcohol and substance abuse, was not "ready, willing and able" to exploit partial capacity remaining following work injury - challenge to finding of Deputy President that employee's increased consumption of alcohol and consequent total incapacity not caused by compensable disability, in substance involved an issue of fact not law - insofar as those findings open or necessary to review, those findings open on the evidence - challenge to conclusion of Deputy President in respect to unavailability of a position for employee, involved issue of fact not law.
(White J) (dissenting) Appeal allowed - matter should be remitted to the Full Bench for reconsideration - the Full Bench did not err in its construction and application of section 36 of the Act concerning the obligation of mutuality - the Full Bench had erred by determining the existence or otherwise of total incapacity by applying as the criterion the attitude of a hypothetical prospective reasonable employer, and it was open to the employee to raise this issue on the appeal - the Full Bench had not erred in refusing to draw adverse inferences because of the compensating authority's omission to adduce evidence as to the availability of work - the appeal against the Full Bench's conclusion on the issue of causation did not raise a question of law and an appeal to this Court did not lie on that ground.
Workers Rehabilitation and Compensation Act 1986 (SA) s 35, s 36, s 53(4), s 58B, s 63, s86(1) and s 86A(2); Workers' Compensation Act 1926 (NSW) s 9 and s 11(2); Workers Compensation Act 1971 (SA) s 67; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) s 16; Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 (SA) s 11; Occupational Health, Safety and Welfare Act 1986 (SA), referred to.
Asciak v Australian Glass Manufacturers Pty Ltd (1964) 64 SR (NSW) 344; RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665; Electric Power Transmission Pty Ltd v D’Urso (1970) 124 CLR 338; Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417; Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365; Kelvinator v Jezior (1988) 49 SASR 592; WorkCover Corporation v Grigor (1994) 62 SASR 283; State of South Australia v McDonald (2009) 104 SASR 344; Martin v State of South Australia (1982) 49 SAIR (Pt 2) 269; Zardoukas v General Motors-Holden Pty Ltd (1975) 42 SAIR 1202; General Motors-Holden Ltd v D'Andrea (1985) 122 LSJS 301; Ball v William Hunt & Sons Ltd [1912] AC 496; Wicks v Union Steamship Co of New Zealand Ltd (1933) 50 CLR 328; Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120; Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431; Thompson v Armstrong & Royse Pty Ltd (1950) 81 CLR 585; McKechnie v Broken Hill Proprietary Company Ltd (1979) 23 SASR 68; Scott v Davis (2001) 204 CLR 333; International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151; Lipohar v The Queen (1999) 200 CLR 485; Favell v Queensland Newspapers [2005] HCA 52; Cardiff Corporation v Hall [1911] 1 KB 1009; Foster v Wharncliffe Woodmoor Colliery Co Ltd [1922] 2 KB 701; Wicks v Union Steamship Co of NZ Ltd (1934) 50 CLR 328; Jones v Dunkel (1959) 101 CLR 298; Frederick v State of South Australia (2006) 94 SASR 545; Puric v State of South Australia [2009] SASC 107; WorkCover Corporation v Sherriff (Unreported, Full Court of the Supreme Court of South Australia, Bollen, Lander and Nyland JJ,1 October 1996, Judgment No S5831); Hope v The Council of the City of Bathurst (1980) 144 CLR 1; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Pham v Workers Rehabilitation & Compensation Corporation & Anor (1995) 181 LSJS 241; Jones v Workcover Corporation/Royal and Sun Alliance Workers Compensation [1998] SAWCT 36; Ward v Corrimal-Balgownie Collieries Ltd (1938) 61 CLR 120; Bratovich v Rheem (Aust) Pty Ltd (1971) 2 SASR 33; Hamiltons Ewell Vineyards Pty Ltd (t/as Mildara Wines Ltd) v Holmes (1985) 38 SASR 153; Seal v Transfield Services (Australia) Pty Ltd [2008] SAWCT 15; Transfield Services (Australia) Pty Ltd v Seal [2008] SAWCT 43; Seal v Transfield Services (Australia) Pty Ltd [2009] SAWCT 4; Seal v Transfield Services Australia Pty Ltd [2009] SAWCT 29, considered.

SEAL v TRANSFIELD SERVICES (AUSTRALIA) PTY LTD
[2010] SASCFC 44
Full Court Gray, White and Kourakis JJ
GRAY J.
Introduction

This is an appeal from a decision of the Full Bench of the Workers Compensation Tribunal upholding an employer’s entitlement to cease weekly payments as a consequence of a breach by an employee of the obligation of mutuality; that is, that the worker was not ready, willing and able to enter into suitable employment offered to him.
The primary issues sought to be agitated on the appeal are whether the Full Bench made an error of law in its articulation and application of the principle of the “obligation of mutuality” and whether the Full Bench erred in its approach to the topic of causation. For reasons that follow I have reached the conclusion that the appeal should be dismissed. In my view, with respect to the issue of the obligation of mutuality, the Full Bench identified and applied correct legal principle. No error of law occurred. Further, in my view, the challenge to the causation finding was in substance based on factual considerations.
Background
Before coming to discuss the issues raised on the appeal to this Court, it is convenient to broadly trace the factual background.
Noel Seal, the appellant, was born in 1948. He spent the majority of his working life as a maintenance fitter. He is a qualified fitter and turner. At times he has worked in the hotel industry as a casual barman and as a hotel manager. For many years Mr Seal had been a heavy consumer of alcohol and had engaged in other forms of substance abuse.
On 20 October 2000, Mr Seal injured his right shoulder and neck in the course of his employment with the business that is now owned by Transfield Services (Australia) Pty Ltd, the respondent, and as a result was incapacitated for work. Initially his incapacity was total but by early 2001 the injury had healed, leaving Mr Seal with a partial incapacity for work. His compensation claim was accepted and he received income maintenance payments.
In late February 2001, Mr Seal was certified fit for modified duties. Between April 2001 and September 2003, Mr Seal made attempts to return to modified duties on restricted hours. These attempts were unsuccessful. Between late 2003 and the early months of 2006, Mr Seal engaged in voluntary charity work from time to time.
Throughout the period from late 2000 until mid-2006, Mr Seal continued to consume substantial quantities of alcohol and to use marijuana. During 2006 he informed a psychiatrist, Professor Robert Goldney, that on a daily basis he was consuming up to a full bottle of whisky and several beers and was smoking seven cones of marijuana. His alcoholism was long-standing. He was a committed long term substance abuser.
On 28 August 2006, Transfield Services[1] gave notice to Mr Seal of the cessation of weekly payments.[2] The notice asserted that Mr Seal had breached his obligation of mutuality. Mr Seal filed a notice of dispute. That dispute was heard by the Workers Compensation Tribunal. On 31 March 2008, Judge Hannon set aside the notice of cessation of payments. Transfield Services appealed from this decision to a Full Bench of the Tribunal, which allowed the appeal and remitted the matter for further hearing before Judge Hannon.
[1] The business of Mr Seal’s employer at the time of the injury was later transferred to Transfield Services, an exempt employer under the Workers Rehabilitation and Compensation Ac 1986 (SA).
[2] The notice was given pursuant to section 36 of the Workers Rehabilitation and Compensation Act 1986 (SA).
Following the rehearing on 15 December 2008, Judge Hannon dismissed Mr Seal’s notice of dispute and confirmed the notice of cessation of weekly payments of compensation given by Transfield Services. On the rehearing, Judge Hannon adopted and confirmed findings of fact made at the time of the initial hearing.
Judge Hannon on the rehearing accepted the psychiatric opinion of Professor Goldney that Mr Seal’s problems with substance abuse were long-standing and had developed from innate personality factors. Those problems were not attributable to either his work injury or the subsequent conflict between Mr Seal and his rehabilitation providers. Professor Goldney further considered that Mr Seal’s long history of substance abuse would have inevitably caught up with him and caused him to cease work altogether, regardless of whether or not he had been injured in October 2000.
Judge Hannon concluded that Mr Seal was alcohol dependent before his work injury as a consequence of his long-standing history of alcohol abuse. Mr Seal appealed to the Full Bench from the orders of Judge Hannon on the rehearing.
On 24 June 2009, the Full Bench dismissed Mr Seal’s appeal from the orders made by Judge Hannon on the rehearing. It is from that decision that Mr Seal appeals to this Court.
The Appeal
On the appeal, counsel for Mr Seal submitted that the Full Bench had departed from authority and devised a new test for determining whether there had been a breach of the obligation of mutuality. It was said that a gloss had been placed on the test by the introduction of the concept of a hypothetical reasonable employer. It was contended that this incorrect test had been picked up and applied by Judge Hannon on the rehearing. It was argued that this error permeated the Full Bench’s further consideration of the matter. It was further submitted that in any event the work injury had contributed to Mr Seal’s total incapacity and that the common sense test of causation had been misapplied by the Full Bench.
On the appeal, it was also complained that Judge Hannon failed to draw an inference adverse to Transfield Services as a consequence of its failure to call any evidence on the question of the existence of an employment position. The complaint went so far as to suggest that the circumstances gave rise to a Jones v Dunkel[3] inference. It is convenient to dispose of this complaint immediately. In my view, this complaint involved an issue of fact and not law. In any event, I agree with the reasons of Kourakis J. No error occurred on the part of Judge Hannon.
[3] Jones v Dunkel (1959) 101 CLR 298.
The Obligation of Mutuality
It is convenient to first address the obligation of mutuality.
Section 35 of the Workers Rehabilitation and Compensation Act 1986 (SA) enacts what has been described as the obligation of mutuality. That section relevantly provides:[4]
[4]    Workers Rehabilitation and Compensation Act 1986 (SA) section 35(2).
(2)For the purposes of subsection (1)—
…
(b)     for the first two years of the period of incapacity, partial incapacity for work is treated as total incapacity unless the Corporation establishes that suitable employment is reasonably available to the worker; and
(c)    after the end of the first two years of the period of incapacity, if –
(i)    suitable employment is in fact not available to the worker;
(ii)the worker establishes that the worker is, in effect, unemployable because employment of the relevant kind is not commonly available for a person in the worker’s circumstances irrespective of the state of the labour market,
partial incapacity for work will also be treated as total incapacity, but otherwise an assessment of the weekly earnings the worker could earn in suitable employment after the end of the first two years of the period of incapacity must be made on the basis that employment of the relevant kind is available to the worker.
These provisions have been held to imply an obligation of mutuality. That obligation has been given further statutory recognition by the terms of section 36, which deals with the discontinuance of weekly payments and relevantly provides:
(1)Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless—
(a)     the worker consents to the discontinuance of weekly payments; or
(b)     the Corporation is satisfied, on the basis of a certificate of a recognised medical expert, that the worker has ceased to be incapacitated for work by the compensable disability; or
(c)     the worker has returned to work; or
(d)     the worker has obtained work as an employee, or as a self-employed contractor, that is providing remuneration equal to or above the worker's notional weekly earnings; or
(e)     the worker is dismissed from employment for serious and wilful misconduct; or
(f)     the worker breaches the obligation of mutuality; or
(g)     the worker is, without the Corporation's consent—
(i)    resident outside the State; or
(ii)absent from the State for more than two months in any continuous period of 12 months; or
(h)     the discontinuance of weekly payments is authorised or required by some other provision of this Act.
(1a)   A worker breaches the obligation of mutuality if—
(a)     the Corporation has, by written notice to the worker, required the worker to submit to an examination by a recognised medical expert nominated by the Corporation and the worker fails to comply with the requirement within the time allowed in the notice or obstructs the examination; or
(b)     the Corporation has, by written notice to the worker, required the worker to submit to the Corporation a certificate from a recognised medical expert certifying that the compensable disability continues, and the worker fails to comply with the requirement within the time allowed in the notice; or
(c)     the worker refuses or fails to submit to proper medical treatment for the worker’s condition; or
(d)     the worker refuses or fails to participate in a rehabilitation program under this Act or participates in a way that frustrates the objectives of the program; or
(e)     the worker fails to comply with an obligation under a rehabilitation and return to work plan under this Act; or
(f)     the worker refuses or fails—
(i)to undertake work that the worker has been offered and is capable of performing; or
(ii)to take reasonable steps to find or obtain suitable employment,
or having obtained suitable employment, unreasonably discontinues the employment; or
(g)     the worker does anything else that is, apart from this subsection, recognised as a breach of the obligation of mutuality.
(1b)   However, a worker does not breach the obligation of mutuality—
(a)     by reasonably refusing surgery or the administration of a drug; or
(b)     where there is a difference of medical opinion about the appropriate treatment for the worker's condition, or the possibility of choice between a number of reasonable forms of treatment—by choosing one form of treatment in preference to another.
The obligation of mutuality appears to have its origins in New South Wales legislation. Debate about the meaning of that legislation led the High Court in several decisions, to consider the reach of the relevant provisions. Soon thereafter this Court applied those decisions in interpreting the then provisions of the South Australian legislation. The view was taken that the legislation, although not precisely in the same terms as the New South Wales legislation, was in substance to the same effect. The legislation presently under consideration in this appeal is likewise of the same substantive effect.
A convenient starting point is the New South Wales Court of Appeal decision in Asciak v Australian Glass Manufacturers,[5] where Sugerman J, when dealing with section 11(2) of the New South Wales legislation,[6] emphasised the requirement that the worker be willing and able to accept suitable employment when offered, and observed:
…Section 11(2) necessarily imports a readiness and willingness on the part of the worker both to accept suitable employment when offered and, if it is undertaken, to continue in it and conform to its duties and obligations. It cannot be said that there has been a failure on the employer’s part where it appears that he has not offered employment to, or continued in his employment, a worker as to whom it is found that he was not so ready and willing. Moreover, the circumstances that suitable employment is not forthcoming the instant that it is asked for is not necessarily a “failure” to provide it within the meaning of the subsection. Before it can be said that there has been a “failure” on the employer’s part a reasonable opportunity may have to be accorded him to find or create a job which is “suitable” having regard to the extent and nature of the worker’s incapacity.
[5] Asciak v Australian Glass Manufacturers Pty Ltd (1964) 64 SR (NSW) 344 at 351.
[6] Section 11(2) of the Workers' Compensation Act 1926 (NSW) at that time provided:
An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work.
Upon any failure by such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed to be total, and he shall be compensated accordingly.
In RJ Brodie (Holdings) Pty Ltd v Pennell,[7] the High Court was also concerned with the proper interpretation of section 11(2) of the New South Wales legislation. The worker had sustained an injury leading to partial incapacity. At issue was whether he was to be compensated on the basis of a total incapacity. When addressing the meaning of the section, Kitto, Taylor, Windeyer and Owen JJ observed:[8]
…Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and employee entering into and performing their obligation under a contract of service and this involves the co-operation of both employer and employee. There can, of course, be no "failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer. Likewise, it would seem, the position would be the same where after his partially incapacitating injury the worker suffers further injuries or sickness resulting in total incapacity for any form of work. It must be remembered that not only is the obligation to provide suitable employment a continuing one but there must also be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits pursuant to s. 11 (2) and, in our view, there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer. …
Whether or not there has been any such failure in relation to any period during the continuance of the partial incapacity is, of course, a question of fact to be determined in the light of all the circumstances including the situation of the worker. If throughout any such period he is engaged in activities which would have made it impossible for him at the same time to have performed the duties of an employment with his former employer there cannot be said to be a failure on the latter's part to provide suitable employment. …
[Emphasis added]
Menzies J commented:[9]
The provision of employment imports, of course, mutuality between the employer and the worker and it is not difficult to see that where it is the worker who is responsible for a lack of mutuality there is no failure on the part of the employer to provide employment. How this principle should be applied to particular circumstances is not a matter to be dealt with now. …
[7]    RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665.
[8]    RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665 at 669-670.
[9]    RJ Brodie v Pennell (1968) 117 CLR 665 at 671.

The High Court further addressed the reach of section 11(2) of the New South Wales legislation in Electric Power Transmission v D’Urso.[10] The worker in that case had sustained an injury at work leading to partial incapacity. The issue before the Court was whether this incapacity was deemed to be a total incapacity. The Commissioner had found that the worker had not been genuinely available for suitable work if it had been made available to him. The High Court clearly confirmed the approach taken by it earlier in Pennell.[11]
[10] Electric Power Transmission Pty Ltd v D’Urso (1970) 124 CLR 338.
[11] Electric Power Transmission Pty Ltd v D’Urso (1970) 124 CLR 338, see in particular the passage set out at 341-342.
The High Court again considered section 11(2) of the New South Wales legislation in Dowell Australia Ltd v Archdeacon.[12] The Court divided in the result. However, all members of the Court accepted and applied the earlier decisions of Pennell and Electric Power Transmission. Mason J remarked on the choice of words in the New South Wales legislation, and drew attention to the construction given in Pennell where it was held that the section imported an element of mutuality, such that there would be circumstances where certain conduct of the employee will mean that there can be no failure by the employer to provide suitable employment. Mason J quoted from the remarks of the plurality in Pennell and then observed:[13]
…What was said in Pennell's Case was accepted and confirmed in D'Urso's Case. It therefore reflects an interpretation of the sub-section which has now been unanimously accepted by this Court in two recent decisions and which, if the law is to have certainty and consistency, we should follow.
In Pennell's Case their Honours also observed that "whether or not there has been any such failure in relation to any period during the continuance of the partial incapacity is ... a question of fact to be determined in the light of all the circumstances including the situation of the worker". Once it is accepted that the provision of suitable employment involves the concept of mutuality in the sense explained, it seems to follow that an applicant for an award under s. 11 (2) must establish that he for his part was in the relevant period of time ready, willing and able to enter into the employment which he claims the employer failed to provide. It is for the applicant to show a failure on the part of the employer to fulfil his statutory obligation; this he does not begin to do until he demonstrates that there was the necessary degree of co-operation on his side.
[Footnotes omitted. Emphasis added.]
[12] Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417.
[13] Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417 at 435.
The above line of authority was addressed by this Court in 1982 in the decision of Hartwell v Electricity Trust of South Australia.[14]A worker had sustained a work injury leading to an initial period of total incapacity followed by partial incapacity as a consequence of those injuries. Whilst totally incapacitated he suffered a heart attack which was not related to his employment. As a consequence of his cardiac condition he became totally incapacitated for work. King CJ addressed section 67 of the then Workers Compensation Act 1971 (SA)[15] and having reviewed the High Court decisions of Pennell, Electric Power Transmission and Dowell, observed:[16]
It seems to me then that although there are differences of language between s 11(2) of the New South Wales Act and of s 67 of the South Australian Act, the underlying concept is the same. In my opinion the authorities cited above establish that the notional total incapacity arises only if and while the worker is ready able and willing to perform work which he is not prevented from doing by the compensable injury.
Following this observation, King CJ then reasoned:[17]
Quite apart from the effects of the compensable injury, the appellant was rendered incapable of doing work of any kind by reason of causes unrelated to his injury. In those circumstances s 67 can have no application. More difficult problems may arise when a worker is disabled by a supervening non-compensable cause from performing some but not all work which his compensable injury would have permitted him to perform. The resolution of such problems will depend upon the circumstances of the case and may involve questions of degree. The governing principle of the Act is that the employer is liable for the results of incapacity which is related to the employment, but not for incapacity which is not so related. If a worker is unable to perform work which is available, not because of incapacity caused by the compensable injury, but because of incapacity caused by other factors, the section cannot operate to give rise to notional total incapacity. Whatever difficulties the application of the section might pose in other cases, I see no difficulty where, as here, the worker's ability to perform work which the injury would have permitted him to perform, is totally destroyed by other causes.
[14] Hartwell v Electricity Trustof South Australia (1982) 29 SASR 365.
[15] Section 67 of the Workers Compensation Act 1971 (SA) at that time provided:
For the purposes of determining the amount of weekly payments provided for by section 51 of this Act, partial incapacity for work shall be treated as total incapacity for work except—
(a)during any period in respect of which the employer proves that work for which the workman was fit was made available to the workman by the employer; or
(b)during any period in respect of which the employer proves—
(i)that it was not reasonably practicable for the employer to make available to the workman work for which the workman was fit;
(ii)that such work was reasonably available to the workman elsewhere.
[16] Hartwell v Electricity Trustof South Australia (1982) 29 SASR 365 at 369.
[17] Hartwell v Electricity Trustof South Australia (1982) 29 SASR 365 at 369.
This Court next addressed the issue in Kelvinator v Jezior.[18] The Court was concerned with section 35(2) of the Workers Rehabilitation and Compensation Act. Cox J considered each of the above authorities and concluded that section 35(2) was to be given the same meaning and effect as had been given to section 11(2) of the New South Wales legislation and to section 67 of the Workers Compensation Act 1971 (SA), the previously applicable South Australian provision. Cox J reasoned:[19]
Section 35(2) of the 1986 Act is different in its language from s 67 of the repealed Act, and different again from s 11(2) of the New South Wales Act of 1926. Nevertheless the same element of mutuality in the contract of employment underlies all three provisions. Conduct on a worker's part, independent of any injury, there is inconsistent with the degree of co-operation that is essential to an effective working relationship may take his case outside the ambit of s 35. Perhaps it is more difficult to fasten on particular words in s 35(2) in which the notion of mutuality is implied, but that does not matter. Besides, the expression "reasonably available" is probably adequate for that purpose. It is hardly to be supposed that an employer, in order to avoid having a partial incapacity treated as a total incapacity, is obliged to restore an injured worker to the payroll when it is plain that the worker will behave in a fashion that is fundamentally destructive of the required mutuality — by persistently disobeying instructions, say, or by assaulting his fellow workers or by repeatedly flouting the safety rules. The evidence in this case showed that suitable employment was available to the respondent, in the relevant sense, but that he had by his behaviour and attitude disqualified himself from carrying it out. Alternatively, it may be said that the respondent was not "able" to work in the sense contemplated in Pennell's case.
As the authorities emphasise, however, it is a question of fact, and perhaps degree, in every case whether there has been a fundamental breach of the condition that underlies s 35. Obviously a mere temporary disagreement or other passing episode will not ordinarily constitute this kind of disqualification. The question has to be judged in relation to the time for which the weekly compensation is sought.
[18] Kelvinator v Jezior (1988) 49 SASR 592.
[19] Kelvinator v Jezior (1988) 49 SASR 592 at 597-598.
In WorkCover Corporation v Grigor,[20] this Court again considered the obligation of mutuality underpinning the relationship of worker and employer. King CJ addressed section 35(2) and applied the observations from each of the above authorities:[21]
It is settled law that the notion of unavailability to a worker of work for which he is fit connotes that he is ready and willing to perform such work: R J Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665; Electric Power Transmission Pty Ltd v D’Urso (1970) 124 CLR 338; Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417; Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365; General Motors-Holden’s Ltd v D’Andrea (1985) 122 LSJS 301. This is the principle of mutuality which is referred to in the Corporation’s determination.
Those cases were decided upon statutory provisions which made the failure of the employer to provide suitable work the precondition or one of the preconditions of partial incapacity being treated as total. In Kelvinator v Jezior (1988) 49 SASR 592, the Full Court held that the principle of mutuality applied to s 35(2) which contains no provision relating to the employer at the time of the occurrence of the disability. I think, however, that the principle cannot apply in precisely the same way as it did under the previous legislation.
Section 67 of the previous legislation, the Workmen's Compensation Act 1971, provided that partial incapacity was to be treated as total except during any period in respect of which the employer made available work for which the worker was fit or such work was reasonably available elsewhere. If the employer made suitable work available to the worker, the effect was to deprive the partial incapacity of the potential to be treated as total irrespective of whether the worker might be unable to avail himself of the work by reason of altered circumstances such as having moved from the locality. With such a provision mutuality required a readiness on behalf of the worker to avail himself of the work made available by the employer with which he was employed at the time of incurring the disability.
[20] WorkCover Corporation v Grigor (1994) 62 SASR 283.
[21] WorkCover Corporation v Grigor (1994) 62 SASR 283 at 285-286.
These decisions have authoritatively determined the meaning of the obligation of mutuality. As Mason J observed in Dowell Australia Ltd,[22] once one accepts that meaning of the obligation of mutuality, it follows that for the relevant period of time the applicant for an award must have been “ready, willing and able” to enter into the employment that he or she claims the employer failed to provide. It is for the employee to demonstrate the co-operation. There is no useful purpose to be served by adding to this clear line of authority. Whether the obligation of mutuality is breached is a matter to be determined having regard to the circumstances of the particular case.
[22] Dowell Australia Ltd v Archdeacon (1975) 132 CLR 417 at 435.
Consideration of the Issue
In the within proceeding, the Full Bench in discussing the appeal from the decision of Judge Hannon following the rehearing, reasoned:[23]
[23] Seal v Transfield Services Australia Pty Ltd [2009] SAWCT 29 at [3], [12]-[14], [17]-[18].
The issue that has divided the parties is whether Mr Seal’s considerable consumption of alcohol, marijuana and other substances has disentitled him to the continued receipt of weekly payments of income maintenance.
…
As to the significance of Transfield’s continued offers of employment [Judge Hannon] said:
“...Whilst they may be considered to be a positive consideration in terms of the worker’s employability, the fact that the proposals were considered by Dr Mills to not be suitable for various reasons, including the reason of substance abuse, would weigh in the mind of the reasonable employer against the employment of the worker.”
Ultimately [Judge Hannon] concluded:
“...that the worker’s ongoing substance abuse as at 28 August 2006 gives rise to such a range of potential problems, risks and uncertainties, that a reasonable employer could not be expected to accommodate them. In my view, the reality of the situation is that the hypothetical reasonable employer, knowing all the facts, would form the view that offering a job to the worker was not worth the risk given the ongoing substance abuse and dependence issues.”
On the second issue [Judge Hannon] directed himself in accordance with the approach outlined by the Full Court of the Supreme Court in WorkCover Corporation v Sherriff. He then gave detailed consideration to the medical evidence and to the worker’s own evidence about the increase in his substance abuse, which he stated to be unreliable. This led him to conclude:
“On these facts I do not consider there is a common sense causal connection between the compensable disability and the substance dependence resulting in total incapacity. The compensable disability was not a factor which was significant enough to be able to say that the disability of substance dependence resulting in total incapacity arose out of employment, or that it was a sequelae to the accepted compensable disability.”
…
Although the second decision does not expressly identify the basis upon which [Judge Hannon] concluded that the worker had breached mutuality, when regard is had to the decisional history, including [Judge Hannon’s] first decision, it is clear enough why he did so. He found that the worker was not able to take up suitable employment because of his substance abuse.
There is clear authority that a supervening medical condition that prevents a previously partially incapacitated worker from working is a breach of mutuality.
[Footnotes omitted]
The Full Bench then addressed the submissions of Transfield Services:[24]
In developing his submission on the second alleged error of law, it was apparent what [counsel for Mr Seal] was really challenging, was the correctness of the earlier decision of the Full Bench. For example, he said:
“The concept relied upon in this case appears to be an unprecedented concept. It doesn’t dwell on the worker’s inability or refusal to actually perform duties. The first decision findings foreclose that. The form or species of mutuality being relied upon here by way of a breach, is that a prospective employer – regardless of actual employment – would not give this man a job. That, in my respectful submission, falls well outside any general concept of mutuality, still less breach mutuality, developed in the case law.”
[Counsel for Mr Seal] also purported to derive some comfort from s 58B of the Act. That provision imposes an obligation upon an employer from whose employment the compensable disability arose to provide suitable employment to the incapacitated worker.
We agree with the submissions by [counsel for Transfield], that it is impermissible for Mr Seal to argue within this appeal, the correctness of the approach taken by the Full Bench in its earlier decision. If Mr Seal wanted the Full Bench to reconsider its earlier decision what he needed to do was to make an application under s 88H of the Act for it do so. There is ample authority that that provision permits an application to re-open in appropriate circumstances.
In any event, we do not regard the earlier decision as formulating some new point of principle. It merely recognised that for an employment relationship to exist, there not only has to be the seller of labour, there has to be a buyer. All that the decision does is identify the trial judge’s error in failing to include in his consideration of the issue of incapacity what a potential buyer of Mr Seals’ labour might be expected to do and to provide some guidance as to how a trial judge might determine whether a prospective buyer of labour would proceed with that purchase in certain circumstances.
[Footnotes omitted]
[24] Seal v Transfield Services Australia Pty Ltd [2009] SAWCT 29 at [19]-[22].
The decision of the Full Bench turned on the application of section 35 of the Workers Rehabilitation and Compensation Act as relevantly interpreted by this Court in Hartwell,[25] Kelvinator[26] and Grigor.[27] As observed above, those decisions continued a line of High Court authority that has addressed the obligation of mutuality. In my view the Full Bench correctly interpreted and applied section 35(2) of the Act. I do not understand the Full Bench in either the decision under appeal or by its earlier decision, to have sought to create any new test or to embellish in any way the established meaning and effect of section 35(2). In essence this appeal turned on questions of fact, not law.
[25] Hartwell v Electricity Trust of South Australia (1982) 29 SASR 365.
[26] Kelvinator v Jezior (1988) 49 SASR 592.
[27] WorkCover Corporation v Grigor (1994) 62 SASR 283.
The findings of Judge Hannon at the rehearing, including findings adopted from the earlier hearing, allow the conclusion that Mr Seal breached his obligation of mutuality. Mr Seal’s conduct induced by long term substance abuse meant that he could not meet his obligation of co-operation. At the time that he recovered sufficiently from his work injury to be only partially incapacitated, Mr Seal was rendered unfit to be able to attend to light duties by reason of the effects of long-standing and continuing substance abuse. The problems associated with his substance abuse were not caused by work; they resulted from personal lifestyle choices that he had made over many years.
The members of the Full Bench identified the applicable legal principles in accordance with the statutory regime and the relevant authorities. In my view there is no substance to Mr Seal’s submissions. The members of the Full Bench in their joint judgment did not create or apply any new test of mutuality. The Court did not misapply the relevant principles. There was no misunderstanding of fact on the part of the Court.
Causation
The challenge to causation rested on the question of whether Judge Hannon erred in determining that Mr Seal’s increased consumption of alcohol and consequent total incapacity should not be regarded as having been caused by the compensable disability.
In my view, this challenge is misconceived. Mr Seal was suffering from long term alcoholism overlaid by other substance abuse. He was, as a consequence, a danger to other workers. His substance abuse had rendered him unemployable for light duties. His total incapacity arose as a consequence of his long term substance abuse. His work injury was not a cause of his total incapacity.
The challenge to the causation finding in substance was based on factual considerations. Judge Hannon and the Full Bench applied the correct legal test. The conclusions reached were not only open, they were the correct conclusions having regard to the evidence and the balance of the findings of fact.
Insofar as it is necessary or open for this Court to review the factual findings of Judge Hannon on the rehearing, it is evident that those findings were open on the evidence.
Conclusion
I would dismiss this appeal.
WHITE J: This appeal on questions of law against a decision of the Full Bench of the Workers Compensation Tribunal raises issues relating to the entitlement of an employer to discontinue weekly payments of income maintenance.
The appellant (the worker) suffered injuries at work on 20 October 2000. Thereafter he received weekly payments of income maintenance under the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA). On 28 August 2006, the respondent (Transfield) gave the worker a notice of its decision to discontinue the payments of income maintenance. It considered that the worker had breached “the obligation of mutuality” and therefore that it was entitled under s 36(1)(f) of the WRCA to discontinue the payments.

The worker was initially successful in challenging that decision but, as a result of later decisions in the Tribunal, his challenge was dismissed and the discontinuance of the weekly payments was confirmed.
In order to understand the issues which arise on this appeal, it is necessary to set out some further detail.
Background
The worker was born in 1948 and is a qualified fitter and turner. He commenced employment as a maintenance fitter with BSA Engineering Pty Ltd (BSA) in or about 1999.
On 20 October 2000 the worker suffered injuries to his right shoulder and neck in a fall at work. In particular, he suffered a rotator cuff tear of the right shoulder for which he had surgery in November 2000. However, this operation did not relieve his symptoms entirely, nor did it restore a full range of movement in the right shoulder. As a result of his incapacity, he commenced receiving weekly payments of income maintenance.
By reason of acquisitions since 2000, Transfield has succeeded to the business of BSA. Transfield is a self-insured employer under s 60 of the WRCA and, as such, has delegated to it a number of the powers and discretions of WorkCover itself in relation to the administration of the worker’s claim.[28]
[28] WRCA s 63.
From October 2000 until (at least) the hearing in the Tribunal in late 2007 and early 2008 which gives rise to the present appeal, the worker was issued with medical certificates which certified him as being totally incapacitated for work, or fit for restricted duties only. For the most part those certificates gave as the cause of the incapacity the injury to the worker’s right shoulder, but some referred to a state of depression, and others to his substance abuse. In the proceedings in the Tribunal it was common ground that the worker’s shoulder injury gave rise to a partial incapacity for work rendering him unable to carry out activities requiring unrestricted use of the right arm and shoulder.[29]
[29] Seal v Transfield Services (Australia) Pty Ltd [2008] SAWCT 15 at [5].
At various times after October 2000, the worker made attempts to return to work on alternative duties. These attempts included light duties, such as dish washing at BSA in April 2001; work as a maintenance fitter at the South Australian Brewery in February and March 2002, gardening and maintenance work at the Prospect Primary School; volunteer work at the Julia Farr Centre; cleaning work organised under the WorkCover Rise Scheme in February and March 2003; cleaning work at the British Hotel in Port Adelaide; cleaning/bar tending work at the Golden Port Tavern in May 2003; and work at the North Haven Nursery in September 2003.
With the possible exception of the work at the South Australian Brewery, these jobs were generally of a light nature, with working hours ranging between nine and 25 hours per week. The worker was unsuccessful at retaining any of those positions for any substantial period of time, sometimes because the work was not regarded as meaningful, sometimes because of difficulties caused by his injury or by his substance abuse, and, in one case, because of the temporary nature of the employment.
By virtue of s 28A of the WRCA, Transfield was obliged to establish “a rehabilitation and return to work plan” for the worker. Two plans were created, one in April 2006, and another in October 2006, (the latter being prepared after the notice of intention to discontinue weekly payments had been served). Both plans contemplated the worker undertaking a variety of clerical and administration duties for periods of three hours on three days in each week. Neither plan was considered suitable by Dr Mills, the worker’s treating occupation physician. Dr Mills considered that “by reason of the worker’s right shoulder limitations, severe anxiety and depression, and substance abuse” he was fit only for “restoration to community programs”.
On 28 August 2006 Transfield served upon the worker a notice of intention to discontinue the weekly payments of income maintenance. It asserted that the worker had breached “the obligation of mutuality” by reason of his dependence on alcohol and marijuana. In the notice Transfield referred to the opinion of a Dr Jezukaitis that, having regard solely to the worker’s physical injuries, he was capable of performing suitable modified duties on a full-time basis, and to the opinion of a psychiatrist, Professor Goldney, that the worker was totally incapacitated for work as a result of his alcohol and marijuana dependence. The relevant part of Transfield’s notice provided as follows:
On the basis of the opinions expressed by Professor Goldney and Dr Jezukaitis, Transfield considers and hereby determines that you have breached the obligation of mutuality because:
1.as a result of your drug dependence you are not ready, willing and/or able to undertake suitable employment and/or;
2.as a result of your drug dependence you are not ready, willing and/or able to participate in a return to work plan and/or;
3.you are totally incapacitated as a result of a non-compensable condition (namely your drug dependence).
As a result of your breach of the obligation of mutuality Transfield hereby determines to discontinue your weekly payments of income maintenance pursuant to Section 36(1)(f), Section 36(1a)(f) and/or Section 36(1a)(g) of the Act.
…
Transfield relies upon Sections 36(1)(f), 36(1a)(f) and 36(1a)(g) in this determination.
By the time of the proceedings in the Tribunal, Transfield no longer relied upon the second asserted breach of the obligation of mutuality, namely, the assertion that, by reason of the worker’s drug dependence, he was not ready, willing and/or able to participate in a return to work plan.
Section 35 of the WRCA specifies and controls the entitlement of a disabled worker to weekly payments of income maintenance. Other sections of the WRCA indicate that claims for weekly payments should be determined expeditiously, with the intention that injured workers should be paid their entitlements as soon as practicable.[30]
[30] See for example WRCA s 53(4).
Section 36 of the WRCA operates to preclude an arbitrary discontinuance or reduction of the weekly payments of the income maintenance once they have been commenced. It does so by specifying the circumstances in which payments of income maintenance may be discontinued or reduced; by providing for a period of notice of the intention of discontinue or reduce the payments; and by providing for a means of resolution of disputes about an intended discontinuance or reduction of payments. Section 36 was amended with effect from 1 July 2008.[31] However, sub-ss (1) and (1a) which give rise to the present appeal were not amended in a way which is presently relevant. Subsection (1) provides as follows:
[31] Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA) s 16.
(1)Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless—
(a)     the worker consents to the discontinuance of weekly payments; or
(b)     the Corporation is satisfied, on the basis of a certificate of a recognised medical expert, that the worker has ceased to be incapacitated for work by the compensable disability; or
(c)     the worker has returned to work; or
(d)     the worker has obtained work as an employee, or as a self-employed contractor, that is providing remuneration equal to or above the worker's notional weekly earnings; or
(e)     the worker is dismissed from employment for serious and wilful misconduct; or
(f)    the worker breaches the obligation of mutuality; or
(g)     the worker is, without the Corporation's consent—
(i)    resident outside the State; or
(ii)absent from the State for more than two months in any continuous period of 12 months; or
(h)     the worker's entitlement to weekly payments ceases because of the passage of time; or
(i)    the worker's entitlement to weekly payments ceases because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, brings the entitlement to weekly payments to an end or the discontinuance of weekly payments is otherwise authorised or required under another provision of this Act.
It can be seen that sub-s (1)(f) permits discontinuance if the worker breaches “the obligation of mutuality”. The meaning of that expression is explained in sub‑s (1a), which provides:
(1a)   A worker breaches the obligation of mutuality if—
(a)     the Corporation has, by written notice to the worker, required the worker to submit to an examination by a recognised medical expert nominated by the Corporation and the worker fails to comply with the requirement within the time allowed in the notice or obstructs the examination; or
(b)     the Corporation has, by written notice to the worker, required the worker to submit to the Corporation a certificate from a recognised medical expert certifying that the compensable disability continues, and the worker fails to comply with the requirement within the time allowed in the notice; or
(c)     the worker refuses or fails to submit to proper medical treatment for the worker's condition; or
(d)     the worker refuses or fails to participate in a rehabilitation program under this Act or participates in a way that frustrates the objectives of the program; or
(e)     the worker fails to comply with an obligation under a rehabilitation and return to work plan under this Act; or
(f)     the worker refuses or fails—
(i)to undertake work that the worker has been offered and is capable of performing; or
(ii)to take reasonable steps to find or obtain suitable employment,
or having obtained suitable employment, unreasonably discontinues the employment; or
(fa)    the worker refuses or fails to participate in assessments of the worker's capacity, rehabilitation progress or future employment prospects (including by failing to attend); or
(g)     the worker does anything else that is, apart from this subsection, recognised as a breach of the obligation of mutuality.
Transfield contended that the worker had breached the obligation of mutuality in two ways: the first was derived from s 36(1a)(f)(i) (namely, the assertion that the worker had refused or failed to undertake work which had been offered to him and which he was capable of performing); and the second from s 36(1a)(g) (namely, the assertion that the worker was totally incapacitated for work as a result of his non‑compensable drug dependence). It contended that a recognised breach of the obligation of mutuality occurs if a partially incapacitated worker becomes totally incapacitated by reason of a non-compensable cause.
In his evidence in the Tribunal, the worker admitted to regular use of both alcohol and marijuana in large quantities. Hannon DP, who heard the notice of dispute at first instance, found that the worker had abused alcohol before suffering the injury in October 2000, and was possibly already alcohol dependent at that time.[32] In relation to the period after October 2000 until 2006, Hannon DP found that the worker’s alcohol use had fluctuated considerably.[33] However, there were a number of periods of excessive alcohol consumption during which the worker appeared to have lost the ability to control his intake, with consequent impingement upon his residual work capacity.[34]
[32] Seal v Transfield Services (Australia) Pty Ltd [2008] SAWCT 15 at [112].
[33] Ibid at [121].
[34] Ibid.
The Course of Decisions in the Tribunal
At the first instance hearing of the worker’s notice disputing Transfield’s entitlement to discontinue the weekly payments, Hannon DP heard evidence from the worker and from medical and rehabilitation specialists called by him and by Transfield. Transfield did not lead any evidence from lay witnesses.
Hannon DP found that Transfield had not established the first ground of the alleged breach of mutuality upon which it relied. Transfield could not establish that the worker had refused or failed to undertake work which had been offered to him and which he was capable of performing (s 36(1a)(f)(i)) because there was no specific employment on offer to the worker as at August 2006 when the s 36 notice was served upon him.[35]
[35] Ibid at [100]-[102].
Hannon DP also rejected the second limb upon which Transfield relied, ie, the allegation that the worker was totally incapacitated for work by reason of his alcohol and drug abuse and dependence. He said:
I accept Dr Mills’ opinion that after January 2004, for the most part at least, and in particular as at August 2006 when the s 36 notice was served, the worker was fit for modified duties and was not totally incapacitated for work due to his ongoing alcohol abuse, and that he was capable of participating in appropriate rehabilitation.[36]
Hannon DP rejected medical opinion led by Transfield to the opposite effect.
[36] Ibid at [133].
Hannon DP considered that he should find the worker totally incapacitated for work “if, as a result of the incapacitating effects of the compensable disability, the worker realistically would be unable to sell his or her labour in a genuine working environment”.[37] He then concluded:
Despite the extent of the constraints upon the worker’s capacity for work as a result of the effects of the work injury as described by Dr Mills, I am not satisfied that it has been established that as at August 2006 the worker did not have a realistic residual capacity for labour which he could sell in a genuine working environment. I am not satisfied that, if he was offered suitable employment, the worker was not then capable of controlling the extent of his substance use such that it did not impinge upon that residual work capacity.[38]
[37] Ibid at [146], citing Jones v WorkCover Corporation [1998] SAWCT 36 at [10].
[38] Ibid at [148].
On appeal, the Full Bench of the Tribunal found that Hannon DP had erred in his approach to the question of whether the worker was totally incapacitated for work by reason of his substance abuse because he had failed to consider relevant matters. It set aside Hannon DP’s determination and remitted the matter to him for further hearing.[39] The Full Bench’s reasoning appears in the following passages:
[39] Transfield Services (Australia) Pty Ltd v Seal [2008] SAWCT 43.
However, a difficulty that we have with the trial judge’s reasons is that in respect of the finding that Transfield had not established that Mr Seal was totally incapacitated for work he has focussed only upon Mr Seal.
As was explained in Jones determining whether or not there is a total incapacity for work involves an inquiry as to what realistically might happen. That in turn demands more than a consideration of the worker’s physical and mental capacity for work. It also requires a consideration as to whether an employer would employ the disabled worker. This hypothetical prospective employer can only be expected to posses the qualities of a reasonable employer. A reasonable employer cannot be expected to possess limitless compassion, patience and understanding. The reasonable employer can only be expected to enter into a contract of employment that is of benefit to the employer. This might entail showing a disabled worker some leeway. The reasonable employer might be expected to accommodate a worker who has become de-conditioned or who has lost confidence or contemporary skills as a result of being out of the workforce and to permit a period of adjustment on the job to enable the worker to become work hardened, gain confidence, or retrain.
…
However, there are limits. Sometimes the deficiencies will be so great, the time required to address them so long, or the prospect of them being addressed effectively so uncertain, that a reasonable employer could not be expected to accommodate the disabled worker. In that event the only conclusion to be reached is that the worker is totally incapacitated for work, because in truth, the worker’s residual working capacity is in a realistic market, unsaleable.[40] (Emphasis added)
The Full Bench then said that, having regard to its obligations under the Occupational Health, Safety and Welfare Act 1986 (SA):
A reasonable employer might be expected to be particularly concerned about the potential for a person with a long history of substance abuse to be a risk of injury to him or herself and to others in the workplace.[41] (Emphasis added)
The Full Bench continued:
The trial judge was entitled to find that if offered work Mr Seal might over time be able to control the extent of his substance use such that it did not impinge upon his residual work capacity. He did not however, address whether, in light of Mr Seal’s substance abuse as at August 2006, a reasonable employer would employ him in the knowledge that it may take some time for that substance use to be brought under control and that there was no guarantee that this would occur. As Dr Mills’ evidence demonstrates Mr Seal’s potential recovery from substance abuse was quite uncertain. That evidence could lead to a finding that a reasonable employer, knowing all of the facts, would form the view that offering Mr Seal a job was not worth the risk and that in turn would lead to a finding that he was totally incapacitated. With respect, the trial judge’s failure to address this issue, was an error of law.[42] (Citations omitted) (Emphasis added)
[40] Ibid at [36]-[39].
[41] Ibid at [40].
[42] Ibid at [41].
It can be seen that in these passages the Full Bench postulated a hypothetical reasonable employer, clothed that person with a number of attributes and concluded that the determination of the issue of total incapacity required a consideration of whether such a person, knowing of the worker’s condition, would consider that it was “worth the risk” of employing him. It considered that Hannon DP had erred by failing to consider whether a “hypothetical prospective employer” possessing the qualities of “a reasonable employer” would employ the worker. The Full Bench remitted the matter to Hannon DP for further consideration in the light of its reasons.
At the re-hearing, neither party led any further evidence. Hannon DP understood the Full Bench reasons to emphasise that a consideration of the existence of total incapacity must include an assessment of whether workers are realistically able to sell their labour in a genuine working environment, and that this required, amongst other things, a consideration of whether a reasonable employer, knowing all the facts might conclude that employing the injured worker was “not worth the risk”.[43] He considered this to be an objective test, as the decision whether it was worth the risk of employing the worker was to be made by reference to the standards of a reasonable employer.[44]
[43] Seal v Transfield Services (Australia) Pty Ltd [2009] SAWCT 4 at [13].
[44] Ibid at [20].
Hannon DP then considered in some detail the attitude which a reasonable employer could be expected to take to employing the worker. On that basis, he concluded that, as at 28 August 2006, the worker was totally incapacitated on account of his substance abuse and dependence, saying:
I am not persuaded that the negative factors unrelated to substance abuse, on their own, would probably lead the hypothetical reasonable employer to decide it was not worth the risk of employing the disabled worker. No doubt they are disincentives, but they are not of such significance that a reasonable employer might not take the view that they could be appropriately addressed. They have to be balanced with the positive factors particular to the worker which I have already referred.
However, when substance abuse issues are added, the balance turns strongly against the worker. I conclude that the worker’s ongoing substance abuse as at 28 August 2006 gives rise to such a range of potential problems, risks and uncertainties, that a reasonable employer could not be expected to accommodate them. In my view, the reality of the situation is that the hypothetical reasonable employer, knowing all the facts, would form the view that offering a job to the worker was not worth the risk given the ongoing substance abuse and dependence issues.
It thus follows that the worker was as at 28 August 2006 totally incapacitated on account of his substance abuse/dependence.[45] (Emphasis added)
[45] Ibid at [45]-[47].

As I understand it, the “negative factors unrelated to substance abuse” to which Hannon DP referred in the first of the quoted paragraphs were principally the physical restrictions in right arm and shoulder movements resulting from the October 2000 injury, the fact that the worker had not performed any significant work for a period of almost six years, his age, and his limited ability to adapt to re-training or re-skilling.
The opening words to the second of the quoted paragraphs (“[w]hen substance abuse issues are added”) could be taken as an indication that Hannon DP considered that it was the combination of the factors unrelated to substance abuse, on the one hand, and the substance abuse issues, on the other, which led to the conclusion that he was totally incapacitated. On this view, it may not have been open to Hannon DP to conclude that the worker was totally incapacitated as a result of his substance abuse alone. However, neither party contended that the reasons of Hannon DP were to be understood in that way. It seemed to be common ground on the appeal that Hannon DP had found, as indicated in the third of the quoted paragraphs, that the worker was totally incapacitated by reason on his substance abuse and dependence alone.
It is appropriate to draw attention to another feature of Hannon DP’s reasoning. As noted earlier, Hannon DP said that he was required to consider “among other things” whether a reasonable employer knowing all the facts might consider that it was not worth the risk of employing the worker. This suggested that the attitude of the reasonable employer was just one matter to be considered. However, in the last of the quoted paragraphs Hannon DP said that it “follows” from his conclusion about the attitude of the hypothetical reasonable employer that the worker was totally incapacitated on account of his substance abuse and dependence. He appears to have considered it unnecessary to consider any other matters before drawing that conclusion.
Hannon DP also concluded that the worker’s substance dependence giving rise to his total incapacity could not be said to arise from the compensable disability suffered on 20 October 2000.[46] He then concluded that the worker’s total incapacity from a non-compensable condition did amount to a breach of the obligation of mutuality[47] and, accordingly, that Transfield was entitled to discontinue the weekly payments of income maintenance to the worker.
[46] Ibid at [70].
[47] Ibid at [71].
An appeal against Hannon DP’s second decision was dismissed by the Full Bench.[48] The Full Bench rejected a submission that the approach which it had taken in the first decision was incorrect, holding that it was not open to the worker to mount that argument before it.
[48] Seal v Transfield Services Australia Pty Ltd [2009] SAWCT 29.
The appeal to the Full Bench lay only on a question of law[49] and the Full Bench was satisfied that Hannon DP had not made any such error.[50]
[49] WRCA s 86(1).
[50] Seal v Transfield Services Australia Pty Ltd [2009] SAWCT 29 at [27]-[29].
Issues on Appeal to this Court
Against that rather lengthy background the issues on appeal to this Court can now be stated.
Since 1 January 2009 an appeal on a question of law has lain to this Court.[51] The worker’s notice of appeal alleged 24 separate errors. It is not in the least bit likely that the Full Bench of the Tribunal made so many errors of law. On the hearing of the appeal, counsel for the worker confined the issues to the following contentions:
1.that the worker had not done anything amounting to a breach of the obligation of mutuality within the proper understanding of that concept;
2.that the Tribunal had erred by determining the existence or otherwise of total incapacity by reference to the hypothetical prospective reasonable employer, and without reference to the position of the worker’s own current employer;
3.that the Tribunal had erred by not considering the failure of Transfield to adduce evidence of its inability to provide suitable work to the worker, particularly in view of the rehabilitation and return to work plan which it had put forward on 17 October 2006;
4.that the Tribunal had erred in concluding that the worker’s increased use of alcohol after 2000 was not caused by the effects of the injury suffered on 20 October 2000.
These contentions will be considered in turn.
[51] WRCA s 86A(2).
Counsel for Transfield raised a further issue. He submitted that, on the appeal to this Court against the second Full Bench decision, it was not open to the worker to impugn the correctness of the approach adopted by the Full Bench in its first decision, which approach had been applied by Hannon DP in his second decision. This contention can be considered together with the second issue raised by the worker.
Breach of the Obligation of Mutuality
The worker’s submission that he had not breached the obligation of mutuality was based on a construction of s 36(1a). As already noted, that subsection specifies the circumstances in which the obligation may be breached.
The worker submitted that the words “breach of the obligation of mutuality” connote workers doing something, or failing to do something, which they are otherwise obliged, or could reasonable be expected, to do or to refrain from doing. This connotation is strengthened by consideration of the circumstances specified in the other sub-paragraphs of sub-s (1a). Each refers to a worker refusing or failing in one way or another to take specified action.
Although sub-paragraph (g) upon which Transfield ultimately relied is expressed in more general terms, it too seems to contemplate positive conduct by a worker (ie, “the worker does anything else …”). In the worker’s submission, sub-paragraph (g) requires three elements to be established: some conduct by a worker; that conduct having the character of a breach of the obligation of mutuality; and the conduct not being encompassed by any one of sub-paragraphs (a) to (f). Essential to all three elements is the requirement for “conduct” of the worker.
The worker’s submission was that the Tribunal had failed to recognise that s 36(1a)(g) required conduct by him. Instead it had regarded something which had happened to him (his being totally incapacitated for non-compensable causes) as amounting to a breach of the obligation of mutuality. In this way, the worker submitted that the Tribunal erred in law.
I agree that the manner in which s 36(1)(f) and s 36(1a) are expressed lends support to the worker’s submission. However, the submission is belied by an understanding of the obligation of mutuality in the context of workers’ compensation legislation.
A feature of workers’ compensation legislation for many years has been provisions requiring employers to provide suitable duties to their workers who are partially incapacitated for work as a result of a work caused injury, and specifying that, in the event of a failure by an employer to do so, the worker’s incapacity is to be treated as total, thereby entitling the worker to weekly payments of compensation on the basis of total incapacity. Section 67 of the Workers Compensation Act 1971 (SA) is an example of the latter kind of provision, as was s 35(2) of the WRCA (as in force to 30 June 2008).[52] Such provisions gave rise to disputes concerning the circumstances in which an employer could be said to have failed to provide “suitable employment”. It was in the cases concerning these disputes that courts developed the concept of the element or obligation of mutuality.[53]
[52] See now s 35(4) of the WRCA. Before 1 July 2008 s 35(2) of the WRCA provides as follows:
(2)     For the purposes of subsection (1)—
(a)    the following factors must be considered (and given fair and reasonable weight) in assessing what employment is suitable for a partially incapacitated worker—
(i)      the nature and extent of the worker's disability; and
(ii)     the worker's age, level of education and skills; and
(iii)    the worker's experience in employment; and
(iv)    the worker's ability to adapt to new employment; and
(b)    for the first two years of the period of incapacity, partial incapacity for work is treated as total incapacity unless the Corporation establishes that suitable employment is reasonably available to the worker; and
(c)     after the end of the first two years of the period of incapacity, if—
(i)      suitable employment is in fact not available to the worker; and
(ii)the worker establishes that the worker is, in effect, unemployable because employment of the relevant kind is not commonly available for a person in the worker's circumstances irrespective of the state of the labour market,
partial incapacity for work will also be treated as total incapacity, but otherwise an assessment of the weekly earnings the worker could earn in suitable employment after the end of the first two years of the period of incapacity must be made on the basis that employment of the relevant kind is available to the worker.
[53] The understanding that the employment relationship involves elements of mutual trust and confidence is well developed, although it remains to be determined whether it is an implied term in such contracts, or just a norm by reference to which the content of other obligations, and their discharge, is to be assessed: see State of South Australia v McDonald [2009] SASC 219; (2009) 104 SASR 344. It is possible that in time the element of mutuality will come to be seen as just one facet of the broader element of mutual trust and confidence in employment relationships.
In relation to the then New South Wales counterpart provision, the majority of the High Court in R J Brodie (Holdings) Pty Ltd v Pennell[54] said:
Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and employee entering into and performing their obligation under a contract of service and this involves the cooperation of both employer and employee. There can, of course, be no “failure” on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee’s conduct is inconsistent with the necessary degree of cooperation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer’s place of business as to be quite incompatible with employment by that employer. Likewise, it would seem, the position would be the same where after his partially incapacitating injury, the worker suffers further injuries or sickness resulting in total incapacity for any form of work. It must be remembered that not only is the obligation to provide suitable employment a continuing one but there must also be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits pursuant to s 11(2) and, in our view, there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer.[55] (Emphasis added)
It can be seen that in this passage the High Court emphasised the necessity for the partially incapacitated employee to be ready, willing and able to take up the work which the employer may offer. This was because the provision of suitable employment involved “an element of mutuality”.[56] The point was also made by Menzies J in his concurring reasons:
The provision of employment imports, of course, mutuality between the employer and the worker and it is not difficult to see that where it is the worker who is responsible for a lack of mutuality there is no failure on the part of the employer to provide employment.[57]
The High Court held that the necessary mutuality would not exist if a partially incapacitated worker had, by reason of a non-compensable condition, become totally incapacitated for work.
[54] (1968) 117 CLR 665.
[55] Ibid at 669.
[56] Ibid at 669.
[57] Ibid at 671.
In short, the counterpart deeming provision in the New South Wales legislation was regarded as necessarily importing a readiness, ability and willingness on the part of the worker to accept suitable employment when offered.
The principle stated in Pennell was affirmed by the High Court in Electric Power Transmission Pty Ltd v D’Urso[58] and in Dowell Australia Ltd v Archdeacon[59] (albeit in differing factual circumstances).
[58] (1970) 124 CLR 338.
[59] (1975) 132 CLR 417.
In Hartwell v Electricity Trust of South Australia[60] this Court considered the application of the principle established by Pennell in relation to s 67 of the Workers Compensation Act 1971 (SA). King CJ and Sangster J held that s 67 did not entitle a partially incapacitated worker who had become totally incapacitated as a result of a subsequent heart attack to be treated as totally incapacitated for the purpose of determining his compensation entitlements. King CJ held that the High Court decisions in Pennell, D’Urso and Dowell established that the concept of “providing” work involves an element of mutuality which exists only if the worker is ready, able and willing to perform work which he was not prevented from doing by the compensable injury.[61]
[60] (1982) 29 SASR 365.
[61] Ibid at 368-9. See also Martin v State of South Australia (1982) 49 SAIR (Pt 2) 269; Zardoukas v General Motors-Holden Pty Ltd (1975) 42 SAIR 1202; General Motors-Holden Ltd v D’Andrea (1985) 122 LSJS 301.
Shortly after the commencement of the WRCA on 30 September 1987, this Court held in Kelvinator v Jezior[62] that the element of mutuality also underpinned s 35(2) which, as already noted, required a period of partial incapacity for work to be treated as total incapacity unless the Corporation established that suitable employment for which the worker was fit was reasonably available to the worker. Cox J described the element of mutuality as a condition which underlay s 35(2) and said that it was a question of fact, and perhaps degree, in every case whether there had been “a fundamental breach” of that element.[63]
[62] (1988) 49 SASR 592.
[63] Ibid at 598.
Kelvinator v Jezior was confirmed in the subsequent decision of WorkCover Corporation v Grigor.[64] King CJ, with whom Bollen and Mullighan JJ agreed, said that:
[t]he mutuality required by s 35(2) is therefore a readiness and willingness to perform work which is reasonably available and is not necessarily negated by the worker’s unavailability for work provided by the employer in whose employment the disability occurred.[65]
[64] (1994) 62 SASR 283.
[65] Ibid at 286.
Section 36 of the WRCA was amended in 1995 to introduce, amongst other things, s 36(1)(f) and sub-s (1a).[66] In his Second Reading Speech to the House of Assembly when introducing the Bill, the Attorney-General explained the purpose of this amendment by saying “the concept of mutuality is recognised”. It is plain enough that the Attorney-General was referring to the concept of mutuality as developed and articulated in the authorities referred to above(the “Common Law Circumstances”). Section 36(1)((f) refers to “a breach of the obligation of mutuality” in language which is very similar to that used by Cox J in Kelvinator v Jezior.
[66] Workers Rehabilitation and Compensation (Miscellaneous Provisions) Amendment Act 1995 s 11.
The introduction of s 36(1)(f) and s 36(1a) gave an additional use to the element of mutuality. Whereas it had been articulated by the courts in relation to provisions concerning the rate at which compensation was to be paid, it was now to be applied in the determination of a worker’s continued entitlement to weekly payments. In applying the concept to this different purpose, the Parliament also developed it: first, by referring to mutuality as an obligation which may be breached; secondly, by specifying particular circumstances which may amount to a breach of the obligation; and, thirdly, by tailoring those breaches to particular obligations or expectations arising under the WRCA itself.
However, despite the additional use and enlargement of the concept, it is clear that Parliament intended that the concept should continue to encompass the Common Law Circumstances. This is evident from the Attorney-General’s statement that “the concept of mutuality is recognised”, and from s 36(1a)(g), the effect of which is to incorporate any conduct other that specified in sub‑paragraphs (1a)(a)-(f) which is “recognised” as constituting a breach. This must at least include the Common Law Circumstances.
When it is understood that s 36(1a)(g) encompasses the Common Law Circumstances acknowledged in the authorities as indicating an absence of the element of mutuality, it is to be expected that it would include the case of a partially incapacitated worker becoming totally incapacitated as a result of a non-compensable cause. That circumstance was one of the examples given in the reasons of the majority in Pennell and was the very circumstance considered by this Court in Hartwell v ETSA.
It is true that the other sub-paragraphs in sub-s (1a) seem to contemplate conduct of a worker which is voluntary and which is, in a sense, culpable. This may suggest that sub-paragraph (g) should be given a like meaning, so as to exclude something happening involuntarily to a worker, or for which the worker is blameless. However, in my opinion, the implications arising from the history of the concept of mutuality, and from the evident purpose of the provision, indicate that sub-paragraph (1a)(g) is not to be understood in that way. Instead the obligation of mutuality is intended to have the meaning outlined in the authorities, with the consequence that a breach of the obligation may occur even without positive conduct by a worker, or in circumstances in which the worker has been blameless.
Accordingly, I do not accept that the Tribunal made the error of law which this submission of the worker attributes to it.
I add that even if I had taken a different view of sub-paragraph (1a)(g) it would not follow that the Tribunal had erred. On one view, it could be said that, on the findings of Hannon DP, the worker had “done” something in the relevant sense as he had become totally incapacitated from a non-compensable cause. It could also be said that the worker had engaged in conduct of the requisite kind by his excessive consumption of alcohol and use of marijuana. However, in the view I take of the matter, it is not necessary to explore these possibilities.
Total Incapacity and the Hypothetical Reasonable Employer
Although the notion of incapacity for work is a central concept in the WRCA, it is not defined in that Act. Nor are the concepts of total and partial incapacity. However, these concepts are well developed in the authorities. Lord Loreburn’s statement just on 100 years ago in Ball v William Hunt & Sons Ltd[67] is the classic formulation:
… [T]here is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less that it would otherwise fetch.[68] (Emphasis added)
[67] [1912] AC 496.
[68] Ibid at 499-500.
In Wicks v Union Steamship Co of New Zealand Ltd[69] the High Court considered the analogous concept of “permanent and total disablement” in the Workers’ Compensation Act 1926 (NSW). The Court said that a worker should be regarded as permanently and totally disabled “when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind”.[70] In the later case of Ward v Corrimal-Balgownie Collieries Ltd,[71] Latham CJ referred with approval to the decision in Ball v William Hunt & Sons Ltd, saying that incapacity under s 9 of the Workers’ Compensation Act 1926 “is measured by loss of earning power”.[72]
[69] (1933) 50 CLR 328.
[70] Ibid at 338.
[71] (1938) 61 CLR 120.
[72] Ibid at 129.

I would explain the implication of mutuality in the following way. If a partially incapacitated worker becomes totally incapacitated for reasons unrelated to his or her employment, the Corporation will be unable to establish that employment is reasonably available in literal compliance with the proviso to s 35(2)(b) which requires the Corporation to show that work is reasonably available to the worker. Work cannot literally be reasonably available to a worker who is totally incapacitated by a supervening condition. It would, in my view, be inconsistent with the purpose of the Act, and the legislative history of the workers compensation Acts it replaced, to construe s 35(2)(b) in a way which extended the scope of the Act beyond the provision of compensation for work caused injury. If weekly payments were made on the basis of total incapacity when the cause of that total incapacity was a supervening disability which was not work related, the payments would be social security payments and not payments of workers compensation. Accordingly, s 35(2)(b) of the Act must by necessary implication be subject to a condition that partial incapacity will only be treated as total incapacity for so long as the worker is ready, willing and able to perform work other than the work which is precluded by his or her compensable disability. A similar implication underlies the operation of s 35(2)(c) of the Act.
In my view, the mutual obligation which is implied by s 35(2)(b) and (c) extends beyond ensuring that there is a capacity to undertake work within the partially incapacitated worker’s residual capacity. The mutuality implied by s 35(2) precludes from its beneficial operations any worker who engages in conduct, or who lapses into a position, which substantially detracts from his or her capacity to obtain employment. Where it is reasonably possible to return a worker to work, it would be repugnant to the Act’s objectives and to commonly accepted ethical standards to reward the worker who engages in conduct which obstructs his or her return to work with the benefit of the deeming provision.
The obstruction which may amount to a breach of mutuality need not be limited to a condition which totally incapacitates a worker. Any conduct which is inconsistent with the degree of co-operation expected of a worker to exploit his or her remaining capacity will suffice. In R.J. Brodie (Holdings) Pty Ltd v Pennell,[120] Kitto, Taylor, Windeyer and Owen JJ said:
Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and employee entering into and performing their obligation under a contract of service and this involves the co-operation of both employer and employee. There can, of course, be no ‘failure’ on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee’s conduct is inconsistent with the necessary degree of co-operation on his part. Such would be the case where the employee has undertaken full-time employment with another employer so long as such employment continues, or, where the employee moves his residence to a place so remote from the employer's place of business as to be quite incompatible with employment by that employer. Likewise, it would seem, the position would be the same where after his partially incapacitating injury the worker suffers further injuries or sickness resulting in total incapacity for any form of work.[121]
[120] (1968) 117 CLR 665.
[121] Ibid at 669.
In Hartwell v Electricity Trust of South Australia[122] King CJ expressly adverted to the difficult problems which might arise where a subsequent non-compensable cause disables a worker from performing some but not all work which he was capable of performing notwithstanding his compensable disability.[123] King CJ considered that such a case would raise questions of degree.
[122] (1982) 29 SASR 365.
[123] Ibid at 369.
The obligation of mutuality does not arise in the same way under the Act as it did in the Workers Compensation Act 1971 (SA) and its interstate counterparts. It arises in part from the implication in s 35 to which I have referred but also from the context of the Act as a whole. The purpose of the Act is to provide ongoing income support and medical and rehabilitative services to promote and achieve an early return to work.[124] The purpose of the Act would be manifestly frustrated if s 35(2)(b) operated to provide partially incapacitated workers their full pre-injury notional weekly earnings when they were no longer willing or in a position to return to their former employment or a position with an equivalent level of remuneration.
[124] See Workers Rehabilitation and Compensation Act1986 (SA) s 2.
The implication underlying s 35(2)(c) can be stated a little differently but with the same effect. The circumstance that work within the residual capacity of a worker is not commonly available should not result in payments based on a deemed total incapacity if the worker is, by reason of a supervening condition, not ready, willing and able to obtain that employment in any event. It can, however, be observed that the effect of a supervening incapacity will not, as a practical matter, raise the same level of difficulty after the first two years of incapacity. That is because pursuant to s 35(2)(c) of the Act after the first two years of incapacity, partial incapacity is only deemed to be total incapacity where the worker establishes that employment of the relevant kind is not commonly available for a person in the worker’s circumstances irrespective of the state of the labour market. I construe the expression “the worker’s circumstances” to exclude any intervening non-compensable incapacity.
In Hartwell v Electricity Trust of South Australia (Hartwell),[125] this Court considered a partially incapacitated worker’s entitlement to weekly payments of compensation under the Workers Compensation Act 1971(SA) in the case in which the worker had suffered a heart attack which was not related to his employment. The Court held that the deeming provision, s 67 of the Workers Compensation Act 1971 (SA), had no operation where a condition unrelated to the compensable disability supervened and caused total incapacity. King CJ held that the governing principle of the Workers Compensation Act 1971 (SA) is that the employer is liable for the results of incapacity which is related to employment, but not for incapacity which is not so related. King CJ held that, if a worker is unable to perform work which is available, not because of incapacity caused by the compensable injury but because of incapacity caused by other factors, s 67 did not operate to give rise to a notional total incapacity.
[125] (1982) 29 SASR 365.
It is important to observe that the inapplicability of a deeming provision where a partially incapacitated worker is totally incapacitated by a non-compensable supervening condition does not necessarily mean that a partially incapacitated worker is not entitled to compensation for the continuing work-caused partial incapacity. Weekly compensation payments for that partial incapacity are calculated by reference to the difference between the worker’s pre-injury earnings and the earnings that the worker could earn in suitable employment if he or she remained ready, willing and able to exploit it. In Ward v Corrimal-Balgownie Collieries Ltd,[126] Dixon J said:
The loss of the sight of one eye may or may not mean lasting incapacity, but usually it will mean no more than partial incapacity. If it is caused by an accident arising out of and in the course of the employment, the employer will, of course, be responsible to the full extent of the resulting incapacity. But if, from causes independent of the accident, the vision of the second eye is lost or impaired so that the worker becomes totally incapacitated, or his incapacity is greatly increased, then the employer is not responsible for this additional consequence. The total incapacity or increased incapacity is not considered to ‘result’ from the accident.[127]
[126] (1938) 61 CLR 120 (Ward).
[127] Ibid at 141-2.
In Bratovich v Rheem (Aust) Pty Ltd,[128] Bray CJ accepted that the following passage from the judgment of Latham CJ in Ward established the proposition that a non-compensable cause supervening upon a partial incapacity arising from a compensable cause will not itself be compensable, though compensation for the partial incapacity will continue. Latham CJ said:
In other cases there may already be partial incapacity resulting from an injury, and other causes, quite independent of and not associated with the injury in any way, may afterwards bring about further or total incapacity. In such a case the worker is still entitled to compensation, but it is only the incapacity which is the result of the injury (and not the added incapacity which is the result of other causes) for which there is any liability under the Act. Thus if a man was suffering from an injury consisting in lung disease which produced partial incapacity he would be entitled to compensation in respect of that incapacity. If he subsequently became subject to a form of heart disease which was quite unconnected with his lung disease and by reason thereof became totally incapacitated, he would still be entitled under the Act to payment in respect of the partial incapacity which resulted from the injury, but only to payment for partial incapacity.[129]
[128] (1971) 2 SASR 33 at 43.
[129] Ward (1938) 61 CLR 120 at 130-1 (citations omitted).
Discontinuance – Section 36
Where the compensating authority accepts that a worker has suffered a partial incapacity for work, or where such an incapacity is established by a worker generally, weekly payments at the full rate of the worker’s notional weekly earning will become payable. Pursuant to s 36 of the Act those payments must not be discontinued except in the circumstances prescribed by that section. However, the underlying entitlement to compensation may change over time. The circumstances prescribed by s 36 of the Act are calculated to allow effect to be given to that changed entitlement by authorising the discontinuance of weekly payments when they occur. One of those circumstances is a breach of the obligation of mutuality. Section 36 provides:
36—Discontinuance of weekly payments
(1)Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless—
(a)     the worker consents to the discontinuance of weekly payments; or
(b)     the Corporation is satisfied, on the basis of a certificate of a recognised medical expert, that the worker has ceased to be incapacitated for work by the compensable disability; or
(c)     the worker has returned to work; or
(d)     the worker has obtained work as an employee, or as a self-employed contractor, that is providing remuneration equal to or above the worker's notional weekly earnings; or
(e)     the worker is dismissed from employment for serious and wilful misconduct; or
(f)     the worker breaches the obligation of mutuality; or
(g)     the worker is, without the Corporation's consent—
(i)    resident outside the State; or
(ii)absent from the State for more than two months in any continuous period of 12 months; or
(h)     the discontinuance of weekly payments is authorised or required by some other provision of this Act.
(1a)   A worker breaches the obligation of mutuality if—
(a)     the Corporation has, by written notice to the worker, required the worker to submit to an examination by a recognised medical expert nominated by the Corporation and the worker fails to comply with the requirement within the time allowed in the notice or obstructs the examination; or
(b)     the Corporation has, by written notice to the worker, required the worker to submit to the Corporation a certificate from a recognised medical expert certifying that the compensable disability continues, and the worker fails to comply with the requirement within the time allowed in the notice; or
(c)     the worker refuses or fails to submit to proper medical treatment for the worker’s condition; or
(d)     the worker refuses or fails to participate in a rehabilitation program under this Act or participates in a way that frustrates the objectives of the program; or
(e)     the worker fails to comply with an obligation under a rehabilitation and return to work plan under this Act; or
(f)     the worker refuses or fails—
(i)to undertake work that the worker has been offered and is capable of performing; or
(ii)to take reasonable steps to find or obtain suitable employment,
or having obtained suitable employment, unreasonably discontinues the employment; or
(g)     the worker does anything else that is, apart from this subsection, recognised as a breach of the obligation of mutuality.
(1b)   However, a worker does not breach the obligation of mutuality—
(a)     by reasonably refusing surgery or the administration of a drug; or
(b)     where there is a difference of medical opinion about the appropriate treatment for the worker's condition, or the possibility of choice between a number of reasonable forms of treatment—by choosing one form of treatment in preference to another.
I wish to emphasise that s 36 does not disentitle a worker from compensation. It confers a power to discontinue weekly payments in the prescribed circumstances. If weekly payments are discontinued because one of the prescribed circumstances is established, a worker may nonetheless be able to prove an entitlement to worker’s compensation even in the period immediately following the discontinuance. For example, if a worker has returned to work, payments may be discontinued because the circumstance in s 36(1)(c) has been satisfied, but still the worker may be entitled to compensation for the difference between the remuneration earned on that return to work and his or her notional weekly earnings. Similarly, a worker may be entitled to compensation notwithstanding his or her residence outside of the State. Even more obviously, if the breach of the obligation of mutuality which is established is failure to submit to an examination or to submit a certificate, the worker may nonetheless be able to prove an ongoing entitlement.
The apparent purpose of the circumstances prescribed by s 36 is to require the worker to prove his or her ongoing entitlement if there be any. True it is that some of the circumstances, if found to exist, will necessarily disentitle the worker from weekly compensation. For example, a dispute over a notice of discontinuance grounded on the allegation that the worker has obtained work providing a remuneration equal to or above his or her notional weekly earnings, if determined adversely to the worker, will necessarily mean that he or she has no further entitlement to weekly compensation.
There is another aspect of the interrelationship between ss 35 and 36 which should be mentioned. The onus to establish the existence of a circumstance prescribed by s 36 is on the employer. However, if weekly payments are discontinued, the worker must prove his or her entitlement on a fresh application for compensation.
Given the relationship between ss 35 and 36, one would expect the matters which enliven the power conferred by s 36 to include any circumstance which would disentitle or reduce the entitlement of a worker to compensation pursuant to s 35.
If, for the reasons I have given, there is no entitlement to compensation calculated on the basis of total incapacity where a partially incapacitated worker becomes totally incapacitated by an intervening non-compensable condition, it would be surprising to find that payments of ongoing income maintenance could not be discontinued. It would mean, for example, that a worker who successfully made a claim for income maintenance before suffering an unrelated incapacitating event would remain on ongoing weekly payments, subject perhaps to the operation of s 38 of the Act, whereas a worker who suffered the intervening incapacity before making the claim would only receive partial payments of incapacity.
The reference in s 36(1a)(g) to the worker doing anything which is ‘recognised as a breach of the obligation of mutuality’ is not a reference to the decisions of courts and tribunals. It should not be construed as in effect a delegation of legislative power to courts and tribunals to prescribe the circumstances that will amount to a breach of the obligation of mutuality under that section. It can hardly be regarded as a reference to the decisions of courts and tribunals under other statutory schemes because whether or not particular circumstances will amount to a breach of the obligation of mutuality will necessarily depend on the provisions of each statutory scheme. Rather, s 36(1a)(g) must be construed as a reference to circumstances which breach the implication of the concept of mutuality which necessarily arises out of the text and context of ss 35(2)(b) and (c).
Mr Seal’s counsel relied heavily on the language of s 36(1)(f) which suggests that mutuality is breached only by active conduct. However, s 36(1a)(g) incorporates as a breach of mutuality any recognised breach in addition to the particular matters prescribed by that sub-section. True it is that s 36(1a)(g) speaks of the worker “doing anything”. However, notwithstanding the ambiguity caused by that language, it is not sufficient to persuade me that it was Parliament’s intention to depart dramatically from the concept of mutuality as it was understood and stated by King CJ in Hartwell.
Total incapacity
Transfield framed its notice on the basis that Mr Seal was totally incapacitated for work as a result of his alcoholism.
Whether Mr Seal was totally incapacitated for work by his alcoholism depended on whether that condition left him with any saleable labour.
There is a line of authorities holding that a person is totally incapacitated if such residual capacity as he or she has leaves him or her unsuitable for any ordinary position in the labour market.
In Cardiff Corporation v Hall,[130] Fletcher Moulton LJ said:
But on the other hand I am also of opinion that there are cases in which the onus of shewing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well-known branch of the labour market – if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well-known lines of the labour market, I think it is incumbent on the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase I should say that if the accident leaves the workman’s labour in the position of an ‘odd lot’ in the labour market, the employer must shew that a customer can be found who will take it. For in such a case we are not in truth dealing with fluctuations of the labour market at all. We are dealing with the chance of some one being found who can and will avail himself of the special residue of powers which has been left in the workman, and, seeing that it is the result of the accident that the workman has been made dependent on the finding of such a special employer, it is right that those who are liable to pay to him compensation for his loss of earning power should only be allowed to take credit for his partial capacity for work if they can shew that it can actually be made productive of remuneration to him.[131]
[130] [1911] 1 KB 1009.
[131] Ibid at 1020-1.
It was accepted in Hamiltons Ewell Vineyards Pty Ltd trading as Mildara Wines Ltd v Holmes[132] that the “odd lot” principle in effect provided an extended definition of the meaning of total incapacity for the purposes of workers compensation statutes.[133] In my view, it might be doubted that Fletcher Moulton LJ intended to do anything more than to describe the practical way in which, in the exercise of their wide discretion, arbitrators under the English Act considered in that case might approach the question of determining the level of payment for partial incapacity. Be that as it may, in my view it is now well established in this State that the concept of total incapacity, as it is used in workers compensation statutes will, unless the statutory context otherwise provides, include the odd lot category described by Fletcher Moulton LJ.
[132] (1985) 38 SASR 153.
[133] Ibid at 156, 158 per Bollen J, King CJ agreeing.

However, this is not the usual case where the question is whether a compensable disability has left a worker totally incapacitated because he or she is fit only for employment of a special kind. The question raised here is whether the level of incapacity caused by Mr Seal’s alcoholism is such as to deny him the benefit of the deeming provision in s 35(2)(b) of the Act. Having regard to the nature of the implied condition of mutuality which I have discussed above, that must be so. A worker is hardly ready, willing and able to exploit his or her residual capacity if he or she is suited only for odd lot employment by reason of a supervening non-compensable condition. Where a non-compensable condition so destroys a disabled worker’s residual capacity that he or she is fit only for odd lot employment with a benevolent employer the judgment of fact and degree adverted to by King CJ in Hartwell[134] must be that there has been a breach of mutuality. In the same way a worker who makes demands as to the conditions on which he will return to work which are so unreasonable that only a particularly benevolent employer will take him on cannot be entitled to have his partial incapacity treated as total.
[134] Hartwell (1982) 29 SASR 365 at 369.
The older authorities on special employment considered whether there was a position in the industrial workforce which could be performed by partially incapacitated workers. Those cases did not consider the particular issue of the availability of employment to persons who may be able to perform the work but who are occupational safety risks. That question has probably not often arisen because it is not common for conditions which create occupational safety risks, like alcoholism or mental illness, to be caused in compensable circumstances.
I would not construe Transfield’s notice as alleging that Mr Seal’s alcoholism was so severe that not even a most charitable employer would give him work.
The relevant question on this issue arising out of the remaining ground of Transfield’s s 36 notice is: Does Mr Seal’s alcohol and substance abuse effectively preclude him from securing a position in the workforce? That question cannot be answered merely by surveying the nature and range of the positions that are available in the modern Australian labour force. More subtle questions are involved. In particular, the degree of occupational risk that is acceptable in the modern Australian workforce must be considered. The economic viability of hiring a worker with such a condition is another important consideration.
It is important to emphasise here that the issue is not whether an employer would prefer to employ a partially incapacitated worker who has no drug or alcohol problem to one who has. That can be accepted but it does not necessarily render drinkers totally incapacitated. I suspect that many workplaces could not be as productive as they are if that were so. In order to determine whether a worker is totally incapacitated by his or her alcohol dependency, the question is a narrower one. It is whether there are positions in the Australian labour force which such a person could secure notwithstanding his or her condition; it is whether industrial, economic, and workplace safety considerations allow for the employment of such a person. In attempting to answer that question, it is not surprising that lawyers and judges, who are not trained as economists or labour market analysts invoke the assistance of their constant companion, the reasonable person.
The question of whether there is a position in the labour market that an injured worker can fill is neither theoretical nor dependent upon fictions simply because particular jobs are not individually considered. The reasonable employer test is a short hand expression for the application of common sense and experience to a factual enquiry which cannot, practically, be answered by calling or even surveying a large number of employers.
The reasonable employer does not of course exclude an employer who has a position available for a worker with very limited capacities or skills. Such positions are no doubt rare, but those employers who are in a position to offer them can still be expected to act reasonably and rationally in employing workers to fill them. It is not apparent to me that there is any difference between asking whether an employer, acting reasonably in the labour market, would offer a job to a particular worker and posing the more traditional formulations of the test like “reasonably accessible” and “odd lot”.
On the other hand, there is a real difference between that approach and one which holds that a worker who would not be offered employment by any reasonable employer has some residual capacity because a benevolent employer may offer him work. If an employer acting reasonably would not offer an applicant in the worker’s position a job, which he could otherwise do but for his alcohol and drug dependence, then work is not reasonably accessible to that person. At a factual level it is difficult to contemplate any special positions in the contemporary Australian labour market which are particularly suited to persons suffering from a drug dependency as severe as Mr Seal’s.
A benevolent employer, in the sense of an employer who would prefer the interests of a prospective employee to his own, is not properly regarded as a participant in the labour market. Such an employer is conducting a charity, not a business enterprise. In particular, a corporate employer which acted in that way would be in breach of its duty to its shareholders.
To that extent, there is some value in hypothesising the reasonable prospective employer. In my view, it is not an error to do so for so long as it is remembered that the ultimate question is whether there is a position or positions in the labour market reasonably accessible to the worker.
In determining whether there is a position in the labour market for a person in Mr Seal’s circumstances, it is necessary to have regard not only to the nature and range of jobs available in the contemporary Australian labour force, but also to the fact that the participants in the labour market act reasonably having regard to their own self-interest.
For the purposes of determining that question, it is necessary to have regard to all of the known information about the worker’s capacity, whether or not an employer would have ascertained it at a first interview. That is so because, even if the information is not immediately known, it would soon become apparent when the worker commenced to perform the duties and preclude the worker properly discharging his or her duties. Such a worker is in reality incapable of securing and retaining the position even if his or her incapacity is not discovered at the first interview.
Although the Judge did not identify in express terms the circumstances which amounted to a breach of the obligation of mutuality, it is plain that he accepted that Mr Seal’s substance dependence/abuse, which caused total incapacity, was such a breach. That was the breach that was asserted in Transfield’s notice. The Full Bench was correct in coming to that conclusion.[135]
[135] Seal v Transfield Services Australia Pty Ltd [2009] SAWCT 29 at [17].
The Judge found in the first adjudication that he was ‘not satisfied that, if he was offered suitable employment, the worker was not then capable of controlling the extent of his substance abuse such that it did not impinge on that residual work capacity.’[136] There is plainly some tension between that finding and the Judge’s finding in the second adjudication that ‘the worker’s ongoing substance abuse as at 28 August 2006 gives rise to such a range of potential problems, risks and uncertainties, that a reasonable employer could not be expected to accommodate them.’[137] However, such tension as there is between those two factual findings does not raise an error of law. In any event, there is a distinction between the first finding, a failure to be satisfied that Mr Seal would not be able to discharge the duties of any real position in the workforce, and the second decision, which is a positive finding that, whether or not Mr Seal would bring his alcoholism under control if he were ever to be given a job, there were simply no real positions in the workforce which a person in Mr Seal’s circumstances would be appointed to.
[136] Seal v Transfield Services (Australia) Pty Ltd [2008] SAWCT 15 at [148].
[137] Seal v Transfield Services (Australia) Pty Ltd [2009] SAWCT 4 at [46].
Section 58B of the Act, which deals with the employer’s duty to provide work, does not materially advance Mr Seal’s case. An obligation to provide suitable work to a worker incapacitated by a compensable disability must also be subject to the implied qualification of mutuality. Indeed, so much is expressly recognised by s 58B(2)(a).
Section 58B seems to create an imperfect obligation in that there is no statutory sanction expressly provided by that section itself. In that respect, s 58B stands in contrast with s 58A and s 58C at the relevant time.
Section 58B(2) has, however, a wider operation than the principle of mutuality. It may not be reasonably practicable for an employer to employ a partially incapacitated worker who is ready, willing and able to perform work. It follows, in my view, that the Full Bench was correct to conclude that s 58B has no role to play where a worker has become totally incapacitated for work as a result of a supervening event.
For the above reasons, I would hold that the Full Bench did not err in law. It correctly held that no error of law was made by the Judge in concluding that the supervening incapacity was total and was a breach of mutuality.
Work with Transfield – Adverse inference
Mr Seal complained that the Judge erred in law by failing to have regard to whether there was a paid employment position which he could take with Transfield. In an allied submission, Mr Seal contends that the Judge made a further error of law in failing to draw an adverse inference against Transfield for its failure in calling any evidence on the question of the existence of a position for him with it. The Judge expressly considered the submission put by the counsel for Mr Seal that he should not find that Mr Seal was totally incapacitated because Transfield had not adduced any evidence of that sort.
The failure by one party to call a witness or adduce evidence can naturally have been expected to affect the weight that is given to other evidence in the case and to more readily lead to a conclusion one way or another on that evidence. It is only in that limited sense that an adverse inference arises. In Puric v The State of South Australia,[138] I said:
[77]The failure to call a witness will not support a positive inference that the witness would have given evidence damaging to the party who omitted to call him or her, and make up for a deficiency in the case of the opposing party. For that reason, to speak of an adverse inference is apt to mislead. The failure to call a witness does not support an inference of guilt in the way that circumstantial evidence does. It cannot be maintained that as a matter of human experience a failure of a party to call a material witness in his or her ‘camp’ makes it more probable that the allegations made against that party are true. The failure to call a witness is not a species of circumstantial evidence; it is an absence of evidence. The only effect of an unexplained failure to call a witness in the party’s ‘camp’ is to ‘assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party’. Doubts about the reliability of witnesses, or the inferences that can be drawn safely from the evidence, may be more readily discounted in the absence of evidence from a party who might be expected to give or call it.[139]
[138] [2009] SASC 107.
[139] Puric v The State of South Australia [2009] SASC 107 at [77] (citation omitted).
The failure to call evidence from a witness does not require a judge to determine, on the evidence which was called, an issue adversely to the party who failed to lead that evidence. In this case, the Judge expressly considered the effect on the evidence of Transfield’s failure but nonetheless was satisfied, on the whole of the evidence before him, that the appellant was totally incapacitated for work. A failure to have any regard to the circumstance that a party has not called a witness, that he or she was expected to call is an error of law. However, if a judge has regard to that failure before making his or her findings on the relevant factual issue, any error which results can only be one of fact and not law.
I acknowledge that in the passages cited above the Judge did not expressly refer to the possibility that there was a position with Transfield which could be filled by a worker with Mr Seal’s physical disability and alcohol dependence. However, it appears to me that the Judge implicitly came to that conclusion notwithstanding Transfield’s failure to call evidence. The evidence that that was the case was overwhelming. Mr Seal had not worked at BSA or Transfield since about June 2001. On that occasion, Mr Seal washed dishes, folded information brochures and counted parts. However, that rehabilitation program was terminated in about June 2001 because Dr Mills thought that Mr Seal’s frustration at the lack of suitable light work had exacerbated his substance abuse and that there was risk of injury to Mr Seal and to others. Transfield had offered him a return to work plan in October 2006 but that plan was thought by Dr Mills to be beyond Mr Seal’s capacity and not implemented. In the years since his last attempt to return to work in 2003, no offer of employment had been made notwithstanding the obligation on Transfield pursuant to s 58B to make such employment available if it was reasonably practicable. Moreover, Mr Seal never gave evidence that there was such a position within Transfield or that one could be made for him.
Causation
Dr Mills, whose expert evidence was generally accepted by the Judge, gave evidence in the first adjudication that Mr Seal’s increased alcohol consumption after the injury was associated with boredom and stress.[140]
[140] Seal v Transfield Services (Australia) Pty Ltd [2008] SAWCT 15 at [80]-[81], [104].
In the second adjudication, the Judge rejected the contention that the increased alcohol consumption was a way of coping with pain.[141] However, he accepted the association between his boredom and the extra time on his hands and his increased alcohol consumption.[142] The Judge said:
[69]The ongoing level of increased alcohol consumption following the injury soon began to have deleterious effects on the worker’s condition as noted by Dr Mills from May 2001, and became intertwined with the rehabilitation process, and in turn resulted in stress and anxiety to the worker. This then led to further episodes of even more excessive alcohol consumption as previously noted, which were explained as a general response to blot out conflict connected with the worker’s perception of inappropriate rehabilitation and claim management.[143]
[141] Seal v Transfield Services (Australia) Pty Ltd [2009] SAWCT 4 at [66].
[142] Ibid at [67].
[143] Ibid at [69] (citation omitted).
It can be accepted that there is a relationship between the compensable injury and Mr Seal’s increased drinking. However, the relevant question is whether the compensable injury caused or contributed to the state of alcohol abuse and dependence which rendered Mr Seal unsuitable for any real labour market position as of August 2006. That is plainly a question of fact and cannot be transformed into a question of law by an insistence on the strength of the factual case in Mr Seal’s favour.
In the alternative, Mr Seal argues that the Judge failed to identify the policy considerations or value judgments upon which the “but for” association, which he accepted, failed to amount to a common sense causal connection. In my view, the Judge did identify those matters. He referred to the ‘the innate personality factors which led the worker to engage in prolonged alcohol abuse before his injury’.[144] It is clear that the Judge found that the extra time, boredom and stress experienced by Mr Seal after his injury were simply the setting-in which his pre-existing alcoholism and dependent personality progressed to the point where he became incapacitated.That conclusion of fact was certainly open to the Judge. The Judge identified Mr Seal’s innate “personality factors” as the reason for concluding that the injury was not a cause of the total incapacitation resulting from his substance abuse. In so doing, the Judge sufficiently explained his reasons and his factual conclusion was therefore not attended by any error of law.
[144] Ibid at [68].
I observe here that the Full Bench of the Tribunal may have understood the phrase “policy considerations or value judgments” differently to the way I apprehend Mr Seal to use it. The Full Bench thought there was no policy or value judgment made by the Judge.[145] By policy or value judgment I do not mean to refer to a disentitling legal policy. All findings which deny a causative relationship between an event and its sequel necessarily involve a normative judgment that the event is not a cause of the sequel even though there is a “but for” relationship between the two. In that sense, a value judgment is involved, albeit a judgment which is an integral part of the factual enquiry. However, as I have already observed, the Judge adequately explained how he reached his factual conclusion.
[145] Seal v Transfield Services Australia Pty Ltd [2009] SAWCT 29 at [29].
Conclusion
I would dismiss the appeal.