The State of South Australia v Roberts
[2018] SASCFC 25
•17 April 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE STATE OF SOUTH AUSTRALIA v ROBERTS
[2018] SASCFC 25
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Parker)
17 April 2018
WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE - ARISING IN COURSE OF EMPLOYMENT
This is an appeal by the State of South Australia against a decision of the Full Bench of the South Australian Employment Tribunal.
The respondent was employed as a full-time lecturer in hairdressing by TAFE SA. She was bitten by mosquitoes while staying in accommodation provided during a teaching placement in Oodnadatta. She sought compensation for injuries sustained as a result of the mosquito bites.
The question of law raised by the appeal is whether the Full Bench erred in concluding that the respondent’s employment was “a significant contributing cause” of her injury such that her injury “[arose] from employment” within the meaning of s 7(2) of the Return to Work Act 2014 (SA).
Held, by Parker J (Kourakis CJ and Blue J agreeing), dismissing the appeal:
1. When a question of causation is considered in the context of a statutory compensation regime, the issue must be decided by reference to the statutory text construed and applied in a manner which best effects its statutory purpose, at [96].
2. The additional requirement in the second limb of s 7(2)(a) that “employment was a significant contributing cause of the injury” is intended to exclude entitlement to compensation where employment was not a cause but merely the occasion for the injury, or where employment was not in any real or meaningful sense responsible for the injury, at [89] and [111].
3. Employment will be a significant cause of an injury if it is an important or influential cause. This necessitates an evaluative judgement on the part of the decision-maker and careful identification and consideration of all relevant facts and circumstances surrounding the injury and the employment of the worker, at [101] and [106].
4. A “but for” test cannot be the sole determinant of causation under the second limb of s 7(2)(a). However, it can be applied as part of the reasoning process, at [107].
5. The second limb of s 7(2)(a) does not require that a worker’s employment must have exposed them to a greater risk of injury, at [105].
6. The Deputy President and the Full Bench of the South Australian Employment Tribunal did not err in concluding that the respondent’s employment was a significant contributing cause of her injury, at [113] and [121].
Return to Work Act 2014 (SA) s 7, referred to.
Comcare v Martin (2016) 258 CLR 467; Comcare v PVYW (2013) 250 CLR 246; Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529; Institute of Medical and Veterinary Science v Auld [2000] SAWCT 155; Kavanagh v The Commonwealth (1960) 103 CLR 547; March v Stramare (1991) 171 CLR 506; Travel Compensation Fund v Tanbree & Others (2005) 224 CLR 627; Ward v The State of SA [2016] SAET 28; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, discussed.
WORDS AND PHRASES CONSIDERED/DEFINED
"Significant contributing cause"
THE STATE OF SOUTH AUSTRALIA v ROBERTS
[2018] SASCFC 25Full Court: Kourakis CJ, Blue and Parker JJ
KOURAKIS CJ: I gratefully adopt the summary of the evidence and the judgments of the South Australian Employment Tribunal appearing in the reasons of Parker J.
The first limb of s 7(2) of the Return to Work Act 2014 (SA) (RTW) requires that the injury is sustained in the course of employment. Ms Roberts was bitten by a mosquito whilst she was staying in the premises provided by her employer, but which were not mosquito-proof, so that she could perform her work duties in a remote area of the State. That connection between Ms Roberts’ presence in the premises and the way in which she sustained the injury, and her employment, is sufficient for the injury to fall within the course of her employment. On the other hand, injuries arising from activities, such as engaging in an extreme sport in accommodation provided by an employer, are not sustained in the course of her employment, as was the case in Comcare v PVYW.[1]
[1] (2013) 250 CLR 246.
However, satisfaction of the first limb says nothing about whether Ms Roberts’ employment was a significant cause of her injury. The State was not liable to compensate her for every injury she sustained whilst living in the accommodation provided to her. A spontaneous, endogenous, physiological event occurring whilst Ms Roberts stayed overnight in the premises provided by her employer might be suffered in the course of Ms Roberts’ employment but would not be caused by her employment. Indeed the purpose of the ‘significant contributing cause’ limb of s 7(2) of the RTW was to deny an entitlement to compensation even when such an event occurred during working hours. Its purpose was not, as the second reading speech mistakenly suggests, to require a significant contribution in the case of aggravation or exacerbation of a progressive disease. The ‘last straw’ issue in cases of that kind had been earlier addressed by the definition of disease.
The most obvious cause of Ms Roberts’ injury was the mosquito bite. However the causal chain does not end there. The immediate circumstances which exposed Ms Roberts to the disease carrying mosquito may also be significant causes.
An event or combination of circumstances may be a significant cause even if the injury may equally have occurred elsewhere. Employment is a significant cause of a courier’s injuries sustained in a car accident whilst making a delivery even though a similar car accident might equally have occurred whilst driving home after work. For that reason it is of no significance that Ms Roberts may have contracted her disease elsewhere, and that the risk of contraction was not proven to be any greater in Oodnadatta than in other parts of the State.
Causation is a question of fact, as is the question whether a cause is significant. Contraction of inflammatory polyarthritis consequent upon a mosquito bite is not common. Not all mosquitos carry the virus which causes the inflammation. Presence in a place in which there are such mosquitos, and in accommodation which is not mosquito‑proof, are therefore significant causes. Additionally Ms Roberts’ capacity to take her own measures to guard against being bitten by a mosquito was necessarily compromised by her employer’s decision to assign her to work in Oodnadatta, which required that she reside away from her own home. As a matter of human experience and ordinary language, it can properly be found that Ms Roberts’ presence in accommodation which was not, as many premises are, mosquito‑proof, in a place and period of time in which there were carrier mosquitoes, was a significant cause of her contraction of inflammatory polyarthritis.
Moreover those causes are employment causes. The meaning of employment for the purposes of s 7(2) of the RTW extends to the employment relationship and is not limited to the work duties performed under it. Ms Roberts was required to live in the accommodation in Oodnadatta in accordance with the terms and conditions of her employment.
It follows that Ms Roberts’ employment was a significant contributing cause of her injury.
I would dismiss the appeal.
BLUE J: I agree with Kourakis CJ and Parker J.
PARKER J: This is an appeal by the State of South Australia[2] against a decision of the Full Bench of the South Australian Employment Tribunal (‘Tribunal’) concerning the compensability of injuries under the Return to Work Act 2014 (SA) (the ‘RTW Act’). The injuries in question were alleged to have resulted from mosquito bites the respondent received during a work placement in Oodnadatta.
[2] In right of the Department for Technical and Further Education (‘TAFE SA’).
Permission was granted by the Chief Justice under s 68(2) of the South Australian Employment Tribunal Act 2014 (SA) (‘SAET Act’) to appeal the decision of the Full Bench to the Full Court on a question of law.
The appellant has advanced six grounds of appeal. In substance, those grounds express the same point in various different ways. The question of law raised by the appeal is whether the respondent’s employment was “a significant contributing cause” of her injury such that her injury “[arose] from employment” within the meaning of s 7(2) of the RTW Act.
During the course of the Full Court hearing an issue arose as to the scope of the appeal in so far as it is limited to a question of law. The parties were granted permission to file supplementary submissions in relation to that issue. I will return to that matter.
For the reasons that follow, the appeal should be dismissed.
Background
The respondent was employed as a full-time lecturer in hairdressing by TAFE SA. In October 2015, she was bitten by mosquitoes while staying in accommodation provided during a teaching placement in Oodnadatta. TAFE SA authorised and paid for this accommodation.
In the period between November 2016 and May 2016, the respondent lodged three workers compensation claims alleging injuries of arthritis, chronic fatigue and psychiatric sequelae resulting from the mosquito bites. The appellant rejected all claims on the basis that the respondent had failed to establish that her injuries arose from her employment within the meaning of s 7(1) of the RTW Act.
The respondent then filed three Applications for Review in the Tribunal relating to each alleged injury. The applications were heard by a Deputy President. His Honour found in favour of the respondent and set aside the decisions with respect to the arthritis and psychiatric sequelae claims. However, the decision to reject the chronic fatigue claim was upheld because the respondent had not been diagnosed with that condition.
The appellant appealed to the Full Bench of the Tribunal. In accordance with s 26I of the SAET Act the appeal was limited to a question of law. In essence, the appellant challenged the finding by the Deputy President that the respondent’s employment with TAFE SA was “a significant contributing cause” of her injuries. The Full Bench dismissed the appeal.
The evidence
Counsel for the respondent called three witnesses in the trial before the Deputy President. They were the respondent, Dr Herriot and Dr Khanom. The appellant did not call any witnesses. A number of reports provided by other medical practitioners were also admitted into evidence.
The evidence of the respondent
The respondent produced a statement, which was adopted in her oral evidence. She was 59 years old at the time the relevant injuries occurred. She had been employed as a full-time lecturer in hairdressing by TAFE SA since 2000. Prior to that, she had worked as a hairdresser from the age of 14.
During 2015, the respondent volunteered to teach hairdressing to Aboriginal women in Coober Pedy and Oodnadatta. The project commenced on 1 June 2015 and involved a 10 week teaching placement. Her accommodation during this period was authorised and paid for by TAFE SA.
For the first few weeks of her placement, the respondent stayed in what she described as a “nice” two-bedroom cabin at the Pink Road House Caravan Park in Oodnadatta. During her last week she stayed in a metal site cabin at the same Caravan Park. She described the conditions in the metal cabin as “appalling”. The air-conditioning unit was broken and the fly screens were torn and contained holes.
The respondent completed her last day of teaching on Wednesday, 26 October 2015. It was a particularly hot day. After teaching finished, she returned to the metal cabin. She could not walk on the cabin floor with bare feet as it was too hot. She opened the windows to obtain relief from the heat. Later in the night she saw mosquitoes on the wall near her bed, squashed the largest one and noticed that it contained blood.
The next day, the respondent noticed numerous mosquito bites on her face and arms. On Friday, 28 October 2015, she returned to Adelaide. By Sunday, 30 October 2015, she was suffering from a high fever, diarrhoea, painful joints and vomiting. Her right eye and the right side of her face was swollen.
The respondent was subsequently diagnosed as having either reactive arthritis or inflammatory polyarthritis. She gave evidence with respect to her medical history. She reported good physical and mental health prior to the teaching placement, despite some issues with her mental health in the past. The Deputy President accepted the respondent’s evidence and found her to be straightforward, candid and not prone to exaggeration. His Honour considered that certain omissions with respect to her medical history were innocently made. Furthermore, key matters of history concerning her stay in Oodnadatta and the deficiencies in the accommodation were corroborated by uncontested evidence contained in a witness statement of a fellow employee.
Medical evidence
Extensive medical evidence was tendered during the trial. The factual findings about the medical aspects of the respondent’s injuries were not challenged before the Full Bench or on this appeal. Accordingly, it is unnecessary to repeat the medical evidence in detail. In summary, the Deputy President accepted the evidence of Dr Champion that the respondent suffered from inflammatory polyarthritis. His Honour found that:
[56]In my view it is very likely that the cause of Ms Roberts’ injury was a mosquito bite. As Dr Champion noted, there is a strong temporal association between the bite and the development of her symptoms. I accept Dr Champion’s evidence about the aetiology of the injury.
His Honour also accepted the medical evidence with respect to the respondent’s psychiatric sequelae resulting from the mosquito bites:
[96] … Dr Herriot and Mr Clarke agree on the diagnosis of the mental injury and also agree it incapacitates her for work. I accept their views. … It was only after being bitten by mosquitos that she ceased being able to work. In my view the sequence of events supports a finding that her physical and psychiatric incapacity arose as a result of the physical injury and the consequential psychiatric injury.
The legislative scheme
An overarching object of the RTW Act is to establish a scheme that supports workers who suffer injuries at work.[3] The term “injury” in relation to a worker is defined in s 3(1) of the RTW Act to include a disease. The term “disease” is defined to include “any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development”.
[3] Return to Work Act 2014 (SA), s 3(1).
Section 7(1) provides that the RTW Act applies to an injury if (and only if) it “arises from employment”. The phrase “arises from employment” must be read subject to s 7(2) which provides:
(2) Subject to this section, an injury arises from employment if—
(a) in the case of an injury other than a psychiatric injury—the injury arises out of or in the course of employment and the employment was a significant contributing cause of the injury; and
(b) in the case of a psychiatric injury—
(i)the psychiatric injury arises out of or in the course of employment and the employment was the significant contributing cause of the injury; and
(ii)the injury did not arise wholly or predominantly from any action or decision designated under subsection (4).
(underlining added)
Section 7(2)(a) creates a two-limbed test. First, that the injury arose “out of or in the course of employment” and secondly, that “the employment was a significant contributing cause of the injury”. Both limbs of this test must be established on the balance of probabilities.[4]
[4] Return to Work Act 2014 (SA), s 9(1).
The Deputy President’s reasons
The Deputy President found that the respondent was not engaged in actual work when she was injured. Accordingly, his Honour proceeded on the basis that the injury occurred in an interval between periods of work.
First limb – “arising out of or in the course of employment”
When considering the requirement in the first limb of s 7(2)(a) that the injury must “arise out of or in the course of employment” the Deputy President applied the test relevant to interval cases stated by the High Court in Comcare v PVYW.[5] The test considers the connection between the worker’s employment and the place where he or she was injured.
[5] (2013) 250 CLR 246.
The Deputy President considered the following passage, where the majority described the required connection between the employment and the place where the injury was sustained:
Attention must then be directed to the circumstances of the employee’s death in Danvers. He died because the van in which he was required to live caught fire. His death occurred by reference to that place and that circumstance. The place where an employee is required to be assumes particular importance when it is the cause of an injury or death. This is not to inject notions of causation into the application of the principle, just as the statement that an injury occurred as a result of being engaged in an activity does not involve such notions. To identify the relevant connection does not raise any question about causation. It simply identifies the circumstance in which the injury is suffered. It is that circumstance which must be the subject of the employer’s inducement or encouragement.
An injury occurring to an employee by reference to or associated with a place where the employee is present may involve something occurring to the premises or some defect in the premises. For example, if the light fitting in this case had been insecurely fastened into place and simply fell upon the respondent, the injury suffered by her would have arisen by reference to the motel. The employer would be responsible for injury because the employer had put the respondent in a position where injury occurred because of something to do with the place. Liability in those circumstances is justifiable. Liability for everything that occurs whilst the employee is present at that place is not.[6]
[6] Ibid at [44]-[45], French CJ, Hayne, Crennan and Kiefel JJ.
The Deputy President found that TAFE SA induced or encouraged the respondent to be in the cabin where she was injured. TAFE SA had undertaken to train indigenous people in hairdressing. The respondent was selected to provide that training. TAFE SA organised the accommodation, or authorised the respondent and her colleague to make the booking, and met the cost of the accommodation.
In his Honour’s view, applying PVYW, a finding of liability was justifiable:
[64]…even though it is not necessary to find that the condition of the cabin was the cause of Ms Roberts’ injury, the defects in the cabin, which allowed mosquitos inside where they bit Ms Roberts and led to her injury were plainly a characteristic of the place where the injury occurred.
The Deputy President also referred to Favelle Mort Ltd v Murray where the High Court held that a worker who contracted meningo-encephalitis through a mosquito bite whilst working in America was “in the course of [his] employment” when the injury was sustained.[7] Section 6 of the Workers’ Compensation Act 1926 (NSW) required the Court to be satisfied that employment contributed to the worker sustaining the injury. Barwick CJ noted that the virus could only enter the worker’s body “because of the width of temporal range and of the geographical area of his employment, at a place where he was bound by his employment at that time to be”.[8] Accordingly, the worker was at “a place of danger, or if you will, of special danger, a place at which he must be in fulfilment of his employment.”[9]
[7] (1976) 133 CLR 580.
[8] Ibid at 584.
[9] Ibid.
The Deputy President noted that no evidence was led to show that the respondent was exposed to a higher risk of infection in Oodnadatta[10] than at her home in Adelaide. However, his Honour considered the issue need not be taken further as the PVYW test[11] had been satisfied:
[71]Regardless of whether one considers the cabin Ms Roberts stayed in as dangerous or not, under PVYW and on the findings made here, her presence in the cabin had the necessary nexus with the injury she had. If the air conditioner was working, the window would not have needed to be opened, mosquitos would likely not have entered into the cabin through holes in the fly screen…
[72]In my view, Ms Roberts’ situation is similar to the situation the worker in Murray was in. Both workers were in a geographical location for the purpose of their work, and both sustained an injury related to that location. Even if that analysis is incorrect, PVYW does not require that a place where an injury occurs must be dangerous for the injury to be compensable. The PVYW test is not a causation test, it is an association test. The question to be asked is whether the injury was referrable to something to do with the place where the injury occurred. In this case it was.
[10] I note that his Honour referred to “Andamooka” instead of Oodnadatta several times in his judgment. Clearly, his Honour intended to refer to Oodnadatta.
[11] I discuss the PVYW test in greater detail at [88] below.
Second limb – “significant contributing cause of the injury”
The Deputy President then considered the requirement in the second limb of s 7(2)(a) that the employment must be “a significant contributing cause of the injury”. His Honour referred to several authorities decided under provisions in the legislation of New South Wales, Victoria and Queensland that are similar to s 7 of the RTW Act.
New South Wales authorities
In Mercer v Australia and New Zealand Banking Group Ltd, the New South Wales Court of Appeal considered s 9A of the Workers Compensation Act 1987 (NSW), which provides that employment must be “a substantial contributing factor” for an injury to be compensable.[12] The worker in Mercer was a bank teller who had an unknown constitutional abnormality in her knee that predisposed her to dislocation of the kneecap. She reached across a desk for some sticky tape and dislocated her kneecap. The Court of Appeal held that employment was “a substantial contributing factor” to the injury. The Court also observed that the latter test is less stringent than the “arising out of employment” test.[13]
[12] (2000) 48 NSWLR 740.
[13] Ibid at [31]-[35], Mason P, Meagher JA and Beazley JA agreeing.
The fact that the Deputy President noted the criticism by the High Court of the reasoning of the Court of Appeal when special leave to appeal was refused clearly suggests that his Honour did not place much reliance on the finding in Mercer.[14]
[14] Australia and New Zealand Banking Group Limited v Mercer [2001] HCATrans 26.
The Deputy President also referred to Muscat v Woolworths Ltd[15] where Neilson J of the Compensation Court of New South Wales had reluctantly followed the judgment of the Court of Appeal in Mercer. Neilson J found that a worker who was scalded by a hot cup of tea she made before starting work was injured in the course of her employment and the employment was a “substantial contributing factor” to her injury.
[15] (2000) 20 NSWCCR 283.
The Deputy President went on to consider the decision of five Justices of the New South Wales Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd.[16] In that case, the worker was on a business trip to a ski resort. She was contacted by telephone and instructed to attend a work related meeting with a prospective client. While skiing to the meeting she was injured. The Court of Appeal held the “arise out of employment” and “substantial contributing factor” tests are both tests of causation, but each test must be considered separately.[17] Accordingly, a finding that an injury arose out of employment does not necessarily equate to a finding that the employment was a substantial contributing factor to the injury. For employment to be a “substantial contributing factor” the causal connection must be “real and of substance”.[18] The Court of Appeal in Badawi expressly disagreed with the comment in Mercer that the “substantial contributing factor” requirement is less stringent than the “arising from employment” test.[19]
[16] (2009) 75 NSWLR 503.
[17] Ibid at [85], Allsop P, Beazley and McColl JJA.
[18] Ibid at [82], citing Dayton v Coles Supermarket Pty Ltd (2001) 22 NSWCCR 46 at [37], Davies AJA.
[19] Badawi v Nexon Asia Pacific Pty Ltd (2009) 75 NSWLR 503 at [83], Allsop P, Beazley and McColl JJA.
The Deputy President noted that s 9A(2) of the Workers Compensation Act 1987 (NSW) lists six examples of matters that must be taken into account when determining whether employment was a “substantial contributing factor” to an injury. His Honour observed that one of these six matters played “no small part” in the decision of the Court of Appeal in Mercer and noted that, in contrast to the New South Wales Act, s 7 of the RTW Act does not specify any criteria to be taken into account when determining whether employment was a “significant contributing cause” of an injury.
Queensland authority
The Deputy President also considered the judgment of the Queensland Court of Appeal in Newberry v Suncorp Metway Insurance Ltd.[20] In that case, the respondent worked for a smallgoods delivery firm. He suffered injuries while travelling in the course of his employment in a truck driven by his brother. The issue in Newberry was whether s 5(b) of the Civil Liability Act 2003 (Qld) prevented the respondent from pursuing a civil claim for damages. That section limited liability in cases where the harm arose from an “injury” as defined in the Workers Compensation and Rehabilitation Act 2003 (Qld). Section 32 of that Act provided that employment must be “a significant contributing factor” to the injury. The Court of Appeal held the “significant contributing factor” requirement is additional to the “in the course of employment” requirement and noted:
…where a worker is injured while travelling in the course of employment and suffers an injury as a result of activities that are part of employment, it can readily be said that employment is a significant contributing factor to the occurrence of that injury.[21]
Victorian authority
[20] [2006] QCA 48.
[21] Ibid at [45], Keane JA (as he then was), de Jersey CJ and Muir J agreeing.
The Deputy President also considered authorities decided under s 82(1) of the Accident and Compensation Act 1985 (Vic). This provision requires that employment be “a significant contributing factor” where the disease or injury is an aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease. In Hegedis v Carlton and United Breweries Ltd the worker was injured whilst peeling an apple during a paid break.[22] Ashley J held that employment was a significant contributing factor to the worker’s injury and made the following observation:
…None the less, save in pretty exceptional cases the causal requirement imported by the phrase “arising out of employment” and that imported by the requirement that employment be a significant contributing factor to injury cover the same ground.[23]
[22] (2000) 4 VR 296.
[23] Ibid at [51].
Ashley J’s decision concerning the “significant contributing factor” test was upheld on appeal[24] and later endorsed by the Victorian Court of Appeal in Zlateska v Consolidated Cleaning Services Pty Ltd.[25] In doing so the Court observed:
If it can be shown that employment was a significant contributing factor, that will usually be sufficient to show that the injury was one ‘arising out of the employment’. In particular, we find it difficult to imagine a case where psychological injury to a worker resulting from a traumatic confrontation with a supervisor would not constitute both injury ‘arising from employment’ under s.82(1) and injury ‘to which employment was a significant contributing factor.’ If there is a distinction between the two concepts, it is more theoretical than real in such circumstances… [26]
South Australian Employment Tribunal authority
[24] Carlton and United Breweries & Anor v Hegedis [2002] VSCA 61.
[25] [2006] VSCA 141.
[26] Ibid at [80], Maxwell ACJ, Eames and Redlich JJA.
The Deputy President concluded his analysis of the second limb of s 7(2)(a) by considering the decision of Gilchrist DPJ in Ward v The State of SA.[27] In that case, the worker, a senior research technician with the Department of Primary Industries and Regions, suffered an epileptic seizure whilst recording fish size and quantum on a boat. At some stage the worker sustained a broken ankle. Gilchrist DPJ found, on the balance of probabilities, that the break was likely sustained when the worker was assisted on the deck by his colleagues. In doing so, Gilchrist DPJ made the following observations about s 7 of the RTW Act:
The word “significant” as it appears in s 7 of the Act is not a term of art. It is an ordinary word that requires the trier of fact to make an evaluative judgment as to whether or not there is a sufficiency of a connection between the worker’s employment and the injury to permit the conclusion that the worker’s employment was a significant contributing cause of the injury.
The use of the indefinite article “a” is important. It means that there can be multiple contributing causes to an injury, and that one or some can be very important, yet some other cause that is less important can nonetheless still be a significant contributing cause.[28]
(Footnotes omitted)
[27] [2016] SAET 28.
[28] Ibid at [35]-[36].
In a footnote Gilchrist DPJ referred to the following observation made by Mason P in Mercer:
Here the word “substantial” qualifies “contributing factor”. Obviously it is the extent of the causal link which is an issue. Judge Bishop recognised this. At par 29 of his judgement he held that the meaning to be adopted was that “substantial cause” meant “more than minimal, large or great”. In my view this was the correct approach, remembering that word is used in a relative sense, recognising that other causative factors might present. Section 9A does not require that the employment must be “the” substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition.[29]
[29] (2000) 48 NSWLR 740 at [27].
Gilchrist DPJ found that the worker’s employment clearly did not cause his seizure. However, on the facts there was a “sufficiency of a connection between Mr Ward’s employment and his injury to conclude that his employment was a significant contributing cause of it”.[30]
[30] Ward v State of SA [2016] SAET 28 at [38].
The Deputy President agreed with Gilchrist DPJ that the use of the indefinite article before the word “significant” demonstrates that there can be more than one significant contributing cause to an injury. His Honour also considered a passage in the Second Reading speech on the Return to Work Bill by the Minister for Industrial Relations, the Honourable JR Rau MP:
At a conceptual level, there are a number of critical points in the scheme. The first critical point is the gateway provision, which is the provision that gives a person the right to participate in the scheme beyond that point. Compared with all the other schemes in Australia, the current gateway provision for the South Australian scheme is wide open...
The reason for that is that the present rules basically say this: you can have a problem which is one to which your age, lifestyle, recreational activities or whatever has been the overwhelming contributor. Then you go to work, and at work something happens which in and of itself is not a significant thing, but it is the tipping-point event, no matter how trivial.
Mr Williams: The straw.
The Hon. J.R. RAU: The straw, indeed. It is very difficult for any doctor to say that that little incident is incapable of being that tipping point. The prevailing view around Australia is that the test should be that something that happens at work is a significant issue. It does not mean the only issue, it does not necessarily even mean the main issue, but it has to be significant. It cannot be insignificant, it cannot be almost happenstantial: it has to be something of significance.[31]
[31] South Australia, Parliamentary Debates, House of Assembly, 23 September 2014, 1913.
I will refer to the Second Reading speech later in my reasons.
The Deputy President concluded that employment was a significant contributing cause of the respondent’s injury. His Honour’s reasons appear at [89]-[91]:
[89]It seems to me the motivation for the “a significant contributing cause” requirement was to disallow claims where an injury arises out of or in the course of employment, but employment is not in any real or meaningful sense responsible for the occurrence of the injury.
[90]Ultimately, whether employment is a significant contributing cause of an injury is a question of fact which will be determined by the facts of each case. What is clear is that some causal significance must attach to the incident which causes injury for it to be a significant contributing cause.
[91]In my view employment was a significant contributing cause of Ms Roberts’ injury. She was in the place where she sustained injury because of work and her injury was referrable to that place. There is an overlap between the two requirements of s 7(2). This is not surprising. The High Court in PVYW explained that a finding of liability in cases like this one must be justifiable. As noted by Ashley J in Hegedis, satisfying the “arising out of or in the course of employment” requirement will often satisfy the “a significant contributing cause” requirement.
(Footnotes omitted)
The appeal to the Full Bench
The appeal to the Full Bench was confined to questions of law. Specifically, the appellant submitted:
The learned Deputy President incorrectly directed his attention to the test within Comcare v PVYW [2013] HCA 41 and therefore, misconstrued section 7(2)(a) of the [RTW] Act to conclude that the facts as found fell within the phrase “the employment was a significant contributing cause” of the Respondent’s injuries (see [91]);
The learned Deputy President incorrectly conflated the requirements of section 7(2)(a) of the [RTW] Act to conclude that because the facts as found satisfy the phrase “arises out of or in the course of employment” the additional and separate requirement contained in the phrase “the employment was a significant contributing cause of the injury” in section 7(2)(a) of the [RTW] Act is also satisfied (see [82], [83], [84] and [91]).
The appellant’s submissions relied on the following dicta of Kitto J in Federal Broom Company Pty Limited v Semlitch:
The second ground treats the word “employment” in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.[32]
[32] (1964) 110 CLR 626 at 632-633.
The appellant also referred to the following dicta of Windeyer J in Semlitch:
I pass then to the next, and I think more difficult, question, was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.[33]
[33] Ibid at 641.
The Full Bench interpreted the reliance on the dicta in Semlitch as a contention by the appellant that the respondent was in no different position when residing at the accommodation in Oodnadatta than when she was at her house in Adelaide. In other words, there was nothing to show there was a greater or lesser chance of the respondent being bitten by a disease carrying mosquito whilst, for example, watching television at home. The essence of the submission was that the employment was not a cause but merely the occasion for the respondent’s injuries. Accordingly, the appellant submitted that the respondent’s employment could not be categorised as a “significant contributing cause”.
The Full Bench noted that counsel for the respondent referred to the test in PVWY and contended that the contribution of employment to the injury was the characteristic of the conditions in which it was required to be performed, i.e. the inadequate after hours accommodation.
The reasons of the Full Bench for dismissing the appeal are set out at [15]‑[20] of the judgment:
[15]In our opinion the appellant’s contention cannot be sustained. The learned Deputy President was correct in his analysis and application of the facts to the operation of s 7. In particular the provision requiring the employment be, “a significant contributing cause of the injury”. But for the employment, this injury would not have occurred at the time and in the way in which it did. It is difficult to see how any other conclusion could have been reached.
[16]That these circumstances are adjudged a causal connection, has long been settled by the authorities. Bray CJ held it so in Bratovich v Rheem (Aust) Pty Ltd and Rosmini v Chrysler Australia Ltd. It is irrelevant to causation that it may have occurred at some other time in non-work circumstances. The fact is it occurred when and where it did was as a result of the employment.
[17]In Da Ros the issue was the proper construction of, “substantial contributing factor” in s 9A(1) of the Workers Compensation Act 1987 (NSW). The worker was a long haul flight attendant working between Sydney and Los Angeles. When returning to his Los Angeles hotel where the crew were accommodated, he was struck from his bicycle and sustained injury. The issue was whether the employment was a substantial contributing factor.
[18]Basten JA, with whom the other Judges agreed, stated his conclusion in the following terms:
“...The appellant was there, on his bicycle, ‘in the course of his employment’. That finding having been made, it would appear to follow that the employment concerned was a substantial contributing factor. ... The employment concerned appears to have been discounted on the basis that, although the class of conduct in which the appellant was engaged was both permitted and encouraged by the employer, the specific activity was not required by it. Alternatively, it may have been thought that riding a bicycle for relaxation, exercise or recreation whilst in a ‘slip port’ was too far removed from the activities for which the appellant was employed, namely as a flight attendant on an international flight. If reasoning of either kind were applied, it would have been erroneous.”
[19]His Honour then went on to cite the dicta of Kitto J in Semlitch, set out above, in support of the worker’s case. That is, the rejection by Kitto J of a distinction between inherent features or essential incidents of employment on the one hand, and occurrence in the course of work on the other. His Honour Basten JA then concluded:
“In the present case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed. Because it was one of two contributing factors (the other being the presence of the courier at the same place at the same time) it is difficult to understand why it would not be a substantial contributing factor...”
[20]His Honour’s reasoning in that case is respectfully adopted by this Tribunal. The issue of whether the contribution was, “substantial”, in this case was not as such the subject of dispute. In any event the meaning of, “a substantial cause” has been subject of examination by this Tribunal previously and that authority supports the decision of the learned Deputy President.
(Footnotes omitted)
The previous “examination by this Tribunal” referred to in that passage is the decision of a Full Bench of the former Worker’s Compensation Tribunal in Institute of Medical and Veterinary Science v Auld.[34]
The appellant’s submissions
[34] [2000] SAWCT 155.
Construction of s 7(2)(a)
The appellant submits that the proper construction of the second limb of s 7(2)(a) should not be derived by adopting the reasoning in cases decided in different statutory contexts. Rather, the focus should be on the text, context and purpose of s 7(2)(a).
The appellant submits that reference in s 7(2)(a) to employment as a “cause” of injury mandates a causal relationship, while the reference to a “contributing” cause recognises there may be a range of causes to which a worker’s injury is attributable. Furthermore, the appellant submits that reference to “a significant contributing cause” is important in two respects. First, the causal relationship must be properly characterised as “significant”. This puts the strength of “the causal linkage” or “causal potency” of the employment into issue. Secondly, use of the indefinite article indicates there may be multiple “significant contributing” causes of an injury.
The appellant submits that the context of s 7(2)(a) requires it to be contrasted to its predecessor provision, which referred only to what is now the first limb.[35] The current first limb was the entire test under the Workers Rehabilitation and Compensation Act 1986 (SA) (‘Repealed Act’). The first limb has two aspects in that an injury can either “arise out of employment” or “arise in the course of employment”. The former implies a legally causal relationship whereas the latter is a test of association.
[35] See, Workers Rehabilitation and Compensation Act 1986 (SA), s 30(2)(a).
The appellant submits that the addition of the second limb demonstrates a legislative intention to narrow the class of compensable injuries under the RTW Act. Accordingly, the content of the first limb is not co-extensive with the second limb. Otherwise, the second limb would be otiose. For that reason the second limb in s 7(2)(a) must impose a causal threshold that is harder to satisfy than the “arise out of” and the “arise in the course of” tests in the first limb.
The “but for” test
The appellant contends that the Full Bench erred by applying a “but for” test in [15] of the judgment:
[15]In our opinion the appellant’s contention cannot be sustained. The learned Deputy President was correct in his analysis and application of the facts to the operation of s 7. In particular the provision requiring the employment be, “a significant contributing cause of the injury”. But for the employment, this injury would not have occurred at the time and in the way in which it did. It is difficult to see how any other conclusion could have been reached.
(Underlining added)
The appellant submits that the “but for” test simpliciter has long been rejected by the High Court, relying on the following passage by Mason CJ in March v E & M. H. Stramare Pty Limited:
…the test, applied as an exclusive criterion of causation, yields unacceptable results… the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.[36]
[36] (1991) 171 CLR 506 at 516.
The appellant contends that in the context of workers compensation, the policy considerations have been infused by Parliament. To that end, the appellant submits that the RTW Act is concerned with the cause of a particular injury in a particular case. A “but for” test simply identifies the necessary causes with respect to one effect and does nothing more than identify the presence of a causal relationship. The test fails to identify the quality or character of the causal relationship. As such, on no view, can mere satisfaction of a “but for” test support a conclusion that employment was a “significant contributing cause” of a worker’s injuries.
“[A] significant contributing cause”
Instead of a “but for” test, the appellant submits that an assessment of “risk” informs the significance of the cause under the second limb of s 7(2)(a). In doing so, the appellant draws on the causation test in the common law of negligence, which requires an assessment of common experience that “the more probable inference appearing from the evidence is that the defendant’s negligence caused the injury or harm”.[37] Mason CJ observed in March v Stramare that in negligence cases risk may attach to the location at which the injury occurred:
Thus, a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater…[38]
[37] Tabet v Gett (2010) 240 CLR 537 at 578, Kiefel J.
[38] (1991) 171 CLR 506 at 516.
The appellant submits that the form of words chosen by the legislature in s 7(2)(a) supports a conclusion that matters of fact, degree, common sense and evaluative judgments are involved in the assessment. The appellant contends that proper interpretation of s 7(2)(a) is as follows:
·the term “significant” should be given its ordinary meaning;
·a matter will not be a significant contributing cause when its causal contribution is no greater than that demanded by the “arises out of” test of the first limb;
·a mere causal relationship (i.e. satisfaction of a “but for” test) is insufficient;
·where an identified cause has no impact on the degree of risk of sustaining the injury, it will never be “a significant contributing cause”; but
·that does not mean that a cause that increases the risk to some extent will necessarily be a “significant” contributing cause.
When applied to these facts, the appellant submits that the only causal contribution of the respondent’s employment was in the “but for” sense. In other words, the respondent’s employment caused her to be in the cabin at Oodnadatta, in circumstances where “the injury was referrable to that place”.[39] However, there was no evidence to show that the respondent was at a higher risk of being bitten by a diseased mosquito at Oodnadatta than at her suburban home in Adelaide. In this respect, the appellant submits that the Full Bench’s conclusion that it was “irrelevant” to consider whether the respondent may have suffered the same fate in non-work circumstances was incorrect. Consideration of the relative risk was critical when assessing the significance of employment as a contributing cause of the respondent’s injuries. The analysis by the Deputy President and the Full Bench simply revealed that employment was merely a contributory cause to the respondent’s injuries and not a significant cause. Accordingly, the appellant submits that the finding by the Deputy President with respect to the second limb was not open on the facts as found.
[39] Roberts v State of South Australia [2016] SAET 58 at [68], Calligeros DP.
Conflation of the two limbs
The appellant also submits that the Full Bench erred by adopting the reasoning of Basten JA in Da Ros v Qantas Airways Limited.[40] In that case, Basten JA identified only “two contributing factors” for the injury, employment being one of those factors. The appellant contends that Da Ros does not stand for the proposition that a dual finding that an injury arose “in the course of employment” and would not have occurred “but for” the employment must lead to the conclusion that employment is a “significant contributing cause”. Furthermore, Da Ros concerned a different statutory context.
[40] [2010] NSWCA 89.
The appellant contends that in finding the “arise in the course of” test in the first limb was satisfied, the Deputy President was merely making a finding of association. That finding being that the respondent’s injuries were referable to the place where they were sustained, i.e. that the disease carrying mosquito was in the respondent’s cabin at Oodnadatta. That finding does not, of itself, impute any legal relationship of causation between the cabin at Oodnadatta and the injury, nor does it impute any legal relationship of causation between the employment and the injury.
Ultimately, the appellant contends that [90]-[91] of the Deputy President’s reasons constitute either an application of a “but for” test of causation or an application of the PVYW test to both limbs of s 7(2). Either way, the appellant submits that the Deputy President erred by failing to analyse the character of the causal contribution of the respondent’s employment.
Appeal on a question of law - inferences from established facts
The appellant observes that no finding was made by the Deputy President as to whether the respondent was at greater risk of being bitten by mosquitoes at Oodnadatta as compared to her suburban Adelaide home or her workplace in Adelaide. The appellant contends that the Court cannot draw any inferences about that question from the established facts. The basis for that contention is that s 68(1) of the SAET Act limits an appeal to the Full Court to a question of law. In this case the question of law is the construction of the second limb of s 7(2)(a) of the RTW Act. Both parties made supplementary submissions as to whether the limitation of the appeal to a question of law precludes the Court from drawing inferences from established facts. It is unnecessary to decide that question because of my conclusion that this appeal can be decided without drawing any inferences as to whether or not the respondent was exposed to a greater risk of being bitten by mosquitos at Oodnadatta.
The respondent’s submissions
The respondent submits that there was no error of any kind, let alone an error of law in the Deputy President’s reasons. The respondent contends that the appellant now advances a different argument to that put to the Full Bench. The argument said to be advanced below was that the respondent’s “employment” was confined to her actual duties (i.e. teaching), and staying in the cabin fell outside those parameters. The respondent submits that the Full Bench correctly dismissed this argument as inconsistent with the High Court’s decision in Semlitch and the decisions of the New South Wales Court of Appeal in Da Ros and Badawi.[41]
[41] The respondent acknowledges that the test under s 9A of the Workers Compensation Act 1987 (NSW) refers to a “substantial” rather than a “significant” cause. However, she submits that this aspect of the Court’s reasoning is equally applicable to the RTW Act.
The respondent submits that neither the reasons of the Deputy President nor those of the Full Bench concluded that satisfaction of the first limb in s 7(2)(a) necessarily constitutes satisfaction of the second limb. Instead, they reasoned that the same factual matters that satisfy the first limb may often satisfy the second. This is particularly common in interval cases, where the PVWY test requires a “relevant connection” between the employment and the place where the injury was sustained.
The respondent further contends that neither the Deputy President nor the Full Bench substituted a “but for” test for a “significant contributing cause” test. The Deputy President considered both limbs of the test separately and made a factual finding with respect to the second limb based on the same facts that satisfied the first limb. This was not a misapplication of the test or a conflation of issues.
Lastly, the respondent submits that it was unnecessary to show that the respondent was exposed to any greater risk or special danger. The second limb should not be construed as requiring an increased risk. Nevertheless, the respondent contends that she was exposed to a greater risk of injury in Oodnadatta. The evidence before the Deputy President on that point was clear. No error has been demonstrated.
Consideration of the alleged error of law
This appeal on a question of law is concerned with the operation of the second limb of the test in s 7(2)(a) of the RTW Act. The issue is whether the Full Bench was correct in its conclusion that the Deputy President had not erred in finding that the employment of the respondent was a significant contributing cause of her injury.
Interstate authorities
I accept the correctness of the appellant’s submission that the proper construction of the phrase “employment was a significant contributing cause of the injury” cannot be derived by transposing the reasoning in cases that considered a different form of words and arose in a different statutory context. For that reason, care must be taken in considering the various cases referred to in argument that have been decided by the Courts of Appeal in New South Wales, Victoria and Queensland.[42]
[42] See for example, Mercer v Australia and New Zealand Banking Group Ltd (2000) 48 NSWLR 740; Badawi v Nexon Asia Pacific Pty Ltd (2009) 75 NSWLR 503; Zlateska v Consolidated Cleaning Services Pty Ltd and Anor [2006] VSCA 141; Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48.
It is important to note that the relevance of the New South Wales authorities is affected by the fact that the operation of the phrase “employment was a substantial contributing factor” in s 9A(1) of the Workers Compensation Act 1987 (NSW) is subject to subsections (2) and (3) of s 9A. Subsection (2) lists a series of matters that must be taken into account for the purpose of determining whether a worker’s employment was a substantial contributing factor to the injury, but without limiting the matters that may be taken into account for the purposes of such a determination. Subsection (3) provides that a worker’s employment is not to be regarded as a substantial contributing factor to their injury merely because the injury arose out of or in the course of their employment, nor is it to be so regarded merely because the worker’s incapacity for work arose from the injury.
Section 7(2)(a)
The inclusion of the words “and the employment was a significant contributing cause of the injury” to s 7(2)(a) of the RTW Act added an additional requirement that must be satisfied before it can be established that an injury “arose from employment”. Under s 30 of the Repealed Act, and leaving aside the special provisions in that Act covering a “secondary injury or a disease”[43] and psychiatric injuries,[44] an injury was regarded as arising from employment if it either arose out of or, alternatively, occurred in the course of employment. An injury was compensable if one or the other of those two alternative qualifications was satisfied.[45] The first limb of s 7(2)(a) is still expressed in those terms.
[43] See s 30(2)(b) of the Repealed Act.
[44] See s 30A of the Repealed Act.
[45] Until the mid-20th Century in most jurisdictions, these requirements were expressed to be cumulative rather than in the alternative – see discussion in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 558, Fullagar J.
Before further considering the meaning and operation of the additional requirement that employment be a significant contributing cause of the injury, it is helpful to refer briefly to the operation of the longstanding requirements that an injury arise out of or in the course of employment.
It is well established that the phrase “arising out of employment” gives rise to a question of causation.[46] In Smith v The Australian Woollen Mills Limited, Starke J summarised the relevant principles as follows:
The decisions upon the Workers' Compensation Acts are numerous, but the following propositions have, I think, been established:—
1.The expression “arising out of” imports some kind of causal relation with the employment, but it does not necessitate direct or physical causation. Was it part of the injured person's employment to hazard, to suffer, or to do that which caused his injury? It must arise out of the work which the worker is employed to do—out of his service.
2.An injury does not cease to arise out of the employment because its remote cause is the ideopathic condition of the injured man. The ideopathic condition must be dissociated from the other facts.
3.An injury which arises directly out of circumstances encountered because to encounter them falls within the scope of employment is an injury arising out of the employment. If the worker is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the injury with his employment.[47]
(Citations omitted)
[46] Smith v The Australian Woollen Mills Limited (1933) 50 CLR 504 at 517-518, Starke J; Dover Navigation Company Limited v Craig [1940] AC 190 at 199, Lord Wright.
[47] (1933) 50 CLR 504 at 517-518, Starke J.
It has also long been settled that the phrase “in the course of employment” requires a temporal connection or association and is not concerned with matters of causation. In Danvers v Commissioner for Railways (NSW), the High Court observed:
It has become apparent in Australia that what is in the course of an employment cannot be limited to what the employee is by the terms of his engagement express or implied contractually bound to do… The course of an employment, to use the language of Dixon J in Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281 at pp 293, 294, includes the doing of “whatever is incidental to the performance of the work” and will include what he “is reasonably required, expected or authorised to do in order to carry out his actual duties”. Thus it may include being at a place in which the workman’s presence “is so consequential upon or incidental or ancillary to the employment that in being there he is doing something in virtue, or in pursuance, of his employment”. In applying such a statement of the facts and circumstances of a particular case, its elements, in my opinion, should be applied liberally and practically.[48]
[48] (1969) 122 CLR 529 at 536, Barwick CJ.
In Kavanagh v The Commonwealth the High Court further considered the meaning of the words “in the course of the employment”.[49] For reasons that were unknown the worker suffered a vomiting attack while at work which caused a rupture of his oesophagus. The rupture led to his death. Dixon CJ, Fullagar and Menzies JJ held that a personal injury which occurs while an employee is performing his duties or whilst doing something incidental thereto arises “in the course of the employment” within the meaning of the relevant Commonwealth statute.
[49] (1960) 103 CLR 547.
The same approach was adopted by the High Court in Zickar v MGH Plastic Industries Pty Ltd.[50]In that case, a worker suffered a cerebral aneurism while at work due to a congenital susceptibility without his employment playing any part in the injury. Nevertheless, the majority found the injury arose “in the course of employment”.
[50] (1996) 187 CLR 310, Toohey, McHugh, Gummow and Kirby JJ, Brennan CJ, Dawson and Gaudron JJ dissenting.
In Comcare v PVYW the High Court considered the application of the “in the course of employment” test in a case where the injury occurred during an interval in a period of work. The majority, comprising French CJ, Hayne, Crennan and Kiefel JJ, held that for an injury occurring during an interval in a period of work to be “in the course of employment”, the circumstance in which the employee was injured must be connected to the inducement or encouragement of the employer. An inducement or encouragement that caused an employee to be at a particular place does not, of itself, provide the necessary connection to employment merely because an employee was injured while engaged in an activity at that place. If the employee is injured when engaged in an activity at that place, the decisive question is whether the employer induced or encouraged the employee to engage in the activity. That question is to be determined by reference to the general nature, terms and circumstances of the employment. However, where the injury has occurred at and by reference to a place (rather than by reference to an activity engaged in at that place), the question is simply whether the employer induced or encouraged the employee to be there.
The legislative intention
It is apparent that the additional requirement in the second limb of s 7(2)(a) that “employment was a significant contributing cause of the injury” was intended to restrict the entitlement to compensation. The clear indication given by the words of the enactment that this was the legislative intention is confirmed by the comments made during the Second Reading debate by the Minister for Industrial Relations that were referred to by the Deputy President at paragraph [88] of his reasons. The comments made by the Minister confirm that the perceived mischief being addressed by the amendment was that a worker may be entitled to compensation when it was mere happenstance that the injury occurred in the course of employment. In other words, the legislative intention was to preclude the payment of compensation to workers injured in circumstances similar to those in Kavanagh and Zickar if it could not be proved that their employment was a significant contributing cause to their injury.
Causation
Against that background I turn to the meaning and operation of the requirement in the second limb of s 7(2)(a) that “employment was a significant contributing cause of the injury”.
The appellant contends that both the Deputy President and the Full Bench inappropriately applied a “but for” test when they considered whether the respondent’s employment was a significant contributing cause of her injury. For reasons that I will explain later, the Deputy President and Full Bench did not solely apply a “but for” test. Nevertheless, the appropriateness of a “but for” test must be considered.
The approach to be adopted in determining questions of causation under a statute was considered by the High Court in Travel Compensation Fund v Tanbree & Others.[51] The finding of the majority, comprising Gleeson CJ, Gummow and Hayne JJ, is correctly stated in the headnote as follows:
Questions of causation involved in a statutory claim for damages are to be understood by reference to the statutory subject, scope and purpose, not by making a value judgment about whether the defendant ought to be held liable.
[51] (2005) 224 CLR 627.
The issue before the High Court in Comcare v Martin was whether the injury suffered by a Commonwealth employee was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”[52] If so, the worker was not entitled to compensation. In answering that question French CJ, Bell, Gageler, Keane and Nettle JJ held:
Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in statutory context in a manner which best affects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm.[53]
(Footnotes omitted)
[52] (2016) 258 CLR 467.
[53] Ibid at [42].
The High Court referred to the Explanatory Memorandum to determine the purpose of the exclusion of diseases that were suffered as a result of “reasonable administrative action taken in a reasonable manner.” The stated purpose was to ensure that legitimate human resource management actions, when undertaken in a reasonable manner, did not give rise to eligibility for workers’ compensation and, in particular, to prevent claims being used to obstruct legitimate management action. In that light, the Court concluded that an employee would not be entitled to compensation if they would not have suffered the disease if the administrative action had not been taken. The Court summarised the position as follows:
That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee’s employment.[54]
[54] Ibid at [47].
It is quite clear that, in the context of the Commonwealth legislation, the High Court adopted a “but for” test for the purpose of determining whether the statutory causation requirement had been satisfied. The High Court also stated “that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm”.[55]
[55] Ibid at [42].
It is clear from Comcare v Martin that when the question of causation is considered in the context of a statutory compensation regime, the issue must be decided by reference to the statutory text construed and applied in a manner which best effects its statutory purpose. Depending on the terms of the statute and its context and purpose, as the reasoning of the High Court in Comcare v Martin illustrates, the application of a “but for” test may, in some instances, be relevant and appropriate. However, the application of mere “common sense” is not the correct approach.
The appellant suggests that the “but for” considerations in this matter may have been that the weather in Oodnadatta on the relevant day was particularly hot, that the cabin was not mosquito proof, that a mosquito carrying the relevant virus was present in the cabin on that evening and even the fact that the respondent was born. Other “but for” considerations that might be added to that list include that the accommodation provider chose to move the respondent from other more suitable accommodation to the particular cabin, that there was apparently no insect repellent available in the cabin, that the respondent was present at Oodnadatta for the purposes of her employment, that her employer had arranged the particular accommodation and so forth.
It is apparent from the list of matters that might be taken into account in applying a “but for” test that many factors have combined to cause the injury suffered by the respondent. A “but for” test will often provide little assistance in cases where the effect of multiple causes must be considered for the purpose of determining whether the worker’s employment was a significant contributing cause of the injury. In other cases, the facts may be such that the use of a “but for” test will provide a clear answer to the question whether employment was a significant contributing cause of the injury.
Before determining whether employment was a significant contributing cause of the injury, it is necessary to identify and consider all relevant facts and circumstances surrounding the injury and the employment of the worker. An evaluative judgement must then be made as to whether employment was a significant contributing cause of the injury. In making that judgement the use of a “but for” test may often be helpful.
Significant contributing cause
While each of the words in the phrase “and the employment was a significant contributing cause of the injury” is important, in the context of the present appeal, the key word is “significant”. The Macquarie Dictionary relevantly defines the word “significant” to mean “important, of consequence”[56] while the Oxford English Dictionary provides the following relevant definition “sufficiently great or important to be worthy of attention; noteworthy; consequential; influential”.[57]
[56] Macquarie Dictionary (Macquarie Dictionary Publishers, 7th ed, 2017), 1390.
[57] Oxford English Dictionary (Online, 3rd ed, September 2011).
I have considered a number of judicial interpretations of the word “significant”. However, because of the very different statutory contexts, I found them to add nothing to the dictionary definitions. For that reason, and as “significant” is an ordinary English word, it is appropriate to rely upon the definitions provided by the Macquarie and Oxford English Dictionaries. Adopting the common theme of the two separate dictionary definitions, I consider that employment will be a significant cause of an injury if it is an important or influential cause. Thus, the term requires an evaluative judgement on the part of the decision-maker.
The appellant’s submission that a matter will not be a significant contributing cause to an injury where its causal contribution is no greater than that demanded by the “arises out of” test under the first limb of s 7(2)(a) needs to be approached with some care. If a worker establishes that their employment is a significant contributing cause of their injury, that fact will satisfy both limbs of s 7(2)(a). On the other hand, if a worker is only able to establish that employment was a cause of their injury, but not a significant cause, they may satisfy the “arises out of” test under the first limb of s 7(2)(a) but will be unable to meet the “significant contributing cause” test under the second limb. In that particular situation the submission by the appellant is correct.
A worker who cannot establish under the first limb of s 7(2)(a) that the injury arose out of their employment will also be unable to satisfy the requirement that employment was a significant contributing cause of their injury. In that situation the fact that the injury arose in the course of employment will not assist the worker. The clear purpose and effect of the additional words “and the employment was a significant contributing cause of the injury” is to restrict the circumstances in which an injury may be compensable.
It is of fundamental importance that s 7(2)(a) requires that employment was a significant contributing cause of the injury and not merely a contributing cause. It is also of fundamental importance that s 7(2)(a) uses the indefinite article “a” in the phrase “the employment was a significant contributing cause of the injury”. The observation made by the Deputy President to that effect, which was also previously made by Gilchrist DPJ in Ward v The State of SA, is clearly correct. The use of the indefinite article makes it manifestly clear that an injury may be compensable even though there were other significant contributing causes in addition to employment. The only requirement is that employment be one of the significant contributing causes. It need not be the only significant cause or the most significant contributing cause.
There is no requirement in s 7(2)(a) that the employment of the worker must have exposed them to a greater risk of injury. The imposition of such a requirement would create a test that is additional to the statutory requirement that employment be a significant contributing cause. Whether or not a worker’s employment exposed them to a greater risk of injury should not distract the decision maker from their statutory obligation to determine whether employment was a significant contributing cause of the injury. Of course, if the worker’s employment did expose them to a greater risk of injury it is highly likely that the employment will be found to be a significant contributing cause of the injury. However, the reverse is not necessarily true.
The words “the employment was a significant contributing cause of the injury” require a decision-maker to identify the primary causes of the injury. The task of identifying causes and assessing whether employment was a significant cause of the injury necessitates that close attention be given to the facts and circumstances surrounding the employment of the worker. As I have previously observed at paragraph [101], a cause will only be “significant” if it is important or influential. The task of determining whether employment was a significant contributing cause requires an evaluative judgement.
In making the required evaluative judgement a “but for” test cannot be the sole determinant. However, a “but for” test can be applied as part of the reasoning process. As Mason CJ observed in March v Stramare[58] and Mason CJ, Deane and Toohey JJ noted in Bennett v Minister of Community Welfare,[59] a “but for” test is particularly useful as a negative criterion. In Comcare v Martin the High Court also applied a “but for” test as a positive criterion.[60]
[58] (1991) 171 CLR 506 at 515.
[59] (1992) 176 CLR 408 at 413.
[60] (2016) 258 CLR 467 at [45], French CJ, Bell, Gageler, Keane and Nettle JJ.
When applied as a negative criterion a “but for” test may serve to eliminate cases (as the second limb clearly intends) where employment was merely the occasion of the injury rather than a significant cause. That will most obviously, but not only, be the case when the injury arises from a medical condition that simply manifests itself at work without employment being a contributing factor.
The analysis by the Deputy President
The reasons of the Deputy President and the Full Bench need to be tested against the observations I have made. The Deputy President found that the respondent developed chronic inflammatory polyarthritis as a result of mosquito bites she suffered whilst staying in the cabin at Oodnadatta arranged for her by her employer for her work in that location. The widespread ramifications of her physical illness were the major significant cause of her developing a major depressive disorder.
The Deputy President followed the decision of the High Court in PVYW and determined that the respondent’s injury arose out of her employment. The Deputy President held that the respondent had established a relevant connection between her employment and the place where she was injured. That connection was established because the employer had induced or encouraged her to be in the cabin at Oodnadatta where she was injured. His Honour went on to note that while it was unnecessary to find that the condition in the cabin was the cause of the respondent’s injury, the defects in the cabin which allowed the mosquitoes inside where they bit the respondent and led to her injury were plainly a characteristic of the place where the injury occurred.
I consider that the Deputy President correctly concluded that the object of the “significant contributing cause” test is to disallow claims where an injury arose out of or in the course of employment but the employment was not in any real or meaningful sense responsible for the injury.
His Honour went on to observe, in my opinion correctly, that whether employment is a significant contributing cause of the injury is a question of fact to be determined in each case. His Honour also observed, once again correctly, that some causal significance must attach to the incident which causes the injury for it to be a significant contributing cause.
The Deputy President then concluded that, in his view, employment was a significant contributing cause of the respondent’s injury. She was in the place where she sustained the injury because of her work and her injury was referrable to that place. Counsel for the respondent conceded that the reasons stated by the Deputy President were less than ideal. That concession was soundly made. The observations made by his Honour might be read as referring only to the first limb of s 7(2)(a). However, the preceding observations of the Deputy President indicate that his Honour properly understood the statutory test.
I also consider that the Deputy President was correct in adopting the analysis by Gilchrist DPJ in Ward v The State of SA. Gilchrist DPJ correctly stated that the word “significant” in s 7 is an ordinary word that requires the fact-finder to make an evaluative judgement as to whether or not there is a sufficiency of connection between the worker’s employment and the injury to permit the conclusion that the worker’s employment was a significant contributing cause of the injury. Gilchrist DPJ also correctly recognised that there can be multiple contributing causes of an injury. One or more of those causes may be very important, but a cause that is less important can nevertheless be a “significant contributing cause.”
The analysis by the Full Bench
The Full Bench held at [15] that “but for” the employment of the respondent her injury would not have occurred at the time and in the way in which it did and for that reason her employment was a significant contributing cause of her injury. When viewed in isolation that analysis might lend some support to the appellant’s contention that the Full Bench erred in its approach to the question of significant causation. However, that was not the full extent of the analysis by the Full Bench.
The statement by the Full Bench that the injury occurred when and where it did as a result of the respondent’s employment and it was “difficult to see how any other conclusion could have been reached” does not make it absolutely clear that the correct statutory test was being applied. The same may be said about the reference by the Full Bench to the decision of the New South Wales Court of Appeal in Da Ros.
The Full Bench noted that the meaning of a “substantial cause” had been considered by the former Worker’s Compensation Tribunal in Institute of Medical and Veterinary Science v Auld.[61] The Full Bench stated that the decision in Auld supported the decision of the Deputy President.
[61] [2000] SAWCT 155.
The worker in Auld was suffering from a psychiatric condition. Section 30A of the Repealed Act provided that a psychiatric disorder was only compensable if, amongst other matters, employment was a substantial cause of the disability. The Full Bench in Auld rejected a submission that “substantial” required that employment must be the predominant cause of the disability. Whether employment was a “substantial” cause was to be determined by the trier of fact. The Full Bench held in Auld that it was open on the facts for the Deputy President to have found that employment was a substantial cause of the worker’s disability.
The Full Bench in Auld also rejected a submission that the worker carried an evidentiary burden to establish that other stressors were not of such significance to negate a finding that employment was a substantial cause of the disability. The Deputy President in Auld had examined the other stressors to which the worker was subject and concluded that they were not so predominant as to establish that employment was not a substantial cause of the disability.
While the decision of the Full Bench in Auld turned on its own particular facts, I consider that the adoption by the Full Bench of the reasoning applied in that case resulted in it taking the correct approach to the question of significant causation. While Auld was decided under the mental illness provision of the repealed Act where the issue was “substantial cause” rather than “significant cause”, I consider that the reasoning adopted by the earlier Full Bench in Auld is consistent with what I consider to be the proper interpretation of the second limb of s 7(2)(a).
While the reasoning of the Full Bench, and also that of the Deputy President, might have been more clearly and directly stated, I am satisfied that the Full Bench adopted the correct construction of the words “the employment was a significant contributing cause of the injury” in s 7(2)(a).
As this is an appeal on a question of law, the finding that the Full Bench correctly applied the statute is enough to decide the matter. Nevertheless, I take the opportunity to note that if this appeal had extended to questions of fact, I would have concluded that the Deputy President did not err in concluding that the respondent’s employment was a significant contributing cause of her injury. The medical evidence establishes that the respondent’s illness was caused by mosquito bites. Those bites occurred because she was housed in unsatisfactory accommodation in an extremely remote location that was arranged or paid for by her employer. She was present in that location for the sole purpose of carrying out her duties as an employee. In those circumstances, whether or not she might have been bitten by disease carrying mosquitoes at her home or workplace in Adelaide is not to the point.
Conclusion
I would dismiss the appeal.
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