Reported Decision : (2001) 22 NSWCCR 69 Compensation Court of New South Wales CITATION : Klevjer v NSW Ambulance Service [2001] NSWCC 177 PARTIES : Tore Gustav Klevjer v New South Wales Ambulance Service MATTER NUMBER(S) : 35328 of 2000 JUDGMENT OF: Burke J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 07/05/01 DATE OF JUDGMENT: FOR APPLICANT: Mr G B curran instructed by Mc Clellands LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr M G F Batten instructed by McCabe Lawyers JUDGMENT: 1. The applicant seeks weekly payments of compensation in respect of the period from 10 February to 10 June 2000 and lump sum compensation in respect of a 10% permanent loss of efficient use of the right arm. His entitlement to such compensation is alleged to arise from injury received by the applicant on 10 June 2000. 2. The applicant was an ambulance officer stationed at the Mount Druitt premises of the respondent. He desired a more salubrious environment for the family in which to raise his three children. The respondent, as was its wont from time to time, advertised within the service the availability of various appointments. One such advertisement was for the position of an ambulance officer stationed at Corrimal. The applicant successfully applied to fill that vacancy. That necessarily involved a change in the family's residential location. That change also triggered the operation of a variety of provisions in the Crown Employees (Transferred Officers' Compensation) Award. Critical to this matter, these provisions broadly related to a grant of special leave for inspection of the proposed area to which the transfer would remove the officer; leave to pack and prepare for the move; leave to travel to the new location and leave to clean up and settle in to the new premises. 3. There are a number of other provisions providing for assistance to the transferred officer including costs of removal; cost of temporary accommodation; excess rent assistance; cost of furniture storage; conveyancing costs and even costs of boarding Year 12 students of the transferred officer so as not to disturb their schooling. Such are not germane to the issue in this matter. 4. The date of injury, 10 June 2000, was a day on which the applicant had been granted special leave within the Award provisions for packing and preparing for the removal from his Mount Druitt home to the new abode at Corrimal. He was so engaged. He was on a ladder recovering pot plants hung from a pergola at his Mount Druitt premises so that they might be taken by the waiting removal vehicle to the new site at Corrimal. He fell from the ladder sustaining a comminuted fracture of the right radial head with associated dislocation of the elbow for which he underwent open reduction and internal fixation at the hands of Dr. Hughes at Royal North Shore Hospital. He convalesced and was off work for the period in respect of which the claim is made. 5. The issues raised are whether the applicant received injury arising out of or in the course of his employment and, if so, whether the employment was a substantial contributing factor to such injury. 6. The applicant was paid the appropriate remuneration in respect of the day of injury. He was at that time on paid special leave in accordance with the Award provision. In submissions on behalf of the applicant this fact appears to be regarded as establishing that the relevant injury arose both out of and in the course of the employment. Logically, if this were so, similar injury while on paid annual leave, sick leave, maternity leave or compassionate leave would have a similar employment connection. That proposition appears axiomatically erroneous. The mere fact that a worker is on paid leave does not serve to render all that occurs to him during such period as arising out of or in the course of the employment - it is more naturally arising out of or in the course of his unemployment. 7. The applicant, without recourse to authority, appears to submit a causal nexus based on matters such as Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 and The Department of Public Health v Clancy [1962] NSWLR 2 and [1961] WCR 232 (C/A). The submission is that what the applicant was doing at the time of injury was part of the process of transferring from Mount Druitt to Corrimal. This transfer was a benefit to the employer in that it filled the vacancy at Corrimal or was induced by the employer. Therefore, in doing something to the benefit of, or induced by, the employer, injury arose out of the employment or even in the course of it. The respondent is more inclined to emphasise that the transfer was embarked upon by the applicant for purely personal reasons and while it may have served to fill the respondent's vacancy at Corrimal it also left a vacancy to be filled at Mount Druitt and the one offset the other. 8. The submissions appears to raise the dichotomy between events that are a condition precedent to injury and those which are a cause of injury. The distinction is probably at its most obvious when one considers that it is necessary to be born before one can possibly be injured in an industrial situation. Being born is a necessary condition precedent to injury but not a cause of such injury. McHugh J in March v Stramare (1991) 171 CLR 506 cited a passage from Lord Asquith in Stapley v Gypsum Mines [1953] AC 663 which expresses this distinction: it is still part of the law of this country that two causes may both be necessary preconditions of a particular result yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability. 9. McHugh J was not enamored of this approach preferring the "but for" test - another formulation of the causa sine qua non test - as the appropriate test of causality. In this he lacked the support of the other members of the bench in March. 10. Lord Asquith in Stapley had stated: causa sine qua non means a cause which does not , in the sense material to the particular case, cause, but is merely an incident which precedes in the history or narrative of events, but as a cause is not in at the death, and hence is irrelevant. This was a view that had the support of the majority in March. 11. The applicant was moving his domestic home from one place to another. That was to achieve what he took to be more a congenial locus having regard to his personal commitments. Certainly it was also dictated by his choice of the place where he would work but that was itself a consequence of his perception of a better environment in which to bring up his young family. Had the applicant been also changing employer, in the absence of any special arrangement, there is little likelihood that there could be any sustainable suggestion that anything occurring in the course of that move arose out of either employment. The fact that the move was in the context of a move a facilitate continuing in the same employment but at a different geographical location does not appear to me to give to the process any greater employment connection. 12. Doubtless, but for this projected transfer to Corrimal, the applicant would not have been removing his pot plants and so been in a position to suffer the injury that in fact did occur. That, of itself, does not suggest that the proposed transfer and the implementation of the necessary steps to achieve it were, in any real sense, a cause of such injury. They were merely a part of the history of events that preceded the applicant's move to Corrimal but, of themselves, did not materially contribute to the occurrence of the injury. 13. I am therefore of the view that the applicant's injury did not arise out of his employment. Mercer v ANZ Banking Group (2000) 48 NSWLR 740; (2000) 20 NSWCCR 70 virtually equated "substantial contributing factor" to "arising out of". Therefore, ex hypothesi, that being so, the employment could not have been a substantial contributing factor to the injury. There may have been some reservations about that equation expressed in Dayton v Coles Supermarket, 1 June 2001, Court of Appeal, unreported, [2001] NSWCA 153. 14. Assuming, without accepting, that the applicant received injury arising out of or in the course of his employment with the respondent the question posed is whether the employment was a substantial contributing factor to that injury. Among the causes of the injury was the employment one of substance? 15. Even allowing that the employment dictated that the applicant was at home and engaged in gathering his chattels it did no more than dictate a locus in which other events then transpired. Much as in McCurry v Lamb (1992) 8 NSWCCR 556 and Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 the employment placed the worker in a particular location where matters completely extraneous to the employment then operated to result in injury. Even if the employment provided the stage it had nothing to do with the script. 16. Whatever part the employment played in the evolution of the events leading to injury to Mr. Klevjers I do not see any employment element or elements as playing any substantial part in bringing that to pass. In my view the employment was not a substantial contributing factor to the injury. 17. Many activities have an apparent nexus to employment though neither part of the employment nor caused by the employment. All the activities of going to the place of work have this "causa sine qua non" status; rising, bathing, dressing, breakfasting, journeying. Special provision in the statute apart, nothing that occurs in these events can constitute injury arising out of or in the course of the employment. They are domestic events, necessary precursors to employment activity but not part of the employment. In my view the activities of Mr. Klevjic on this occasion have a similar type of connection with employment, events that necessarily take place before relevant employment activities can be embarked upon but themselves neither part of those employment activities nor brought about by the needs of the employment. 18. I therefore make an award in favour of the respondent. GB Curran instructed by McClellands appeared for the applicant. MFG Batten instructed by McCabe Lawyers appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.