New South Wales Court of Appeal CITATION : Supair Pty Limited v Sweeney [2000] NSWCA 319 FILE NUMBER(S) : CA 40949/99 HEARING DATE(S) : 10 August 2000 JUDGMENT DATE : 10 August 2000 PARTIES : Supair Pty Ltd v Vincent Sweeney JUDGMENT OF : Mason P; Meagher JA; Foster AJA LOWER COURT JURISDICTION : Compensation Court LOWER COURT 40949/99 FILE NUMBER(S) : LOWER COURT Burke CCJ JUDICIAL OFFICER : COUNSEL : Appellant: R. Wilkins Respondent: P. Neil SC/T. Willis SOLICITORS : Appellant: Mulcahy Lawyers Respondent: Egan Simpson CATCHWORDS : Workers Compensation - employment substantial or contributing factor. LEGISLATION CITED : Workers Compensation Act 1987, ss 2, 3, 9A DECISION : Appeal dismissed with costs - 6 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40949/99 MASON P MEAGHER JA FOSTER AJA Thursday, 10 August 2000 SUPAIR PTY LIMITED v VINCENT SWEENEY JUDGMENT 1 MASON P: I will ask Meagher JA to give the first judgment. 2 MEAGHER JA: This is a worker's compensation appeal by an employer against an award made by his Honour Judge Burke, a distinguished and experienced judge in the workers' compensation jurisdiction in favour of the worker. 3 The facts which are relevant are fairly clear. The employer's business was processing chickens and the worker's work in that regard consisted of emptying a plastic pail of chicken pieces into a large metal tub. In doing that apparently simple task on one day, the worker banged his wrist, the scaphoid of his left arm, against the metal tub and it had unfortunate consequences. His Honour found that that was the injury which caused trouble. 4 At the trial before his Honour, the main contest between the parties is whether the incident occurred at all and if it did occur, whether it had anything to do with the results. His Honour found in this regard that the worker had a pre-existing asymptomatic fracture of the left scaphoid, that he sustained trauma to that scaphoid in the course of his employment, that that trauma caused painful left wrist symptoms, which in turn led to surgery. 5 The point raised by counsel for the appellant employer was that his Honour did not properly consider the provisions of s 9A of the Workers Compensation Act 1987. That section in ss 1 says no compensation is payable unless the employment concerned was the substantial contributing factor to the injury. His Honour found that it was. There is an appeal against that finding. Mr Wilkins, learned counsel for the appellant, conceded that that appeal cannot proceed because it is a finding of fact. 6 Subsection 2 gives a litany of six cases which are examples of matters to be taken into account when determining that the employment concerned was or was not a substantial contributing factor. 7 Subsection 3 says, amongst other things - "A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) The injury arose out of or in the course of or arose both out of and in the course of the worker's employment." 8 Clearly in the present case his Honour must be construed as having found that the worker's injury arose either out of or in the course of the worker's employment or both. The difficulty is, in this as has arisen in other cases, how does one reconcile a finding that an injury arose in the course of or out of a worker's employment and at the same time find that the employment concerned was or was not a substantial contributing factor to the injury. 9 Mr Wilkins, in very helpful submissions has relied on two main arguments. The first argument is that his Honour in coming to his conclusion that the employment concerned was a substantial contributing factor to the injury relied on what was said to be irrelevant facts, those irrelevant facts being, in essence, that the injury arose in the course of and out of the worker's employment. His argument was that ss 3 makes it clear that those factors are irrelevant. In my view this is not so. Subsection 3 does not make those factors irrelevant, it merely makes them non-determinative. 10 The next argument advanced by Mr Wilkins and was a more substantial one was that his Honour paid no regard to s 9A(2) paragraph (d). That provides that one of the examples of matters which should be taken into account is "The probability that the injury or a similar injury would have happened anyway at about the same time or at the same stage of a worker's life if he or she had not been at work or had not worked in that employment." 11 There are, I think, many answers to Mr Wilkins' submission. In the first place, paragraph (d) of subsection 2 does not require a judge to deal with that particular paragraph in every case. In my view, he does not have to deal with it unless there is evidence before him suggesting that the paragraph is material. In other words, there is evidence before him which would suggest that the accident would have befallen the worker in any event. There was no such evidence in the present case, despite the fact that doctors were called. It was admitted by counsel for the employer that that question was not asked of any of them. 12 A further answer is, I think, that such evidence as existed on the point was all the other way. The evidence was that the probabilities tended to suggest that if it had not have been for the employment the accident would not have occurred and therefore that the employment was a substantial contributing factor to the injury. For example, Dr O'Donovan on 4 October 1999 made these remarks about the worker. "He was employed and did his work satisfactorily for a period of seven months before the accident and had been able to do pushups and take weight on the left wrist prior to the accident." 13 We also know from other sources that he had indulged in such activities as guitar playing and surfboard riding. 14 Dr O'Donovan also says "This indicates that the old un-united fracture was not a problem until he sustained an injury on 4 February 1998." 15 There is much other evidence to similar effect and his Honour in his Honour's reasons for judgment noted such evidence. 16 In those circumstances, I think in fact what his Honour was doing was rejecting an argument that the probability referred to in subsection 2(d) existed. I might add that otherwise I for my part would be prepared to accept his Honour's conclusions and the reasons his Honour gives for it. 17 In my view therefore the appeal should be dismissed with costs. 18 MASON P: I am not sure whether section 9A(2)(d) is only engaged if there is evidence indicating that the accident would have befallen in any event. The matter has not been fully argued. I tend to the view that probability in (d) is synonymous with likelihood and therefore, if an issue is raised on that topic, then if there is evidence going to that likelihood even though it is less than fifty per cent probability and if the point is clearly taken, then that matter may have to be taken into account. 19 I do not think it is necessary to resolve that issue, because I am not persuaded that his Honour failed to give effect to such obligation as stems in this case from the evidence and section 9A(2)(d). This is a case where the injury suffered by the worker clearly arose out of and in the course of his employment. The injury was directly related to the very type of work being done by the worker and there is nothing in the evidence to suggest that other activities in which he was engaged at about the time of the injury were likely to have given rise to the very injury that he suffered. 20 This is not a case that was argued on the basis of failure to express reasons, rather the errors of law that were propounded were as indicated by Meagher JA. Confining myself to the point that troubled me for a time, namely that connected with s 9A(2)(d), I think it worth recording that I respectfully agree with Meagher JA that that subsection provides examples and examples that must be engaged by evidence and submission. Compliance with s 9A(2) is not satisfied by mere invocation of the subsection or any paragraph thereof, neither is it breached merely by failure to recite the subsection or any relevant paragraph thereof. 21 On the facts of this case, the passages in the judgment taken in the context of the evidence which have been referred to by Meagher JA are such that I am not satisfied that there has been any failure to advert to the issue thrown up by paragraph (d), whatever its ultimate scope. 22 I content myself with this final comment. Some of the paragraphs in s 9A(2), for example (a), are matters that will almost invariably be adverted to en passant. Without stating any absolute proposition, it ought to be incumbent upon a litigant in the Compensation Court who wants to run a serious issue relating to non-compliance with subsection 2 to flag that in submissions. It should not be left to uncertain inferences if there is a serious issue being raised. Rather, the point should be taken in evidence and flagged in submissions, then it is almost certain that it will be addressed by the trial judge and we will not be left having to infer one way or the other whether there has been a failure to advert to the relevant principle. 23 I agree with the orders proposed. 24 FOSTER AJA: I am quite satisfied that his Honour had regard to the issue posed by s.9A(2)(d), even though he did not expressly formulate it in terms of that section. 25 I do not think this is an appropriate case to decide where the onus may lie in relation to the issue so posed. I am satisfied that no error has been demonstrated in his Honour's judgment and I agree with the orders proposed. 26 MASON P: The appeal is dismissed with costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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