Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324

Reported Decision: 75 NSWLR 5037 DDCR 75

New South Wales Court of Appeal

CITATION: Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22 June 2009

JUDGMENT DATE: 8 October 2009

JUDGMENT OF: Allsop P at 1; Beazley JA at 1; McColl JA at 1; Basten JA at 109; Handley AJA at 138

1. Appeal allowed; DECISION: 2. Set aside the decision of the Workers Compensation Commission (the Commission) made on 14 July 2008; 3. Remit the matter to the Commission for determination in accordance with these reasons that the employment concerned was a substantial contributing factor to the injury; 4. The respondent pay the appellant's costs. The respondent is to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled.

CATCHWORDS: WORKERS' COMPENSATION – entitlement to compensation – Workers Compensation Act 1987 (NSW) s 9A - whether employment a substantial contributing factor to injury – causation – substantial meaning real or of substance – nature of the work being performed - separate test to whether injury arising out of employment for Workers Compensation Act 1987 (NSW) s 9 - WORKERS' COMPENSATION – appeal from Workers Compensation Commission – error in point of law – misconstruction of statutory provision - Workers Compensation Act 1987 (NSW) – s 4 - s 9 - s 9A - WORDS AND PHRASES – "arising out of employment" - "substantial contributing factor" – "the time and place of the injury" – "the nature of the work performed and the particular tasks of that work"

Accident Compensation Act 1985 (Vic) Trade Practices Act 1974 (Cth) LEGISLATION CITED: WorkCover Legislation Amendment Act 1996 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)