Industrial Relations Commission New South Wales Medium Neutral Citation: Fox v NSW Police Force [2012] NSWIRComm 134 Hearing dates: 11 September 2012 Decision date: 28 November 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President; Walton J, Vice-President; Staff J Decision: 1. Leave to appeal is granted. 2. The appeal is dismissed. Catchwords: APPEAL - hurt-on-duty claim - two bases for claim - journey claim - injury in the course of or arising out of employment - injury occurring at abode - s 10(4) applies - abandonment of journey - intention irrelevant - injury not occur during course of employment - ss 4 and 9A - causation required - no causal connection between injury and employment - not substantial contributing factor - leave to appeal granted - appeal dismissed Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Police Regulation (Superannuation) Act 1986 Workers Compensation Act 1987 Cases Cited: Athval Management Pty Ltd v Doherty [2000] NSWCA 277; (2000) 22 NSWCCR 687 Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd [2009] NSWCA 324; (2009) 7 DDCR 75 Calvert v Sowden (1994) 10 NSWCCR 139 Fox v NSW Police Force [2012] NSWIRComm 1005 Smith v Australian Woollen Mills [1933] HCA 60; (1933) 50 CLR 504 Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 Williams v Ducon Condenser Limited (1949) WCR 122 Category: Principal judgment Parties: Peter Raymond Fox (Appellant) NSW Police Force (Respondent) Representation: T M Ower of counsel (Appellant) J L Sharpe of counsel (Respondent) Harris Wheeler Lawyers (Appellant) TressCox Lawyers (Respondent) File Number(s): IRC 493 of 2012 Decision under appeal Citation: Fox v NSW Police Force [2012] NSWIRComm 1005 Date of Decision: 2012-04-11 00:00:00 Before: Ritchie C File Number(s): IRC 194 of 2011 Judgment 1On 29 December 2010, Deputy Chief Inspector Peter Fox ("the appellant") suffered an injury to his right leg, namely, a fracture of his right tibial plateau. Shortly thereafter, on 14 January 2011, he made a claim described as a "claim for hurt-on-duty benefits". In that claim it was asserted that the appellant had sustained an injury "whilst acting in my official capacity as a member of the NSW Police Force" and indicating his desire to "have sick leave taken as a result of the injury/illness classified as being hurt-on-duty and/or to claim for the payment of associated hospital/medical expenses". That claim was refused by a delegate of the Commissioner of Police on 15 February 2011. Six days later the appellant brought an appeal from that decision pursuant to s 186(1) of the Police Act 1990 ("the Police Act"). Section 186(2) provides that the Industrial Relations Act 1996 ("the Act") applies to and in respect of an appeal brought under that subsection in the same way as it applies to a disciplinary appeal under Pt 7 of Ch 2 of the Act. 2The s 186 appeal was heard by Ritchie C. In a decision published on 4 April 2012, the Commissioner dismissed the appellant's hurt-on-duty application: Fox v NSW Police Force [2012] NSWIRComm 1005. The appellant's application for leave to appeal and, if granted, appeal from that decision is the subject matter of this judgment. 3It might be noted, at this juncture, that the appellant's notice of appeal, which details the NSW Police Force as the respondent, was brought pursuant to s 189 of the Act (the notice of appeal did not mention s 187 of the Act but, plainly, that section operates in this respect). In consequence, the appellant required leave to bring the appeal (s 188 of the Act). In his oral submissions, Mr T M Ower, counsel for the appellant, submitted that the provisions of s 197B of the Act may govern the appeal. That provision relates to appeals, confined to questions of law, in relation to public sector promotional and disciplinary matters, but does not require the grant of leave. This contention was opposed by Mr J L Sharpe, counsel for the respondent. 4We do not consider it necessary to resolve the question raised. The submissions of the parties on the issue were cursory in nature and the resolution of the question, such as it was raised, was immaterial to the appeal. This is because, as we will discuss below, the questions raised on the appeal are plainly questions of law, the content of which, in our view, should attract the grant of leave in the public interest. 5The factual underpinnings bearing upon the issues raised on this appeal were not in dispute. They are recorded in the decision of the Commissioner at [4] and [5], as follows: [4] On 29 December 2010 the appellant left his place of residence in uniform, in a marked police car at or about 6.15 am to travel to Raymond Terrace police station. After driving for approximately 3 to 4 minutes he realised he had left his reading glasses, together with a USB stored in his glasses case. He therefore returned to his home to collect the items. [5] He drove into his property got out of his car, leaving the engine running and met his wife on the front porch who handed him the glasses case. He then began to walk towards the police vehicle when his wife called to him for a farewell kiss and in the process of doing so he fell. The injury sustained was a broken leg. 6The relevant findings of the Commissioner in support of his decision to dismiss the hurt-on-duty claim are recorded at [21] to [26] of his decision, as follows: [21] It is my finding that the accident that the appellant suffered on 29 December 2010 occurred within the boundaries of the appellant's abode post the completion of his first journey and prior to the commencement of his second journey. It is clear from a reading of s. 10(4) of the WC Act that he was not at the time of his accident taking part in a journey either to work or from work. [22] The appellant's alternative submission was that he was injured in the course of his duties. The retrieval of the glasses case and the USB for the further pursuit of his duties was sufficient to demonstrate that this retrieval was sufficiently connected with his duties to constitute a substantial contributing factor to his injury. [23] In Badawi v Nexon Asia Pacific Pty Ltd (2009)NSWCA 324 it states: It was not disputed that the requirement imposed by s 9A that the " employment concerned" was a "substantial contributing factor" involves a causative element. The language of the provision makes that plain. The question is whether it is different or an added requirement to that involved in that limb of s4, which defines injury as "arising out of employment". The appellant got out of his vehicle which was on his property, proceeded to his front porch where his wife handed him his glasses, then began to walk towards his car when his wife called to him for a farewell kiss and in the process of doing so he fell and broke his leg. [24] Having considered the matters as expressed in s 9A (2) of the WC Act, and applied them to this matter, I do not find that this accident arose out of his employment or that his employment was a substantial contributing factor. I agree with the example given by Mr Sharpe for the respondent, of the appellant going out to his car in the middle of the night and trips, falls and injuries himself could not be described as being in the course of his work. [25] It was an accident that happened to take place within the boundaries of the appellant's abode. [26] In summary, the accident itself was most unfortunate for the appellant but I do not find in his favour with respect to his Notice of Appeal-Hurt on Duty. 7The appellant contended that those findings contained areas of law which fell into three broad categories. The first two categories concerned what was said to be misapplications of s 10 of the Workers Compensation Act 1987 ("the WC Act"). The third category concerned the contention that the Commissioner at first instance failed to exercise his jurisdiction having regard to the appellant's contentions as to the provisions of ss 4 and 9A of the WC Act or had failed to properly apply those provisions in the circumstances of the matter. 8The appellant accepted that in order to succeed in his hurt-on-duty claim, he was required to show that the injury he sustained on 29 December 2010 was "hurt-on-duty" within the meaning of s 1(2) of the Police Regulation (Superannuation) Act 1906. In other words, he was required to demonstrate that he was injured "in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act". From this starting point, the appellant claimed that he was injured in the course of a compensable journey and, in the alternative, in the course of his employment. It was contended that the Commissioner had misapplied s 10 in finding that there was not a compensable journey claim and failed to exercise his jurisdiction or misapplied ss 4 and 9A of the WC Act by failing to conclude that the injury was not one arising in the course of his employment. The Relevant Provisions of the WC Act 9Before more closely analysing the submissions advanced in support of those contentions, it is convenient to set out the provisions of ss 4, 9, 9A and 10 of the WC Act. Those appear below: 4 Definition of "injury" In this Act: "injury": (a) means personal injury arising out of or in the course of employment, (b) includes a "disease injury", which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. 9 Liability of employers for injuries received by workers-general (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment. 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. Note: In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) 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, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies. 10 Journey claims (1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. (1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker. (1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999 ), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. (1D) Subsection (1) does not apply if the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury. (2) Subsection (1) does not apply if: (a) the injury was received during or after any interruption of, or deviation from, any such journey, and (b) the interruption or deviation was made for a reason unconnected with the worker's employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation. (3) The journeys to which this section applies are as follows: (a) the daily or other periodic journeys between the worker's place of abode and place of employment, (b) the daily or other periodic journeys between the worker's place of abode, or place of employment, and any educational institution which the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to attend, (c) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of obtaining a medical certificate or receiving medical, surgical or hospital advice, attention or treatment or of receiving payment of compensation in connection with any injury for which the worker is entitled to receive compensation, (d) a journey between the worker's place of abode or place of employment and any other place, where the journey is made for the purpose of having, undergoing or obtaining any consultation, examination or prescription referred to in section 74 (3), (e) a journey between any camp or place: (i) where the worker is required by the terms of the worker's employment, or is expected by the worker's employer, to reside temporarily, or (ii) where it is reasonably necessary or convenient that the worker reside temporarily for any purpose of the worker's employment, and the worker's place of abode when not so residing, (f) a journey between the worker's place of abode and the place of pick-up referred to in clause 14 of Schedule 1 to the 1998 Act, (g) a journey between the worker's place of abode and place of employment, where the journey is made for the purpose of receiving payment of any wages or other money: (i) due to the worker under the terms of his or her employment, and (ii) which, pursuant to the terms of his or her employment or any agreement or arrangement between the worker and his or her employer, are available or are reasonably expected by the worker to be available for collection by the worker at the place of employment. (3A) A journey referred to in subsection (3) to or from the worker's place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose. (4) For the purposes of this section, a journey from a worker's place of abode commences at, and a journey to a worker's place of abode ends at, the boundary of the land on which the place of abode is situated. (5) For the purposes of this section, if the worker is journeying from the worker's place of employment with one employer to the worker's place of employment with another employer, the worker shall be deemed to be journeying from his or her place of abode to his or her place of employment with that other employer. (5A) Nothing in this section prevents the payment of compensation for any personal injury which, apart from this section, is an injury within the meaning of this Act. (6) In this section: "educational institution" means: (a) a trade, technical or other training school, or (b) a university or other college or school providing secondary or tertiary education. "night", in the case of a worker employed on shift work, night work or overtime, has a meaning appropriate to the circumstances of the worker's employment. "place of abode" includes: (a) the place where the worker has spent the night preceding a journey and from which the worker is journeying, and (b) the place to which the worker is journeying with the intention of there spending the night following a journey. Submissions for the Appellant 10The submissions of the appellant may be summarised as follows: 1.The fundamental error in the Commissioner's decision was that he found the injury occurred post the completion of the first journey and prior to the commencement of the second journey. 2.First, a journey to which s 10 applies cannot be "completed" until the worker has reached his intended destination. Section 10(3) sets out the types of journeys to which the section applies. The appellant commenced a journey of the type described in s 10(3)(a). For the appellant's "first" journey to have "completed" he would need to have arrived at Raymond Terrace police station. That did not occur. The place of abode can only be the completion point for a relevant "journey" when the worker is travelling there from his place of employment or other place nominated in subsection (3). It is a strained construction to classify a trip from a place of abode to a place of abode as a "journey". 3.The Commissioner obviously approached his analysis by posing the question as to whether there was one journey or multiple journeys. This was precisely the type of erroneous reasoning described by the High Court in Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439. Rather, what was required was to consider whether there was a "spell of going or travelling viewed as a distinct whole". In this context, it was critical for the Commissioner to consider the relevance of the appellant's unchallenged evidence that his intention to continue his journey remained unaltered and that he had no intention of remaining at his residence after retrieval of his glasses case. No finding was made regarding this issue. In any event, on this basis, it would be wrong in law to construe the circumstances of this matter as demonstrating multiple discrete journeys. 4.As to the second plank of the appellant's attack regarding the misapplication of s 10, it was contended that the Commissioner made no finding as to whether the appellant's return to his residence constituted an interruption or deviation of a journey within the meaning of s 10. It was contended, as follows: Inferentially the finding that the "first" journey had "completed" may have foreclosed this issue. Nevertheless, the Commissioner was required to address the appellant's submissions on this point and there is no indication that the argument was seriously considered. It was further contended, in this respect, that: In the second sentence of [21] the Commissioner referred to s 10(4) of the WC Act in dispositive terms. It was contended that: ... this subsection does no more than set out the boundaries of "place of abode" for the purposes of the section. From this foundation it was contended: When construed in context, it points out when a relevant journey to a place of abode and from a place of abode starts and finishes. When the appellant interrupted his journey to work by returning to his home to retrieve his glasses case, he was not engaged on a relevant journey to his place of abode as defined in subsection (3). Accordingly, the terms of s 10 (4) do not dictate that the appellant was not taking part in a relevant journey at the time of the injury. 5.The appellant accepted that if the Commissioner found that there had been an abandonment of the first journey or the 'journey as such', such a conclusion would have fitted into the confines of s 10. However, the Commissioner made no such finding. 6.The third category of error concerned whether the accident arose out of the appellant's employment or that his employment was a substantial contributing factor. It was submitted that the Commissioner's findings ignored the fact that the appellant actually commenced his working day when he drove from his home at 6.15 am in a marked police vehicle. It was contended in the appellant's written submissions: There was no issue that the police radio was turned on and that he was available to respond to any call broadcast over the radio. There was a clear work connection between the need for the appellant to collect his reading glasses and the USB. Although the Commissioner noted the appellant's alternative submission on this point, no reasons were given as to why this submission was rejected. 7.The fact that the accident occurred at the appellant's premises was not dispositive of whether the injury arose out of or in the course of employment. 8.Further, the Commissioner failed to identify which matters expressed in s 9A(2) were relevant to his determination. The only matters which could have any possible relevance were ss 9A(2)(a) and 9A(2)(b), but those provisions do not support the conclusion reached by the Commissioner on the facts of the present case. There was also an absence of reasoning by the Commissioner in this respect. 9.In order to make out the alternative contention, it was sufficient for the appellant to demonstrate that the work contribution was "real" or "of substance" to satisfy the statutory test of "substantial". The retrieval of the glasses case and the USB contributed in a real sense to the injury and, further, the injury would not have occurred but for that retrieval. The fact that the appellant returned momentarily to "give his wife a kiss", a non- employment related aspect, does not take away from the fact that he was there for an employment related reason and that was to pick up his glasses and USB. Thus, the Commissioner misapplied the statutory test. 10.The aforementioned summary engulfs the appellant's intentions as to ground four of the notice of appeal. Submissions for the Respondent 11In summary, the respondent made the following submissions in reply: 1.As to the "journey grounds": Essentially, the appellant's case was that he was on a journey when he had his accident. Once he returned home and he crossed the boundary of his home, he was no longer on a journey within the meaning of the "journey provisions" or within the course of his employment, regardless of when he turned on his radio. The factual findings made by the Commissioner were not only open on the facts as presented but, on any view of the evidence, were the only possible findings of fact. The error alleged by the appellant relates to the question of intention, which in the circumstances of this case is irrelevant. In Calvert v Sowden (1994) 10 NSWCCR 139, Johns J pointed out the absolute nature of s 10(4) regardless of the worker's claimed intention. Thus, the submissions made by the appellant, that his intention was to complete one journey, are irrelevant. The suggested errors made by the appellant fail to have regard to the applicable law. It has long been held that the only relevant journey within the meaning of ss 10(1) and 10(3)(a) of the WC Act is one that is between the worker's place of abode and his place of employment: Athval Management Pty Ltd v Doherty [2000] NSWCA 277; (2000) 22 NSWCCR 687. The onus always remains on the appellant to show that the journey is one to which the provisions of s 10 apply. Section 10(4) makes it quite plain that the boundary of the land is the defining point. Athval Management makes it quite clear that the legal and evidentiary onus on the appellant is to establish that the journey could only commence at the boundary of the land on which his or her place of abode was situated. 2.In relation to the appellant's contentions which relied upon ss 4 and 9A of the WC Act, it was submitted, as follows: The question of employment having commenced already would make the journey provision completely redundant where a worker simply asserted that he was in the course of his employment even though he was then at home and intended to go to work. Once the Commissioner found that the appellant was on a journey, ss 4 and 9A were no longer relevant. There is no error in the way in which the Commissioner dealt with this claim. 3.As to the failure to address the appellant's case, it was submitted that Ritchie C had dealt with the case as presented on the evidence and having regard to the claim being made. He was not required to attend to every possible argument when it was clear that the appropriate finding had been made as to the journey provisions applying. If, at the time of the injury, the appellant was not undertaking a journey for the purposes of the WC Act, then "the question of the course of employment need to be addressed". Consideration 12In Vetter at [6], the High Court (per Gleeson CJ, Gummow and Callinan JJ) described the effect of s 10 of the WC Act, as follows: The effect of the section is relevantly this. The worker will be entitled to compensation if he or she suffers injury on a journey between the workplace and home. A daily or other periodic journey between those places will be a journey to which the section applies... The sustaining of an injury during or after any interruption of, or deviation from a journey which would otherwise be a relevant journey will also disentitle a worker to compensation unless the risk of injury not be materially increased because of the interruption or deviation. 13Vetter concerned a matter in which a worker regularly interrupted her periodic journey from her place of work to her residence by visiting her grandmother. On one such occasion she suffered an injury whilst travelling from her grandmother's residence to home. The High Court held that the resolution of the question as to whether the worker was entitled to make the journey claim under s 10 of the WC Act, notwithstanding that interruption, was not to be determined by asking the question whether there were one or two journeys. In that sense, the question in Vetter revolved around the provisions of s 10(2) of the WC Act. (See the analysis of the Court in [29] and [32].) 14If the conclusion of the Commissioner at [21] of his decision was predicated upon the basis proscribed in Vetter, then, plainly, there would be an error requiring correction on appeal. However, notwithstanding the Commissioner employing the language of "first journey" and "second journey" in that section of his decision dealing with the journey claim, we do not consider that the Commissioner's decision turned upon such considerations but, rather, whether the appellant was at the time of his injury undertaking a journey which had the character of a journey between his place of abode and place of work. (See the discussion in Vetter at [29].) 15When analysed in this way, we consider that the Commissioner reached the correct conclusion in relation to the journey claim. This conclusion is based upon three reasons: 1.The provisions of s 10(4) are strict in nature and limit journey claims to those where the worker receives an injury between, relevantly in this case, the boundary of the home premises and the boundary of the employer's premises. The forward journey only commences at the boundary of the place of abode: Athval Management: Calvert v Sodden (1994) 10 NSWCCR 139; and Williams v Ducon Condenser Limited (1949) WCR 122 at 126. From the facts of this matter, the Commissioner was entitled, on the evidence, to conclude that the appellant had not crossed the boundary of his property at the time he received his injury. 2.The question of intention is, in this respect, irrelevant. Even if it was, upon the test in Athval Management, the requisite intention at the time of the injury was for the appellant to return to his wife to give her a farewell kiss. 3.The appellant is correct in submitting that treating the appellant's travel on the day in question as multiple, discrete journeys would require a strained construction of s 10(3)(a) of the WC Act. This difficulty arises, however, only if the circular trip from the appellant's place of abode to his return to that destination (without ever reaching his place of work) is treated as an interruption for the purposes of s 10(2). We do not consider that this conclusion may be reached. The circumstances of this matter do not conform factually with those found in a line of authorities to which we were taken. In those matters, there was an interruption or deviation between the place of abode and place of work. In this case, the deviation or interruption was not one undertaken co-extensively with the journey to work, such as a stop over mid-course or a deviation in the route for some other purpose, but, rather, as one occasioned by an intention to return to the place of abode for the particular purpose of collecting the forgotten glasses case. In other words, the appellant aborted the journey. In this sense, it is proper, in our view, to treat the circumstances of this matter as not one falling within the provisions of s 10(2) but, rather, as an abandonment of the journey. This conclusion is consistent, in our view, with the findings made by the Commissioner that, at the time the appellant received the injury, he was inside the boundary of his place of abode and that his injury was, thereby, caught by the terms of s 10(4). 16This conclusion does not exhaust the issues arising on the appeal, as the appellant made an alternative contention based on ss 4, 9 and 9A of the WC Act. 17The basis upon which the appellant advanced this aspect of his case is not entirely clear. The appellant advanced his contention, in part, in reliance upon ss 4 and 9 of the WC Act. We have previously set out s 4 in which 'injury' is defined as meaning "personal injury arising out of or in the course of employment". In Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd [2009] NSWCA 324; (2009) 7 DDCR 75 at [72], the NSW Court of Appeal (per Allsop P, Beazley and McColl JJA) found the preposition "or" in s 4 is disjunctive. The Court found that the use of the disjunctive was significant in that quite different tests were involved "one or the other of which is sufficient to be satisfied for the purposes of s 9". The second limb of the definition "in the course of employment" involved a temporal element and did not itself contain a causative element. The meaning of "arising out of ... employment" involved a causative element (see at [73]) creating a "necessity for there to be a causal element between the employment and the injury when determining whether a worker sustained injury arising out of employment" (at [79]). 18In relation to the expression "arising out of" employment, their Honours referred to the judgment of Starke J in Smith v Australian Woollen Mills [1933] HCA 60; (1933) 50 CLR 504 (at 517 to 518) in the following passage from the Badawi judgment (at [77]): In Smith v Australian Woollen Mills Limited [1933] HCA 60; 50 CLR 504, Starke J, at 517-518, stated the following propositions: 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 (Stewart v Metropolitan Water, Sewerage and Drainage Board, and the cases there cited). 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 (Wicks v Dowell & Co). 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 (Upton v Great Central Railway Co; Brooker v Thomas Borthwick & Sons (Aus.) Ltd). 19The submission of the appellant vacillated between reliance upon both limbs of the definition or merely one limb, namely, "in the course of employment". 20A difficulty for the appellant's case, in this respect, is that neither limb of the definition fits comfortably with the notion of the appellant, at the time of his injury, being involved in a journey (in the sense of his journey claim). 21Before further considering that matter, it is appropriate to consider in some greater depth the provisions of s 9A of the WC Act. The following aspects of the judgment in Badawi are relevant in that respect, at [80] to [83]: [80] It was not disputed that the requirement imposed by s 9A that the "employment concerned" was a "substantial contributing factor" involves a causative element. The language of the provision makes that plain. The question is whether it is a different or added requirement to that involved in that limb of s 4, which defines injury as "arising out of employment"? [81] Causation is a fact-laden conclusion which the courts have been told must be based on common sense: March v Stramare (E & MH) Pty Limited [1991] HCA 12; 171 CLR 506; and Nunan... [82] First, and perhaps most importantly, the word "substantial", must be given effect. It is a word of ordinary English meaning. It is a word of evaluative concept. The word substantial has been said to be not only susceptible of ambiguity, but also to be a word calculated to conceal a lack of precision. Which of the various possible shades of meaning the word bears is determined by the context: IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; 83 ALJR 585 at [154] 617 per Gummow, Hayne and Heydon JJ. Here, the concept and purpose of the introduction of s 9A was to remove the possibility of compensation for injury with only a "remote or tenuous connection with work". This was the purpose of the amendment: see the Second Reading Speech at [34] above. We would endorse the separate comments of Meagher JA and Davies AJA in Dayton v Coles Supermarket. As Meagher JA said, something which is minor is not substantial, or, as Davies AJA said, "substantial" as it appears in s 9A means "in a manner that is real and of substance" and does not apply where, as a matter of practical reality, the contribution of the employment to the injury was of, or had, "little substance". We agree with his Honour that it is not useful to search for or use other terms, such as "large", or "weighty", or by way of further example, other concepts such as "predominant". We consider that to do so may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context. In this respect, we prefer the views of Davies AJA in Dayton to the views in the extempore judgment in Bulga, which did not refer to Dayton and to the views of Mason P in Mercer. The words of the statute should be adhered to: "a substantial contributing factor". The "proper link" in the legislative context was a causal connection expressed by the words "a substantial contributing factor", meaning one that was real and of substance. Given the conflict in the existing authority (Mercer, Bulga and Dayton), we think it important to clarify this issue. 83 Secondly, we respectfully disagree with Mason P's observation (notwithstanding that Beazley JA agreed with it at the time) that the causal requirement in s 9A is less stringent than that in s 9 (as read with s 4). If it were, there would be no point in s 9A extending to both limbs of the definition of injury. We have explained the source of Mason P's views in the comments in Favelle Mort on a different phrase ("a contributing factor"). As Mason P observed in Mercer, there is an incongruity in having a double causation test, one in s 9 and one in s 9A. However, the legislature, in seeking to remedy the lack of causal connection with employment that the second limb of s 4 has, that is, "in the course of employment", must be taken to have seen the need to ensure that the connection of the employment with the injury under either limb was "substantial". Had it restricted the s 9A requirement to "the course of employment" limb, it is possible that the required connection with the employment would have been different, depending upon which limb of s 4 was engaged. Notwithstanding that the legislative consequence is cumbersome to a degree, the intention is clear. 22As to particular aspects of the operation of s 9A(2), we refer to the following passages from Badawi at [89], [90], [96], [97], [101], [102] and [107]: [89] The President, in determining whether the appellant was entitled to compensation, was required under s 9A(1) to determine whether "the employment concerned was a substantial contributing factor to the injury". In undertaking that task, the President was required to take into account the matters specified in s 9A(2). Those factors are matters that the legislature has determined are relevant to the question whether the employment concerned is a substantial contributing factor to the injury. To the extent that the matters specified in paras (a)-(f) are relevant to the case under decision, they must be taken into account and applied according to their terms. A decision maker is not confined to the matters specified in s 9A(2) and may take into account other factors that are relevant to the determination of the question in issue: viz, whether the employment concerned was substantial contributing factor to the injury. [90] In this case, the paragraphs of s 9A(2) that are relevant are paras (a), (b) and (d). The other circumstance that was relevant, to the extent that it was not covered by para (a) as we explain below, was that shortly before the injury occurred, the appellant had been skiing, recreationally, with her partner, in circumstances where she was doing so with the express authority of her employer and where she was required to respond to work related matters as and when required. She was effectively on call during this period. ... [96] ... However, s 9A(2)(b) directs attention not to what the employee was doing when the injury occurred, but to "the nature of the work performed and the particular tasks of that work", that is, of the employment concerned. It is s 9A(2)(a) which directs attention, in part at least, to what the employee was in fact doing at the time of the injury, because it requires an identification of the time and place of injury. [97] If an employee is injured during an interval or interlude in the employment, a matter that will be identified through the identification of the time and place of injury in para (a), then what the employee is doing during such interval or interlude is a consideration to which the decision maker will have regard in determining whether the employment is a substantial contributing factor to the injury. In this case, it was at least arguably relevant to the determination whether the employment was a substantial contributing factor to the injury that shortly before the injury occurred, the appellant had been skiing, recreationally, with her partner, because she had time on her hands. We say arguably, because on the view of the facts we have taken it would be contentious as to whether the injury occurred during an interval in her employment. In making this comment, we stress that our view of the facts is irrelevant to the determination of the appeal, unless there is a demonstrated error in point of law. ... [101] We have also reached the conclusion that even leaving aside s 9A(2)(b), the President erred in the manner in which he undertook the statutory task required under s 9A(1). Section 9A(1) requires a determination as to whether the employment is a substantial contributing factor to the injury. The determination so called for is not performed in a case such as this by looking at the recreational activity and then seeing whether any aspect of the employment concerned might have strengthened the linkage with that employment. Rather, a decision maker, in determining under s 9A whether the employment concerned is a substantial contributing factor, is required to consider the employment concerned and the circumstances surrounding the occurrence of the injury, including activities that might be undertaken during an interval in the employment. Those circumstances may be fully encompassed by the factors specified in s 9A(2), or there may be other factors that are relevant to take into account. [102] However, to approach the question in s 9A from the perspective of the non-employment activity undertaken during an interval in the employment, rather than from the perspective of the employment concerned, was to misunderstand the statutory test. ... [107] ... Once it is accepted that "substantial"' in this case means "in a manner that is real or of substance" and that the language of the section is not to be confused by interpretations such as "big" or "weighty", the only answer is that the contribution of the employment concerned was real or of substance. How else could the contribution of the employment be described, we ask rhetorically? We have already set out all the integers of that employment. The fact there was a recreational aspect of the skiing during the course of the employment does not diminish the contribution of the employment as being real or of substance. This is particularly so when the skiing was authorised by the employer and expressly subject to the employer's requirements. 23The NSW Court of Appeal applied those tests to actual circumstances under consideration in Badawi in the following passages from the judgment (at [103], [105] and [106]): [103] Before going to the President's reasons which we consider demonstrate this error, it is useful to consider an example which might be seen as a more routine or traditional case of an injury occurring in the course of employment. Take the case of a storeman who is required to unload goods in the course of his employment. Assume a case where the delivery van is late and the storeman is told by his supervisor that as there is nothing immediate to do, he can go to the staffroom until called. The staffroom is notoriously a place where employees play cards, as this storeman does while waiting for the delivery van. If the storeman responds to his supervisor's call when the delivery van arrives and is injured when he trips over his chair in the staffroom, or whilst walking to the loading dock, there would be little difficulty, one would think, in finding that the employment was a substantial contributing factor to the injury. The circumstances in which the appellant's injury occurred were no different in concept from that of the storeman hypothesised above, save that that the accident in that example happened on the employer's premises. That would be a matter to be considered in determining whether the employment was a substantial contributing factor. ... [105] It is apparent from this passage that the President was not considering the employment concerned, nor what the appellant was doing at the time of the accident, which was going to meet her supervisor to discuss business matters in direct response to the supervisor's request. Rather, the President was considering some other activity that had preceded the accident and was seeking a linkage with the employment from the standpoint of that preceding activity. In our opinion, this is a incorrect application of s 9A. Section 9A requires a consideration of "the employment concerned" to ascertain whether it was a substantial contributing factor to the injury given the relevant circumstances in which the injury occurred, including the matters in s 9A(2). His Honour's comment that there was no question of the appellant being distracted by the telephone call from Mr Russell, or of hurrying, is perhaps the most obvious indication that he was looking at the preceding recreational activity, and looking to see if there was a link back to the employment. [106] Likewise, we consider that the President's consideration that the appellant was going to have to descend the mountain anyway, had she not received the call from Mr Russell, also involves a misapplication of the statutory test. If we revert again to the example of the storeman, the fact that the storeman would have had to walk out through the loading dock when he left the premises at the end of work, would be irrelevant to the consideration whether the employment was a substantial contributing factor to his injury, sustained when he responded to the boss' call. 24There were two prongs to the decision of the Commissioner, in this respect. First, the injury did not arise "out of [the appellant's] employment" (we shall consider both limbs of s 4). The second was that his "employment was not a substantial contributing factor". 25We do not consider the appellant demonstrated that his injury arose during the course of his employment. The appellant's case was predicated upon the basis that he sought to obtain the glasses and USB for the purposes of later using them in his employment, that is, when he reached his place of work. The reference to the police vehicle being left running and the radio turned on did not establish, as a matter of proof, that the appellant was undertaking his duties, per se. Some reference was made to the police officer being available for duty in those circumstances, but the appellant bore the onus to establish, as a matter of evidence, that in those circumstances the officer was in the course of his employment and did not do so. 26Both s 4 of the WC Act (with respect to the expression "arising out of") and s 9A require an assessment of causation. For the purpose of s 9A, the relevant considerations, in this matter, are the factors identified in s 9A(2)(a) and (b). 27We do not consider there was a causal connection between the appellant's injury and his employment. As we have observed, without more, the fact of the appellant having commenced, but abandoned his journey to return to his abode, with his engine running and radio connected, does not establish, as a matter of fact, that he was in the course of his employment or doing anything arising out of the course of his employment. Taking the appellant's case at its highest, the injury occurred whilst recovering instruments which may have been used in his employment. This was not, however, at the place of work but both geographically and temporally at a different place, namely, his place of abode. He was not authorised to undertake work at his home and his activities there bore no direct relationship, on the evidence, to any work assignment. In any event, the injury, in reality, occurred whilst the appellant was undertaking a non-employment activity: averting the return to his police vehicle to give his wife a kiss. 28Even if there was some element of employment involved, we do not consider that it was a sufficient contributing factor. The primary activity the appellant was engaged in, when injured, was a non-employment one. The connection between the collection of his glasses and USB and his employment was both remote and tenuous. Orders 29In all the circumstances, we make the following orders: 1.Leave to appeal is granted. 2.The appeal is dismissed. ********** 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. Decision last updated: 28 November 2012