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Return to Work SA v Brealey and Rullo v Return to Work SA [2017] SAET 133

SOUTH AUSTRALIAN EMPLOYMENT TRIBUNAL

RETURN TO WORK SA

v

BREALEY, Patricia

AND

RULLO, Lena

V

RETURN TO WORK SA

JURISDICTION: South Australian Employment Court - Return

to Work Act 2014 (SA) - Appeal - Referral

CASE NO/S: 8728/2015, 3159/2016

HEARING DATE: 30 May 2017

JUDGMENT OF: His Honour Justice P McCusker

His Honour Deputy President Judge B P Gilchrist

His Honour Deputy President S M Lieschke

DELIVERED ON: 25 October 2017

CATCHWORDS:

Appeal and Referral Question – Statutory construction of requirements for

compensability – “arising out of or in the course of employment” –

“employment was a significant contributing cause of the injury” –

Appropriate rules of statutory construction– Causation – Consideration of

purpose and mischief – Construction of comparative provisions in other

compensation schemes – History of provisions – Reference to the Second

Reading Speech – Interpretation – Appeal dismissed – Referred question

answered – Ss 7(1)-(8) Return to Work Act 2014 – S 9 Workman’s

Compensation Act 1971 – S 30 and 30A Workers Rehabilitation and

Compensation Act 1986.

Brealey v Return to Work SA [2016] SAET 80

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Return to Work SA v Brealey and 2 McCusker J

Rullo v Return to Work SA Gilchrist DPJ

[2017] SAET 133 Lieschke DP

Australian Electrical Industries Pty Ltd v Marlborough [1989] NSWCA 10

South Australian Housing Trust v Smith, Unreported, Supreme Court of South

Australia, 9 November 1990

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22

Rainsfords Metal Products Pty Ltd v Antoniades (1975) 12 SASR 61

Stone v Corporation of Yeovil (1876) 1 CPD 691

Project Blue Sky Inc v Australian Broadcasting Corporation (1998) 194 CLR

355

Ward v State of SA (Department for Primary Industries and Regions SA)

[2016] SAET 28.

Institute of Medical and Veterinary Science v Auld [2000] SAWCT 155

Tillmann’s Butcheries Pty Ltd v Australasian Meat Industry Employees’

Union (1979) 27 ALR 367

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239

CLR 27

Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007)

234 CLR 96

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531

Saraswati v The Queen (1991) 172 CLR 1

James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53

Comcare v Martin (2016) 258 CLR 467

Fraher v Wunderlich Ltd (1963) 110 CLR 466

Commonwealth v Oliver (1962) 107 CLR 353

Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281

South Maitland Railways Pty Ltd v James (1943) 67 CLR 496

Mallyon v FW Hughes Pty Ltd [1948] WCR (NSW) 4

Kop v The Home for Incurables [1970] SASR 139

Rosmini v Chrysler Australia Ltd (1973) 6 SASR 212

Bushby v Morris (1980) 28 ALR 611

Conkey & Sons Ltd v Miller (1977) 16 ALR 479

Favelle Mort Ltd v Murray (1976) 133 CLR 580

Cole v P & O Ports Ltd [2002] WASCA 157

Leggett v Argyle Diamond Mines Pty Ltd [2000] WASCA 182

Bonnington Castings Ltd v Wardlaw [1956] AC 613

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

Mills v Australian Postal Corporation (1994) 50 FCR 47

Johnston v The Commonwealth (1982) 150 CLR 331

Wiegand v Comcare Australia [2002] FCA 1464

Dunstan v Comcare [2006] FCA 1655

Badawi v Nexon Asia Pacific Pty Ltd (2009) 75 NSWLR 503

Mercer v ANZ Banking Group Ltd [2000] NSWCA 138

Kline v Official Secretary to the Governor-General (2013) 249 CLR 645

Green v Wardleworth (1996) 66 SASR 421

WorkCover v Beckwith [1996] SASC 5794



[2017] SAET 133 Lieschke DP

Australian Eagle Insurance Co Ltd v Federation Insurance Ltd (1976) 15

SASR 282

On appeal from decision of Deputy President Ardlie [2016] SAET 80

REPRESENTATION:

Counsel:

For Return to Work SA: Mr M Livesey QC with him Mr B Doyle

For Ms Brealey: Mr M Roder SC with him Dr P Salu

For Ms Rullo: Mr M Roberts

Solicitors:

For Return to Work SA Sparke Helmore Lawyers and Minter Ellison

For Ms Brealey: Mahony’s Lawyers

For Ms Rullo: Tindall Gask Bentley Lawyers



[2017] SAET 133

McCusker J

1 The first of these matters concerns an appeal from a learned Deputy

President. The second is a referral to the Full Bench with a Statement of

Agreed Facts and Issues to be decided. Both matters concern the second

limb of s 7(2)(a) of the Return to Work Act 2014 (SA) (“the RTW Act”).1

That is, the meaning to be given to the phrase, “employment was a

significant contributing cause of the injury”.

The facts in Brealey

2 The worker was born in 1971. In 1999 she began work at her brother’s

farm. On 27 March 2001 she suffered an employment caused injury to

her right knee. She was referred to Dr R Crowley, an orthopaedic

surgeon, who performed an arthroscopy on 15 May 2001. The worker

thereafter returned to work on the basis of a full recovery.

3 On 4 September 2009, the worker suffered a further employment caused

injury to her right knee. A meniscal tear was found at arthroscopy on

6 January 2010. This time she obtained only partial recovery and

suffered ongoing pain in and around her kneecap.2

4 On 18 June 2010, the worker walked off the edge of a concrete path

jarring her right knee. An arthroscopy was performed on

16 August 2010. A lax cruciate ligament was noted.3 This was followed

by a right knee reconstruction performed on 13 October 2010. After that

procedure the worker experienced ongoing sharp stabbing pain around

her kneecap.4

5 Arthroscopies were performed on 7 March 2011 and 26 September 2011.

Floating cartilage was noted and removed. The graft from the

reconstruction had frayed and the meniscal tear remained. The knee now

presented a significant problem to the worker. She found it hurt if she

bent it.5 A second knee reconstruction was performed on 4 January 2012.

This surgery had a poor result.6

6 On 3 February 2014, a total right knee replacement was performed.

Post-operatively, the knee had a misaligned appearance and the worker

experienced pain. She was unhappy with this situation and obtained a

1 Appeal T 2. 2 [2016] SAET 80 [6]. 3 AB 40; [2016] SAET 80 [6]. 4 AB 40. 5 AB 40. 6 AB 41; [2016] SAET 80 [6].



[2017] SAET 133

referral to another surgeon, Dr Allen.7 Her knee condition had become

significantly worse after the first knee replacement.8

7 Dr Allen performed an arthroscopy on 7 August 2014 and noted the

misalignment. A second opinion was obtained from Professor Campbell

and a decision was made to carry out a second knee replacement. That

was performed on 9 May 2015. Following this the alignment was better

and the joint more stable, but there remained a stabbing pain of variable

occurrence.9 The range the knee was capable of bending was now very

limited. On 10 July 2015, it was manipulated under general anaesthetic.

Arrangements were then made for her to see Dr Green who specialised in

nerve damage.

8 On 29 August 2015, before the worker was seen by Dr Green, while

stepping down a low step,10 she suffered the subject injury. Her evidence

was as follows:11

… I was basically walking out to see my husband. I was getting the

stabbing pains in my knee, but I couldn’t predict that it was going to

happen at that particular step. And when I stepped down and put weight

on my right knee, that’s when I got the stabbing pain, and I basically

went and fell over.

In this fall she suffered an un-displaced avulsion fracture involving the

tip of the distal fibula of the right leg.12

The facts in Rullo

9 These were by way of a Statement of Agreed Facts and are as follows:

1. On 18 February 2016, the Applicant, whilst employed as a

Cellar Hand by the employer sustained a right knee injury

during the course of her employment.

2. The Applicant has not worked since sustaining that injury.

3. The Respondent accepted liability for that injury on 23 March

2016.

4. As a result of sustaining that injury, the Applicant used

crutches to assist with mobilisation until approximately

mid-March 2016. At that time and at the recommendation of

7 AB 41; [2016] SAET 80 [6]. 8 AB 42; [2016] SAET 80 [14]. 9 AB 43. 10 AB 121; [2016] SAET 80 [16] and [20]. 11 AB 46. 12 AB 123; [2016] SAET 80 [6].



[2017] SAET 133

her Physiotherapist, she used a walking stick with her left

hand in place of crutches.

5. The crutches were obtained from the Berri Hospital on

approximately 22 February 2016.

6. She borrowed the walking stick from her mother.

7. As a consequence of using crutches and the walking stick, the

Applicant developed left shoulder symptoms in

approximately April-May 2016 and was diagnosed as

suffering from left subacromial bursitis and impingement

(‘the left shoulder injury’) on 10 June 2016 by Dr Cullum.

The judgment in Brealey

10 The compensating authority had disputed the worker’s claim for

compensation for the injury suffered on 29 August 2015 on the ground

that the employment was not a significant contributing cause. It argued

the intention of the new provision in s 7(2)(a) of the RTW Act was to

restrict the scope of liability.13 While the first requirement that the injury

arose of or in the course of employment could be satisfied by a temporal

or a causal connection which had little to do with the actual work being

carried out, the second requirement of a significant contributing cause

fastened upon the, “causal potency of the work”. On the facts here, the

occasion of injury was at home.14 The compensating authority argued, it

could not be said that the worker’s work duties five years previous were

a significant cause of the ankle injury?15

11 His Honour paid particular attention to the chain of events and stated:16

… The combination of the two incidents at work on 4 September 2009

and 18 June 2010 produced symptoms that revealed under arthroscopy

carried out on 16 August 2010 cruciate ligament laxity which

necessitated a right knee reconstruction which was performed on 13

October 2010. Unfortunately the results were not what was hoped for and

after two further arthroscopies a decision was made to perform a second

knee reconstruction which was carried out on 4 January 2012.

12 His Honour related the unsuccessful results of the first total knee

replacement and the resultant pain that led the worker to seek a second

opinion from Dr Allen leading to the second knee replacement.

Post-operatively, the worker still experienced pain around the kneecap

13 [2016] SAET 80 [44]. 14 [2016] SAET 80 [44] and [51]. 15 [2016] SAET 80 [53]; a contention repeated by the appellant, see Appellant’s Outline. 16 [2016] SAET 80 [60].



[2017] SAET 133

and was unable to bend her knee past 90 degrees. On 29 August 2015,

the stabbing pain leads to the subject injury. His Honour stated:17

The injuries at work which led to the various procedures as regards the

applicant’s right knee were injuries in the course of her employment and

the employment was a significant contributing cause. The treatment

regime that followed was an attempt to alleviate the symptoms

experienced by the applicant as a result of the damage she had done to

her right knee. At the time she fell she was recovering from the second

knee replacement and the after-effects of the manipulation under

anaesthetic.

13 His Honour concluded:18

The applicant’s right knee condition as at August 2015 was a direct result

of injuries sustained at work. The treatment and its consequences and the

original injuries are linked. The giving way of the knee associated with

pain resulting in the fall and fractured ankle are all inextricably linked

together such that the employment must be regarded as a significant

contributing cause of the applicant’s right ankle fracture.

Statement of Agreed Issues in Rullo

14 These are stated as follows:19

1. Did the Applicant’s left shoulder injury arise out of

employment?

2. If yes to question 1, was the Applicant’s employment a

significant contributing cause of her left shoulder injury?

The submissions in Brealey

15 The compensating authority did not contest the “but for” causal

connection between the worker’s employment, the knee injury, the

treatment, the subsequent fall and the ankle injury.20 The error contended

was failure to proceed beyond the bare causal connection. The

Deputy President’s reasoning took it no further than the first limb of the

requirement. A mere historical causal connection was insufficient.21

16 The compensating authority’s argument focused on the nature of the

threshold created by the test. Whereas it was previously sufficient to

demonstrate the injury arose out of or in the course of employment under

s 30(2)(a) of the Workers Rehabilitation and Compensation Act 1986

(SA) (“the 1986 Act”), it was now necessary to demonstrate the injury

17 [2016] SAET 80 [63]. 18 [2016] SAET 80 [65]. 19 TB 37. 20 Appellant’s Outline [2(b)]. 21 Appellant’s Outline [4].



[2017] SAET 133

arose, “out of or in the course of employment and the employment was a

significant contributing cause of the injury”.22 Critically, the “significant

contributing cause” requirement explicitly required a connection

between, “the employment” and, “the injury”, and not between, “the

course of employment” and, “the injury”.23 Now what was required was

significant causal potency between the work or the exigencies of

employment and that particular injury.24

17 In Brealey,25 the last work injury had no connection with work activities.

The work activity had to be a significant operative cause of the particular

injury.26 Neither the pain nor perceived laxity in the joint at the time of

the fall leading to the ankle injury was in any reasonable sense directly

referable to the original work injury.27 At best they were symptoms or

distractions caused by the most recent treatment, the purpose of which

was to address shortcomings in earlier treatment. It was these factors that

caused the fall and on that analysis there was no contribution from the

worker’s work activities let alone a significant contribution.28

18 The compensating authority argued it was not enough for the

employment to have a historical or a “but for” role in the occurrence of

the injury. The employment had to have an operative role. That is the

employment had to operate on the injury at the time of its occurrence.29 It

was the exposure to the activities, exigencies and circumstances of

employment at the time of the injury which was demanded.30 This was

the meaning of the causal potency of the work. Counsel conceded this

was a radical change to the test.31

19 Reference was necessarily made to Federal Broom Co Pty Ltd v

Semlitch32 and what was described by Kitto J as the, “second ground”.

The compensating authority’s counsel submitted this supported the

proposition it advanced in this case. Kitto J said:33

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

22 Appellant’s Outline [6] and [14]. 23 Appellant’s Outline [17]. 24 Appellant’s Outline [18]. 25 [2016] SAET 80. 26 Appellant’s Outline [25] and [38]. 27 Appellant’s Outline [41]. 28 Appellant’s Outline [46] and [47]. 29 Appeal T 7 and 12 30 Appeal T 17 and 18. 31 Appeal T 21 and 50. 32 (1964) 110 CLR 626. 33 (1964) 110 CLR 626, 632-633.



[2017] SAET 133

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.

20 The compensating authority also placed reliance on the statement of

Windeyer J in Semlitch34 in the following terms:

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.

21 Lastly, it was contended that the trial Judge failed to give adequate

reasons or explain how he reached a conclusion that the worker’s

employment remained a significant contributing cause of the ankle injury

following the fall in any event. This was an error of law for failure to

give proper reasons.35

The submissions in Rullo

22 In Rullo the applicant submitted much the same points as in Brealey.36

But it extended the argument that while the test of arising out of or in the

course of employment was satisfied by a causal or temporal connection,

now the added requirement demanded a causal connection in any event.37

23 It was therefore submitted, continuing the notion of the need for an

operative role of the employment, that there was no connection between

the initial right knee injury and the subsequent injury to the left shoulder

which itself had no connection with work activities.38

The contrary submissions in Brealey

24 In Brealey counsel argued the compensating authority’s submissions

failed to identify any error in a question of law. On its argument there

was a concession of an evaluative attributive exercise with no single

correct answer and the opportunity for review of such an evaluative

judgment was extremely constrained.39

25 Developing this argument counsel argued the learned Deputy President

had taken the correct approach. He had asked himself whether the ankle

injury was caused in the “but for” sense by the employment. He had then

34 (1964) 110 CLR 626, 641. 35 Appellant’s Outline [53]; [54]; Appeal T 48. 36 Applicant’s Outline [1]. 37 Applicant’s Outline [15] and [18]. 38 Applicant’s Outline [21]; [26] and [34]. 39 Respondent’s Outline [6] and [8].



[2017] SAET 133

asked an evaluative attributive question whether the employment was

one of the significant causes of the injury. He had answered that in the

affirmative.

26 Counsel also disputed the compensating authority’s contention that the

Attorney-General’s second reading speech had little to add to the task of

concluding Parliament’s intent.40 Rather, the second reading speech gave

a clear indication the intent was to exclude those cases where the

contribution by employment was insignificant and not in sensible terms

material.41 That acknowledged, the compensation law had long rejected

the idea of “directness” or “proximity” in causation and there was no

warrant to treat the new provisions as overriding those cases.42 Such an

approach was fallacious. Even if the work injury was not the sole cause

of the fall in August 2015 it was at least one of the significant causes.43

27 The meaning of employment in s 7(2)(a) as proposed by the

compensating authority was also disputed. Employment was not

restricted to the actual performance of the duty, the operative moments of

the employer/employee relationship or limited to the definitional terms

of s 4 of the RTW Act. Rather, it was employment in the sense used in

Whittingham v Commissioner of Railways (WA)44 which depended on

matters of degree in which time, place and circumstances as well as

practice had to be considered, together with the nature of the

employment. In other words an expansive concept.

28 Counsel contended the worker fell down the step because her knee was

giving her pain and that pain was the product of the employment injury.

As such the employment was not insignificant and was the major cause

of her broken ankle.45

The contrary submissions in Rullo

29 In Rullo counsel adopted the submissions of the worker’s counsel in

Brealey. In particular the second reading speech and the reference by the

Attorney-General to the situation to be corrected.46 It was important to

understand that the amendments were modifying an existing situation

and therefore an understanding of the prior situation was critical to

ascertain the intent of Parliament. In any event, the ordinary and

40 Appeal T 6. 41 Respondent’s Outline [20]. 42 Australian Electrical Industries Pty Ltd v Marlborough [1989] NSWCA 10 per Kirby P; South

Australian Housing Trust v Smith, Unreported, Supreme Court of South Australia, 9 November

1990; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463. 43 Respondent’s Outline [35]. 44 (1931) 46 CLR 22. 45 Appeal T 31. 46 Applicant’s Outline [27]; Appeal T 37.



[2017] SAET 133

grammatical meaning of the words did not support the construction

advanced by the compensating authority.47

30 It was submitted had Parliament sought to limit the conditions for

compensability in the way contended it would have simply deleted the

words, “arising out of” from s 7(2)(a) or returned to the pre-1965 use of

the connective conjunction “and” so as to read, “arising out of and in the

course of the employment”.48 Rather, the intent of Parliament in the

wording a “significant contributing cause” was to introduce a

requirement focusing attention on the sufficiency of the connection

between the worker’s employment and the injury.49 That and only that,

approach enabled both the first and second limbs of the provision to

operate. Without that approach then the first limb was redundant or

vestigial and that was to be avoided.50 The rule was that meaning should,

if possible, be given to every word in a provision.51

31 Reliance was placed on the analysis by Judge Gilchrist in Ward v State of

SA (Department for Primary Industries and Regions SA)52 and in

particular the evaluative attributive second step described by his

Honour.53 Reliance was also placed on the decision of Institute of

Medical and Veterinary Science v Auld54 and its reliance in turn on the

decision of Deane J in Tillmann’s Butcheries Pty Ltd v Australasian

Meat Industry Employees’ Union.55 In short, Ms Rullo contended the

injury arose out of employment because the left shoulder injury was

caused by the use of crutches and walking sticks utilised to assist in the

recovery from the right knee injury sustained in the course of her

employment.56 That was an evaluative conclusion.

The rules of statutory construction

32 The issue in this case is essentially one of construction of the provision.

The pertinent provisions of s 7 read as follows:

(1) This Act applies to an injury if (and only if) it arises from

employment.

(2) Subject to this section, an injury arises from employment if—

47 Applicant’s Outline [30]. 48 Applicant’s Outline [38]; Appeal T 44. 49 Applicant’s Outline [41]; Appeal T 43. 50 Rainsfords Metal Products Pty Ltd v Antoniades (1975) 12 SASR 61, 71 and 73. 51 Stone v Corporation of Yeovil (1876) 1 CPD 691, 701 per Brett J; Appeal T 33; Project Blue Sky

Inc v Australian Broadcasting Corporation (1998) 194 CLR 355, 382 [71]. 52 [2016] SAET 28. 53 [2016] SAET 28 [35]. 54 [2000] SAWCT 155. 55 (1979) 27 ALR 367, 382; Appeal T 45. 56 Appeal T 47.

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[2017] SAET 133

(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).

(3) In connection with the application of subsection (2) to an injury

that is, or results from, the aggravation, acceleration, exacerbation,

deterioration or recurrence of a prior injury (a ‘prescribed event’)

—

(a) in the case of an injury other than a psychiatric injury—

employment must be a significant contributing cause of the

prescribed event; and

(b) in the case of a psychiatric injury—

(i) employment must be the significant contributing

cause of the prescribed event; and

(ii) the prescribed event must not arise wholly or

predominantly from any action or decision designated

under subsection (4),

and then the injury is only compensable to the extent of and for the

duration of the relevant aggravation, acceleration, exacerbation,

deterioration or recurrence.

…

(5) For the purposes of this Act, a worker's employment includes—

(a) attendance at the worker's place of employment on a

working day but before the day's work begins in order to

prepare, or be ready, for work; and

(b) attendance at the worker's place of employment during an

authorised break from work; and

(c) attendance at the worker's place of employment but after

work ends for the day while the worker is preparing to leave,

or in the process of leaving, the place; and


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[2017] SAET 133

(d) attendance at an educational institution under the terms of an

apprenticeship or other legal obligation, or at the employer's

request or with the employer's approval; and

(e) attendance at a place to receive a medical service, to obtain a

medical report or certificate (or to be examined for the

purpose), to receive recovery/return to work services or for

the purposes of a recovery/return to work plan, or to apply

for, or receive, compensation for a work injury.

(6) Any injury attributable to surgery or other treatment or service

performed with due care and skill by a person professing to have

particular skills and undertaken or provided while attending at a

place referred to in subsection (5)(e) will be taken to constitute part

of the original work injury.

33 Our task is to uphold the intent of the legislature. In Alcan (NT) Alumina

Pty Ltd v Commissioner of Territory Revenue57 the majority of the Court

described the approach to be taken as follows:58

This Court has stated on many occasions that the task of statutory

construction must begin with a consideration of the text itself. Historical

considerations and extrinsic materials cannot be relied on to displace the

clear meaning of the text. The language which has actually been

employed in the text of legislation is the surest guide to legislative

intention. The meaning of the text may require consideration of the

context, which includes the general purpose and policy of a provision, in

particular the mischief it is seeking to remedy.

(Citations omitted)

34 Therefore, the starting point for statutory interpretation is the text.

However, as has been observed to confine oneself to the text save in the

case of clear meaning is to risk the error of a literalist approach.59 It is

preferable to appreciate the relevant historical and other material that

might assist in identifying the legislative purpose.60

35 In Saraswati v The Queen61 McHugh J reiterated that where the text of a

legislative provision is grammatically capable of only one meaning and

neither the context nor any purpose of the Act throws any real doubt on

the meaning, the grammatical meaning is, “the ordinary meaning” to be

applied. A court cannot depart from “the ordinary meaning” of a

legislative provision simply because that meaning produces anomalies.

However, the literal and grammatical meaning of a provision cannot be

57 (2009) 239 CLR 27. 58 (2009) 239 CLR 27, 46 [47]. 59 Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96, 112

[35]. 60 (2007) 234 CLR 96, 111 [32]; 113-114 [38]-[39]; Taylor v Owners – Strata Plan No 11564 (2014)

253 CLR 531, 548 [37]. 61 (1991) 172 CLR 1, 21.

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[2017] SAET 133

regarded as “the ordinary meaning” if it does not give effect to the

purpose.

36 In determining “the ordinary meaning” of a provision the Court should

have regard to the purpose of the legislation and the context of the

provision as well as the literal meaning of the provision. His Honour

added the following which is of significance to the case at hand:62

Sometimes the purpose of the legislation is expressly stated; sometimes it

can be discerned only by inference after an examination of the legislation

as a whole; and sometimes it can be discerned only by reference to the

history of the legislation and the state of the law when it was enacted. It

need hardly be said that a particular Act may have many purposes.

37 Kirby J in James Hardie & Co v Seltsam Pty Ltd63 stated that in order to

ascertain the purpose of the legislation it is, “invariably useful to define

the mischief which occasioned its enactment”.64 This approach is in

concert with the preference indicated in s 22 of the Acts Interpretation

Act 1915 (SA) for a construction that promotes the purpose or object of

the Act. It is the approach urged upon us by Ms Rullo’s counsel.

38 Finally, the following taken from Comcare v Martin65 is clearly

instructive particularly given it concerned compensation legislation:

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 its statutory

context in a manner which best effects 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. Nevertheless the majority in the Full Court

construed the phrase “as a result of” in s 5A(1) as importing a “common

sense” notion of causation. That construction, with respect, did not

adequately interrogate the statutory test, context and purpose.

(Citations omitted)

The provisions pre-dating those in s 7 of the RTW Act

The Workmen’s Compensation Act 1971 (SA) (“the 1971 Act”)

39 The relevant 1971 provision was contained in s 9 and read as follows:

1. If in any employment personal injury arising out of or in the course

of the employment is caused to a workman, his employer shall,

except as provided in this Act, be liable to pay compensation in

accordance with this Act.

62 (1991) 172 CLR 1, 21. 63 (1998) 196 CLR 53. 64 (1998) 196 CLR 53, 75 [60]. 65 (2016) 258 CLR 467, 479 [42].



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40 An injury was defined under s 8 to mean any physical or mental injury

including a disease contracted by a workman in the course of

employment whether at or away from his place of employment and to

which the employment was a contributing factor. Also the aggravation,

acceleration, exacerbation, deterioration or recurrence of any pre-existing

injury or disease, not being coronary heart disease, where the

employment was a contributing factor to that aggravation, acceleration,

exacerbation, deterioration or recurrence. The wording is not new.

Workers Rehabilitation and Compensation Act 1986 (SA) (“the 1986

Act”)

41 The relevant 1986 provisions were as follows:

Section 30:

(1) Subject to this Act, an injury is compensable if it arises from

employment.

(2) Subject to this section, an injury arises from employment if—

(a) in the case of an injury that is not a secondary injury or a

disease—it arises out of or in the course of employment; or

(b) in the case of an injury that is a secondary injury or a

disease—

(i) the injury arises out of employment; or

(ii) the injury arises in the course of employment and the

employment contributed to the injury.66

42 Further provision was introduced to the 1986 Act in 1994 and in the

following terms:

Section 30A

A disability consisting of an illness or disorder of the mind caused by

stress is compensable if and only if-

(a) stress arising out of employment was a substantial cause of the

disability; and

(b) the stress did not arise wholly or predominantly from—

(i) reasonable action taken in a reasonable manner by the

employer to transfer, demote, discipline, counsel, retrench

or dismiss the worker; …

66 Secondary injury by s 3 meant an injury that was, or resulted from, the aggravation, acceleration,

exacerbation, deterioration or recurrence of a prior injury.

http://www.austlii.edu.au/au/legis/sa/repealed_act/wraca1986400/s3.html#injury

http://www.austlii.edu.au/au/legis/sa/repealed_act/wraca1986400/s3.html#employment




http://www.austlii.edu.au/au/legis/sa/repealed_act/wraca1986400/s3.html#secondary_injury

http://www.austlii.edu.au/au/legis/sa/repealed_act/wraca1986400/s3.html#disease



http://www.austlii.edu.au/au/legis/sa/repealed_act/wraca1986400/s3.html#secondary_injury

http://www.austlii.edu.au/au/legis/sa/repealed_act/wraca1986400/s3.html#disease









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The construction the courts have placed on those provisions

43 It is important to relate the above decisions which illustrate how these

workers compensation provisions have been construed. It is also worth

noting these provisions have been described by Dixon CJ in Fraher v

Wunderlich Ltd67 as “the governing provision of the Act”. That remark

was made with regard to the Workers Compensation Act 1958 (Vic) but

is relevant to the South Australian provisions.

44 In Whittingham the worker was hit by a cricket ball during a lunchtime

break. The workers were free to do as they wished in the lunch break and

were not liable to recall until the end of that period. The connection

between the worker’s presence when hit and his duties consisted of no

more than the fact that he was on the employer’s premises.

45 Dixon J (as he then was) considered the worker’s claim in the context of

an accident arising either out of or in the course of employment. He

stated the sufficiency of the connection between the employment and the

thing done by the employee remain a matter of degree in which time,

place, circumstance and practice must be considered with the

employment conditions. In Whittingham the employee failed because he

was not engaged in doing something which was part of or incidental to

his service.68

46 Later decisions adopted that approach to the meaning of

“employment”.69 Indeed, in Mallyon v FW Hughes Pty Ltd70 Jordan CJ

expressed himself as follows:71

I think that an injury to a worker does sufficiently arise out of his

employment if the fact of his being employed in a particular job caused,

or to some material extent contributed to, the injury.

47 In Kop v The Home for Incurables72 a nurse took a patient for an outing

during her time off work. This was encouraged by the employer but was

not obligatory. She suffered an injury while lifting the patient out of the

taxi. Though in dissent, the analysis of the law by Bray CJ has been

invariably accepted as correct.

67 (1963) 110 CLR 466, 473. 68 Though perplexing contrary conclusions are recorded; Commonwealth v Oliver (1962) 107 CLR

353. 69 Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281; South Maitland Railways Pty

Ltd v James (1943) 67 CLR 496. 70 [1948] WCR (NSW) 4. 71 [1948] WCR (NSW) 4, 9. 72 [1970] SASR 139.



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48 Bray CJ described the effect of s 9 of the 1971 Act as follows:73

Certain things, however, emerge from a study of the cases. The first is

that the phrase “out of employment” denotes a causal relationship

between the employment and the injury which is not necessary in order

that an injury should arise in the course of employment. To arise out of

the employment it is sufficient that the fact of the workman being

employed in a particular job caused, or to a material extent contributed to,

the injury, even if the injury was caused when the workman was doing

something he was not bound but only permitted to do.

Next, an injury may be caused in the course of employment, though it is

caused while the workman is doing something merely incidental to the

employment. The word “duty” in this context is apt to be misleading. The

workman may still be engaged in the course of his employment,

therefore, in one sense in the course of his duties, though he is doing

something which in a more restricted sense he is not under a duty to do,

not in the sense, that is, that he would be dismissed for refusing to do it.

(Citations omitted)

49 Bray CJ examined the causation issue again in Rosmini v Chrysler

Australia Ltd.74 There the worker suffered a leg fracture which resolved

but he continued to be incapacitated due to a conversion neurosis. The

issue was whether the neurosis resulted from the work injury. The

medical evidence was that the neurotic condition arose from the efforts

of the employer to re-engage the worker in a rehabilitation program and

the worker’s subconscious resentment at being so pressed while he still

experienced genuine pain from the fracture.

50 On appeal, Bray CJ took certain propositions to be established in the

field of compensation law:75

1. The relevant incapacity is an incapacity to work which may be

either total or partial. Any physical or psychological incapacity

which has no effect on the workman’s ability to earn is irrelevant.

2. If an incapacity exists, it is not necessary that the injury should be

sole cause of it. It is sufficient if it is a material contributing cause.

3. A supervening factor, a novus actus interveniens, may so operate

as to displace in the eyes of the law the original injury as the cause

of the incapacity.

(Citations omitted)

51 Bray CJ in finding in favour of the worker’s claim, acknowledged the

danger in the use of adjectives like direct.76 It was not true that the law

73 [1970] SASR 139, 143. 74 (1973) 6 SASR 212. 75 (1973) 6 SASR 212, 215. 76 (1973) 6 SASR 212, 216.



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required the incapacity to be immediately consequent on the injury.

There might be a long series of intervening links. But his Honour

emphasised the task was to distinguish the kind of cause which the law

regarded as material from the kind which it did not.77

52 Regarding the difference between a causa causans and a causa sine qua

non, he said:78

I think I can only say that this is a question of fact in each case to be

decided on broad common-sense lines. Where there is an injury at work

and a subsequent incapacity the tribunal has to ask itself, did the latter

result from the former?

(Citations omitted)

53 Causation was examined by Barwick CJ in Conkey & Sons Ltd v

Miller.79 There the question was whether the death of the worker resulted

from an injury in the nature of an infarction he suffered 14 months

previously. The evidence was that the first infarction made it probable

that the worker would not survive a further infarction. Barwick CJ with

whom the rest of the Court agreed upheld the worker’s claim. He

stated:80

In my opinion, the evidence of Dr Calov and that of Dr Richardson

warranted the conclusion that the myocardial infarction of 1974 involved

such an injury to the cardiac system of the deceased that if his cardiac

condition continued to deteriorate so that further infarction occurred, that

infarction was likely, if not certain, to be fatal. … His cardiac condition

resulting from the infarction of August 1974 thus remained with him. …

In my opinion, such a statement warrants the conclusion that the death by

reason of myocardial infarction when it did ultimately occur, “resulted”

from the work-caused injury of the first infarction.

54 In Favelle Mort Ltd v Murray81 the worker was sent to New York by his

employer and contracted viral meningo-encephalitis. He contended his

employment was a contributing factor to the contraction of the disease.

The employer contended there was no evidence that the employment was

a contributing factor. The employer’s contention was rejected.

55 In concluding the employment was a contributing factor Mason J, who

on this point agreed with the majority, stated:82

Although par. (a) of the statutory definition now under consideration

contemplates a requirement additional to that signified by the words “in

77 See also Bushby v Morris (1980) 28 ALR 611, 615-616. 78 (1973) 6 SASR 212, 217. 79 (1977) 16 ALR 479. 80 (1977) 16 ALR 479, 484. 81 (1976) 133 CLR 580. 82 (1976) 133 CLR 580, 598-599; see Barwick CJ 584-585, Stephen J 594 and Jacobs J 601.



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the course of”, the requirement suggested by the words “to which the

employment was a contributing factor” is not as stringent as that

suggested by the concept “arising out of” the employment which, as I

have said, has been understood to identify something perhaps closer in

association than the proximate cause of the injury. The language of the

second limb of par. (a) in the statutory definition indicates that all that

need be shown is that the employment contributes to the injury, not that it

is the real, the effective or the proximate cause of the injury.

… had it not been for the employment then on the probabilities the

respondent would not have contracted the disease. The employment

exposed him to the risk of contracting the disease.

The required degree of contribution by employment

56 Causation in worker’s compensation law reflects the general law of

causation developed in negligence cases.83 In Leggett v Argyle Diamond

Mines Pty Ltd,84 the Court dealt with an incapacity caused by a number

of injuries or disabilities some which were compensable. It held provided

the work related injury was a material contributing cause to the

incapacity, the incapacity resulted from the compensable disability.

Therefore, where there was more than one cause of an incapacity it was

sufficient for the purposes of the Act that the work be a material

contributing cause.

57 In Bonnington Castings Ltd v Wardlaw85 a steel dresser developed

pneumoconiosis in the course of his employment. The causative agent,

silica dust, came from two sources. One source was due to negligence

and the plaintiff succeeded in his negligence action. In the course of his

reasons Lord Reid stated:86

It appears to me that the source of his disease was the dust from both

sources, and the real question is whether the dust from the swinging

grinders materially contributed to the disease. What is a material

contribution must be a question of degree. A contribution which comes

within the exception de minimis non curat lex is not material, but I think

that any contribution which does not fall within that exception must be

material.

58 In Treloar v Australian Telecommunications Commission,87 the worker

was entitled to compensation if his employment was a contributing factor

to the contraction of a disease or its aggravation, whether or not the

disease was contracted or the aggravation suffered in the course of that

employment. The worker developed a malignant melanoma to his right

83 Cole v P & O Ports Ltd [2002] WASCA 157 [22]; Bushby v Morris (1980) 28 ALR 611, 616. 84 [2000] WASCA 182. 85 [1956] AC 613. 86 [1956] AC 613, 621. 87 (1990) 97 ALR 321.



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leg. The finding was the employment played some role, albeit a small

one, in the development of the melanoma.88

59 The Court stated its conclusion in the following terms:89

In our opinion, it follows from what is said and, indeed, from what is not

said in these passages and from a consideration of the plain words that

once it is established that an employee in the doing of his work was

exposed to “a state of affairs to which he would otherwise not have

been exposed” or to “some characteristic of or condition in which the

work was to be performed” and that such exposure was in truth a

“contributing” factor to the condition in respect of which he seeks

compensation then it matters not whether the contribution was of

any particular size or degree. The same applies, where the complaint is

not one of initiation of the condition but of its aggravation, in the sense of

making it worse, or its acceleration in the sense of speeding up the

progress of a progressive disease. In all cases the question is whether

there has been a “contribution”. Consistently with what was said by

Windeyer J, “contribution” does not require that the contributing factor

be a causa sine qua non; the “but for” test is not appropriate nor is the

causa causans or “real effective cause” or “proximate cause”

formulation. All that is required is that the relevant aspects of the

employment add their measure to the creation of the condition, its

aggravation or acceleration. They must, in truth, be part of the cause. If

they are not, then, they do not “contribute”.

(Emphasis added)

60 In Mills v Australian Postal Corporation,90 the entitlement depended on

an ailment contributed to in a material degree by the employment.91 The

worker suffered a severe stress reaction when, while on leave, he

received a phone call advising him that his home had been raided by the

Australian Federal Police (“the AFP”). They were investigating the

possible larceny of goods from the worker’s workplace. The

Administrative Appeals Tribunal (“the AAT”) concluded the worker’s

state of anxiety was due to the actions of the AFP and not due to his

employment.92

61 Ryan J made reference to Semlitch and Treloar and quoted, among other

passages, the “second ground” dicta of Kitto J in Semlitch. But he did so

as supporting the contrary to the submission made here by the

compensating authority. Ryan J then referred to Johnston v The

Commonwealth93 where a serviceman during the Vietnam War was

wrongly diagnosed as suffering haemorrhoids when in fact he was

88 (1990) 97 ALR 321, 324. 89 (1990) 97 ALR 321, 328. 90 (1994) 50 FCR 47. 91 (1994) 50 FCR 47, 49. 92 (1994) 50 FCR 47, 53. 93 (1982) 150 CLR 331.



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suffering bowel cancer. The fact that this advice delayed his cancer

treatment was held to contribute, in the sense of employment

contributing, to the aggravation of his cancerous condition. Ryan J

compared this with the AFP investigation of the worker’s home for the

purpose of searching for misappropriated goods belonging to the

employer. He concluded the phone call aggravation was compensable.

62 In Wiegand v Comcare Australia94 the worker suffered major depression

which he attributed to discrimination at work. The question was whether

that ailment or an aggravation of the ailment was contributed to in a

material degree by the employer.95 The respondent contended it was the

worker’s adverse perceptions, his subjective delusion and not his

employment that resulted in his condition.96

63 Von Doussa J referred to the “second ground” dicta of Kitto J in

Semlitch. He stated all that was required was that the employee be

exposed to some incident or state of affairs in the course of his duties

which he would not otherwise have been exposed, which was a

contributing factor to the injury. It would not be outside the definition

merely because it was likely the condition would in any event have

progressed or that he may, despite the employment, have suffered the

same at about the same time. 97 Nor that employment was a major cause

of the ailment, so long as it contributed to a material degree.98

64 In Dunstan v Comcare99 the worker suffered depression as a result of

harassment from a female employee. The AAT concluded the degree of

harassment occurring in the workplace was in context slight compared

with that occurring outside the workplace and therefore did not constitute

a material contributing factor.

65 Mansfield J concluded Semlitch established that a state of affairs a

worker was exposed in employment which he would not otherwise have

been exposed may be the cause of, or a contributing factor towards, the

suffering or aggravation of a disease.100 In Treloar the Court did not

regard the introduction of adjective “material” as changing, except in

emphasis, the approach to causation laid down in Semlitch.

66 This Tribunal has considered the issue in the case of Auld.101 There the

worker suffered depression she attributed to her employment. There were

94 [2002] FCA 1464. 95 [2002] FCA 1464 [5]. 96 [2002] FCA 1464 [6]; [19]. 97 [2002] FCA 1464 [24]; [27]. 98 [2002] FCA 1464 [34]. 99 [2006] FCA 1655. 100 [2006] FCA 1655 [32]. 101 [2000] SAWCT 155.



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multiple causes for her condition and a substantial cause was her

particular personality. However, certain incidents at work together

constituted a substantial cause of the disability. In the course of

reasoning the following was stated:102

… The use of the word “a” acknowledges there may be more than one

substantial cause. Moreover as Mr Blewett, of counsel for the respondent,

contended this provision was inserted to overcome the situation where a

worker could succeed in a stress claim if he could show any contribution

to his disability by his employment: Bonnington Castings Pty Ltd v

Wardlaw (1956) AC 613 at 621, Treloar v Telecom (1990) 97 ALR 321.

Parliament’s concern was with the employer being declared liable in

circumstances where the non-employment causes were overwhelming.

The amendment sought to make an appropriate adjustment to that

situation but not to go so far as to invert it.

67 Finally, in Badawi v Nexon Asia Pacific Pty Ltd103 the issue was the

equivalent provisions in the Workers Compensation Act 1987 (NSW).

The worker was at the Perisher Blue snowfields to secure business with

the company operating the chalet. During the evening arrangements were

made for the prospective client to go skiing with the worker. This

arrangement fell through and the worker decided to ski in any event

without the prospective client. During the day she received a telephone

call requesting her return to the chalet to discuss business matters with

her supervisor. On the way down the mountain she fell and injured her

knee. The claim was refused on the basis that the employment was not a

substantial contributing factor to the injury.104 It had been conceded the

injury occurred in the course of employment.105

68 The provisions involved in Badawi differed from those in s 7 of the

RTW Act. Section 9A provided no compensation was payable in respect

of an injury unless the employment concerned was a substantial

contributing factor to the injury. A number of matters to be taken into

account were listed for the purposes of determining the issue. This

included the probability that the injury or a similar injury would have

happened anyway if the worker had not been in that employment.

Further, the worker’s employment was not to be regarded as a substantial

contributing factor merely because the injury arose out of or in the course

of employment or both.

69 In the course of its consideration of the provisions, the Court in Badawi

held certain propositions to be correct. These included that

“employment” in the phrase, “unless the employment concerned was a

substantial contributing factor to the injury” had the same meaning as

102 [2000] SAWCT 155 [39]. 103 (2009) 75 NSWLR 503. 104 (2009) 75 NSWLR 503, 507 [11]. 105 (2009) 75 NSWLR 503, 507 [13].



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“employment” in the phrase, “arising out of or in the course of

employment”. That result was in the Court’s view in accordance with the

decision of Semlitch.

70 However, the finding that the injury arose out of or in the course of

employment was not in itself a basis for a finding of a substantial

contributing factor.106 The purpose of the provision was to remove the

possibility of compensation for injury with only a “remote or tenuous

connection with work”.107

71 The conclusion the worker was not performing any work activity at the

time she received her injury as she was on recreation was to answer the

wrong question. It focused not on the connection between employment

and the injury but on the closeness of connection between the activity of

the worker giving rise to the injury and the duties as an employee.108 This

error was demonstrated by the “second ground” dicta of Kitto J in

Semlitch.

72 The Court upheld the worker’s claim and rejected the idea that the

absence of “employment characteristics” and the precise activity that led

to the injury determined the matter. The employment concerned was

therefore, in the circumstances, a substantial contributing factor to her

knee injury.

The second reading speech

73 This was set out in the judgment in Brealey and was taken from Hansard

of 23 September 2014.109 It was in the following terms:

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

106 (2009) 75 NSWLR 503, 517 [58]. 107 (2009) 75 NSWLR 503, 522-523 [82]. 108 (2009) 75 NSWLR 503, 527-528 [123] per Basten JA. 109 [2016] SAET 80 [57]; AB Vol 1 p 17.



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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.

Conclusion

74 The suggestion s 7(2) is some radical departure from the pivotal

qualifying provisions that have long existed in worker’s compensation is

clearly wrong. Provisions requiring that the employment be a

contributing cause of the injury has been included in the provisions since

at least 1971. Moreover, in the amendments to s 30A of the 1986 Act the

adjective “substantial” appeared in a context comparable with the subject

provision. This submission by the compensating authority must be

rejected.

75 The key to the contest advanced by the appellant is to give the word

“employment” a narrower meaning where it appears in the phrase, “the

employment was a significant contributing cause of the injury” than in

the phrase, “injury arising out of or in the course of employment”. That

contention has been consistently rejected in the authorities examined and

related above. In so far as the New South Wales equivalent, it has been

rejected by the Court in Badawi. There are even stronger grounds for this

Tribunal to reject such a view in regard to s 7(2). That is because there is

no provision in the RTW Act giving examples of matters that modify the

ordinary meaning as in New South Wales.

76 Moreover, it is generally the case in statutory construction that words,

like the word “employment” here, particularly words used in the same

provision, forming cognate expressions, should be given the same

meaning unless the context requires otherwise.110

77 The error in the compensating authority’s proposition in Brealey and

Rullo is also suggesting there is a requirement of a direct, immediate,

decisive, positive or dominant causal connection between the

employment and the injury. Rather, the only association required is best

expressed by saying that had it not been for the employment the injury

would not or might not have been sustained. That is the causal test

required. By employing some notion of an “operative” employment, the

appellant has sought to imply something in the nature of a constraining

adjective where none exists. The only constraints expressed are the

words, “significant contributing”.

78 Thus in Brealey, the work caused injuries of September 2009 and

June 2010 was the events in the legal sense that caused the injury of

110 Kline v Official Secretary to the Governor-General (2013) 249 CLR 645, 659-660 [32].



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August 2015. The latter resulted from the former. In Rullo the injury of

February 2016 was the event in the legal sense that caused the left

shoulder condition to develop in April 2016. The latter resulted from the

former. This is the situation described by Kitto J in the “second ground”

dicta in Semlitch.

79 Once the causal requirement has been satisfied by the worker, the second

requirement of “substantial contribution” by the employment must be

addressed. We believe we can do no better on this matter than to adopt

for this the statement of Gilchrist J in Ward.111 The terms are as

follows:112

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.

80 This statement in Ward meets the construction issues of mischief and

purpose. Those issues are demonstrated by the authorities discussed, in

particular the discussion of the required degree of contribution by

employment set out above. Also, the second reading speech to the Bill

bars an entitlement where the role of the employment in the injury was

insignificant. I therefore find both claims meet the requirements of

s 7(2).

81 The compensating authority in Brealey complained that in the evaluative

exercise the trial Judge failed to give adequate reasons or explain how he

reached a conclusion that the worker’s employment remained a

significant contributing cause of the ankle injury. I disagree. In my view,

the reasoning was evident and adequate.

82 The appeal in Brealey is dismissed.

83 The answers to the questions posed in Rullo are both in the affirmative.

Gilchrist DPJ

84 I have had the benefit of reading the draft reasons prepared by the

learned President and I agree with them.

85 I would, however, approach the resolution of these matters by a different

route.

111 [2016] SAET 28. 112 [2016] SAET 28 [35].

Return to Work SA v Brealey and 26 Gilchrist DPJ

Rullo v Return to Work SA

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86 In my view the way that the cases have been framed has clouded what

the real issues are.

87 In Brealey the statement of issues posed the question to be determined

as:

Was the worker’s employment a significant contributing cause of the

right ankle fracture sustained on 29 August 2015 within the meaning of s

7(2)(a) of the Return to Work Act 2014?

88 In Rullo the question asked of us is:

Did the Applicant’s left shoulder injury arise out of employment?

89 On the face of it both of these questions are directed towards the issue of

compensability.

90 However, it was apparent that Ms Brealey was not contending that the

incident giving rise to the injury she sustained on 29 August 2015

occurred of itself in compensable circumstances. Nor was Ms Rullo

contending that the left shoulder symptoms she experienced in

April/May 2016 occurred of themselves in compensable circumstances.

91 It is clear from the way that Ms Brealey’s case was conducted at trial that

what she was alleging was that her need for medical treatment, any

resultant incapacity and any impairment that had occurred as a result of

that later injury, as a matter of law, resulted from the compensable

injuries that she sustained on 27 March 2001 and 4 September 2009.

92 It is clear from the way Ms Rullo’s case was conducted before us that

what she was alleging was that her need for medical treatment, any

resultant incapacity and any impairment that has occurred as a result of

the left shoulder symptoms she experienced in April/May 2016, as a

matter of law, resulted from the compensable injuries that she sustained

on 18 February 2016.

93 Looked at in this light I believe that the statement of issues and the

questions posed to us concealed the real issue.

94 To highlight this, it is instructive to reflect on the factual differences in

two cases that contain illuminating judgments from Bray CJ.

95 The first is Kop v Home for Incurables.113

96 Ms Kop was employed by the Home for Incurables as a nurse. When she

was employed she was told what hours she would work and what duties

113 [1970] SASR 139.



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she was expected to perform. She had the option of living in at the work

premises and she took up that option. She was told that sometimes the

Home organised outside activities for the patients such as picnics,

cabarets and the like. The patients could only attend if accompanied by a

nurse. Sometimes these were outside hours. Although nurses were

encouraged to volunteer to accompany patients, even though they were

not on duty, there was no obligation to do so. In her time off duty,

Ms Kop took a patient on an outing to a cinema. When lifting the patient

out of a taxi, Ms Kop hurt her back. She sought workers compensation

for the resultant incapacity.

97 The second is Rosmini v Chrysler Australia Ltd.114

98 Mr Rosmini fell at work in April 1971 and fractured his left fibula that

resulted in him for a time being unable to work. A few months later he

returned to work on light duties. Sometime later he was directed to return

to his normal duties and when he complained that he was unable to do so

he was dismissed from employment. At the time of his dismissal he had

no physical or organic ailment. He was found by the trial judge to be

suffering from a neurosis and that it had caused him to be incapacitated

for work. He sought workers compensation for that incapacity.

99 It will be apparent that the issue in Kop was compensability. The issue to

be resolved was whether the injury that Ms Kop sustained arose out of or

in the course of her employment.

100 It will be apparent that the issue in Rosmini was causation. The issue to

be resolved was whether there was a causal connection between

Mr Rosmini’s original workplace injury and the incapacity resulting

from the neurosis.

101 Although the statement of issues filed in connection with Brealey posed

the question in terms of compensability, the issue of compensability in

respect of the injuries that were the subject of the case had already been

resolved. They are compensable injuries. Thus to my mind, the only

issue in Brealey was one of causation. The same is true of Rullo.

102 In other words, although the arguments before us were couched in terms

suggesting that the issue was as it was in Kop, in fact the real issue in

both cases was the same as it was in Rosmini.

103 Under general principles of workers compensation law an entitlement to

one or other of the various species of compensation provided for by the

relevant legislation is contingent upon proof that the relevant event, such

as an incapacity for work or the need for medical treatment, results from

114 (1973) 6 SASR 212.



[2017] SAET 133

the compensable injury. In determining this issue it is well established

that general common law principles of causation apply, subject to the

qualification that questions of reasonable foreseeability do not arise.115 It

follows, in the words of the Privy Council in Bushby v Morris, that if the

incapacity for work or need for medical treatment, is caused by some

event subsequent to the original injury, it will be held to also result from

the original injury, provided it is connected to it by a chain of legal

causation, unbroken by any novus actus interveniens.

104 Indeed, under general principles of workers compensation law, even if

the later event was of itself compensable, a claim for compensation in

connection with it could potentially be made in respect of the original

injury. This is made clear by the decisions of the Full Court of the

Supreme Court in Green v Wardleworth116 and WorkCover v

Beckwith.117 In Green v Wardleworth, Doyle CJ held that the approach

taken by King J (as he then was) in Australian Eagle Insurance Co Ltd v

Federation Insurance Ltd,118 being a case that concerned the Workers

Compensation Act 1971 applied to the Workers Rehabilitation and

Compensation Act 1986.

105 In Australian Eagle Insurance Co Ltd v Federation Insurance Ltd King J

said as follows:

If the incapacity results in a true sense from more than one accident, a

workman must be entitled to claim compensation in respect of all or any

of the relevant accidents. If the accidents occur in the employment of

different employers, he must be entitled to claim compensation against

each employer. If the accidents occur in the employment of the same

employer, he is nevertheless entitled to base his claim upon all or any of

the accidents. This could be important to the workman in a situation in

which the second accident is an aggravation, deterioration or recurrence

of the injury sustained in the first accident and the workman can not

recover in respect of the second accident for some technical reason, such

as failure to give notice.

106 In WorkCover v Beckwith Doyle CJ applied Green and in doing so he

implicitly gave approval to the following passage from the judgment

under appeal in that case which said:

An injury, and an aggravation of an injury, are not mutually exclusive

concepts. The aggravation can be a sequel to the original injury in a way

that it and the consequences that follow it, can fairly be said to have

resulted from the original injury so as to be compensable by reason of it,

115 Bushby v Morris (1980) 28 ALR 611 at 616. 116 (1996) SASC 5720; (1996) 66 SASR 421. 117 [1996] SASC 5794. 118 (1976) 15 SASR 282.



[2017] SAET 133

even if, the aggravation, of itself, could be regarded as a separate

injury…119

107 In Brealey, the trial Deputy President found that Ms Brealey’s: “right

knee condition as at August 2015 was a direct result of injuries sustained

at work. The treatment and its consequences and the original injuries are

linked. The giving way of the knee associated with pain resulting in the

fall and fractured ankle are all inextricably linked together such that the

employment must be regarded as a significant contributing cause of the

applicant’s right ankle fracture.”

108 Although he expressed this in the terms of the question posed in the

statement of issues, what he was really saying was that any incapacity for

work, the need for medical treatment and any impairment that has

occurred as a result of the injury that Ms Brealey sustained on

29 August 2015, as a matter of law, resulted from the injuries that she

sustained on 27 March 2001 and 4 September 2009. By reference to the

conventional understanding of causation in workers compensation cases,

such a finding was clearly open.

109 In Rullo it is conceded in the agreed facts that as a consequence of using

crutches and the walking stick, Ms Rullo developed left shoulder

symptoms in approximately April/May 2016. On these facts, if the

conventional approach to causation in workers compensation cases is

applied, it would follow that any resultant incapacity, the need for

medical treatment and any impairment that has occurred as a result of

those left shoulder symptoms, resulted from the injuries that she

sustained on 18 February 2016.

110 On the compensating authority’s argument, s 7 of the Act is not limited

to primary compensability, but it also intrudes into the issue of causation.

On its suggested construction, significant contribution from employment

not only applies to the original injury, but it also applies in determining

the compensability of causally related events subsequent to the original

injury.

111 For the reasons explained by the learned President, if indeed s 7 does

intrude into the issue of causation in the sense just described, this would

be a radical departure from conventional workers compensation

jurisprudence.

112 To conclude that this is what Parliament intended would require the

clearest of statutory instruction. Absent such an instruction, it is not a

construction that should be adopted. In my view, s 7 is directed solely

towards the issue of primary compensability. It has nothing to do with

119 [1995] SAWCAT 150.


Rullo v Return to Work SA Lieschke DP

[2017] SAET 133

causation. In other words, the test of significant contribution from

employment only applies in determining whether the original injury is

compensable. It has no application in determining whether causally

related events subsequent to the original injury give rise to entitlements

to compensation.

113 Accordingly, for these reasons, I join in the orders proposed by the

learned President.

Lieschke DP

114 I have read the draft judgements of McCusker J and Gilchrist DPJ. I

agree with the proposed disposition of the appeal and referral, and with

the President’s construction of the phrase “employment was a significant

contributing cause of the injury” in s 7(2)(a) of the Act.

115 I agree that the new compensability test for a “work injury” has raised

the threshold of the required employment contribution from “material” to

“significant” in the case of a physical injury. That is irrespective of

whether the injury was a primary injury or a secondary injury, as it was

in the two cases under consideration. Section 7 does not require any

direct, proximate or higher level of contribution from employment to a

secondary injury.

116 With the greatest respect, and in the absence of any submissions from the

parties, I am unable to agree that any valid dichotomy between

compensability and causation remains under the new Act. While there

will often be issues about the scope of consequential liability for medical

expenses, property damage, incapacity, permanent impairments and

death that are claimed to be incurred in consequence of or to result from

a work injury, these questions do not provide alternate “gateways” to

compensability.

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