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Substantial contributing factor

New South Wales Police Service v Shelley [2011] NSWWCCPD 57. Roche DP.

[30] Though the receipt of an injury in the course of employment is not, on its own, sufficient to satisfy s 9A, that does not mean it is irrelevant to that determination: Supair Pty Ltd v Sweeney [2000] NSWCA 319; 20 NSWCCR 314. ...

[32] To the extent that the seizure contributed to the injury, its contribution was minor in that it merely created a situation where Ms Shelley required assistance. The injury was caused by the direct actions of co-workers, acting in the course of their employment, giving Ms Shelley assistance at her place of employment during working hours.

In these circumstances, the connection between the employment and the injury was “real and of substance”: Dayton v Coles Supermarkets PL [2001] NSWCA 153; 22 NSWCCR 46.

It does not matter that the original cause of the need for assistance, the seizure, was unrelated to employment. As a matter of common sense, the employment, namely the actions of the co-workers, was a substantial contributing factor to the injury.

State Rail Authority of NSW v Cowles [2010] NSWWCCPD 114. Roche DP. 

61. The submission that s 9A of the 1987 Act must be applied is fundamentally wrong. Mr Cowles received his injuries with State Rail before s 9A was introduced [1996] and that section has no application to his claim against State Rail. In any event, as the Commission has held in hundreds of cases, employment only has to be a substantial contributing factor to the injury, not the incapacity: Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48; 23 NSWCCR 725.

Van Wessem v Entertainment Outlet PL [2010] NSWWCCPD 97. Keating P

To 1987 Act s 9A substantial contributing factor, Keating P [129] noted Badawi v Nexon Asia Pacific &c [2009] NSWCA 324, and reliance there on Mercer v ANZ Banking Group (2000) 48 NSWLR 740, and following authorities, including Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [106]: question is strength of employment causation; Chubb Security Aust PL v Trevarrow[2004] NSWCA 344 at [36]: fact of arising out of or in the course of employment is relevant but undeterminative; McMahon v Lagana &c [2004] NSWCA 164 at [25], Larson v Comm’r Police [2004] NSWCA 126 at [38]:  both s 4 and s 9A require independent satisfaction; Dept Education &c v Sinclair [2005] NSWCA 465 at [49]: other substantial contributing factors may co-exist; Haider v J P Morgan Ltd [2007] NSWCA 158 at [56]; Workcover v Walsh [2004] NSWCA 186 at [99];  Dayton v Coles Supermarkets [2001] NSWCA 153 at [22], Murray v Shillingsworth[2006] NSWCA 367 at [65]: finding is fact.

None of the s 9A(2) circumstances aided the appellant.

“Unlike cases such as Hatzimanolis, Da Ros, Watson and others, this is not a case where the worker’s employment placed him in a remote location or otherwise exposed the worker to a risk to which he would not otherwise have been exposed. I am satisfied on the evidence before me that Mr Van Wessem had engaged in the practice of undertaking a Sunday morning bicycle ride in the company of his friend, Mr Williams, for a considerable period of time before his company entered into its contract with Aussie Home Loans.

"His practice of undertaking the rides was not altered in any way as a result of undertaking that employment. In that sense, it cannot be said that the employment concerned was a substantial contributing factor to the injuries, in that it did not contribute at all,” Keating P said [151].

Arbitration confirmed, no costs.

A: Beston Macken McManis. R: Sparke Helmore.

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