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Arising out of

Shea v RTA [2011] NSWWCC 95.  Mr P. Sweeney, Arb. 22.03.11.

[88] The words “arising out of” are of wide import. In Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 500, a case that involved the construction of the Western Australian motor vehicle legislation the High Court of Australia said: “The test posited by the words  ‘arising out of’ is wider than posited by the words ‘caused by’ and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle.”

The paragraph above must be treated with some caution as it predates March v Stramare (E. and M.H.) PL [1991] HCA 12; (1991) 171 CLR 506, but it does highlight the width of the expression.

[89] It is possible to reason that attendance at a conciliation/arbitration or a court, for the purposes of a worker arguing that he or she sustained injury in the course  of the employment, is causally connected with his or her employment. It might follow that any  psychological harm the worker  suffers when information from his employer is divulged to him by his legal advisors at the hearing also arises out of his employment; and is therefore an injury arising out of the employment.

[90] There is, however, a line of authority in the statutory predecessors to the Commission which suggest that the process of bringing a claim for workers  compensation does not arise out of the employment but arises under statute, namely the 1987 and 1998 Acts.

This line of authority was a relied on by His Honour Judge Neilson in Reeks v Aluminium Commission of NSW (2003) 23 NSWCCR  534. His Honour referred to the reasoning of Rainbow J in Lennan v Union Steamship Company of New Zealand Ltd (1950) 24 WCR (NSW) 107 who, in that case, drew a distinction between the applicant attending a medical practitioner for examination at the request of his employer, on the one hand, and  performing acts that were part of his employment, on the other. The latter arose out of his employment but the former did not.

I am not sure that the result in Lennan would be the same if the matter was argued in the Commission today. But, it remains necessary to determine whether attendanceat the Commission is causally related to the employment or whether it is  the pursuit by the worker of rights against his employer created by statute.

[91] The answer to the question is not as clear as when a worker attends a stop work meeting, or a union meeting sanctioned by his employer, or participates in a picket line; see the discussion in  Thornton v GEO Global Expertise Outsourcing Pty Limited t/as Gurney Correctional Centre (2006) NSWCCPD 66 by Deputy President Roche.

While I  have found the issue difficult, I have reached the conclusion that attending the  Commission on 8 September 2006, to conciliate or prosecute his claim that he suffered injury, does not arise out of the applicant’s employment.

In my view there can be no conceivable benefit to the employer from the applicant’s  actions. It is so far removed from the nature, conditions, obligations and incidents of the employment as to have no causal or consequential relationship to it.

Considering the statements provided to him by his lawyers, in the context of  their advice whether to prosecute or settle the claim, is, in my opinion, even further removed from the requirement that the activity arise out of the employment.

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