Workers’ Compensation and Rehabilitation Act 2003

A decision that a breach of duty caused particular injury comprises the following elements—

the breach of duty was a necessary condition of the occurrence of the injury (factual causation);

it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (scope of liability).

In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party in breach.

If it is relevant to deciding factual causation to decide what the worker who sustained an injury would have done if the person who was in breach of the duty had not been so in breach—

the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

any statement made by the worker after suffering the injury about what the worker would have done is inadmissible except to the extent (if any) that the statement is against the worker’s interest.

For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the injury should be imposed on the party who was in breach of the duty.