Da Ros v Qantas Airways Limited
[2009] NSWWCCPD 58
•27 May 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Decision set aside on appeal and remitted: See Da Ros v Qantas Airways Limited [2010] NSWCA 89. Determined on remitter: See Da Ros v Qantas Airways Limited (No 2) [2010] NSWWCCPD 55 | |||||
| CITATION: | Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58 | ||||
| APPELLANT: | Saverio Da Ros | ||||
| RESPONDENT: | Qantas Airways Limited | ||||
| INSURER: | Self insurer | ||||
| FILE NUMBER: | A1-7547/08 | ||||
| ARBITRATOR: | Mr J. Ireland | ||||
| DATE OF ARBITRATOR’S DECISION: | 2 January 2009 | ||||
| DATE OF APPEAL DECISION: | 27 May 2009 | ||||
| SUBJECT MATTER OF DECISION: | Sections 4 and 9A of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| REPRESENTATION: | Appellant: | Turner Freeman Lawyers | |||
| Respondent: | Moray & Agnew Solicitors | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator contained in the Certificate of Determination dated 2 January 2009 is confirmed but for the reasons stated in this decision. No order as to costs of this appeal. | ||||
BACKGROUND TO THE APPEAL
On 29 January 2009 Saverio Da Ros (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 2 January 2009.
The Respondent to the Appeal is Qantas Airways Limited (‘the Respondent’).
The Appellant, who is 63 years of age, commenced employment with the Respondent on 11 October 1976 as a long haul flight attendant. The Appellant’s duties included service as crewman on international flights. On 8 September 2005 the Appellant arrived in Los Angeles, USA at a time between 6 and 7am local time. The crew, including the Appellant, were transported by the Respondent’s bus to accommodation provided by the Respondent at the Bonaventure Hotel which is located in downtown Los Angeles. That accommodation was made available given the circumstance that the Appellant was scheduled to work as a crewman on a Qantas flight leaving Los Angeles, destination Sydney, at 11pm on 9 September 2005. The interval between arrival and departure is known as “slip-time” and the Appellant was, in accordance with the Enterprise Bargain Agreement which governed the terms of his employment, paid by the Respondent for each hour that he was absent from his home base (Sydney).
On 9 September 2005, during slip-time, the Appellant was injured when the bicycle he was riding was struck by another bicycle causing him to fall to the ground. This occurred shortly before 7pm. The Appellant suffered injuries to his dominant right arm and shoulder, his right hand and right knee.
The Appellant sought medical treatment in Los Angeles and was unable to report for duty as scheduled later that night. The Appellant was unable by reason of his injuries to attend work until 9 January 2006 at which time he was certified as being fit for restricted ground duties.
The Appellant claimed workers compensation benefits on 23 September 2005. The Respondent denied liability. On 19 November 2007 a further claim was made on behalf of the Appellant by his solicitors against the Respondent. That claim, in respect of lump sums, was denied on 16 May 2008. A dispute arose with respect to the Appellant’s entitlement to benefits and an Application to Resolve a Dispute (‘the Application’) was filed with the Commission on 23 September 2008. The date of injury was particularised as 9 September 2005 and the injury description was- “Right and left shoulders/arms”. Weekly payments and lump sums were claimed.
The Application came before an Arbitrator for conciliation/arbitration on 5 September 2008. A Certificate of Determination (‘COD’) issued on 2 January 2009 accompanied by a statement of reasons (“Reasons”).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 2 January 2008 [sic 2009] records the Arbitrator’s orders as follows:
“The Commission determines:
1.There will accordingly be an award for the Respondent in respect of the Applicant’s claim for weekly compensation, medical expenses and lump sum compensation.
2. There will be no order as to costs.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in the following respects:
(i)in failing to make a determination as to whether the Appellant suffered injury within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’);
(ii)in failing to correctly apply the provisions of section 9A to the facts concerning the circumstances of the Appellant’s injury, and
(iii)with respect to his findings of fact.
The issues as outlined above are a summary of matters raised under the heading “Grounds of Appeal” which accompany the Appellant’s application seeking leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant submits that the appeal should not be determined on the papers and argues that the matter “involves complex legal issues which are not appropriate to be determined on the papers”. The Appellant further argues that there is a “significant conflict as to the correct interpretation of law”. It is also put on behalf of the Appellant that a determination on the papers is not appropriate given that the matter “involves substantial financial ramifications for the Appellant”. The Respondent submits the appeal may be decided on the papers.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, I am satisfied that I have sufficient information to proceed on the papers without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount claimed by the Appellant in respect of weekly payments, medical expenses and lump sums as appears in the Application clearly establishes that the amount at issue exceeds the monetary thresholds prescribed by section 352(2)(a), namely “at least $5,000.00”. The threshold prescribed by section 352(2)(b) being, “… at least 20% of the amount awarded in the decision appealed against” is of no relevance given that no amount of compensation has yet been awarded (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The Arbitrator, at [6] of Reasons, noted the documentary evidence before him. That material included the Application and all documents attached, and the Reply filed on behalf of the Respondent and all documents attached thereto.
The Appellant placed before the Arbitrator a number of medical reports and records including two reports from Dr Richard A Evans, specialist physician. The Appellant’s history of injury received in the bicycle collision and subsequent treatment by Professor Murrell is recorded. Dr Evans notes that the Appellant had been diagnosed as suffering from a very large full thickness rotator cuff tear and the surgical history concerning the repair procedures which took place on 1 November 2005 and 29 June 2006 was recorded. Dr Evans notes that the Appellant was able to return to work on selected duties in January 2006. It is also recorded that the Appellant was required to carry out more activities with his left shoulder by reason of right shoulder disability and that the Appellant “began to experience pain in the left shoulder”. It is noted that, on 13 January 2007, Professor Murrell conducted surgery being an arthroscopic acromioplasty and rotator cuff repair to the Appellant’s left shoulder. Dr Evans assesses the Appellant’s whole person impairment by reason of his shoulder disabilities in the second of his reports as being 19% whole person impairment (‘WPI’).
A number of reports by Professor Murrell were before the Arbitrator. The last of those reports dated 4 September 2007 includes an assessment of “whole – body impairment” with respect to disability in the Appellant’s shoulders as being 15%. Professor Murrell expressed the view that “… the left rotator cuff tore in substantial part due to his having to use his left shoulder because of the right shoulder problem”.
There was before the Arbitrator a statement by the Appellant made on 14 May 2007. Detail of the Appellant’s duties and flight pattern at the relevant time were outlined in that statement as follows:
“On Thursday 8 September 2005, I was scheduled to work on a four (4) day flight pattern from Sydney to Los Angeles return with the scheduled return date to Sydney being Sunday 11 September 2005. The duty hour credits applicable to this four (4) day pattern were in or around 31:30 hours.”
It was stated by the Appellant that:
“… I was paid one hour for every hour I was away from my home base (Sydney), including slip-time in Los Angeles.
Slip-time is effectively turn around time for a crew in an overseas port.”
The Appellant states that the aircraft in which he travelled arrived at Los Angeles between 6am and 7am on Thursday 8 September 2005. After arrival the Appellant and fellow crewmembers were transported by Qantas crew transport bus to the Qantas crew accommodation hotel in Los Angeles being the Bonaventure located in downtown Los Angeles.
The Appellant states that during a slip
-time the Respondent paid a daily food allowance which “was a little over US$200.00 for entire slip period”.
The Appellant stated that in slip
-time flight attendants “are permitted and encouraged by Qantas to travel around in the particular city and engage in shopping, use of cafes/restaurants, visiting tourist attractions and engaging in recreational activities”. During the course of training the Appellant states that he was instructed that it was important that flight attendants on slip-time leave the crew accommodation hotels so as to become familiar with facilities and attractions in the cities to enable them to answer any questions passengers may have relating to those locations.
The Appellant further states that “throughout the entire period of my employment with Qantas my employer consistently emphasised a necessity for long haul flight attendants to maintain fitness and a high standard of personal grooming”. It is further stated that the necessity of physical fitness was emphasised by the Respondent given the possible need to assist in maintaining security onboard an aircraft. Such emphasis on security has, it is stated “significantly been increased since September 11 2001.”
The Appellant states that, as part of compulsory biannual training of flight attendants, he was required to participate in training concerning security measures including techniques to be used in subduing and handcuffing any person presenting a security risk to the aircraft.
The Appellant states that part of his fitness regime when at his home in Sydney involved consistent swimming and riding of a pushbike. The Appellant had never ridden a bicycle competitively.
The Appellant states that he was a member of the Qantas flight staff recreation club and was entitled to have access to and use of recreation facilities and equipment. That equipment included bicycles. The Appellant states that he had, on many occasions, utilised bicycles provided by the recreation club. It was stated that the Appellant’s motivation for use of the bicycles was to assist in maintaining his fitness for employment and also for the purpose of travelling to obtain food and drink as well as visiting sightseeing facilities in that city. The Appellant states that he had been questioned on many occasions by passengers concerning facilities in Los Angeles and recommendations were sought in respect of tourist attractions.
The Appellant states that on Friday 9 September 2005 he collected a staff recreation club mountain bike from a locked room within the Bonaventure Hotel. He then travelled with the bicycle on a bus to Santa Monica, an oceanside suburb of Los Angeles. That destination was some fifty minutes by bus from the hotel. The Appellant arrived in Santa Monica at approximately 10.30am on that day. The Appellant utilised the bicycle whilst in Santa Monica riding it along a bike trail which ran behind the beach to Marina del Ray. The Appellant had lunch whilst in that vicinity using the allowance provided by the Respondent.
The Appellant states that he was scheduled to work on a Qantas flight from Los Angeles to Sydney leaving Los Angeles at approximately 11pm on the night of 9 September 2005. He travelled back to the vicinity of the Bonaventure Hotel with the bicycle by bus. After alighting from the bus he mounted the bicycle and commenced riding towards the hotel. At an intersection a short distance from the hotel he was struck whilst riding by another cyclist, a courier rider who had ridden through a red light striking the rear wheel of the Appellant’s bicycle. The impact caused the Appellant to be thrown to the ground causing the subject right arm/shoulder injury. The courier cyclist left the scene of the accident. The Appellant continued to make his way to the Bonaventure hotel with difficulty wheeling the bicycle.
The Appellant states that he immediately reported the incident and his injury to his operating crew manager, Mr Rick Bateman. The Appellant was, at 9pm that night, sent to a hospital for treatment. By reason of his injuries and need for treatment the Appellant did not join the scheduled flight back to Sydney at 11pm. Arrangements were made by the Respondent to have the Appellant transported back to Sydney as a passenger on a flight which departed Los Angeles late in the night of Sunday 10 September 2005.
The Appellant states that the Respondent denied liability concerning a claim for compensation which he had made but that the Respondent had in place a Personal Accident Policy Scheme for the benefit of employees and that treatment expenses and payment of weekly income was made pursuant to that scheme up until 9 September 2006.
The Appellant states that he was totally unfit for work by reason of his injury until 9 January 2006 following which he was certified as being fit for restricted ground duties. During the course of performing that work the Appellant noticed pain in his left shoulder which worsened with the passage of time. Both shoulders were treated by Professor Murrell.
The Appellant states that his employment with the Respondent ceased following voluntary redundancy which was effective as at 1 October 2006. He has not worked since that date.
A supplementary statement of the Appellant dated 16 September 2008 includes the following matters:
(i)the Appellant had left Santa Monica at 6pm on 9 September 2005 travelling by bus to the Bonadventure hotel. He alighted from that bus at approximately 6.45pm. It was the Appellant’s intention to immediately travel from the bus stop back to the crew accommodation hotel in order to prepare for his rostered flight that evening and to have a short rest, and
(ii)there was to be a wakeup call to all crew at the hotel at approximately 8pm that evening. A Qantas crew bus was scheduled to depart the hotel, destination the airport, at approximately 9pm that night.
There was before the Arbitrator a statement made by Gregory Hugh Broome made 15 March 2006. That statement included the following:
(i)Mr Broome is employed as a long haul flight attendant with the Respondent and had commenced employment on 30 March 1991. In June 2000 Mr Broome was promoted to the position of Customer Service Manager, being the senior flight attendant position on the Respondent’s passenger flights;
(ii)During the course of training Mr Broome had been advised to “get out and about” in slip ports. The Respondent’s trainers had emphasised that crew members would be questioned by passengers about sites and activities in specific ports and it was therefore necessary for flight attendants to familiarise themselves with tourist attractions, facilities, etc in an overseas port, and
(iii)Mr Broome stated that “… there is a ‘direct commercial benefit’ to Qantas in having their flight attendants familiar with recreational facilities, sites etc in overseas ports”.
The statement by Mr Broome had annexed to it a number of documents published by the Respondent concerning circumstances in “slip ports”. Those publications included one titled “The Source” which contained editorial comment which encouraged flight attendants to engage in tourist activities whilst in slip ports.
There was in evidence before the Arbitrator an extract from a publication entitled “Cabin Crew News” which was headed “Fatigue and Exercise”. That extract included the following paragraph:
“Tips to manage fatigue include getting out for a walk, making the most of hotel facilities or even just using the stairs instead of the lift. Any other activities you enjoy keeping yourself active will help you avoid fatigue.”
The author of the above extract is stated to be Fletcher Hayllar, Safety Co-ordinator Cabin Crew Operations Sydney. It should be noted that that publication is issued by the Respondent and bears the date 16 November 2006.
Included among those documents annexed to the Application are records relating to the earnings of the Appellant as well as a copy of the notice issued by the Respondent pursuant section 74(2) of the 1998 Act. That last mentioned notice is contained in a letter dated 16 May 2008 from the Respondent’s solicitors to the Appellant’s solicitors. That notice identified the grounds upon which liability was disputed as being:
(i)that the Appellant did not sustain any injury arising out of or in the course of his employment;
(ii)that the Appellant’s employment was not a substantial contributing factor to the injury as required by section 9A of the 1987 Act, and
(iii)reliance was placed by the Respondent upon the decision of Bishop J in the matter Farrelly v Qantas [2001] 22 NSWCCR 331.
The evidence relied upon by the Respondent before the Arbitrator included a report of Dr David Millons dated 20 February 2008. It was Dr Millon’s view that, having regard to the Appellant’s injuries he is “… only suited to work of a light, semi-sedentary nature in a office or administrative role using his arms below shoulder height. He will never return to flight attendant work”. Dr Millons proceeded to state that the Appellant, being 62, had little prospect of returning to the workforce in any capacity.
Dr Millons expressed the view that the condition of the Appellant’s left shoulder is a consequence of injury to the right shoulder sustained on 9 September 2005. It is to be noted that Dr Millons also expressed the view that:
“The nature and conditions of his work lifting bags for customers onto the scales from January through to April 2006 caused further aggravation of the problems (in the left shoulder).”
Dr Millons was of the view that, by reason of disability in both the Appellant’s right and left upper limb he suffered a total whole person impairment of 14%.
Attached to the Reply were copies of the Respondent’s section 74(2) notice and a copy of the decision of Bishop J in Farrelly v QantasAirways Limited (2001) 22 NSWCCR 331 (‘Farrelly’).
The Appellant gave evidence before the Arbitrator. There is available to the Commission a transcript of that evidence given orally on 5 December 2008 (‘transcript’). That evidence comprised the Appellant’s responses to cross-examination by counsel then appearing on behalf of the Respondent. During questioning the Appellant agreed with Counsel that at the relevant time he could have “elected by way of exercise…to have either walked somewhere or to have jogged somewhere” (Transcript, page 9). The Appellant had earlier agreed that the manner of keeping fit during slip-time was a matter for his own determination. It appears that the Appellant agreed that there was no obligation upon him to adopt a fitness regime or programme whilst in a slip port.
The Appellant was re-examined by his solicitor and evidence was given of biannual training/testing of cabin crew by the Respondent during which attention was given to emergency procedures. At the end of each day’s training a test is conducted which comprised a multi-choice questionnaire as well as demonstration of physical fitness. The activities required of those staff tested included “going down the slides, open the aircraft doors, bringing the life raft off the overhead area and so on” (Transcript, page 16).
The Appellant gave evidence that any crew person who failed to pass the test concerning emergency procedures was required to submit to the test again as soon as possible. Should a crew person fail the second test they are given one more opportunity, and failure on that third occasion resulted in loss of ones job (Transcript, page 16). The Appellant stated in evidence that he had always passed his tests concerning emergency procedures. He had been aware of “some cases” who failed to pass.
Submissions before the Arbitrator
It was put on behalf of the Appellant before the Arbitrator that documentation demonstrates that there was “specific encouragement provided by the Respondent to (the) flight attendants, including the Applicant to basically not leave themselves entrenched within their individual crew rooms within the hotel but to get out and about”.
It was further argued that “… it’s the Applicant’s submission that he was on duty at the time that he suffered injury the subject of his claim, or if you were to hold that it was an interval between two discrete periods of employment, the Applicant’s alternative submission would be that the mechanism by which he suffered an injury was reasonably incidental to his employment and, therefore, would satisfy the section 4 test”.
It was further argued that the Appellant’s use of the bicycle at Santa Monica was motivated by his need to maintain a high level of fitness to permit adequate performance of his employment duties and to ensure that he passed the physical component of his compulsory biannual training/testing.
The Appellant on the day of hearing provided written submissions in support of his claim. A copy of those submissions remain with the Commission’s file. It was argued that the evidence comprising a publication by the Respondent dated 22 April 1986, namely “Qantas Track Record” contained material that “encouraged” flight attendants not to spend the entirety of slip-time in crew rooms; to participate in sightseeing tours and excursions and to visit places and events of interest; to join the Qantas staff recreation club thereby affording access to sporting equipment provided by the employer and to read briefing sheets.
The written submissions contained detailed argument concerning the question as to whether the injury suffered by the Appellant was one within the definition contained in section 4 of the 1987 Act. Reference was made to Hatzimanolis v ANI Corporation Limited (1991-1992) 173 CLR 473 (‘Hatzimanolis’). The submissions make reference to a number of other authorities in support of the proposition that, notwithstanding that the Appellant’s injury was sustained during an interval between carrying out his employment duties on the Respondent’s flights, the injury “was still sustained in the course of the Applicant’s employment”.
Attention was given to the operation of section 9A of the 1987 Act in the course of those written submissions. It is put that the Appellant’s employment “did constitute a substantial contributing factor to the incurrence [sic, occurrence] of his injuries”. Reference is made to the decision of the Court of Appeal in Mercer v ANZ Banking Group (2000) 20 NSWCCR 70 (‘Mercer’). in support of the proposition that the proper construction of section 9A leaves a broad area within which the personal judgment of the individual judge as to what is “substantial” may be determinative. Reference is made to a number of authorities concerning “slip port” injuries and argument is advanced seeking to distinguish the present matter from those where compensation was denied upon the particular facts. Attention was given in those submissions to the facts of Farrelly. It was argued that the Worker in Farrelly was found by Bishop J to be an experienced bicycle rider who took part in triathlon competitions in Australia and that riding a bicycle with a view to contributing to his state of fitness was one of the objectives of the Worker. Those facts, it was argued, may be distinguished from the present given that the Appellant was engaging in an activity which had been “authorised/encouraged by the Respondent”. Where relevant, details of these various authorities is addressed below.
The Appellant in written submissions pays particular attention to the decision of Qantas Airways Ltd v Watson [2008] NSWWCCPD 65 (‘Watson’). In that matter a worker who was injured whilst on slip-time failed in his claim on appeal to a Presidential member. The reasoning of Deputy President Byron and the Appellant’s arguments seeking to distinguish that matter upon the facts are discussed hereunder.
The Respondent in submissions before the Arbitrator placed significant reliance upon that which was held in the matter of Farrelly. Counsel for the Respondent drew attention to the finding by his Honour in that case that the Worker, whilst encouraged to keep fit by the Respondent, was under no compulsion to ride the bicycle on the date of his injury in the way in which he rode it and where he rode it. It seems this argument is directed towards the question as to whether the requirements of section 9A of the 1987 Act have been met. It was the Respondent’s argument that in all the circumstances the Appellant’s employment was not a substantial contributing factor to the subject injury.
Counsel for the Respondent proceeded to argue those matters relevant to quantification of any entitlement to weekly payments.
Submissions on this appeal
The Appellant has provided written submissions in support of his application with respect to this appeal. The Appellant’s first complaint is that the Arbitrator had not “… made a determination in respect to [sic] section 4, whether the Appellant sustained injury arising out of or during [sic] the course of performing his employment duties with the Respondent”. Notwithstanding the misstatements concerning the exact provisions of section 4 it is clear that the matter of complaint concerns the alleged failure by the Arbitrator to make an express finding as to whether injury in terms of the Act had been sustained by the Appellant.
The submissions in support of this suggested ground of appeal require no close attention given that the Respondent in its submissions on appeal have conceded that the subject injury was one received “in the course of employment”.
The Appellant submits that the Arbitrator has erred by misdirecting himself with respect to the proper construction and application of section 9A of the 1987 Act. The submissions (between paragraphs 10 and 12 inclusive) appear, with respect, to confuse questions raised as to the proper application of section 4 of the 1987 Act with those issues requiring determination having regard to the provisions of section 9A of that Act.
It is argued by the Appellant that the Arbitrator, as did the Court in Farrelly, misdirected himself “with regard to the ‘employment activity’”. It is put that an error was committed in directing an inquiry to the “act of cycling”. It is put that the “… proper question is directed to the stay in Los Angeles…”. The argument was developed that the Appellant’s employment required him to be in Los Angeles and that his employment required him to remain in that city before returning on duty to Sydney. Reliance was also placed upon the decision of Armitage J in Reed v Qantas Airways Ltd [1999] NSWCC 41 (3 September 1999 unreported) (‘Reed”) as well as a decision of an Arbitrator of the Commission in White v Qantas Ltd WCC 1989/06 23 June 2006 unreported (‘White’).
The Appellant argued error of fact on the part of the Arbitrator by reason that he has “… overlooked the fact that at the time of suffering his pleaded injuries the Appellant was returning to the Respondent’s crew accommodation hotel in order to comply with his roster commitments to work on a Respondent flight”. The reasoning of the Arbitrator is the subject of criticism in this submission upon the basis that there was a misstatement as to the circumstances of the subject collision. That misstatement is identified as being that the Arbitrator found “… on his return to the Qantas crew recreation club he was struck by a cycle courier and as a result suffered the injuries…”.
The Respondent in written submissions which accompany its Notice of Opposition to this appeal disputes the Appellant’s assertion that the Arbitrator has failed to address the question as to whether an injury within the meaning of section 4 of the 1987 Act has been received. Reference is made to Reasons at [16] where the Arbitrator cites the decision in Hatzimanolis. It is further put on behalf of the Respondent that the Arbitrator, given his consideration of the application of section 9A of the 1987 Act, demonstrated that he had found injury having occurred in the course of employment as being a matter proven by the Appellant.
It is clear that the Respondent in its submissions concedes that, notwithstanding the Appellant’s arguments and the process of reasoning revealed in the decision of the Arbitrator, injury “in the course of employment” has been found and that no challenge concerning that finding is made. I reach that conclusion having regard in particular to submission [12]:
“12. Indeed it is the Respondent that could perhaps complain that the ‘injury” finding made against it was erroneous and/or inadequately reasoned though, for the purposes of this appeal it does not do so.”
The Respondent in submissions seeks to support the Arbitrator’s findings with respect to the application of section 9A to the facts as found. It is asserted that the Appellant’s submissions misstate the “test” raised by the provisions of that section. It is put that the “… question to be asked is whether the employment was a substantial contributing factor to the injury”.
The Respondent argues that the Appellant’s attempt to distinguish the decision of Farrelly on its facts is founded upon an erroneous premise, being that “… employment was a substantial contributing factor because the injury occurred in the course of employment”. The Respondent seeks to emphasis that such an approach fails to take account of the provisions of section 9A(3).
It is put on behalf of the Respondent that the decision in Farrelly represents a proper statement of the law relevant to construction and application of section 9A. It is put that the Arbitrator was correct in concluding, as did the Court in Farrelly, that following a consideration of the various factors involved “in the injury” the employment element was not substantial.
It is argued that “…There was nothing about the employment which actually contributed to this accident. There was nothing peculiar to the location and that type of collision could have happened anywhere and at any time. In a causative sense responsibility rests entirely with the bicycle courier”.
The Respondent argues that the Arbitrator correctly approached the task of assessing “… the various contributing factors” and acknowledged in the course of his reasons the guidance provided by the provisions of section 9A(2).
It is further argued that as a matter of commonsense, there is nothing “… about the Appellant’s employment that can be said to have caused his injury and in reality the Appellant’s submission seek [sic] to substitute coincidence for cause”.
The Respondent argues that there is no relevant error of fact demonstrated in the Arbitrator’s reasons as argued by the Appellant.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the afore mentioned subsection has most recently been considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71. The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that such was the incorrect test for the task of review of the decision under the 1998 Act.
In the joint judgment of Allsop P and Hoeben J is to be found an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57.Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that (sic) an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, ‘to decide whether the original decision is wrong [that is to] decide what is the true and correct view.’ This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58.Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
Before consideration of the arguments raised on appeal it is appropriate to note the history of this claim with the object of determining the breath of the dispute between the parties. As noted above at [6] the Appellant made a claim for compensation benefits against the Respondent in September 2005. That fact is established by the content of the Appellant’s first statement which is in evidence. It is not known what form that claim took however it is clear that liability was denied by the Respondent and it may reasonably be inferred that such denial extended to liability for weekly payments. That denial of liability was made before section 74 of the 1998 Act came into operation. That section, which commenced on 1 November 2006, requires that notice and reasons be given to a claimant when liability in respect of a claim declined.
The Appellant’s claim in respect of lump sums was made on his behalf by his solicitors by letter dated 19 November 2007. As noted above at [6] that claim was denied and a letter disputing liability and detailing those requirements of section 74 was forwarded to the Appellant’s solicitors by the Respondent’s solicitors.
The application heard by the Arbitrator was in respect of weekly benefits and lump sum entitlement. It is important to note that the Respondent had effectively denied liability in respect of those heads of claim and that the statutory requirements concerning notice and provision of reasons for denial had been met. Whilst the form of the Reply filed on behalf of the Respondent may be seen as being deficient it is clear having regard to the manner in which the Respondent conducted its defence before the Arbitrator that liability for weekly payments had been put in issue.
The written submissions put before the Arbitrator asserted (at [24]) that the Respondent did not “place in dispute incapacity”. That assertion was not dealt with by the Arbitrator however, as stated above, I infer from the evidence concerning the separate claims, the Respondent’s denial of liability and the manner in which the Respondent conducted its defence that such assertion was incorrect. Incapacity as a result of injury remains in dispute.
The Appellant’s first complaint concerns the suggested failure on the part of the Arbitrator to “make a determination in respect to section 4”. Given the Respondent’s response to the Appellant’s arguments as noted at [63] and [64] above it is clear that, quite properly, a concession is made that the subject injury arose in the course of employment within the meaning of section 4 of the 1987 Act. Having regard to the decision of the High Court in Hatzimanolis I conclude that the evidence supports a conclusion that the injury arose in the course of employment. As was stated by Mason CJ, Deane J, Dawson J and McHugh J (Toohey J agreeing) at 483:
“For the purposes of workers compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work.”
The evidence establishes that the Appellant at the relevant time was engaged in a four day flight pattern from Sydney to Los Angeles return, there being an interval or interlude, being slip-time, occurring within the overall period or episode of work.
The Respondent had provided the Appellant transport to his temporary accommodation, the accommodation itself, an allowance for sustenance, access to recreational equipment including a push bike and has induced the Appellant to spend that interval between flights in the city of Los Angeles. The evidence further establishes that the Respondent encouraged the Appellant to spend the interlude between flights in a particular way, namely by using the recreational facility (bicycle) and visiting the sights of the city. As was stated by the court in Hatzimanolis (at 484):
“Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.”
The presence of the Appellant in Los Angeles arose by reason of the very nature of his employment with the Respondent. He was scheduled to return to his home base Sydney following the interval or interlude known as slip-time; such arrangement was beneficial to the Respondent in that the Appellant and his fellow crewmembers provided a means of manning the scheduled flight back to the city of Sydney. There is no suggestion on the evidence that the Appellant was guilty of gross misconduct as addressed by the Court in Hatzimanolis and I conclude that, on any view of the facts of the present case, the Appellant was in the course of his employment with the Respondent at the time of the subject injury.
I have addressed the issue of “injury” within the meaning of section 4 in some detail given that there is no explicit finding made by the Arbitrator concerning the questions raised during conduct of the hearing and as noted by the Arbitrator at [3] of Reasons. That the Arbitrator concluded that the injury was one within the meaning of section 4 of the 1987 Act cannot be doubted given that attention was given to what was described as “the real issue in this case” that of section 9A of the 1987 Act. Such consideration would not have been necessary had there been a conclusion that injury in terms of section 4 had not been made out. I make this observation notwithstanding the statement made by the Arbitrator at [16] of Reasons.
The Appellant suggests error on the part of the Arbitrator concerning the manner in which the provisions of section 9A of the 1987 act were applied to the relevant facts. That section provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(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 occupational 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.”
Before examining the Arbitrator’s reasons concerning the application of section 9A it is important to note the precise terms in which this ground is expressed by the Appellant. It is to be found at paragraph (b) under the heading “Grounds of Appeal” annexed to his application and is in the following form:
“(b) That the Arbitrator failed to apply the test for section 9A of the Workers Compensation Act 1987 by misdirecting himself with regard to the employment activity which the Appellant was engaged in at the time of suffering his claim [sic] injuries.”
The authorities which have addressed the terms of section 9A since its enactment and operation in 1997 have dealt with the proper construction of the section and provide guidance as to the manner in the which the provision is to be applied to facts as proven. The earliest authoritative statement was that made by the Court of Appeal in Mercer and that judgment was examined and commented upon by the Court in the matter of Murray v Shillingsworth (2006) 4 DDCR 313 (‘Murray’). The main judgment was that of Einstein J (with whom Hodgson JA and Santow JA agreed). His Honour at [52] noted the importance to bear in mind that the question of whether employment is a substantial contributing factor is one of fact. His Honour proceeded at [55] to distil the matters of principle that had been established in Mercer:
“The decision in Mercer established the following propositions (at [15]-[17]):
(a) that section 9A itself casts considerable light upon its own scope, vide:
· subsection (2) offers non-exhaustive examples of matters capable of being taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury.
· subsection (3) mentions two matters that are not determinative.
· subsection (4) excludes journey claims (s10), recess claims (s11) and claims by trade union representatives (s12).
· there may be more than one substantial contributing factor to a single injury. (Section 9A(1) speaks of ‘a substantial contributing factor’ and not ‘the substantial contributing factor’).
· the word ‘substantial’ qualifies ‘contributing factor’, thereby indicating that it is the strength of the causal linkage that is in question.
(b) that (at [22]):
· the words ‘employment concerned’ in s9A reinforce the view that it is the work activity in which the worker was engaged at the time of injury that is relevant.
· the ultimate question is whether that activity or task was a substantial contributing factor to the injury, bearing in mind that the concept of ‘a substantial contributing factor to an injury’ is exegeted in subsections (2) and (3) of s9A.
(c) that (at [26]):
· the term ‘substantial’ may have various shades of meaning. Having regard to the context, it may mean ‘large or weighty’ or ‘real or of substance’ as distinct from ‘ephemeral or nominal’.
(d) that (at [27]):
· no error was disclosed in an acceptance by the trial judge in Mercer that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’ [it being important to remember that the word is used in a relative sense, and recognising that other causative factors may be present].
· Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition.”
The Arbitrator at [18] of Reasons made reference to the decision of Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46 (‘Dayton’) and made the observation that “…the question of whether the section 9A test is satisfied, is a question of fact and is a matter of impression and degree”. It may be assumed that the Arbitrator is there referring to the question raised by this section as to whether the employment is a substantial contributing factor to the injury.
When dealing with the matters requiring determination having regard to the application of section 9A, the Arbitrator (at Reasons [19] and [20]) states in a discursive manner the evidence, the submissions of the parties, the fact that the Respondent relied upon the decision in Farrelly following which discussion he expressed the following conclusion:
“… This clearly negated the very reasoning the Applicant would have me accept that gives rise to his employment as being a substantial contributing factor to his injury. Further, as in ‘Farrelly’s’ case the substantial contributing factor was the collision with the ‘courier’.”
The Arbitrator’s ultimate conclusion is to be found at paragraph [21] where it is stated:
“… I am very mindful of the Applicant’s arguments and the attempts to differentiate many authorities from the case in question, however the factual situation is not sufficiently persuasive to convince me that the Applicant’s injuries having regard for [sic] the core matters alluded to in section 9A (particularly 9(A) (2)(d)) on this occasion were such as his employment was a substantial contributing factor.”
The Appellant’s criticism of the Arbitrator’s reasoning lacks precision. It is, however, my view that the Arbitrator has failed to adequately state his reasons for concluding that, by reason of the provisions of section 9A, no compensation is payable to the Appellant in respect of the subject injuries. The task before the Arbitrator required determination of matters of fact and application of principal in accordance with the authorities to determine the question as to whether the Appellant’s employment was a substantial contributing factor to the injury. This has not been done. In the circumstances the Arbitrator’s decision requires review.
I have (at [82] above) concluded that the subject injury occurred in the course of the Appellant’s employment within the meaning of section 4 of the 1987 Act. I formally make that finding on this review. Such finding does not, of itself, establish that employment is a substantial contributing factor to the injury (section 9A(3)).
There are a number of factual matters which have not been the subject of any serious challenge by the Respondent. Those matters may be summarised as follows:
(i)at all relevant times the Appellant was on slip-time in the city of Los Angeles occupying hotel accommodation provided by the Respondent;
(ii)the Appellant was a member of the Qantas flight staff recreation club and had access in Los Angeles to recreation facilities including bicycles provided by the Respondent;
(iii)the Respondent encouraged the Appellant, both in the course of his training and in various publications made available to staff to familiarise himself with slip ports. The Appellant was also encouraged by the Appellant not to remain inactive in the accommodation provided in slip ports;
(iv)the Appellant was encouraged to familiarise himself with slip ports to enable proper advice to be given to the Respondent’s passengers visiting those ports;
(v)the Respondent encouraged, and indeed required that, the Appellant maintain his physical fitness;
(vi)the Respondent conducted training sessions on a biannual basis which included emergency procedures and mock ups of distressed aircraft during which the Appellant and fellow staff members were required to demonstrate agility and fitness;
(vii)repeated failure to attain appropriate standards during the course of training may result in dismissal from employment;
(viii)the Appellant had utilised one of the Respondent’s bicycles for use at Santa Monica;
(ix)the excursion made on the bicycle by the Appellant commenced at the hotel and he arrived at Santa Monica after transport by public bus at 10.30am on the day of his injury;
(x)the injury occurred when the Appellant’s bicycle was struck by another cyclist who had breached a red light signal. At that time he was a short distance from the staff accommodation hotel to which he was returning for the purpose of reporting for duty on a flight returning to Sydney that night, and
(xi)having regard to the duration of the Appellant’s stay in the slip port Los Angeles he was being paid for those hours he was absent from his home port of Sydney.
There is ample evidence to establish the matters that I have attempted to summarise in the preceding paragraph and I formally make those findings of fact.
It was observed by Mason P in Mercer (at [37]) that the proper construction of section 9A “… leaves a broad area within which the personal judgment of the individual judge as to what is ‘substantial’ may be determinative….”.
Further guidance concerning the proper application of the provisions of section 9A may be gained from the observations made by Burke J in Cant v Catholic Schools Office (2000) 20 NSWCCR 88 (at [30]):
“30. Broadly speaking, s9A requires an evaluation of the factors operating in the causality of the worker’s injury and a determination of whether or not the employment added a factor of substance to other non employment factors.”
On the present facts it is clear that a substantial contributing factor to the Appellant’s injury was the apparent negligence of the bicycle riding courier who collided with the Appellant’s bicycle. The question remains, as stated by Burke J in Cant, whether or not the employment added a factor of substance to that non-employment factor.
The Respondent in submissions places heavy reliance upon the decision of Bishop J in the matter of Farrelly. Whilst the facts of that matter have striking similarities to the present the Appellant has sought to distinguish the case and argues that the Commission is not bound to conclude, as Bishop J did, that employment was not a substantial contributing factor within the meaning of the section.
Notwithstanding the similarities between Farrelly and the present case I am of the view that the matter of Farrelly may be distinguished on its facts. In Farrelly the worker was at the time of injury a 27 year old flight attendant who had a confirmed commitment to physical fitness including participation in triathlon events which involved bicycle riding. In the present case the Appellant was at the date of injury 59 years of age and was, I accept, concerned to maintain his physical fitness in part by reason of the demands of his employment. Whilst he rode a bicycle at home he did not compete as did the worker in Farrelly.
It is to be noted that the injury received by the worker in Farrelly occurred prior to the infamous terror attack which occurred in the United States on September 11th 2001. I accept the Appellant’s evidence in the present matter that since those events the Respondent has placed particular emphasis upon matters of physical fitness and security and that such requirements have become more stringent than existed before 2001.
The injury received by the worker in Farrelly occurred whilst riding on his excursion along a lengthy exercise track when he was forced to take evasive action as a child moved out towards his path. In the present matter the Appellant had almost completed his excursion and was some few hundred yards from his hotel where he was returning for the purpose of preparing for his next flight.
In oral submissions before the Arbitrator the Appellant’s representative touched on most of those matters above summarised when seeking to distinguish Farrelly. In my view the Commission is not bound to conclude, as did Bishop J in Farrelly, that the Appellant on the present facts is barred from recovery by reason of the proper application of section 9A. That however, does not resolve the matter. It remains to be determined whether there is a causal link between the employment and the injury and if so the extent of such causal link requires examination to determine whether such was a “substantial” contributing factor to injury. As was observed by Mason P in Mercer (at [27]) the term substantial is used in the statute in a relative sense in the recognition that other causative factors may be present. The President approved, as was held by Bishop CCJ at first instance “… that the meaning to be adopted was that ‘substantial’ meant ‘more than minimal, large or great’”.
The Appellant places considerable reliance upon the decision of his Honour Judge Burke in Hoskin v Mid Western Area Health Service (2001) 22 NSWCCR 1 (‘Hoskin’). Particular reliance is placed on an extract from paragraph 11 of his Honour’s judgment:
“… A worker who is overseas as part of his employment would prima facie enjoy the protection of the Act while engaged in sightseeing appropriate to the place where he found himself. That is a normal incident of a visit to a foreign country.”
The statement above quoted was made by his Honour in the course of his reasons for judgment when addressing the question as to whether the worker in that matter suffered injury in the course of employment within the meaning of section 4 of the 1987 Act. For that reason, if no other, little comfort can be gained by the Appellant’s reliance upon his Honour’s observations.
The worker in Hoskin established to his Honour’s satisfaction not only that the subject injury occurred in the course of employment but that the employment was a substantial contributing factor to the injury within the meaning of section 9A. His Honour addressed the medical evidence which was before him concerning the relevance of the fall sustained by the worker to the aggravation of a degenerative back condition suffered by him. His Honour’s reasoning, following acceptance of certain medical opinion, was that:
“The fall was responsible for two thirds of the consequent impairment. If it was an ‘employment’ fall then it obviously contributed substantially to the consequential back disability which constituted the injury.”
His Honour Judge Burke proceeded to state (at [15]):
“15. The applicant was in New Delhi for a relevant employment related purpose. There, in a short interval between conclusion of the formal course and boarding a plane for home, he engaged in a routine sight-seeing excursion. He sustained injury while doing so. Such an excursion was a normal incident of any visit to New Delhi. Such was a relevant employment activity much as the journey in Hatzimanolis, the meal in Kirkland and in Rolls. The employment was a substantial factor in the overall excursion to India. It was, I would believe, equally a substantial factor in the excursion to the Gandhi Memorial and the consequent fall. The fall was certainly a substantial factor in the consequent injury.”
It may be seen that the first portion of the paragraph above quoted addresses matters raised by section 4 of the 1987 Act. The last two sentences appear to address section 9A. No where in those sentences does his Honour address the question of the extent of any causal link between the employment and the injury (as was addressed in Mercer at [27]). There remains a further difficulty in placing reliance upon his Honour’s reasoning given the fact that in the short extract above quoted there appears to be a distinction drawn by his Honour between the fact of the fall (the injurious event) and “the consequent injury” such being the pathology which was the subject of earlier discussion in the course of his Honour’s reasoning.
The task before the Commission concerning the proper application of section 9A is not, in my view, assisted by the matters stated by His Honour Judge Burke and relied upon by the Appellant. The employment in the present case in my view was a contributing factor to the injury. That is, there is, to an extent, a causal nexus between the employment and the occurrence of the injury. I am however not satisfied having regard to all the circumstances that the employment was a substantial contributing factor to the injury.
The Court of Appeal in Dayton upheld the decision of Burke J at first instance where His Honour concluded that employment was not a substantial contributing factor to injury. It was said by Davies A-JA at [37]:
“…the words ‘substantial contributing factor’ require that compensation be paid only when the employment can be said to have contributed to the injury in a manner that is real and of substance. The section intends to exclude those many instances where as a result of legal theory and extension of thought, liability has been found in cases where, as a matter of practical reality, the contribution which employment has made to the injury has little substance.”
The Appellant seeks to distinguish the matter of Watson where the Deputy President found, on the facts, that the injury was not one within the section 4 definition. His reasons for so concluding are to be found at [80] of reasons:
“On the evidence, Mr Watson’s social activity was entirely unrelated to his employment and he simply utilised his own leisure time in Los Angeles, choosing to do something of a private nature. The course of employment may extend beyond the hours of duty and to certain breaks in work activity, but it does not include a time during which a worker is at a place or doing something otherwise than in, or that is reasonably incidental to, the performance of his or her employment duties (‘Mould’). Mr Watson’s social activity in this instance was not reasonably incidental to his employment. As I have said, he simply took advantage of the fact that his employment took him to Los Angeles, enabling him to visit his friends.”
I accept that the present case may be distinguished from Watson and, as has been found, the subject injury arose in the course of the Appellant’s employment. In Watson there was no need to consider section 9A and thus that decision does not afford any guidance as to proper evaluation of the present facts.
The employment factors in the present matter which may be seen as being to some extent causative include those matters which I have set out at [92 (i)-(v), (viii) and (x)]. Those factors, relative to the negligent conduct of the courier bicycle rider cannot in my view be said to be “important”. Such factors were not serious, weighty, sizeable or large as addressed by his Honour Judge Burke in Dayton. In the circumstances I conclude that the Appellant’s claim in respect of compensation benefits is defeated by application of section 9A to all relevant facts.
The Appellant has criticised the Arbitrator’s factual findings concerning the circumstances of injury. It is put- “ The Arbitrator has erroneously overlooked the fact that at the time of suffering his pleaded injuries the Appellant was returning to the respondent’s crew accommodation hotel in order to comply with his roster commitments to work on a respondent flight”.
The Appellant is correct to assert that the Arbitrator made no reference to his return to the hotel to take up his roster commitments. I am, however, not satisfied that any relevant factual error has been made by the Arbitrator. The fact that the injury occurred close to the end of slip-time before resumption of duty does not alter my view as to the nature of the employment as a contributing factor as expressed in [107] above.
The Appellant has made reference to the decision of an Arbitrator of the Commission in White v Qantas Airways Ltd WCC 1989/06 (23 June 2006 unreported). In that matter the Commission found in favour of a worker injured during slip time. There is no statement of principle in that decision that has any relevance to the task of determining the issues raised on the present facts.
Reliance was placed upon the decision of Armitage J in Reed. The worker in that matter was injured during slip-time following a fall in the bathroom of the hotel suite provided by the employer. His Honour, in finding for the worker, observed that having regard to section 9A the matter was “border line”. The matters taken into account by His Honour are set out at [54] of his reasons. As with the present case the Court there was determining a question of fact. There is no statement of principle to be found in that decision that has any bearing on the present task, that being determination and evaluation of the relevant facts.
It may be seen that, having reviewed the facts and considered the application of relevant principle and provisions, I have reached a conclusion similar to that of the Arbitrator being that there should be an award for the Respondent. In the circumstances I conclude, for the reasons expressed above, that the Arbitrator’s award in favour of the Respondent should be confirmed. The appeal is unsuccessful.
DECISION
The decision of the Arbitrator contained in the Certificate of Determination dated 2 January 2009 is confirmed but for the reasons stated in this decision.
COSTS
No order as to costs of this appeal.
Kevin O’Grady
Deputy President
27 May 2009
I, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
3
0