Da Ros v Qantas Airways Ltd

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Appeal Outcome: Special leave refused with costs by the High Court (s126/2010) 1 October 2010.

New South Wales


Court of Appeal


CITATION: DA ROS v QANTAS AIRWAYS LIMITED [2010] NSWCA 89
HEARING DATE(S): 16 April 2010
 
JUDGMENT DATE: 
28 April 2010
JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Basten JA at 3
DECISION: (1) Allow the appeal and set aside the decision of 27 May 2009 made by the Workers Compensation Commission constituted by Deputy President O’Grady.
(2) Order that the Commission reconsider the appellant’s appeal against the decision of the Arbitrator according to law, on the basis that the appellant’s employment was a substantial contributing factor to the injury.
(3) Order that the respondent pay the appellant’s costs of the appeal.
CATCHWORDS: APPEAL – civil - statutory appeal – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353 – point of law - competency - WORDS AND PHRASES –"substantial contributing factor" – Workers Compensation Act 1989 (NSW) s 9A - WORKERS COMPENSATION – employer's liability – whether employment a "substantial contributing factor" - accident occurring during 'slip-time' but in the course of the employment
LEGISLATION CITED: Workers Compensation Act 1987 (NSW), ss 4, 9, 9A
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353
CATEGORY: Principal judgment
CASES CITED: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389
Dayton v Coles Supermarkets Pty Ltd (2000) 19 NSWCCR 526
Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626
Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740
Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313
Watson v Qantas Airways Limited [2009] NSWCA 322
Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310
PARTIES: Saverio Da Ros (Appellant)
Qantas Airways Limited (Respondent)
FILE NUMBER(S): CA 2009/00298345
COUNSEL: L King SC/B G McManamey (Appellant)
J W Catsanos (Respondent)
SOLICITORS: Turner Freeman (Appellant)
Moray & Agnew (Respondent)
LOWER COURT JURISDICTION: Workers Compensation Commission
LOWER COURT FILE NUMBER(S): WCC 7547/08
LOWER COURT JUDICIAL OFFICER: Deputy President O'Grady
LOWER COURT DATE OF DECISION: 27 May 2009
LOWER COURT MEDIUM NEUTRAL CITATION: Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58





                          CA 2009/00298345
                          WCC 7547/08

                          TOBIAS JA
                          McCOLL JA
                          BASTEN JA

                          28 April 2010
Saverio DA ROS v QANTAS AIRWAYS LIMITED
Headnote

On 9 September 2005, the appellant, then a long-haul flight attendant working with Qantas Airways Limited ("Qantas") was in Los Angeles, USA on 'slip-time' between flights. Whilst returning to the hotel accommodation provided by Qantas for its crew, he was knocked off his bicycle and suffered injuries. He claimed compensation under the Workers Compensation Act 1987 (NSW).

On 23 September 2008, the appellant filed with…

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Details
Case
[2010] NSWCA 89
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Mr. Da Ros (the appellant) and Qantas Airways Ltd (the respondent) regarding a workers compensation claim. The appellant sought to appeal a decision of the Workers Compensation Commission constituted by Deputy President O’Grady to the Court of Appeal of New South Wales. The central issue was whether the appellant's employment constituted a "substantial contributing factor" to his injury, which occurred during what was described as 'slip-time' but was alleged to be in the course of his employment.

The Court of Appeal was required to determine whether the Deputy President had erred in law in his assessment of the appellant's claim. Specifically, the court had to consider the proper interpretation and application of section 9A of the *Workers Compensation Act 1989* (NSW), which requires employment to be a "substantial contributing factor" to an injury for an employer to be liable. The appeal was brought under section 353 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which permits appeals to the Court of Appeal on a question of law.

The Court of Appeal found that the Deputy President had misconstrued the relevant legal principles. It held that the Deputy President had failed to properly consider the evidence in light of the statutory test. The court reasoned that the Deputy President's approach had led to an erroneous conclusion regarding the appellant's employment being a substantial contributing factor to his injury. Consequently, the court allowed the appeal, setting aside the decision of the Workers Compensation Commission.

The Court of Appeal ordered that the matter be remitted to the Workers Compensation Commission for reconsideration according to law, with the specific direction that the appellant's employment was to be treated as a substantial contributing factor to the injury. The respondent was also ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside the decision of 27 May 2009 made by the Workers Compensation Commission constituted by Deputy President O’Grady.

(2) Order that the Commission reconsider the appellant’s appeal against the decision of the Arbitrator according to law, on the basis that the appellant’s employment was a substantial contributing factor to the injury.

(3) Order that the respondent pay the appellant’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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