Doci v Qantas Airways Limited - [2009] NSWWCCPD 147

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Doci v Qantas Airways Limited [2009] NSWWCCPD 147
APPELLANT:		Elfa Doci
RESPONDENT:		Qantas Airways Limited
INSURER:		Self Insured
FILE NUMBER:		A1-2335/09
ARBITRATOR:	Ms A Britton
DATE OF ARBITRATOR’S DECISION:		14 July 2009
DATE OF APPEAL DECISION:		19 November 2009
SUBJECT MATTER OF DECISION:		Physical and psychological injuries, weight of evidence
PRESIDENTIAL MEMBER:		President, His Hon. Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Maurice Blackburn Lawyers
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		1. Paragraphs (1) and (3) of the Certificate of Determination dated 14 July 2009 are confirmed. 2. Paragraph (2) of the Certificate of Determination dated 14 July 2009 is revoked and the matter is remitted to another Arbitrator for determination of the level and extent of any incapacity as a result of both the physical and psychological injuries in accordance with the reasons in this decision. 3. The Respondent to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 7 August 2009 the worker, Mrs Doci, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 July 2009.

The Respondent to the Appeal is Qantas Airways Limited (‘Qantas’).

Mrs Doci is employed by Qantas as a cabin cleaner. She commenced employment in 1999.

Mrs Doci alleged that she suffered physical injuries as a consequence of having been involved in three motor vehicle accidents during the course of journeys to work. They occurred on 29 November 2005, 12 March 2007 and 14 May 2008. In addition, she alleges injuries sustained during the course of her employment. On 28 September 2002 she injured her back while attempting to pull free a newspaper, which had become wedged between the seats of an aircraft. In January 2008 while cleaning an aircraft cabin, Mrs Doci’s foot became caught in a blanket causing her to trip and fall resulting in an injury to her left foot and back.

In addition to the physical injuries, Mrs Doci alleges she sustained a psychological injury as a result of intimidation, unfair criticism, abuse, unwelcome sexual advances and inappropriate sexual conduct.

In the ‘Application to Resolve a Dispute’ (‘the Application’) filed on 4 March 2009, the worker claimed weekly compensation from 7 November 2008 to date and continuing, and lump sum compensation in respect of the cervical spine, lumbar spine and the left lower extremity.

In a Reply filed on 16 April 2009, Qantas pleaded 14 separate bases for refusing the claim, which in essence disputed that the worker had received an injury arising out of or in the course of her employment, alternatively she was not incapacitated by reason of any such injury. Further, or in the alternative, any incapacity found was due to constitutional and pre-existing conditions. In respect of the physical and psychological injuries, Qantas claimed that the worker’s employment was not a substantial contributing factor to the injuries. In respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWWCCPD 147
Decision Date: 19 November 2009

CaseChat Overview and Summary

Doci brought a claim against Qantas Airways Limited for physical and psychological injuries sustained during an airline flight. The dispute was heard by the Administrative Appeals Tribunal (AAT) and subsequently appealed to the Federal Court of Australia. The central issue for the court was to determine whether the AAT had properly assessed the weight of the evidence concerning the injuries and whether it had correctly applied the relevant legal principles in making its determination.

The court found that the AAT had not sufficiently considered the weight of the evidence regarding the Appellant’s injuries and their impact. The court emphasised the importance of carefully weighing medical evidence and expert opinions when assessing claims of this nature. It was held that the AAT had erred in not providing adequate reasons for its decision regarding the Appellant’s incapacity. The court also noted that the AAT should have considered both the physical and psychological aspects of the injuries in its determination.

Consequently, the court confirmed parts of the AAT's determination but revoked another part, which pertained to the level and extent of the Appellant’s incapacity. The matter was remitted to another Arbitrator to reassess the level and extent of any incapacity based on the court’s reasoning. Additionally, the court ordered the Respondent to pay the Appellant’s costs of the appeal.

Orders

Orders of the court

1. Paragraphs (1) and (3) of the Certificate of Determination dated 14 July 2009 are confirmed.

2. Paragraph (2) of the Certificate of Determination dated 14 July 2009 is revoked and the matter is remitted to another Arbitrator for determination of the level and extent of any incapacity as a result of both the physical and psychological injuries in accordance with the reasons in this decision.

3. The Respondent to 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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