Harvey v Simon Blackwood (Workers' Compensation Regulator) - [2016] ICQ 14

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Harvey v Simon Blackwood (Workers’ Compensation Regulator) & Anor [2016] ICQ 014
PARTIES:	COLIN CECIL HARVEY (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (first respondent) QANTAS AIRWAYS LIMITED (second respondent)
FILE NO/S:	C/2016/1
PROCEEDING:	Appeal
DELIVEREDON:	18 July 2016
HEARINGDATE:	7 June 2016
MEMBER:	Martin J, President
ORDER/S:	1. The decision of the Regulator of 17 April 2015 is revoked. 2. The appellant’s claim is one for acceptance. 3. I will hear the parties on costs.
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant was a flight attendant for Qantas staying in a Los Angeles hotel with other cabin crew – where allegations of sexual assault were made against him by another colleague leading to his arrest and incarceration – where the appellant was later released, no charges having been laid – where an internal Qantas investigation found the allegations were unsubstantiated – where the appellant was diagnosed with post-traumatic stress disorder and major depressive disorder as a result of his arrest, incarceration and the allegations of sexual assault – where the appellant appeals the decision of the Commission to dismiss his appeal of the Regulator’s decision to reject his claim for compensation – whether the Commission erred in the process of finding that the injury had not arisen out of or in the course of the appellant’s employment – whether the appellant’s injury was sustained by reference to the place at which the injury occurred for the purposes of the test in Comcare v PVYW (2013) 250 CLR 246 and associated cases

– whether the appellant’s employment was a significant contributing factor to the injury

Workers’ Compensation and Rehabilitation Act 2003, s 11, s 32, s 33, s 34

CASES:
Blackwood v Civeo [2016] ICQ 001, considered

Comcare v PVYW (2013) 250 CLR 246, applied

Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529, considered

Harvey v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 211

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, applied

McCurry v Lamb (1992) 8 NSWCCR 556; [1992] NSWCA
169, considered

Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, considered

Westrupp v BIS Industries Ltd [2015] FCAFC 173; (2015) 68
AAR 188, considered

APPEARANCES:
RD Green instructed by LHD Lawyers for the appellant SP Gray directly instructed by the first respondent

MT O’Sullivan instructed by HWL Ebsworth for the second respondent

[1] Colin Harvey was a long-haul flight attendant employed by Qantas Airways. Early in the morning of 23 May 2013 he was asleep in his room at a hotel in Orange County, California. He was woken by officers of the Los Angeles Police Department who arrested him, handcuffed him, and took him to a police station where DNA swabs were taken. Later that morning he was transferred to Orange County Jail where he was placed in a holding cell with 20…

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: [2016] ICQ 14
Decision Date: 18 July 2016

CaseChat Overview and Summary

The appeal before the court was brought by Mr Harvey, a former flight attendant for Qantas, against the Workers' Compensation Regulator. The dispute revolves around Mr Harvey's claim for workers' compensation following allegations of sexual assault made against him by a colleague while he was staying in a Los Angeles hotel with other cabin crew. Although Mr Harvey was arrested and incarcerated, no charges were ultimately laid, and an internal Qantas investigation concluded that the allegations were unsubstantiated. As a result of the incident, Mr Harvey was diagnosed with post-traumatic stress disorder and major depressive disorder. The crux of the legal issues in this case pertains to whether the Commission erred in its determination that Mr Harvey's injuries did not arise out of or in the course of his employment. Additionally, the court was tasked with determining whether the appellant's employment was a significant contributing factor to the injury, and if the place where the injury occurred should be considered in assessing whether the injury arose out of or in the course of employment.

The court found that the Commission did not err in its assessment of the claim. It held that the injury did not arise out of or in the course of Mr Harvey's employment, as the critical factor was the place where the injury occurred. The court reasoned that the incident leading to Mr Harvey's injuries took place outside of his employment duties, and the events transpired during his personal time. Furthermore, the court determined that Mr Harvey's employment was not a significant contributing factor to the injury, as the events leading to the injuries were not work-related. Consequently, the appeal was dismissed, and the decision of the Regulator to reject Mr Harvey's claim for compensation was upheld.

In summary, the court held that the Commission did not err in dismissing Mr Harvey's appeal. The court found that the injury did not arise out of or in the course of Mr Harvey's employment, and his employment was not a significant contributing factor to the injury. As a result, the appeal was dismissed, and the decision of the Regulator to reject Mr Harvey's claim for compensation was upheld.

Orders