Oaks Hotels and Resorts (Qld) Pty Ltd v Blackwood
[2014] ICQ 23
•17 July 2014
INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Oaks Hotels and Resorts (Qld) Pty Ltd v Blackwood and Anor [2014] ICQ 023
PARTIES:
OAKS HOTELS AND RESORTS (QLD) PTY LTD
(appellant)
v
SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)
(first respondent)
and
NATASHA KNAUER
(second respondent)CASE NO/S:
C/2014/1
PROCEEDING:
Appeal against a decision of the Commission
DELIVERED ON:
17 July 2014
HEARING DATE:
24 February 2014
MEMBER:
Martin J, President
ORDER:
Appeal dismissed
CATCHWORDS:
WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – TO INJURY – where the appellant sought to transfer the second respondent, an employee, to Brisbane premises from premises at the Sunshine Coast – where the second respondent was reluctant to transfer – where the appellant took steps to facilitate the free, temporary, accommodation of the second respondent in an apartment controlled by it, which was occupied by another employee – where the second respondent was assaulted by the other occupant of the apartment, and suffered personal injuries – whether the injuries arose from the employment – whether the employment was a significant contributing factor
Workers’ Compensation and Rehabilitation Act 2003, s 32
CASES:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited
Comcare v Mather (1995) 37 ALD 493; [1995] FCA 1216, considered
Comcare v PVYW (2013) 88 ALJR 1; [2013] HCA 41, applied
Davidson v Blackwood [2014] ICQ 8, referred to
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Hatzimanolis v ANI Ltd (1992) 173 CLR 473; [1992] HCA 21, referred to
Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519; [2006] QCA 48, consideredAPPEARANCES:
J W Merrell on behalf of the appellant, instructed by Aitken Legal
P B O’Neill on behalf of the first respondent, directly instructed
R E Reed on behalf of the second respondent, instructed by Maurice Blackburn Lawyers
Introduction
Ms Natasha Knauer, the second respondent, was employed by the appellant as a guest services agent (GSA) at the Oaks Seaforth Resort at Alexandra Headland on the Sunshine Coast. In late 2010 the CEO of the Oaks Group, Mr Brett Pointon, determined that Ms Knauer should be transferred to a GSA position at the Oaks Felix, a property located in the Brisbane CBD. Ms Knauer expressed certain concerns over this course of action, but accepted the transfer, taking up residence rent-free in the spare bedroom of an apartment in a different Oaks premises nearby, the Oaks Lexicon (Lexicon).
The ownership of the apartment was disputed by the appellant but, in the end, nothing turns on that as there is no contest that the appellant had control of the apartment. It was occupied by Mr Bill Barton, the caretaker of the Lexicon, and used as his residence on a rent-free basis. The Commission accepted that Mr Pointon facilitated an arrangement whereby Ms Knauer also occupied the apartment and had use of the second bedroom. It is accepted by the parties that Ms Knauer was sexually assaulted in her room by Mr Barton at around 5 am on 1 December 2010. She has sought workers’ compensation for the resulting psychological injuries. Her claim has been accepted by the insurer. That decision has been confirmed by the Regulator and again by the Commission. The appellant now appeals to this Court.
The appellant presses eleven grounds of appeal, namely, that:
“…
(a) the Commission erred in finding that the Appellant directed the Second Respondent that she could not receive visitors in Mr Barton’s apartment in the Oaks Lexicon apartments (the apartment);
(b) the Commission erred in finding that the Appellant facilitated the arrangement whereby the Second Respondent would reside in the apartment (the arrangement);
(c) the Commission erred in finding that the Appellant owned the apartment;
(d) the Commission erred in finding that the Appellant positively promoted the arrangement;
(e) the Commission erred in finding that the Appellant encouraged the Second Respondent to consider the arrangement;
(f) the Commission erred in finding that the Appellant endorsed the practicability and suitability of the arrangement by attesting to Mr Barton’s character;
(g) the Commission erred in finding that the Appellant offered accommodation to the Second Respondent;
(h) the Commission erred in finding that the Appellant offered encouraged the Second Respondent to accept an offer of accommodation in the apartment;
(i) the Commission erred in finding that the Appellant offered accommodation which was intended to ensure that the Second Respondent accepted the transfer and commended work at the Oaks Felix as a Guest Service Agent;
(j) the Commission erred in law in holding that, on the facts as found by the Commission, the Second Respondent’s personal injury was sustained in the course of her employment; and, or in the alternative
(k) the Commission erred in law in holding that, on the facts as found by the Commission, the Second Respondent’s employment was a significant contributing factor to the Second Respondent’s personal injury.” (emphasis in original)
The first nine grounds assert that the Commission erred in making a wide range of specific, intertwined findings of fact. The final two grounds amount to an assertion that the Commission erred in finding that the second respondent had suffered an injury as defined in s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (the WCRA)[1], on the facts as found by the Commission.
[1]The relevant version of the WCRA is Reprint 5B.
The nature of the appeal
This appeal is brought pursuant to s 561 of the WCRA. The principles that govern an appeal of this type are those set out by the High Court in Allesch v Maunz[2] and Fox v Percy,[3] recently summarised in Davidson v Blackwood.[4]
[2](2000) 203 CLR 172.
[3](2003) 214 CLR 118.
[4][2014] ICQ 8 at [8]-[13].
Entitlement to compensation
Ms Knauer is entitled to compensation if she has suffered an injury as that term was, at the relevant time, defined in s 32 of the WCRA (subsequently amended):
“(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.”
That Ms Knauer suffered a personal injury is not in dispute. Rather, it must be determined:
(a) whether her personal injury arose out of her employment, and
(b) whether her employment was a “significant contributing factor”.
After the evidence and submissions had concluded in the Commission, the High Court gave its decision in Comcare v PVYW[5]. The Commissioner sought, and received, further submissions on the applicability of the reasoning in that case. While that was eminently sensible, it must be borne in mind that the statutory test applied in Comcare v PVYW differs from the test in s 32 of the WCRA. The relevant provisions considered by the High Court were described in this way:
[2] The respondent claimed compensation for her injuries under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SR&C Act”). It provides that Comcare is liable to pay compensation in respect of an “injury” suffered by an employee. An injury for which compensation is payable includes a physical or mental injury “suffered by an employee … arising out of, or in the course of, the employee’s employment”. The question the respondent’s claim for compensation raised for the Administrative Appeals Tribunal (“the AAT”) and the courts below was whether her injuries were suffered “in the course of” her employment.
[5](2013) 88 ALJR 1.
The difference in the statutory provisions is obvious. The High Court did not have to consider whether Ms PVYW’s employment was a “significant contributing factor”. That added factor was considered by Keane JA in Newberry v Suncorp Metway Insurance Ltd[6]:
[41] … I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been “a significant contributing factor to the injury”. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment”.
[42] Further, there is no warrant in the language of s 32 of the WCRA for reading the words “if the employment is a significant contributing factor to the injury” as lessening the stringency of the requirement that the injury “arise out of the employment”, as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words “if the employment is a significant contributing factor to the injury” are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.
[6][2006] 1 Qd R 519.
The words “significant contributing factor” were introduced to a predecessor to the WCRA in 1994. Over time, that was changed to “the major significant factor” and then back again to its current expression. It is reasonably clear from the Explanatory Notes which accompanied some of the relevant Bills that the purpose of adding these terms was to “exclude those injuries which have only a minimal work related component”[7].
[7]See, for example, WorkCover Queensland Bill 1996 Explanatory Notes at 19.
With that in mind, I turn to the principles which were considered in Comcare v PVYW[8]—a case in which a Commonwealth employee was injured by a falling light fitting whilst engaged in sexual intercourse. French CJ and Hayne, Crennan and Kiefel JJ considered that the question of whether or not an injury arose from a person’s employment was to be determined according to the principles set out in Hatzimanolis v ANI Ltd.[9] In PVWY, their Honours stated:
“[38] The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not while engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.” (emphasis added)
[8](2013) 88 ALJR 1.
[9](1992) 173 CLR 473.
In applying these principles to the facts of Ms Knauer’s case, it is immediately apparent that Ms Knauer “suffered [personal] injury, but not while engaged in actual work” and that the personal injury has occurred “at and by reference to the place” at which she found herself at the relevant time. The Commission made findings in these terms,[10] and went on to consider whether or not Ms Knauer was induced or encouraged to be at the relevant place, that is to say, at the apartment, considering the following passage from the judgment of Kiefel J in Comcare v Mather:[11]
“[22] In my view "encouragement" is not to be taken as of narrow meaning and limited to some positive action and in specific terms which might lead the employee to undertake a particular activity or attend at a particular place. The two particular cases which their Honours in Hatzimanolis were concerned with in this context, The Commonwealth v. Oliver [1962] HCA 38; (1962) 107 CLR 353 and Danvers v. Commissioner for Railways (NSW) [1969] HCA 64; (1969) 122 CLR 529 involved, respectively, an expectation of presence coupled with a recognised practice and making available facilities for an employee's use. The facts in Hatzimanolis did not require the Court to discuss in greater detail what was encompassed by the phrase "induced or encouraged". To be said to have, expressly or impliedly, induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestions, recognition of practices, fostering of participation, or providing assistance and may include the exercise of discretion or choice on the part of the employee. Further attempt at definition would be fruitless. In each case, the question will be whether the attendance at the place at which or the undertaking in which the employee is involved when injured in an interval falls within the ambit of statements, acts or conduct made by the employer and what may be said to logically arise from them. And in each case, importantly, they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed.” (emphasis added)
[10]Decision at [104].
[11](1995) 37 ALD 493.
The Commission summarised its conclusion on this point:
“[148] … On the evidence, Knauer was in the Lexicon apartment because Oaks suggested she stay there and offered her free accommodation if she elected to do so. While the final decision about the arrangement was conditional on the agreement of both Barton and Knauer, Oaks facilitated the process and was pro-active in taking steps to bring the proposal to fruition.”
The Commission further contrasted Ms Knauer’s situation with that she might have found herself in had Mr Pointon or another Oaks employee merely put her in touch with a person in whose home she might have taken a spare room. The Commission considered it relevant, inter alia, that:
(a) Oaks owned the apartment at the Lexicon;
(b) This ownership allowed Oaks a measure of influence over Mr Barton’s use of the property;
(c) Oaks could not, in other circumstances, have obtained rent free accommodation for Ms Knauer;
(d) Oaks would not otherwise have been in a position to suggest that Ms Knauer ought not to receive visitors at the apartment;
(e) Ms Knauer’s stay was intended to be temporary; and
(f) No lease or tenancy agreement seems to have regulated the occupancy of the apartment at the Lexicon.
The consideration of these and other factors led the Commission to find that:
“[154] … Oaks encouraged Knauer to stay in Barton’s apartment and facilitated that arrangement. Oaks facilitated that arrangement in order to ensure that Knauer accepted the transfer to the Oaks Felix. Knauer did not seek the transfer to Brisbane and was reluctant to move to Brisbane for a range of reasons. The encouragement or inducement to stay in the Lexicon apartment was motivated by a desire to remove or diminish the barriers to transfer raised by Knauer and to effect the transfer. A consideration of the general nature, terms, and circumstances of Knauer’s employment in conjunction with the finding of facts lead [sic] to a conclusion that Knauer’s injury has been sustained with the course of her employment.”
The Commission went on to find, at [156]-[163], that Ms Knauer’s employment was a significant contributing factor to her personal injury because, inter alia, she was subject to transfer in accordance with her employment conditions and transferred to Brisbane by the appellant, and that while it was not the usual practice of the appellant to involve itself in matters of staff accommodation, it became involved in Ms Knauer’s case, partly in response to her reluctance to move. While the appellant submits that such a finding by the Commission was in error, it has not advanced any submissions capable of demonstrating this to be so.
Inducement and encouragement
The appellant challenges the detailed factual findings upon which the Commission found the appellant to have induced or encouraged Ms Knauer to take up residence in the apartment at the Oaks Lexicon. Grounds of appeal (j) and (k) notwithstanding, the appellant has not advanced any argument that would entitle it to succeed if these factual findings are left undisturbed.
The factual findings against which the appellant appeals are interlinked, and, together form part—not all—of the basis for the Commission’s finding that Oaks did indeed induce or encourage Ms Knauer to take up temporary residence in the apartment. No single finding is determinative in itself of that central and governing question. Accordingly, it is this more abstracted and necessarily composite finding of the Commission—that Oaks induced or encouraged Ms Knauer—that must be considered in this appeal. The individual grounds do, however, provide a starting point.
Receiving visitors—ground (a)
The appellant submits that the Commission was wrong to find that it directed Ms Knauer not to receive visitors. The appellant relies upon the evidence of Mr Michael Anderson, Chief Operations Officer of the appellant and argues that an inference cannot be drawn from his evidence that such a direction was given. It was, the appellant argues, not open for the Commissioner to hold that the direction was a permanent direction.
The only evidence (to which I was directed) from Ms Knauer on this point was after she had given evidence that Mr Anderson had called her after she had had a conversation with Mr (Bill) Barton. In that latter conversation she had told Mr Barton that she wanted to view the apartment with her father, mother, sister and partner. Mr Barton had told that the time proposed was not convenient.
“ … What did Mr Anderson say to you? – He said that Bill was upset[,] that it was the manager’s unit, I was only to – it was only for me only and that I wasn’t allowed to have anyone there, and I was to follow – sorry, yeah, follow his instructions and pretty much keep Bill happy because it was his unit too.”[12]
[12]T 1-19.
I was not directed to any cross-examination where it was put to a witness for the appellant that a direction of the type found by the Commissioner had been made. It seems not to have been a matter of great import as, likewise, it was only put to Ms Knauer that she was told that she needed to work out with Mr Barton what was acceptable in terms of who comes and goes from the unit.
The evidence which was available was sufficient to justify a finding that Ms Knauer had to consult with or, perhaps, obtain Mr Barton’s permission concerning who might visit the apartment. There was no evidence which justifies the finding of a permanent direction of the type found by the Commissioner.
Ownership of the apartment—ground (b)
The appellant challenges the Commission’s finding that the appellant owned the apartment at the Felix in which Ms Knauer was assaulted. It asserts that the fact it did not own the apartment is “incontrovertible”. The evidence from the appellant was inconsistent on this point. In any event, so far as is relevant, the real issue was the extent of control the appellant had over the apartment. It was accepted by Mr Merrell during argument that his client controlled it to the extent that it allowed Mr Barton to reside there.
Facilitating the agreement—ground (c)
The appellant challenges the Commission’s finding that the appellant facilitated the arrangement whereby the appellant would reside in the apartment. It argues:
“The inference cannot be drawn that the Appellant facilitated – that is made it easy of made it less difficult [referring to the Macquarie Dictionary] – the arrangement whereby the Second Respondent would reside in the apartment. This is because the arrangement was something that was and could only be entered into by agreement between the Second Respondent and Mr Barton. The Appellant could not facilitate the arrangement that the Appellant and the Second Respondent entered into if it did not require or direct either the Second Respondent or Mr Barton to accept or agree to the arrangement. There was not evidence of any pressure applied by Oaks for the arrangement to be entered into.”[13] (emphasis added, citations omitted)
[13]Appellant’s submissions at [31].
This submission takes an unjustifiably narrow view of what it means to facilitate an arrangement, and a view that is not supported even by the definition that the appellant refers to: to make easy or less difficult. While it is true that an agent facilitates a transaction entered into on behalf of a principal, it is also true that a third person or party may facilitate a transaction between parties who ultimately enter into an agreement amongst themselves. This might be done, for example, by bringing the parties together, or by removing obstacles to their agreement. It might also be done by explaining the possible benefits of an arrangement, or by addressing any concerns that a party might have. It may be of relevance that the third party has a stake in, or measure of control over all or part of the subject-matter of the proposed agreement, or even a measure of influence, which may be formal or informal, over the parties. In short, what it is to facilitate an agreement will vary as a function of—at the very least—the relationships between each person or party and the putative facilitator, the circumstances in which the proposed agreement arises, and the subject-matter of the proposed agreement. There is no reason that the word “facilitate” should take anything other than its ordinary meaning, which is potentially both flexible and wide.
Accordingly, the argument that because the appellant did not direct Ms Knauer or Mr Barton to enter into the relevant arrangement there could not have been facilitation is unpersuasive. Whether the record discloses facts that are capable of supporting a finding such as that made by the Commission is considered below.
Positive encouragement to consider the arrangement—grounds (d) and (e)
The appellant submits that the Commission’s finding that the appellant positively promoted or encouraged Ms Knauer to consider the arrangement was contrary to incontrovertible facts. The facts to which the appellant has referred are not inconsistent with the Commission’s findings. The Commission accepted that the arrangement between Ms Knauer and Mr Barton depended upon mutual consent, and that Oaks was not, strictly speaking, a party to this arrangement.[14] The Commission also observed, however, that:
“[131] … The fact that Knauer held special project status is a consideration. This meant that Pointon [the CEO] was intervening to an unusual extent. When the CEO of a company personally intervenes and makes suggestions or requests, it would not be uncommon for such requests or suggestions to be interpreted as instructions. This in turn has a bearing on the freedom of choice open to Barton when Pointon asked him to consider sharing his apartment with Knauer.”
The Commission went on determine that:
“[133] … The correct view on the evidence is that the idea that Knauer might be able to stay with Barton arose from a discussion where Knauer was raising obstacles to her transfer to Brisbane and Pointon, who know there was no other option, was looking for compromises or suggestions which right resolve the doubts about the transfer that Knauer held.”
[14]See Decision at [132].
This ground also fails.
Mr Barton’s character—ground (f)
The Commission found that the appellant, in attesting to Mr Barton’s good character, endorsed the practicability or suitability of the arrangement. The appellant submits that this inference cannot be drawn from the facts as found. The appellant submits:
“Mr Pointon did say to the Second Respondent in the November 2010 meeting that he had known Mr Barton for many years and that he was a nice guy. But when that was said to the Second Respondent, it was not in the context of the arrangement having been entered into between the Second Respondent and Mr Barton, but in the context of Mr Pointon suggesting that the Second Respondent and Mr Barton may meet to see if they could agree to such an arrangement.” (citations omitted)
This argument assumes a state of affairs in which the appellant did no more than suggest that Ms Knauer and Mr Barton should meet, a state of affairs that is not sustained by the evidence and one which the Commission expressly rejected. The submission is itself illogical: an endorsement or recommendation is of much greater importance to someone who is considering a potential course of action than it is to a person already set upon a decision. The Commission was entitled to consider Mr Pointon’s statements as to Mr Barton’s character in determining whether or not the appellant encouraged or induced Ms Knauer to consider the arrangement. While such a finding may amount to little in itself, it is of course something that may be considered in a proper assessment of all relevant circumstances.
An offer of accommodation by Oaks?—grounds (g) and (h)
The appellant submits that the Commission erred in finding that Oaks made an offer of accommodation in Mr Barton’s apartment to Ms Knauer, referring to the following paragraph of the Commission’s decision:
“[138] The question for determination is whether or not the evidence supports a finding that Knauer was encouraged or induced by Oaks to stay in the apartment in the Lexicon. I am satisfied that Oaks facilitated the accommodation arrangement; positively promoted the arrangement with Knauer; encouraged Knauer to consider the arrangement; and in attesting to Barton’s character endorsed the practicability and suitability of the arrangement. These considerations indicate that Oaks encouraged Knauer to accept the offer of accommodation in Barton’s apartment.” (emphasis added)
Nothing turns on this inference that the appellant draws from the Commission’s reasons. The Commission accepts, elsewhere, that the arrangement ultimately depended upon the consent of Mr Barton and Ms Knauer, and that the appellant did not formally direct them to agree.[15] Once it is accepted that the appellant owned or controlled the apartment, and that Mr Barton occupied it rent-free under an oral agreement, it follows that the appellant’s consent was necessary—albeit at some remove—for Ms Knauer to take up residence at the apartment. I consider that the passage the appellant refers to indicates nothing more than this.
[15] Decision at [132]-[133].
Encouragement to accept the offer—ground (h)
The appellant contends that, in paragraph [139] of his reasons, the Commissioner found that the appellant offered accommodation to Ms Knauer and encouraged her to accept an offer of accommodation. That paragraph reads:
“[139] There are other factors that bear on the issue. The accommodation at the Lexicon was provided to Knauer free of charge. The inference was therefore that Barton could not charge Knauer rent. Also Oaks directed Knauer that she could not receive visitors in the apartment. Pointon's personal interest in Knauer's welfare contributed to a result wherein Pointon wanted Knauer to accept the transfer to the Felix and led him to taking offers designed to assist Knauer and facilitate her relocation from the Sunshine Coast to Brisbane. A conclusion that Pointon's offer of free accommodation at the Lexicon (albeit in Barton's apartment) was intended to ensure that Knauer accepted the transfer and commenced work as a GSA at the Felix is inescapable.”
In order to understand it properly, the previous paragraph must be considered once more:
“[138] The question for determination is whether the evidence supports a finding that Knauer was encouraged or induced by Oaks to stay in the apartment in the Lexicon. I am satisfied that Oaks facilitated the accommodation arrangement; positively promoted the arrangement with Knauer; encouraged Knauer to consider the arrangement; and in attesting to Barton's character endorsed the practicability or suitability of the arrangement. These considerations indicate that Oaks encouraged Knauer to accept the offer of accommodation in Barton's apartment.”
The reference to an “offer of free accommodation” must be read in the light of all that preceded it. The appellant had, in effect, offered accommodation. It was in a position to require that the spare bedroom in the unit be made available. The interaction with Mr Barton was nothing more than an appropriate degree of respect and a recognition that his opinion was of importance.
In these two paragraphs the Commissioner identified—correctly—the issue he had to consider and then went on to list some of the matters which he regarded—correctly—as relevant to the determination of that issue. The findings which he made earlier were consistent with and justified the summary he made of the matters which he saw as relevant. What the Commissioner did was entirely unexceptional: he had made a series of findings and he then used those to reach his conclusion.
Offer of free accommodation to ensure acceptance of transfer—ground (i)
The appellant submits that there was no transfer for Ms Knauer to accept as the decision had been made unilaterally by it. But, the evidence was that Mr Pointon said that he had “worked with her to try and address each concern”. One of those concerns related to the fact that she had no family or friends in Brisbane with whom she could stay and her financial situation was such that she could not afford to pay for accommodation. At about that time, Mr Pointon proposed the option of taking up the spare room in Mr Barton’s unit.
While it might be said that the decision to transfer was solely that of the appellant, Mr Pointon did say that, although a decision had been made to transfer, he still wanted to speak to Ms Knauer before the decision was made final. In cross-examination the following appears:
“Well, she didn’t really have an option about it, did she? She was going to be placed at the Felix? - - I gave – I wanted to work with her to get her into that position. I didn’t want to say, ‘this is where you’ll be going, you have no choice”. I wanted her to feel comfortable with that position, and if she had said, ‘no’ to that position, I’m not sure what we would have done.”
In circumstances where the appellant wanted Ms Knauer to move to Oaks Felix, and where she was concerned about accommodation and her inability to afford it, and there was a proposal put forward about sharing the accommodation with Mr Barton, and where Ms Knauer was told that this would be made available to her at no charge, then it was open for the Commission to draw the inference that the offer made of sharing the accommodation was in fact intended to assist in mollifying some of Ms Knauer’s concerns and to encourage her to take up the accommodation.
Holding that on the facts as found, the personal injury was sustained in the course of her employment, and that the employment was a significant contributing factor—grounds (j) and (k)
This conclusion can only be reached if most, if not all, of the arguments mounted by the appellant are accepted. For the reasons given by the Commissioner (subject to the conclusions I have made above) it was open to him to conclude that the injury was sustained in the course of her employment. Further, it was open to him to find that the employment had been a significant contributing factor to her injury.
In paragraphs [156]-[163] of his reasons the Commissioner explains his finding that the employment was a significant contributing factor to the injury. In doing so he referred to Newberry v Suncorp Metway[16] and said the following:
“[162] The matter for resolution is whether the facts of this case give rise to a set of employment related circumstances or exigencies of employment which have contributed in a significant way to the occurrence of Knauer’s injury. In [Q-Comp v] Kennerley [[2012] QIRComm 723] Hall P arrived at his decision that employment was a significant contributing factor to the injury by concluding that ‘it was the nature and terms of his employment together with decisions and initiatives of Qantas, which caused Mr Kennerley to be riding his motorbike where and when he was injured.’
[163] In this case the exigencies of employment derive from the employer’s decision to transfer Knauer to one of its Brisbane properties. It was a condition of Knauer's employment that she may be subject to transfer. A general clause to this effect was included in her letter of offer. In more particular terms Knauer knew when Oaks engaged her that she would be transferred from the Seaforth once her training and probationary period ended. While it was not the practice of the employer to provide assistance to transferees in the form of temporary accommodation, an exception was made for Knauer. Knauer was reluctant to relocate to Brisbane and in order to persuade her to take the step and to facilitate the relocation, her employer offered to provide free temporary accommodation, and encouraged Knauer to accept the shared arrangement on offer. It is these circumstances, and the related facts, that lead to a conclusion that there was a sufficient connection between Knauer's employment and the injury for the employment to be a significant contributing factor.”
[16][2006] 1 Qd R 519.
The reasons expressed in those paragraphs are consistent with the findings of fact made by the Commissioner and are consistent with the principles to which he adverted earlier in his reasons.
Conclusion
The appellant has not demonstrated any error sufficient to require that this appeal be allowed. The appeal is dismissed.
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