Qantas Airways Limited v Arnott - [2013] NSWWCCPD 35

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Qantas Airways Limited v Arnott [2013] NSWWCCPD 35
APPELLANT:	Qantas Airways Limited
RESPONDENT:	Gregory Alan Arnott
INSURER:	Qantas Workers Compensation
FILE NUMBER:	A1-11182/11
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:	28 February 2013
DATE OF APPEAL DECISION:	17 June 2013
SUBJECT MATTER OF DECISION:	Section 4 and 9A of the Workers Compensation Act 1987; application of the principles in Hatzimanolis v ANI Corporation Ltd [1992] 173 CLR 473; whether injury arising out of or in the course of employment; worker assaulted during slip time in foreign city.
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	Leitch Hasson & Dent
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 28 February 2013 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

The respondent to the appeal, Mr Arnott, is employed by the appellant, Qantas Airways Limited (Qantas), as a long haul flight attendant.
On 8 October 2011, Mr Arnott was scheduled to work an eight day flight pattern from Sydney to Dallas and return. He commenced duties at the Qantas base at Mascot on 8 October at 1.00 pm. The flight arrived in Dallas on 8 October 2011 at 2.00 pm.
Mr Arnott was transferred by crew bus to the Qantas crew accommodation hotel, the Renaissance Worthington Hotel Dallas Forth Worth.
Mr Arnott was scheduled to remain in Dallas until the return flight at 10.00 pm on 12 October 2011. The interval in between times is referred to as slip time.
On the evening of 8 October 2011, Mr Arnott met a number of colleagues at approximately 7.00 pm in the lobby of the hotel and walked to a nearby restaurant “Riscky’s BBQ” which was located a short distance from the hotel. Around 9.30–10.00 pm on the evening of 8 October 2011, Mr Arnott and his colleagues walked a short distance from the restaurant to the Lone Star bar to listen to live music.
Mr Arnott claimed that he consumed one margarita at the restaurant and two stubbies of beer while at the Lone Star bar. He remained at the bar for approximately 30 minutes after his colleagues had left to return to the hotel.
Between 2.00 am and 2.30 am on 9 October 2011, Mr Arnott was walking alone from the Lone Star bar back to the hotel he was staying in when he was assaulted. He has no recollection of the assault. He alleges a closed head injury, dental and facial injuries, injuries to his right upper extremity, and cervical and lumbar spine injuries as a result of the assault.
When Mr Arnott was admitted to the Tarrant County Hospital at 3.02 am on 9 October 2011 his blood alcohol concentration was recorded at 0.261 grams of alcohol per 100 grams of blood.
On 31 October 2011 Mr Arnott submitted a claim for weekly payments…

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: [2013] NSWWCCPD 35
Decision Date: 17 June 2013

CaseChat Overview and Summary

Qantas Airways Limited has appealed against an Arbitrator's decision which found that an injury sustained by the respondent, an employee, was compensable under the Workers Compensation Act 1987. The injury occurred when the employee was assaulted during a slip time in a foreign city. The Arbitrator held that the injury arose out of or in the course of employment and was therefore compensable. The appeal was heard by the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue in the appeal was whether the injury sustained by the employee during the slip time in a foreign city arose out of or in the course of employment. The appeal hinged on the interpretation and application of sections 4 and 9A of the Workers Compensation Act 1987 and the principles set out in Hatzimanolis v ANI Corporation Ltd [1992] 173 CLR 473. The court considered whether the slip time could be considered part of the employee's employment and whether the assault could be seen as an incident integral to the employment.

The Court of Appeal found that the Arbitrator's determination correctly applied the principles in Hatzimanolis and the relevant provisions of the Workers Compensation Act 1987. The court held that the slip time was integral to the employment, as the employee was still subject to the employer's control during that period. Additionally, the assault occurred during the slip time, which was an integral part of the employee's employment. The court concluded that the injury arose out of or in the course of employment and was therefore compensable. The appeal was dismissed and the Arbitrator’s determination was confirmed.

The Court of Appeal ordered that the Arbitrator’s determination of 28 February 2013 be confirmed and that the appellant employer pay the respondent worker’s costs of the appeal.

Orders

Orders of the court

1. The Arbitrator’s determination of 28 February 2013 is confirmed.

2. The appellant employer is to pay the respondent worker’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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