Qantas Airways Limited v Da Ros
[2010] HCATrans 257
[2010] HCATrans 257
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S126 of 2010
B e t w e e n -
QANTAS AIRWAYS LIMITED
Applicant
and
SAVERIO DA ROS
Respondent
Application for special leave to appeal
HAYNE J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 1 OCTOBER 2010, AT 10.38 AM
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR L.G. MORGAN, for the applicant. (instructed by Moray & Agnew Solicitors)
MR B.T. TOOMEY, QC: May it please your Honours, I appear with my learned friend, MR B.G. McMANAMEY, for the respondent. (instructed by Turner Freeman Lawyers)
HAYNE J: Yes, Mr Jackson.
MR JACKSON: Your Honours, the application concerns the terms of section 9A(1) of the Workers Compensation Act 1987 (NSW). Your Honours, may I just say something very briefly about the legislative scheme. In order to satisfy workers compensation the respondent had to satisfy two requirements. The first was that it was necessary to show that the injury arose out of, or in the course of, his employment. Your Honours will see that from section 9, which is on the second page of the authorities book, and you will see that in relation to section 9(1) there is “injury” referred to and then on the preceding page, section 4(a), “injury” means, relevantly:
personal injury arising out of or in the course of employment –
That was the first requirement. The second requirement, your Honours, was that it was necessary to show, because of section 9A(1), which is at page 3, that the employment was a substantial contributing factor to the injury. Your Honours, section 9A(3) makes it apparent that the second test is not satisfied, or necessarily satisfied, by the fact that the injury was suffered in the course of, or arose out of, the employment.
I do not think I need to take your Honours at all to the facts of the matter which are very simple and your Honours will be aware of them, but the Court of Appeal’s reasoning - and I will take your Honours to the three relevant passages in just a moment - appears to have treated the requirements of section 9A(1) as necessarily being satisfied because the injury occurred in the course of the respondent’s employment.
Could I take your Honours to the first of those passages. It is at page 39 of the application book in paragraph 21 of the Court of Appeal’s reasoning. You will see, your Honours, at about the seventh line in that paragraph, it said:
The appellant was there, on his bicycle, “in the course of his employment”. That finding having been made, it would appear to follow that the employment concerned was a substantial contributing factor.
Then in paragraph 24, page 40 in the fourth line, it said:
Because it –
and the “it” is what is referred to in the preceding three lines –
was one of two contributing factors (the other being the presence of the courier at the same place at the same time) it is difficult to understand why it would not be a substantial contributing factor.
The third passage, your Honours, is in paragraph 28 on page 42 where it is said:
In the present case there are two reasons for concluding that the test to be applied pursuant to s 9A was erroneously formulated. First, the Deputy President introduced qualifying epithets into the statutory language . . . Secondly, he applied an additional requirement which diminished the connection between the activity giving rise to the injury and the employment, although that activity was found to have occurred in the course of the employment.
Then your Honours will see, if one goes to the actual order that was made by the Court of Appeal which is on page 43, order 2 was an order that the Commission reconsider the matter –
on the basis that the appellant’s employment was a substantial contributing factor to the injury.
What appears to be the case, your Honours, is that whilst one sees at paragraph 25 in the Court of Appeal’s reasoning - that is at the top of page 41 - that there was a possible exception introduced into the general proposition to which I have referred, and is in paragraph 24, that that is a very narrow qualification and, your Honours, one which, in our submission, is indeed unduly narrowing of the requirement of section 9A(1).
Your Honours, it seems clear and is made expressly apparent by section 9A(3) that section 9A(1) raises a question which is different from that raised by section 9. It inherently involves a question of comparison and Justice Handley, in our submission, was right - if one goes to the authorities book in the decision in Badawi at about page 55 of the numbering at the bottom of the right‑hand page, your Honours will see in paragraph 150 - I think I said page 55, I should have said page 56, I am sorry, your Honours. In paragraph 150, His Honour said there was:
a fundamental difference for the purposes of s9A between an injury which occurs during actual work, or on the employer’s premises, and one which occurs during an interval between periods of work or within an overall period of work. It is much more difficult to find that the employment was a substantial contributing factor in the latter situation.
In paragraph 151 his Honour said, and that is the term, either he agreed that:
the appropriate meaning of substantial . . . means “real and of substance”, but cannot agree that this is no more than a synonym for “not remote or tenuous” –
Your Honours will see the next sentence in his Honour’s reasons, which we would submit is certainly arguably the better view of the provision, namely that –
a finding that the employment was not a remote or tenuous contributing factor is not equivalent in my opinion to a finding that it was a substantial one.
Paragraph 153, your Honours will see - I shall not read it out. May we make two comments about the arguments that have been advanced by our learned friends in their written submissions. The first concerns the reliance - and this is at page 61 o the application book in paragraphs 8 to 12 - upon observations of Justice Kitto and Justice Windeyer in the Federal Broom Co Case.
May we just say, your Honours, without going to the case itself, that the issue raised by the legislation in that case was a quite different one. The question there was whether the employment was a contributing factor to the worsening of a psychiatric condition. There is a quite different question here, namely whether the employment was a substantial contributing factor to the injury.
The second matter, your Honours, is this. Your Honours will see at paragraphs 7 and, I think 13 and 14 of those submissions, a reliance upon Badawi. Badawi says that “real and substantial” in the context means real and of substance and, your Honours, in one sense that is simply to say “substantial” means substantial, with respect, but having said that, what seems to be derived from that and what is reflected in the judgments sought to be impugned in this case is what appears in our learned friend’s submissions in paragraph 16 at page 63, and in the last five or six lines where it is said:
The latter is clearly a reference to other circumstances where the causal connection between the employment incident or state of affairs is so tenuous that the employment is not a contributing fact which is real and of substance.
Your Honours, if the position is that the circumstances are ones that only involve no substantial contributing factor in a very limited set of circumstances, one would think, your Honours, that the rigor, to the extent that it is there, contemplated by the ordinary meaning of the phrase “substantial contributing factor” has gone and we would submit that the passage to which we referred in Justice Handley’s reasons in Badawi was correct. Your Honours, to put it shortly, we would submit the case is one which is important for the reasons we have set out in our written submissions and, your Honours, it raises the issue in a short and direct form.
HAYNE J: Mr Jackson, two questions, if I may. First, if leave were to be granted would you seek to impugn the majority decision in Badawi?
MR JACKSON: We do, your Honour, but I have to say in some respects and what I mean by that is the decision in Badawi seems to say in the first place that the meaning of “substantial” is real and of substance. Your Honours, it is a question what that means, of course, and so we would say that to have said that is a helpful, perhaps, paraphrase of the word but if it does not convey the notion that there is an element of comparison involved then that should not be followed - an element of comparison in the sense to which I have endeavoured to refer a moment ago.
HAYNE J: The second question is this. Recognising that the way the Court of Appeal in this matter expresses its reasons can be described as compressed, perhaps, is it a case in which the respondent’s employment put him where the accident happened? The accident happened during a period of leisure time that was being paid for by his employer. He was on a bicycle provided by the employer, having been encouraged by the employer to keep fit and explore the city where the accident occurred and the accident happened as he was returning to the place where he would report for duty.
MR JACKSON: Your Honour, could I just say I accept those matters, indeed you will see them referred to, I think, in the statement of facts as being - and also in the judgment in the Deputy President in the Tribunal as the facts that really put one side of the case, as it were.
HAYNE J: Yes.
MR JACKSON: But the question is, in the end, whether they amount to a substantial contributing factor to the injury. That is the phrase.
HAYNE J: Yes. Is it the position that your side of the record would have to take that those factors could not be understood as making the relevant substantial contribution?
MR JACKSON: Your Honour, could I put it slightly differently, because I do so because of the restrictions on appeal. The way in which the Court of Appeal dealt – we had a finding in our favour on whether it was or was not a substantial contributing factor. There was an appeal which had to be based on a question of law. I may not have the phrase exactly right in saying that, but that was a relevant criterion.
Your Honour, in dealing with that, the Court of Appeal took the view that no other result was possible on the facts, thus giving rise to the question of law. We would accept, I should think, that perhaps a possible view might have been taken that it was a substantial contributing factor at first instance and if that had been done we might have had difficulty trying to set that aside as giving rise to a question of law, but the result would be, in our submission in this case, that if we did succeed in the appeal the matter would be one where the judgment that was given at first instance was one that was – when I say at first instance, I mean by the Deputy President – restored.
HAYNE J: Yes, thank you, Mr Jackson. Yes, Mr Toomey.
MR TOOMEY: May it please your Honours, the Court of Appeal set aside the judgment of the Deputy President because of two errors. One is to be found at page 20 of the book in paragraph 107. That is the Deputy President’s finding that the employment was a contributing factor but was not a substantial contributing factor and on the next page - this was also held by the Court of Appeal to be an error - paragraph 111:
The employment factors in the present matter which may be seen as being to some extent causative include those matters which I have set out at [92 (i)‑(v), (viii) and (x)].
If I could say this, those are largely the matters that your Honour Justice Hayne referred to in the second question to my learned friend.
Those factors, relative to the negligent conduct of the courier bicycle rider cannot in my view be said to be “important”.
That incorporates two errors. One, it applies a test which is not to be found in the statute and, secondly, it applies a process which is not to be found in the statute, that process being a comparison of some factors against other factors.
Now, your Honours, may I remind you that the words in the statute are “a substantial contributing factor”, not “the substantial contributing factor”, which contemplates a number of contributing factors, of substantial contributing factors, but the learned Deputy President there was clearly contemplating a comparison to find the substantial contributing factor. That left the position as being that the Deputy President had found that the employment was a contributing factor to the incident in the course of employment and in deciding whether it was substantial or not he had made an error of law.
In fact he had made two errors of law because he made two substantial mistakes. As Justice Kitto said in the Federal Broom Case paraphrase leads to fallacy and that is what has happened. When you read this judgment there are about six different formulae provided by the Workers Compensation Court as to what they mean. Here the question was whether it was substantial, not whether his employment was more or less substantial than the activities of the courier driver.
That really was a question which did not arise because they were all part of the one incident, and if the employment contributed to the incident it had to, in our respectful submission, be substantial, not because we ignore 9A(3) any more than the Court of Appeal did. After all it is part of the statute and it would be a very curious thing if the Court of Appeal said “We are construing the result in respect of section 9A on the basis of the fact that this happened in the course of employment. Section 9A(3) says we cannot do that”. That would be perverse really and, in our respectful submission, without a direct statement to that effect your Honours would not find that it was so.
But, your Honours, that left the Court of Appeal in this position. The wrong question had been asked; not whether it was a substantial contributing factor but an important contributing factor, and the wrong process was used. Instead of asking was it a substantial factor, the Deputy President apparently asked was it the most important of more than one contributing factor. Was it the more important of a number of contributing factors, and if it was not, then it was not substantial. That simply cannot, with respect, be the intention of the legislature.
Then the Court of Appeal were left, having isolated these two clear errors, with a situation where there had been a hearing before an arbitrator, a hearing before a deputy president of the Workers Compensation Commission, where all the facts had been found and the question was whether they decided it or whether they sent it back. They took the view that there was no point in sending it back because there was only one possible result and, we would say, with respect, they were clearly right.
Your Honour Justice Hayne’s remark that the respondent was encouraged to ride the bike, it was a Qantas bike and he was given it by Qantas, but more than that he was directed and required to stay fit and it was in that context that he was given the bike. He was given the bike to ride on the streets of Los Angeles, which is not a village. All of these things must have been in the contemplation of the employer as contributing to the employment and it would seem, with respect, an extraordinary result that he was encouraged and directed - encouraged to familiarise himself with the locale, directed to keep himself fit, given a bike, was injured in a manner which is clearly foreseeable, to descend to the common law, in the circumstances in which he was using it.
CRENNAN J: Keeping fit, I suppose, could be seen as critical to his ability to perform the tasks he is required as employee.
MR TOOMEY: Your Honour, particularly because he was a long‑haul flight attendant. He had just got off a 14‑hour flight and he was getting back on another 14‑hour flight and if he was not in top shape and something went wrong he would not have been much use to them. May it please, your Honours.
HAYNE J: Yes, Mr Jackson.
MR JACKSON: Your Honours, may I just say these things? In relation to what your Honour Justice Crennan just put to my learned friend, your Honours will see at page 37, in paragraph 16(v), (vi) and (vii), the high point of the case for the respondent on the issues to which your Honour has referred, but of course the ultimate question was whether the employment was a substantial contributing factor to the injury and Los Angeles appears to have bicycle couriers who are not ‑ ‑ ‑
HAYNE J: Of a familiar kind, Mr Jackson.
MR JACKSON: Your Honours will recall Hollis v Vabu, I think, a case some years ago. Your Honours, in relation to our learned friend’s submissions, comparison is what is inherently involved where there is more than one cause. If there is no cause other than the fact of employment then one could say that the substantial contributing factor test has been satisfied, but where there is more than one cause it does become necessary to conduct some comparison. Your Honours, if one treats the “real and of substance” test in the way in which it was treated by the Court of Appeal in this case that, with respect, dumbs down the concept of substantial contributing factor.
CRENNAN J: Could you have two substantial contributing factors?
MR JACKSON: Yes, your Honour, yes, I accept that. Your Honours, our learned friend’s submission also was really to the same effect as what was said by the Court of Appeal here and the matter of which we complain, namely that if the employment contributed to the injury it was necessarily substantial. Your Honours, the way in which it was put by our learned friends really, your Honour, has the effect of saying, the Court of Appeal is right because if it happens in the course of employment therefore the test is satisfied.
Your Honours, our learned friend said that surely the Court of Appeal could not have forgotten about section 9A(3). Well, your Honours, I do not suggest for a moment that they forgot about it but all they said about it, your Honours, can be seen in two passages. The first is at page 41, paragraph 27. You will see about the fourth‑last line on that page a reference to subsection (3).
You will see, your Honours, the other reference, though not in an actual quotation in the statute, appears to be in paragraph 25 on the same page and your Honours will see what we described as an unduly narrow view and a narrowing of the view by simply the reference to an attempt to overcome Zickar. Certainly that was the legislation was intended to do, but to do more as well.
HAYNE J: The Court will adjourn briefly to consider the course it will take in this matter.
AT 11.04 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.08 AM:
HAYNE J: In Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 the Court of Appeal, constituted as a Bench of five, considered the construction of section 9A of the Workers Compensation Act 1987 (NSW). The applicant does not challenge the conclusion reached by the plurality in Badawi that a substantial contributing factor is one that is “real and of substance” but submits that the statutory test was not properly applied in this matter.
In the present matter, the Court of Appeal cast no doubt upon the decision in Badawi. The brevity with which the Court of Appeal expressed its reasons should not obscure that Mr Da Ros’ employment put him where the accident happened; the accident happened during a period of leisure time paid for by his employer; he was on a bicycle provided by his employer, having been required to keep physically fit and encouraged to explore the city where the accident happened; and the accident happened as he was returning to the place where he would report for duty.
The conclusion that those facts in combination necessarily entailed that the respondent’s employment was a substantial contributing factor to the injury he sustained was open to the Court of Appeal. There being no reason shown to doubt the correctness of the actual orders made by the Court of Appeal, this is not a matter suitable to a grant of special leave. Special leave to appeal is accordingly refused with costs.
MR TOOMEY: May it please the Court.
HAYNE J: The Court will adjourn to reconstitute.
AT 11.09 AM THE MATTER WAS CONCLUDED