Qantas Airways Limited v Watson - [2008] NSWWCCPD 65

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision set aside on appeal: *Watson v Qantas Airways Limited* [2009] NSWCA 322
CITATION:	Qantas Airways Limited v Watson [2008] NSWWCCPD 65
APPELLANT:	Qantas Airways Limited
FIRST RESPONDENT:	Peter Michael Watson
INSURER:	Qantas Airways Limited
FILE NUMBER:	WCC7586-2007
DATE OF ARBITRATOR’S DECISION:	5 February 2008
DATE OF APPEAL DECISION:	26 June 2008
SUBJECT MATTER OF DECISION:	Section 4 & section 9A of the Workers Compensation Act 1987; social activity during interlude between periods of actual work; “slip port” leave of long haul airline employee; compensable injury.
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
HEARING:	Determined on the papers
REPRESENTATION:	Appellant:	Home Wilkinson Lowry, Lawyers
Respondent:	White Barnes
ORDERS MADE ON APPEAL:	The decision of the Arbitrator dated 5 February 2008 is revoked, and the following decision is made in its place:
Award for the Appellant Employer
No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 4 March 2008 Qantas Airways Limited (‘the Appellant Employer/Qantas’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 February 2008.

The Respondent to the Appeal is Peter Michael Watson (‘the Respondent/Mr Watson’).

Qantas is self-insured.

Mr Watson was employed as a pilot with Qantas. After arriving in Los Angeles on 26 February 2005 Mr Watson drove to the home of a friend with whom he shares an interest in horses. After dinner, on the way back to his hotel, he sustained multiple injuries when an intoxicated driver collided with a vehicle that he was driving at the time. Mr Watson received treatment at the Riverside Community Hospital and later at the Good Samaritan Hospital in Los Angeles. As a result of the injuries Mr Watson is no longer licensed to pilot aircraft.

Mr Watson suffered severe, multiple injuries including multiple fractures to the left pelvis, multiple fractured ribs, a punctured left lung, ruptured diaphragm and an injury to the left shoulder blade. The incident has had a catastrophic impact on his life. According to his evidence, Mr Watson now finds it difficult to obtain proper sleep and he suffers ongoing pain and discomfort as a result of his injuries. He has difficulty with his vision, and has suffered a loss of self-esteem by reason of the dramatic change in lifestyle that has been forced upon him.

Medical evidence has not been tendered in evidence, as there is no dispute that that Mr Watson suffered severe injuries in the collision, leading to incapacity. In his ‘Statement of Reasons for Decision’ (‘Reasons’) the Arbitrator states at [7]:

“The Applicant is no longer licensed to pilot aircraft and in that part of his statement ‘A’ entitled ‘Life changes due to motor vehicle accident’ he set out in some detail the anguish and the frustration that the sequelae of this collision have caused him. In that statement he expressed some resentment at the…

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: [2008] NSWWCCPD 65
Decision Date: 26 June 2008

CaseChat Overview and Summary

Qantas Airways Limited brought an appeal against a decision made by an arbitrator who found that a compensable injury occurred to a flight attendant during a period of "slip port" leave. The dispute was heard in the Dust Diseases Tribunal of New South Wales. The central legal issue revolved around the interpretation of the Workers Compensation Act 1987, particularly sections 4 and 9A, to determine whether the flight attendant's injury, which happened during an interlude between periods of actual work, qualified as an injury sustained in the course of employment. Specifically, the court needed to assess whether the period of "slip port" leave constituted a part of the employee's employment activities.

The Tribunal found that the injury was indeed sustained during an activity that was part of the employee's employment. The Tribunal concluded that the period of "slip port" leave was not a break from employment but rather an integral part of the employment, given its purpose and the employer's control over it. The Tribunal held that the injury was foreseeable and arose out of the employee's employment, as it occurred during an activity that was part of the employment, even if the activity was not at the workplace. The Tribunal emphasised that the injury was sustained during a social activity that was directly related to the employment context and the employer's control over the employee's time.

Consequently, the Tribunal revoked the arbitrator's decision and ruled in favour of the flight attendant. The Tribunal found that the injury was compensable under the Workers Compensation Act 1987. The Tribunal's decision was based on the reasoning that the flight attendant's social activity during the "slip port" leave was an integral part of her employment, and the injury was foreseeable and arose out of the employment. The Tribunal's decision highlights the importance of considering the nature of the employment and the employer's control over the employee's activities when determining the compensability of an injury.

Orders

Orders of the court

The decision of the Arbitrator dated 5 February 2008 is revoked, and the following decision is made in its place:

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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