Qantas Airways Limited v Watson
[2008] NSWWCCPD 65
•26 June 2008
| 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 way his case had been treated by the Human Resources Department of the Respondent and described the emotional anguish he is experiencing as having a deleterious effect on his marriage.”
Mr Watson states that he is receiving psychological counselling and treatment for depression.
He submits that he is entitled to payment of weekly workers compensation and medical expenses.
Qantas submits that Mr Watson is not entitled to such payments because of the circumstances in which the motor vehicle accident, in which he sustained his serious injuries, occurred. It asserts that the injury did not arise out of or during the course of Mr Watson’s employment.
The dispute proceeded to a hearing before the Arbitrator on 15 January 2008.
THE DECISION UNDER REVIEW
The Arbitrator made an award in favour of Mr Watson, stating at [63], “In accordance with the parties’ wishes, I grant leave to apply in the event that any dispute arises as to quantum.”
The ‘Certificate of Determination’, dated 5 February 2008 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. Award in favour of the Applicant
2. Liberty to apply
3. Respondent to pay the Applicant’s costs”
ISSUES IN DISPUTE
Qantas’ grounds of appeal are:
“(a)That the Arbitrator erred in his determination of whether the worker was in the course of his employment at the time of his injury on 26 February 2005 (‘the injury’).
(b)That the Arbitrator erred in finding that the injury arose out of the worker’s employment with the Appellant.
(c)That the Arbitrator erred in his application of s. 9A of the Workers Compensation Act 1987 (‘the Act’) in finding that the employment was a substantial contributing factor to the worker’s injury.
(d)That the Arbitrator erred in finding the injury to be compensable.
(e)That the Arbitrator erred in failing to follow the decision of Bishop J in Farrelly v Qantas Airways [2001] 22 NSWCCR 331.
(f)That the Arbitrator erred in his interpretation of the facts and the law.”
Qantas states, “Given the questions involved and the overlap of legal issues, the following submissions address the various grounds of appeal outlined above.”
Qantas denies liability. The issues relevant to the grounds of appeal are whether Mr Watson’s injury arose out of or in the course of his employment and if so, whether his employment was a substantial contributing factor to his injury (pursuant to sections 4 and 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). In terms of compensable injury, “work injury" means an injury in respect of which compensation is payable (section 4 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Qantas submits:
“In the event that the Commission is not minded to make the orders sought on the papers the Appellant requests the opportunity to be heard in support of the Appeal given the significant legal issues involved.”
Mr Watson does not state in his Notice of Opposition whether the appeal can be decided solely on the papers, and provides no submissions in support of an oral hearing or reasons why the appeal should not be determined on the papers.
The decision by the Commission as to whether it is satisfied that sufficient information has been supplied to it in connection with proceedings, and whether to exercise its functions without holding any conference or formal hearing, is to be made prior to the determination of the appeal, not upon the Commission arriving at it its decision. In any event, Qantas provided substantial submissions with its ‘Appeal Against Decision of Arbitrator’ and has also filed supplementary submissions under cover of a letter dated 10 April 2008. It is a matter for the Commission to decide whether or not it is satisfied with the sufficiency of the information before it, and whether it may then proceed to exercise its functions on the papers.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and taking into account the whole of the written submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal is at least $5000 and at least 20% of the amount awarded in the decision appealed against. Section 352(2) of the 1998 Act is satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
REVIEW OF THE ARBITRATOR’S DECISION ON APPEAL
A Presidential member of the Commission has a specific and limited role in the review of a decision of an Arbitrator. A review is not a rehearing. The Presidential member is not dealing with the matter do novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
In this matter, Qantas must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1), in order to enliven the Presidential member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Moreover, any such error must be such that, but for it, a different decision should have been made in its place (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 (‘Askin’); Absolon v NSW TAFE [1999] NSWCA 311 (‘Absolon’)).
EVIDENCE AND SUBMISSIONS
Qantas submits and Mr Watson agrees “with the general factual background” that:
·Mr Watson was at all relevant times employed by Qantas as an international aircraft pilot;
·At the time of injury, Mr Watson was in Los Angeles on “lay-over” between flights;
·Mr Watson had driven for a period of about one hour and 20 minutes from Los Angeles on the night of the injury, to visit some friends, the Tavagliones, with whom he shared an interest in quarter horses;
·Mr Watson’s involvement with quarter horses and the Bellavue Stud was non-controversial and there was no issue as to the social nature of his visit on that evening;
·While returning to his hotel in Los Angeles, about 9 pm on that evening, Mr Watson suffered the injury in the motor vehicle accident, and
·As the Arbitrator observed (at [17] of his Reasons), the collision was entirely the fault of the other driver, who was under the influence of alcohol at the time.
Qantas submits that while Mr Watson was in Los Angeles because of his employment, “it is not the law that he was in the course of his employment throughout his entire time there.” However, it observes, “The Arbitrator effectively found that the worker was within the course of his employment for the entire time that he was away from Australia.”
Mr Watson has provided a statement dated 26 February 2005 and signed by him on 7 September 2007, outlining and explaining the circumstances in which he was in Los Angeles at the relevant time. This is reproduced to a great extent in the Arbitrator’s Reasons at [14] to [18] and need not be reproduced again. The Arbitrator states at [17] of his Reasons:
“The Applicant says that he was delivered a hire car, (presumably at the crew hotel) at about 4 pm on 26 February 2005 and that after some conversation at the Tavaglione’s, he accepted an invitation to stay for dinner. He declined an invitation to stay the night as he was conscious of the fact that he should be nearby if he was needed to replace any other crew member for late evening departures from Los Angeles. He left the Tavaglione’s residence at about 9 pm and was turning off Adams Avenue to join the down ramp onto the freeway when the collision occurred. The Police report is quite clear that the collision was entirely the fault of the drunken driver.”
He went on to say at [19]:
“Mr Catsanos for the Respondent [Qantas] whilst conceding that the reason the Applicant was in Los Angeles was as a result of his employment with the Respondent, nonetheless submitted, in conformance with the s. 74 notices issued (‘H’) and (‘3’), that the activity which the activity involved himself [sic] took him outside of the scope of his employment. He further submitted that even if the Applicant’s activities were within the scope of his employment, that employment could not be found to be a substantial contributing factor to his injuries within the relevant definitions pertaining to s. 9A of the 1987 Act.”
Nevertheless, Mr Watson is adamant about his reason for being in Los Angeles at the time. He says in his statement, referred to above:
“I was in Los Angeles because I was doing my job for this company and I suffered a serious injury whilst I was there. If I had not made myself available and signed on the day before, this would not have happened. I was not bull riding or sky diving but merely doing what we all do in slip ports; which is to live. The company is aware of this activity and they do not expect us to hide in our hotel rooms but to go out and about and do appropriate activities. I was not in Los Angeles for any reason other than for my employment, and obviously would not have been there, and the accident would not have happened, if I was not employed by Qantas to be there.”
In its ‘Notice under Section 74 of the Workplace Injury Management & Workers Compensation Act 1998’ dated 25 September 2007, Qantas advised Mr Watson, amongst other things:
“At the time you sustained your injuries you were located some considerable distance away from the crew hotel in Los Angeles having visited friends in Riverside California USA. The visit to your friends was not connected in any way whatsoever with your employment with this company.”
There is no dispute that Mr Watson was present in Los Angeles because of his work commitments. It appears to be settled that subject to requiring Mr Watson to make himself available for work if/when required during his period of layover in Los Angeles, Qantas was flexible as to how and where he spent his time. Mr Watson says in his statement that Qantas is well aware that some members of the crew leave the hotel and visit various places while on layover, “and the Company has never discouraged the practice.” He, like others, prefers not to spend his time “in bars” or confined to the crew hotel, during layover stops. He outlines in his statement, his practice of travelling around, visiting friends and doing other healthier things during layover periods while located in cities around the world. Mr Watson makes it clear that Qantas is not prescriptive about how employees should spend their time during periods of layover, between flights, while overseas.
A summary of the situation is set out in the Arbitrator’s Reasons at [14]:
“The Applicant alleged in his statement (‘A’) that when the crew of an aircraft is in a ‘slip port’ they are given a hotel to stay in and to use as a base. The Applicant stated under ‘Slip port activity and contact policy’ (‘A’) that the normal procedure was that the operating captain would usually be told by any member of the crew who was intending to leave the general area of the crew hotel where he was going and to leave a contact number. This is because occasionally when crew were on a 24 hour call, as apparently the Applicant was in these circumstances, in any emergency the crew member could be contacted so that if a member of another crew was sick or involved in an accident that absent crew member could be recalled to duty without any disruption to the operation of the Respondent.”
A “slip port” is a location outside of Australia, where long haul crew rest and recuperate at the destination of their assigned flight. Mr Watson elaborates at page 1 of his statement of 26 February 2005, and outlines his personal choice of activities while not engaged in his duties:
“The life of a long haul airline pilot has been described as hours and hours of mind splitting boredom punctuated by moments of sheer terror.
While training and experience will assist in the above situations it is also a legal requirement that technical crew members of a flight do whatever they can to present themselves for duty in a well rested physical state with a clear head and maintain this state while in the various slip ports that the pattern takes them.
Over a period of twenty years of working as a long haul pilot for Qantas I had developed a strategy to offset the accumulation of chronic fatigue that back of the clock, transmeridian, long haul, duties produced.
A lot of the members of a crew tended to take the easy option and meet at 6 pm, proceed to the nearest bar that provided a discount for airline crews and then to a restaurant with similar arrangements, followed by a night club for those who had a thread of energy remaining.
It took me a number of years but I did finally realise that this habit, although it apparently produced a good nights sleep for some, was counter productive to my level of fatigue and general health while in a slip port.
My first priority was fresh air, fresh surrounds and to meet new people so I always tried to leave the area of the crew hotel.
Qantas is well aware that the activity of hiring a car and leaving the vicinity of the crew hotel is one that is practiced by a large number of crew, including senior management, technical and cabin crew members, and their families visiting such places as Disneyland; and the Company has never discouraged the practice.
The fact that Budget car rentals in Long Beach and Pasadena gave Qantas crews a $20 a day care hire rate is some indication of the volume of trade that we provided them.”
Mr Watson goes on to describe in some detail, his personal friendship and his social activities with the Tavagliones, with whom he and his wife share an interest in horses.
Substantially, the factual background to this dispute is common ground. However, it is useful to understand the nature and significance of “slip port” (and “slip time” as referred to by Bishop J in Farrelly v Qantas Airways (2001) 22 NSWCCR 331 at [6] (‘Farrelly’) – see [40] of these Reasons).
Mr Watson sets out an explanation of the concept under the heading “SLIP PORT ACTIVITY AND CONTACT POLICY” in his statement of 26 February 2005. He states:
“It is an accepted practice by Qantas technical crew that any member of the crew who intends leaving the general area of the crew hotel, tells another member of that crew, usually the captain, where he is going and if possible leaves a contact number.
On the day of my accident I advised the operating captain that I would be visiting my friends but would be returning to the crew hotel the same evening which he acknowledged.
The captain remains the first point of contact for all crew when the company needs to contact crew members in emergency situations.
An example of this was the 9/11 attacks when the crew was stuck in New York for an extended period and the captain had the task of consoling and keeping both technical and cabin crew up to date with latest developments until they were able to leave.
The company representatives in a slip port advise the hotel of such things as schedule changes and the hotel staff normally leave phone messages for crew. This was a regular event caused by delays of inbound aircraft.
Individual crew could be called by the company to operate in lieu of another member who was sick in a slip port or had been involved in an accident as I was. This meant that after arrival and a minimum rest period you were on 24 hour call in any slip port to provide this flexibility for flight operations.
A number of incidents have occurred over the years where crew have not reported for their next sector because they lost track of time while staying away from the crew hotel and caused extended delays of flights, costing the company hundreds of thousands of dollars.
These individuals have been severely reprimanded and disciplined.
It is also interesting to note that any down line disruption that cut short the number of days in a slip port required crew members to repay their slip port allowances to the Qantas pay section.
I believe these are also relevant facts to this case.
I was in Los Angeles because I was doing my job for this company and I suffered a serious injury while I was there. If I had not made myself available and signed on the day before, this would not have happened. I was not Bull riding or Skydiving but merely doing what we all do in slip ports; which is to live. The company is aware of this activity and they do not expect us to hide in our hotel rooms, but to go out and about and to appropriate activities. I was not in Los Angeles for any reason other than for my employment, and obviously would not have been there, and the accident would not have happened, if I was not employed by Qantas to be there.”
In submissions on appeal, Mr Watson’s legal representatives refer to the concept of “slip port leave”. They state at [3], “The Respondent Worker’s case has always been that in accordance with the learned Arbitrator’s decision, the Respondent Worker was required to be present and available in Los Angeles as required by the Appellant for the entire period of slip port leave.” They go on to say at (3) b:
“In addition the Respondent Worker was also required to be on 24 hour call during the period of slip port leave, to be available to attend to any specific requirements of the employer, in particular replacing sick, incapable or injured pilots for the maintenance of the Appellant’s airline schedules.”
There is little else in the documents and submissions in these proceedings that explains the terms, “slip port” and “slip time”, or the term “slip port leave” introduced by Mr Watson’s submissions on appeal. Bishop J in Farrelly briefly and generally explained “slip time” at [6]:
“The applicant was a flight attendant on international flights and operated under a roster system. In broad terms, after flying a predetermined period of hours there was a prescribed minimum break for flight crew referred to as ‘slip time’. The applicant’s recollection was that in flights to Los Angeles, because of the length of the flight, the minimum break was 38 hours but it could be longer. During this slip time the respondent would put the flight crew up in a hotel and pay all accommodation and like costs, but not private expenses. At the relevant time the hotel being used in Los Angeles for its crew was at Long Beach, some 30 or 40 minutes from the airport, and the crew members would be taken there by bus. The applicant described his training and there were tendered in evidence two booklets handed to him at the time of his employment and these he explained were directed to advice to staff on keeping healthy while flying and also on questions of style and appearance on the aeroplanes. Evidence was given that the appropriate grooming of flight attendants was taken seriously the respondent.”
In Palazzo v Qantas Airways Limited 49040/1998 (unreported), 3 May 2001 (‘Palazzo’), Her Honour Judge O’Toole of the former Compensation Court described the nature and function of “slip port” and “slip time” in some detail at [5] and at [9] to [19], at least insofar as such detail applied to a long haul flight attendant at the time of the incident, the subject of that particular case. Her Honour described the conditions in more detail than Mr Watson, but generally spoke of a system where, subject to certain basic requirements of Qantas in terms of ability to be contacted, availability at short notice and a requirement to present for work in a healthy and presentable state, “its attendants on slip time were at leisure.”(See Palazzo [13]).
While Qantas pays for sustenance and accommodation, it does not meet the cost of an employees private expenses and personal/social activities during the period of “slip port leave”. And so it was in Mr Watson’s case, according to the evidence in this matter.
Mr Watson also cites the arbitral decision in the Commission of Matthew Troy White v Qantas Airways Limited 1989/06 (unreported) 23 June 2006. The features of “slip port” were similarly canvassed by the Arbitrator in that matter.
DISCUSSION AND FINDINGS
Did Mr Watson’s injury arise out of or in the course of his employment with Qantas?
Section 4 of the 1987 Act provides:
“4 In this Act -
injury -
(a)means personal injury arising out of or in the course of employment;
(b) includes -
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor; and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration; and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In order to determine whether an injury arose out of or in the course of employment, it is necessary to consider the time and place of and at which, the injury occurred. It is also necessary to consider the particular circumstances under and within which the injury occurred. The time, place and nature of Mr Watson’s injuries are understood by, and agreed between, the parties. The circumstances are similarly understood and agreed, save whether or not Mr Watson suffered a work injury arising out of or in the course of his employment, and whether his injury is compensable.
Injury arising in the course of employment
In determining whether an injury occurred “in the course of” employment, regard must be had to the general nature, terms and circumstances of the worker’s employment, and not only to the circumstances of the particular occasion out of which the injury arose (Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473 at 484 (‘Hatzimanolis’)). In Bill Williams Pty Ltd v Williams (1972) 126 CLR 146, referring to Whittingham v Commissioner of Railways (WA) 1931 46 CLR 22, Stevens J said that whether a worker is injured in the course of employment depends upon the sufficiency of the connection between the employment and the incident, and is a matter of degree in which time, place and circumstances, in addition to practice, must all be considered together with the conditions of employment. There is no dispute that Mr Watson was in Los Angeles because of his employment. No causative element needs to be established to determine that injury arose in the course of employment, as the nature of the relationship between employment and injury on this basis, is temporal (Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; [1934] ALR 129 (‘Smith’).
It has been established for some time that the course of employment is “not conterminous with a worker’s paid hours of employment” (see Davidson v Mould (1944) 69 CLR 96; [1944] ALR 165 (‘Mould’)). The temporal relationship includes not only the time during which a worker is directly engaged in the performance of his duties, but also extends to activities that are reasonably incidental to it (Mould). However, while the course of employment may extend beyond the strict hours of duty and to certain breaks in work activity, it does not include a time during which the worker is at a place or doing something otherwise than in, or that is reasonably incidental to, the performance of his or her employment duties (Mould). The circumstances and current, established practices at the time, must be considered in each case, in order to determine whether a thing done is reasonably incidental to the performance of the worker’s duties and hence, to his or her employment (Commonwealth v Oliver (1962) 107 CLR 353; Clancy v Department of Public Health [1962] NSWR 2).
The general position is succinctly summarised in, Thady Blundell (ed), Mills Workers Compensation New South Wales (Sydney:Butterworths, 2002) p. 965:
“If the worker desists from doing those things which are part of the worker’s duties or reasonably incidental to them, or is doing something that is not part of the worker’s duties or reasonably incidental to them, or goes to a place where it is not part of, or reasonably incidental to the worker’s duties to be, for such time the worker will have interrupted the course of the employment, and an injury in this period will not arise in the course of the employment: Wheeler v Comr for Railways [1969] 2 NSWR 474 [‘Wheeler’].”
In Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, Dixon J said that addressing the question is aided by considering whether the worker was doing something which he or she was reasonably required or authorised to do in order to carry out his or her duties. However, as in the instant case, the consideration is a broader one when the worker is injured during a period between actual, active work hours (see Hatzimanolis; Black v New South Wales Fire Brigades (1994) 10 NSWCCR 322). The High Court in Hatzimanolis, said that a thing done during a meal break would be more readily construed as being done in the course of employment than something done after a worker had finished work for the day and returned home. However, the Court held that an interval or interlude within an overall period of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. It held further that an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity, unless the employee was guilty of gross misconduct taking him or her outside of the course of employment. There is no suggestion of course, that Mr Watson was engaged in any kind of misconduct.
In Tiver Constructions Pty Limited v Clair (1992) 110 FLR 239 (‘Clair’), a decision of the Supreme Court of the Northern Territory, cited in WorkCover Authority of NSW v Walsh [2004] NSWCA 186 (‘Walsh’), the worker’s duties frequently took him to Darwin to purchase, parts, oil, fuel and other articles required at the camp and work sites. On one occasion he set out to return to the camp after obtaining the goods. On the return journey he met up with a co-worker, swapped vehicles and both returned to Darwin. After making purchases, he went to the hotel where he met his co-worker. He became intoxicated and in the course of returning to camp, he was involved in an accident and was seriously injured. It was argued, amongst other things that his sojourn to the hotel took him into “recreation mode” and he was therefore, not injured in the course of his employment. The misconduct aspect aside, the Court rejected this argument saying that the worker was not returning to camp entirely for his own reasons, as the journey was essentially made for the employer’s purposes, and that the worker was therefore in the course of employment while returning to camp specifically to deliver the items purchased in Darwin, for and on behalf of the employer.
However, as referred to in the instant matter by the Arbitrator and Qantas, the High Court in Hatzimanolis went on to say:
“It would be an unacceptable extension of employment to hold that an employee was in the course of employment whenever the employer had authorised, encouraged or permitted the employee to spend time during an interval between the periods of actual work at a particular place or in a particular way. That formulation would cover not only the cases of the ‘lunchtime’ injury, as in Oliver, and the case of the railway worker as in Danvers, but also many cases involving injuries occurring during intervals between daily periods of work which could not be fairly regarded within the course of employment.”
Consequently, it is well established that not all cases involving injuries occurring during intervals between daily periods of work can be “fairly regarded within the course of employment.”
The High Court in Hatzimanolis referred to Goward v Commonwealth (1957) 97 CLR 355 (‘Goward’), a previous decision of the High Court where it was held that a railway worker who was living in a railway camp as part of [or because of] his employment, was not killed in the “course” of his employment. The worker was struck by a train on the railway line near the camp “some hours after the cessation of actual work.” It is thus demonstrated that a worker’s presence at a particular location because of his employment is not necessarily the same as, or determinative of, being or performing in the course of that employment.
In citing Hatzimanolis Mr Watson points specifically to “the test to be applied for the purpose of analysis of the words ‘in the course of employment’, put forward by Mason CJ at 483”:
“For the purpose of workers’ compensation law an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete work periods….On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work.”
A reading of the judgment in that case reveals, as previously outlined, that this “test” must be read in the context of the judgment and what else the Court had to say (see for example, [51] of these Reasons, above).
In other cases such as McCurry v Lamb (1992) 8 NSWCCR 556 and Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 (‘Lewis’), injury was held to have occurred while in the “course” of employment, notwithstanding that the relevant incidents occurred outside of actual working hours. In both cases, the worker was residing on the employment site. However, while this is a relevant factor for consideration, it is not necessarily determinative, as the “employer’s attitude to the way in which the worker was spending his time during the period he was injured must be taken into account.” In Lewis, Sheller JA went on to say at 571:
“Whether the employer encouraged, induced or merely permitted the worker, in general terms, to be where he was, namely on the caravan park site, or, in particular terms, to take part in social activities with other people, are relevant factors.”
The critical factor is whether the employer either expressly or impliedly induced or encouraged a worker to spend an interval at a particular place or in a particular way (see Hatzimanolis; McMahon v Lagana [2004] NSWCA 164; Dew t/as AG and PG Dew v Maher (1996) 14 NSWCCR 56 (‘Maher’); Black v New South Wales Fire Brigades (1994) 10 NSWCCR 322). In considering the circumstances, it is appropriate to consider other relevant issues such as whether and to what extent there is any actual or direct benefit to the employer as in Maher. Finally, mere authorisation of the employer of a particular activity may not itself, be sufficient to bring it within the course of employment (WorkCover Authority of NSW v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565 (‘Billpat Holdings’).
The importance of arriving at an appreciation of the actual circumstances in the application of the relevant legal principles to a particular matter is demonstrated by reference to the foregoing authorities.
Before proceeding further, it is convenient to note at this point that Qantas has submitted that the Arbitrator erred in misstating the onus of proof at [27] of his Reasons, when he stated:
“For his submission to succeed, Mr Catsanos [for Qantas] would need to demonstrate that the Applicant’s employment had to all intents and purposes ceased in that there was no permission, encouragement, authorisation or inducement by Qantas for his visit to the Tavagliones, and the subsequent journey back to the crew hotel.”
On a wider reading of the Arbitrator’s Reasons, and taking [27] in context, I cannot agree that he was in error on the stated basis, as it is clear that he was simply responding to submissions made by Mr Catsanos on behalf of Qantas, on the substantive issue.
However, the Arbitrator’s statement leads on to [28] of his Reasons in which his view of the matter is summarised. He states:
“I am unable to accede to that submission. The evidence does not establish Mr Catsanos’s proposition, indeed the Applicant’s assertion that he advised his captain of his whereabouts and phone number whilst he was away is uncontraverted, as is the allegation that the Applicant left at 9pm in order to return to the crew hotel in case he was needed on call. Moreover the Applicant acted according to a long standing system whereby the technical crew was advised of the whereabouts of a fellow member if that member was leaving the general area of the hotel. Qantas’s practice was to advise the crew hotel of such operational matters as schedule changes, regularly caused by flight delays, and the practice of a crew hotel was to leave that information for crew members by telephone message. Further, failure by any crew member to report in for the next sector because of inadvertence would result in disciplinary action from the Company, which could cost hundreds of thousands of dollars by such delay. This evidence satisfied me that there was no interlude or interruption to the Applicant’s employment, which required him to be on call during the whole of a slip time. His injury therefore arose in the course of his employment.”
Again, it is convenient to deal briefly with Qantas’ submission that the Arbitrator is bound by the doctrine of stare decisis to follow the decisions of the former Compensation Court, and in this case in particular, the decision of His Honour Judge Bishop in Farrelly. Mr Watson submits that the doctrine does not apply and there is “no hierarchical connection between the Arbitrator of the Workers Compensation Commission and the former Judges of the Compensation Court”. I agree with Mr Watson that the Commission is not bound by those decisions. Nevertheless, those decisions are persuasive and ought to be respected and considered, as the Arbitrator did in this matter. Mr Watson cites Favelle Mort Ltd v Murray [1976] HCA13; (1976) 133 CLR 580, and draws attention to the comments of Barwick CJ at 591, upon the abolition of appeals from the High Court to the Privy Council. The following extract from those comments is illustrative in general terms, of the nature of the relationship between this Commission and the former Compensation Court, insofar as the point is concerned:
“… within this body of precedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent, which thus binds a court, is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgment, has laid down that principle as part of the relevant law. Outside the area of binding precedent, there is an area which comity or respect for the high standing of a court outside that juristic unit dictates that the views of such a court in general be accepted unless the court is clearly convinced as to the erroneous nature of the decision or reasoning of that other court, and there are sufficient reasons for departing from that decision or that reasoning. Thus respect is accorded to the decisions of the House of Lords, and perhaps to a lesser degree, those of the English Court of Appeal. In line with this approach to decisions which do not bind as precedents, no doubt this Court will at least accord a like respect to decisions of the Privy Council to what which it is accustomed to accord to the House of Lords.”
However, Farrelly is principally concerned with the application of section 9A of the 1987 Act, following upon a consideration as to whether injury arose in the course of employment.
Mr Watson submits that the very concept of the long haul pilot requiring periods of a stop over is, for public policy and company reasons related to the health and safety of the worker and in this case airline passengers. He states that it is a necessary part of the course of employment for the long haul pilot to have a break at various overseas destinations, and that, “This requires that the Respondent remain in and near the port of call in which he is required to remain until the next rostered journey is available. This is not ‘recreational leave’ but a compulsory rest or break period in the employment of flying long distance aircraft.” He points out that he was supplied with a subsidised hire car through an arrangement between Qantas and Budget Rent-a-Car. He states, “Clearly the Appellant Employer contemplated that the Respondent Worker would move about in a motor vehicle and not be confined to the hotel provided.” He goes on to say:
“Furthermore, the Appellant employer would enjoy the protection arising from the Respondent worker engaging in unlawful activities or of unnecessarily exposing the employer to an increased risk of injury [to the worker] by engaging in activities such a [sic] skydiving, abseiling and the like, that would take the Worker outside the ordinary course of the employment (see for example Pallazzo v Qantas Airways Ltd in which the worker fell off a horse while on safari in Zimbabwe; Worrall v Longworth in which the worker sustained injury whilst playing around with a powerboat and a rubber dinghy.”
A critical point of difference between the parties is in relation to ‘on call’ cases. Qantas states that Mr Watson was “upon an interval or interlude” at the time of injury. It further submits that Qantas had not in any sense induced or encouraged Mr Watson to embark upon the social visit and this was entirely a matter dictated by Mr Watson without any input from the company. It states that the Arbitrator’s reference to Worrell v Longworth and Anor (2000) 20 NSWCCR 400 is not helpful to Mr Watson’s case. In that case the worker was injured at a social event at the employer’s premises and failed in his claim for compensation. “There had been no encouragement or inducement by the employer and the worker was thus not in the course of his employment at the time.”
Qantas goes on to say that His Honour Judge Burke in discussing ‘on call’ cases, distinguished Archer v East West Airlines [1976] WCR (NSW) 176. The worker in that matter was not required to be at any particular place at any particular time. In Archer the worker was required to remain in her home while on reserve duty to take any calls requiring her to attend work. Qantas submits, “That is manifestly a different situation to the present case and demonstrates that the arbitrator’s suggestion that ‘on call’ employees are always in the course of their employment is, with respect, incorrect.” It goes on to say:
“In the present case, whilst the worker may be called on to fill in, he was not required to be at any particular place at any particular time as the social activities he was undertaking demonstrate.
To the extent that the worker asserts or the Arbitrator determined that the worker was within the course of his employment at all times whilst in Los Angeles, the proposition is, with respect, incorrect and inconsistent with Hatzimanolis .”
Mr Watson submits in response:
“It is submitted that the Appellant’s interpretation and use of the decision in Worrell is distinguished on the basis that the ‘on’ call’ position of the Qantas ‘slip leave’ pilot is an entirely different proposition to being an SES worker on call 7 days a week, 24 hours a day. More analogous to Archer, the Respondent worker, Mr Watson was required to be at a particular place at a particular time, Los Angeles. Mrs Archer was required to be by the phone at home, no doubt because in 1976 telephones were not wireless, as the modern mobile phone gives almost unlimited mobility in communication. Her situation in reality is no different to the Respondent worker here who was required to be by the phone and in a position to be back to meet any requirements of his employer without choice or alternative.”
Mr Watson also points out at [20] of his submissions on appeal, the “peculiarities” of a long haul pilot on “slip leave” and the restrictions that apply. For the sake of completeness, they are set out as follows:
“a.His employment required him to reside in a foreign country from time to time at premises designated by the employer;
b.The requirement of the pilot on slip leave to move about the location in which slip port is taking place notifying of his whereabouts at all times during the slip leave period in case he is required and being available in that event;
c.The requirement to travel to various locations from time to time in foreign ports and obtain accommodation and sustenance in the normal course of human conduct, in the Respondent’s submission, renders the pilot on slip leave to a greater extent than usual risk of injury by virtue of the dislocation from his normal pilot duties;
d.The driving conditions in Los Angeles (at paragraph 43) are said not to be peculiar, however, one matter which may have escaped the Appellant’s mind is that Australians driving in the United States of America find themselves driving on the incorrect side of the road to what which they normally do; (albeit in this case an irrelevant factor as the Respondent was clearly not at fault in the collision nor had the respondent’s journey to a social dinner created in the ordinary sense an increased risk of injury to the employer’s detriment);
e.The provision by the appellant employer of subsidized rental vehicles indicates an expectation by the appellant employer that the respondent worker will travel and used a motor vehicle to do so and thus have a reasonable expectation that from time to time its worker may suffer injury in motor vehicle accidents.”
As previously stated, there is no dispute that Mr Watson was in Los Angeles because of his employment. Broadly speaking, he claims that he was required by Qantas to be in that location at the particular time of his motor vehicle accident. On the other hand, Qantas says that Mr Watson was awaiting reassignment, was not resting for purposes of recuperation, and was engaged in a wholly social activity of his own choosing away from the slip port accommodation at the time of the accident, and was not required by it to be in that particular place (driving along the road towards his hotel) at that particular time.
The Arbitrator accepted the wider view put by Mr Watson, as summarised at [60]:
“Although the immediate factors which caused the injuries were unrelated to employment, the fact remains that it was the Applicant’s employment as a long haul airline pilot that was responsible for his being in Los Angeles at all. But for that employment, he would never have been in Los Angeles and thus never suffered his motor vehicle accident.”
In Farrelly, it was established on the authority of Hatzimanolis, that the employee was injured in the course of his employment, notwithstanding that he was undertaking recreational activities. He was a member of the Qantas Recreation Club and Qantas would fly items of equipment around the world for the use of its members while in slip port. The worker was riding a bicycle supplied to him under this scheme and while trying to avoid colliding with a little girl he overbalanced, fell from the bicycle and was injured. He was under no compulsion to ride the bike and could just as easily have undertaken some activity that took him outside of the scope of the Qantas Recreation Club.
However, each case must be considered on its own facts and circumstances. In the matter, the subject of this appeal, it remains to be determined whether Mr Watson’s wholly social activity in visiting friends with whom he shared an interest in horses, took him outside of the scope of his employment. Did Mr Watson interrupt the course of his employment such that the injury sustained did not arise in the course of his employment? (‘Wheeler’).
Regard must not be had only to circumstances of the particular occasion out of which the injury arose, but must be had to the general nature, terms and circumstances of the workers employment (‘Hatzimanolis’). These have been set out in some detail, above. The current practices at the time must be considered in each case to determine whether a thing is reasonably incidental to the performance of the worker’s duties and hence, to his employment (‘Oliver’; Clancy’).
In Hatzimanolis it was recognized that there are “many cases involving injury during intervals between daily periods of work which could not be fairly regarded within the course of employment.” (See for example, ‘Goward’) The “employer’s attitude to the way in which the worker was spending his time during the period he was injured … must be taken into account.” (‘Lewis’).
In the instant matter, Qantas required long haul employees to take what Mr Watson calls “slip leave” in order to rest and recuperate. Given the nature of the job, it is not unreasonable for Qantas to expect that its pilots, whether long haul or domestic, and wherever they might be, should be sufficiently rested, fit and alert to carry out the responsibilities of flying commercial aircraft, on each and every occasion they are assigned to do so. Consequently, while pilots were on “slip leave” Qantas made provision for the accommodation, sustenance and comfort of the employees, and apart from requiring them to be contactable and available, and putting measures into place to ensure that this could be done, apparently with minimum inconvenience, it was not prescriptive as to how pilots and aircraft personnel should spend their time, which for the most or some part at least, was spent “at leisure” (Palazzo, [13]), as was the case with Mr Watson on the occasion in question.
Mr Watson’s activities may be contrasted with that of Matthew Troy White, in the matter of Matthew Troy White v Qantas Airways Limited 1989/06, 23 June 2005, cited by Mr Watson. Mr Watson seeks to draw a parallel between the two sets of circumstances. However, in Mr Watson’s case, he consciously embarked upon a personal and social activity that was above, beyond and unrelated to his employment in a period of time that he was not required for work, and knowing that he was not required to work. On the other hand, Mr White simply went to Harrod’s in London, quite near to his crew hotel, in order to purchase an item of food by expending some of the sustenance allowance provided to him by Qantas, and was injured in the course of doing so.
While there were some routine requirements that Mr Watson was required to observe, he was not undertaking any activity that he was reasonably required or authorised to do in order to carry out his duties (Speechley). It cannot be said that Mr Watson was at a particular place or doing something at the direction of Qantas (Hatzimanolis). He was not restricted in his movements for the most part, while in Los Angeles. It was of no particular interest or benefit to Qantas that he was engaged in a wholly private, social activity (Maher; Clair; Walsh), above and beyond his responsibility to be prepared and available to take his next assignment as a Qantas pilot – an inherent responsibility of his job whether he was at home in Australia or abroad. Part of this responsibility was to ensure that he was rested and fit for work. Beyond that and at best, Qantas may be said to have acquiesced in Mr Watson’s social activity in his own time, because, as I have said, it had no interest in, and derived no benefit from his visit to the home of his friends with whom he shared a common interest in horses.
Notwithstanding that certain routine requirements needed to be met, Mr Watson accommodated those requirements without impinging on his capacity to attend on duty if and when he was needed, and was able to embark upon a trip to spend a private, social evening with his friends, with whom he shared a mutual interest that had nothing to do with his employment. Indeed, the arrangements that Qantas had put into place undoubtedly made it convenient for Mr Watson and others in the same situation, to access wholly private leisure time and activities, without being tied down to the demands of employment, and without having to remain in the vicinity of the crew hotel. In this regard, it is noted that Qantas did not meet the costs of private/personal activities during periods of slip leave, presumably because these were unrelated to employment. It did meet the costs of sustenance, accommodation, rest and recuperation, and apparently Mr Watson and other employees enjoyed the benefit of a reduced rate on motor vehicle hire. There is evidence in this matter and in other cases cited, that Qantas encourages long haul crew to maintain a healthy lifestyle, but according to Mr Watson, some employees choose to do that and some do not.
The fact that Qantas allows this latitude and flexibility to its long haul employees, enabling them to undertake a wide range of activities, does not necessarily bring all activities on which they embark, within the course of employment (Billpat Holdings). I note that Mr Watson states that the purpose of being able to contact long haul staff is to accommodate any “emergency situations”. Otherwise, information is routinely communicated through the hotel where members of the crew are accommodated. Emergency situations aside, it is reasonable to expect that some routine procedures would be in place in order that long haul crew could conveniently and effectively ascertain the time and other details of their next assigned flight, saving them the time and trouble that otherwise would be involved in chasing up this information, as well as enabling Qantas to ensure that the information is properly communicated.
On the evidence, Mr Watson’s social activity was entirely unrelated to his employment and he simply utilised his own leisure time in Los Angeles, choosing to do something of a private nature. The course of employment may extend beyond the hours of duty and to certain breaks in work activity, but it does not include a time during which a worker is at a place or doing something otherwise than in, or that is reasonably incidental to, the performance of his or her employment duties (‘Mould’). Mr Watson’s social activity in this instance was not reasonably incidental to his employment. As I have said, he simply took advantage of the fact that his employment took him to Los Angeles, enabling him to visit his friends.
On a consideration of the authorities and the evidence in this matter, I do not agree with the Arbitrator that Mr Watson was in the course of his employment for the whole time he was in Los Angeles. Qantas cannot be said to have expressly or impliedly induced or encouraged Mr Watson to embark upon this particular, wholly social activity at that time. It was not part of or incidental to his employment. He took himself out of the sphere of his employment in an interlude of personal leisure time. Moreover, his presence in Los Angeles because of work, and the need to know where he could be contacted, presumably by mobile telephone as implied in Mr Watson’s submissions on appeal, was not in my view, sufficient to bring him within the course of his duty at the place and time, and in the circumstances of his unfortunate injury. The need for Qantas to know Mr Watson’s contact details would apply at all times in Australia just as much as when he was away from home, for precisely the same reasons. That alone, does not place him “in the course of employment” for the whole of the time.
Accordingly, I find that the Arbitrator has erred in his consideration of the evidence and his application of the law, in arriving at this finding. This ground of appeal is made out.
Injury arising out of employment
Further to and consequent upon the finding in [82] above, the injury did not arise out of Mr Watson’s employment with Qantas. It was sustained as a result of a motor vehicle accident, which occurred while Mr Watson was engaged in/returning from, an unrelated social activity, which he undertook in an interlude of personal leisure time. There is no causal link to his employment (see Tarry v Warringah Shire Council [1974] 48 WCR (NSW) 1 (CA)).
Consequently, it is not evident that Mr Watson’s employment by Qantas as a long haul pilot actually caused or contributed to the injury, having regard to all of the circumstances in which the injury arose (see Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR 119 per Jordan CJ).
I find accordingly.
Was Mr Watson’s employment with Qantas a substantial contributing factor to his injury?
It follows from the foregoing that the requirements of Section 9A of the 1987 Act cannot be satisfied.
Is Mr Watson’s injury compensable under the Workers Compensation Legislation?
It also follows that Mr Watson’s injury is not compensable under the Workers Compensation Legislation.
DECISION
The appeal is successful. The decision of the Arbitrator dated 5 February 2008 is revoked. Award for the Appellant Employer.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
26 June 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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