Qantas Airways Limited v Watson (No 3)
[2010] NSWWCCPD 86
•5 February 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | |||||
| STATUS: Reconsideration: This decision is a reconsideration of the decision in Qantas Airways Limited v Watson (No 2) [2010] NSWWCCPD 38 | |||||
| CITATION: | Qantas Airways Limited v Watson (No 3) [2010] NSWWCCPD 86 | ||||
| APPELLANT: | Qantas Airways Limited | ||||
| RESPONDENT: | Peter Watson | ||||
| APPLICANT FOR RECONSIDERATION: | Peter Watson | ||||
| INSURER: | Qantas Airways Limited | ||||
| FILE NUMBER: | A1-7586/07 | ||||
| ARBITRATOR: | Mr J Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 5 February 2008 | ||||
| DATE OF FIRST APPEAL DECISION: | 26 June 2008 | ||||
| DATE OF COURT OF APPEAL DECISION: | 8 October 2009 | ||||
| DATE OF SECOND APPEAL DECISION: | 14 April 2010 | ||||
| DATE OF RECONSIDERATION DECISION: | 11 August 2010 | ||||
| SUBJECT MATTER OF DECISION: | Reconsideration; section 350(3) Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | HWL Ebsworth Lawyers | |||
| Respondent: | White Barnes | ||||
| ORDERS MADE ON APPEAL: | Having reconsidered the matter of Qantas Airways Limited v Watson(No 2) [2010] NSWWCCPD 38 under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 the findings and orders in that matter are confirmed and the respondent worker’s application for reconsideration is dismissed. Each party is to pay his or its own costs of the reconsideration application. |
INTRODUCTION
The respondent worker, Mr Watson, seeks a reconsideration of a decision delivered by me on 14 April 2010 in Qantas Airways Limited v Watson(No 2) [2010] NSWWCCPD 38 (‘Qantas No 2’). In that decision, I held, among other things, that Mr Watson had not received an injury in the course of or arising out of his employment whilst on ‘slip time’ in Los Angeles. It is submitted that, in light of the Court of Appeal’s decision in Da Ros v Qantas Airways Ltd [2010] NSWCA 89 (‘Da Ros’), it is in the interests of justice that the decision in Qantas No 2 be reversed.
BACKGROUND
The background facts are set out in Qantas No 2 and will not be repeated in this decision. Essentially, Mr Watson received serious injuries in a car accident while returning to the crew hotel while on ‘slip time’ in Los Angeles on 26 February 2005 after having visited friends one hour twenty minutes drive from Los Angeles with whom he had a common interest in Quarter horses.
His claim for compensation was initially successful in a decision delivered by a Commission Arbitrator on 5 February 2008 (Watson v Qantas Airways Limited [2008] WCC 19). On appeal by Qantas, Deputy President Byron revoked the Arbitrator’s decision and made an award for Qantas (Qantas Airways Limited v Watson [2008] NSWWCCPD 65). The Deputy President found that Mr Watson was not in the course of his employment with the appellant employer and that employment had not been a substantial contributing factor to his injury.
On appeal, the Court of Appeal held (at [58] and [59]) that the Presidential Member had failed to direct himself adequately by reference to Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 (‘Hatzimanolis’) in that he failed to determine or characterise the period or periods of work of the employee as one overall period or episode of work, or two or more (Watson v Qantas Airways Limited [2009] NSWCA 322 (‘Watson’). The Court set aside Deputy President Byron’s decision and remitted the matter to the Commission for rehearing.
After dealing with several preliminary matters, including an application by Mr Watson to amend to rely on the recess provisions in section 11 of the 1987 Act, and receiving extensive further written submissions from the parties, I listed the matter for rehearing before me on 6 April 2010. Mr King SC with Mr Niven appeared for Mr Watson and Mr Catsanos appeared for Qantas.
On 14 April 2010, I revoked the Arbitrator’s determination of 5 February 2008 and made an award in favour of Qantas on the ground that, applying the principles in Hatzimanolis, Mr Watson had not received an injury in the course of or arising out of his employment and, if he had received such an injury, his employment had not been a substantial contributing factor to his injury. I also determined that Mr Watson had not been injured in circumstances to which section 11 applied.
On 28 April 2010, the Court of Appeal decided Da Ros. That case also concerned a Qantas employee who had been injured on ‘slip time’ in Los Angeles. Mr Da Ros received injuries while riding a bicycle during a lay over when another bike struck his bike causing him to fall onto his right arm/shoulder. Qantas conceded that Mr Da Ros was in the course of his employment at the time of the accident. Deputy President O’Grady made an award in favour of Qantas on the ground that employment had not been a substantial contributing factor to the injury.
The Court of Appeal held that the Deputy President had erred in his interpretation and application of the phrase “substantial contributing factor” in section 9A of the 1987 Act. It set aside the Deputy President’s decision and remitted the matter to the Commission for rehearing. Qantas has filed an application for special leave to appeal to the High Court.
By letter dated 14 May 2010, Mr Watson sought a reconsideration of my decision in Qantas No 2.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the reconsideration application can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER RECONSIDERATION
On 14 April 2010, the Commission made the following orders in Qantas No 2:
“The Arbitrator’s determination of 5 February 2008 is revoked and the following orders made:
1. Award for the respondent.
2. No order as to costs.
Each party is to pay his or its own costs of the appeal.”
SUBMISSIONS
Mr Watson seeks a reconsideration (wrongly described as a “review” in the submissions) of the three findings in Qantas No 2 relating to “in the course of employment”, “arising out of” and “substantial contributing factor”. He submitted:
(a) the Commission has power to review a matter under section 350(3) of the 1998 Act. The power is subject to no strict limits and can be exercised if it is just to do so. The Commission has jurisdiction and power to make both factual and legal decisions, but the Court of Appeal has no power to make or vary factual decisions and can only correct the Commission for error of law;
(b) Qantas No 2 has a factual component that can be altered by the Commission but not by the Court of Appeal. If there is a reason in justice for a review of an essentially factual kind, the Commission should take account of those considerations as indicating the existence of a proper occasion for the exercise of the power;
(c) he has acted in a timely manner in bringing the application for reconsideration;
(d) though the appeal to the Court of Appeal in Da Ros only concerned section 9A that should not be an impediment to the current application because (at [8]) in Da Ros, Basten JA (with whom Tobias and McColl JJA agreed) referred to Mr Watson’s case as having “factual circumstances not dissimilar with the present case” and therefore the factual similarity extends to “course of employment” at the very least as well as to section 9A;
(e) if the Commission decides to review the matter and reverse its decision on the issue of “course of employment”, then it should reverse its finding in respect of section 9A as it could not then find that the test of material contribution stood unsatisfied;
(f) the reasoning in Qantas No 2 (at [97] to [102]) dealing with substantial contributing factor cannot stand with the reasoning and result in Da Ros. Qantas No 2 “cries out to be reversed as regards the s9A finding”;
(g) when the Court of Appeal’s comments in Da Ros at [8] are “married up” with the Court’s comments at [22] in that case and with the Court’s comments at [58] in Waston, the Commission should be prepared to accept that it made a wrong factual decision and that the justice of the case requires its reversal. Given the concluding words of [58] and the “implications of the Court of Appeal’s decision in Da Ros and the similar facts of both cases, the way Mr Watson spent the lay-over in Los Angeles should be seen ‘to take on a very different complexion’”: there is no “might” about it;
(h) the Court of Appeal’s comments on the facts are not binding, but are extremely persuasive and should be followed, and
(i) if the Commission reverses the “in the course of” finding, he does not press for a reversal of the “arising out of” finding. However, given the reasoning and facts in Da Ros a reversal of that finding should also be made.
Qantas filed submissions in response on 29 July 2010 opposing the application for reconsideration. Essentially, it submitted that, given that Mr Watson did not seek to “amend or vary the factual fabric of the Commission’s determination”, there was no basis for a reconsideration of the original decision. It added that nothing in Da Ros casts any doubt over the Commission’s interpretation of the relationship between the parties in the present case.
Mr Watson’s submissions in reply were “substantially repetitive” of his original submissions. Again, he wrongly referred to the power as a “review”. He submitted:
(a) the “review power” is subject to only one strict limit, that is the “overriding interests of justice between the parties”. There does not seem to be any requirement of exceptional circumstances before a factual decision can be revisited, but if such a requirement is found, it is satisfied having regard to the very quick development in this area of the law indicated by Da Ros;
(b) given the prompt application for “review”, and given the Commission’s decision that Mr Watson was not in the course of his employment “must have been a very close run thing”, the Commission should exercise its jurisdiction/power and reconsider the matter in the light of the “implications of Da Ros and reverse its earlier decision”;
(c) it is unrealistic to say that the similarities between Da Ros and the present case are only relevant to the section 9A point;
(d) it is unrealistic to say that the fact that the bicycle in Da Ros was provided by Qantas is in any way critical. The bicycle was part of a pool of equipment provided and kept by Qantas in Los Angeles but paid for from funds contributed to by Qantas employees who regularly passed through Los Angeles in significant numbers. In Mr Watson’s case, individual Qantas employees, including Mr Watson, paid for the reduced car hire as they passed through Los Angeles. It would be fanciful to say that the deal was unrelated to the employment of flight crew by Qantas, or to say that Qantas was not in a legal sense aware of and involved in it. It was Qantas employees, in their capacity as such and relying on their commercial influence as regular customers as such, who negotiated the deal;
(e) just as Mr Da Ros contended that he was doing what he had been encouraged to do, so Mr Watson contends in this case, and there is no need that the encouragement be by way of direct instruction, and
(f) in both cases, the worker was on his way back to the crew hotel and was an innocent third party when collided with by a negligent third party. It is unthinkable that the Commission’s decision on section 9A can now be seen as correct.
DISCUSSION AND FINDINGS
I do not doubt the existence of the reconsideration power in section 350(3) of the 1998 Act. Nor do I doubt that, in the appropriate case, the Commission can use that power to correct factual or legal errors to do justice between the parties (Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642; Bluescope Logistics Co Pty Ltd (formerly BHP Transport & Logistics Pty Ltd) v Finlow [2006] NSWWCCPD 338R).
However, it is important to keep in mind the distinction between the existence of the power and the occasion of its exercise, and that a court (or, in this case, the Commission) should not lose sight of the general rule that public interest requires that litigation should not proceed interminably (per Street CJ in Hilliger v Hilliger (1952) 52 SR (NSW) 105 at 108).
The question in the present case is whether Mr Watson has established a proper basis for the reversal of the factual findings in Qantas No 2 relating to “in the course of employment” and “arising out of employment”. If neither of those findings is reversed, the question of whether employment was a substantial contributing factor to the injury does not arise.
Mr Watson has not advanced any persuasive reason in support of his assertion that the Commission should reverse the factual findings in Qantas No 2. He has not tendered any fresh evidence and not suggested any relevant change in the law. Nothing in Da Ros casts doubt on the correctness of the relevant factual findings made in Qantas No 2. Da Ros dealt with section 9A. The issues before me relating to “in the course of employment” and “arising out of employment” were not argued in Da Ros.
That there are similarities between the facts in Da Ros and those in Mr Watson’s case is hardly surprising. They were both Qantas employees injured during ‘slip time’ in Los Angeles. However, that is where the similarities end. In Da Ros, the Deputy President noted that Qantas conceded that the injury arose in the course of employment (see [79] of the Deputy President’s decision). He added (at [81]) that the evidence established that Qantas encouraged Mr Da Ros to spend the interlude between flights in a particular way, namely by using the recreational facilities provided by Qantas (a bicycle) and visiting the sights of the city. As a member of Qantas’s recreation club, Mr Da Ros had access to the recreation facilities (including bicycles) provided by Qantas. He also found (at [98]) that Qantas encouraged Mr Da Ros to maintain his physical fitness and that Mr Da Ros was concerned to maintain his physical fitness “in part by reason of the demands of his employment”. It was in the course of riding the bicycle supplied by Qantas that Mr Da Ros was injured.
In contrast, in Qantas No 2 there was no persuasive evidence that Qantas had, either expressly or impliedly, induced or encouraged Mr Watson to spend his time in Los Angeles at a particular place or in a particular way. Mr Watson hired a car, at his own expense, to visit friends with whom he had a common interest that had no connection with his employment.
There is no similarity between the provision by Qantas of recreational equipment (such as bicycles) to members of the recreation club, as occurred in Da Ros, and the hiring by Mr Watson of a car from a third party (Budget car rentals) to visit friends one hour and twenty minutes from Los Angeles. The evidence in Qantas No 2, which I accepted, was that the hire rate offered by Budget to Qantas staff was a commercial decision by Budget. It was not arranged by or on behalf of Qantas. The assertion that Qantas employees negotiated the “deal” with Budget is unsupported by any evidence and I do not accept it.
There is nothing in paragraphs [8] and [22] of Da Ros that, even when read with [58] in Watson, requires or even suggests that the Commission should make different factual findings in Qantas No 2. At [8] of Da Ros, Basten JA observed that the Court of Appeal in Watson “dealt with factual circumstances not dissimilar to the present case” but focused on whether the injury occurred “in the course of” his employment. His Honour then observed that it was Badawi v Nexon Asia PacificPty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; (2009) 7 DDCR 75 which dealt with section 9A, that was “of most direct relevance” in Da Ros. At [22] of Da Ros, Basten JA stated, “The activity in which a claimant may be involved when he or she suffers an injury is either within the course of employment or it is not”. That question is a question of fact. His Honour’s further comments at [22] were made on the assumption that a finding had been made that the activity concerned was in the course of employment.
The statement at [58] in Watson identified the test that Hatzimanolis required to be applied in cases of this kind. That test required that, in the first instance, the period of work had to be characterised and the circumstances of what occurred analysed within that framework. That is what I did in Qantas No 2. Their Honours then added that, if the view had been reached that Mr Watson was engaged on one episode of work taking him to the USA and returning, “the particular aspects of the way the layover was spent might take on a very different complexion” (emphasis added). Even if the words at [58] were a veiled suggestion that, if it were found at the rehearing (as it was found) that Mr Watson’s injury occurred in an overall period of work, the result should be different, Mr Watson’s submissions have overlooked the fact that there was additional evidence called in Qantas No 2 that was not before the Court of Appeal. I considered that evidence in detail in Qantas No 2 and, as Mr Watson has not referred to it (save for the inaccurate reference to the hire car arrangements) in his application for reconsideration, I will not discuss it again.
The submission that, given the reasoning and facts in Da Ros, the decision in Qantas No 2 on the “arising out of” issue should also be reversed is unsupported by any reasoned argument. There is nothing in Da Ros that requires or suggests a different result on the factual question of “arising out of” in Qantas No 2. Da Ros dealt with the application of section 9A in circumstances where Qantas conceded, and the Deputy President confirmed in his reasons, that the injury occurred in the course of the worker’s employment. The Court of Appeal did not consider the “arising out of” issue.
The reference to the “quick development” of the law in this area indicated by Da Ros is of no relevance. The “quick development” relates to the interpretation and application of section 9A, not the issues of “in the course of” or “arising out of”.
Qantas has not disputed that Mr Watson acted promptly to bring this application for reconsideration. That is not, however, determinative.
The submission that the Commission’s decision that Mr Watson was not in the course of his employment “must have been a very close run thing” was unhelpful and has not advanced any reason why, on a reconsideration, a different result should be reached. The “implications” from Da Ros do not lead to different factual findings in Qantas No 2.
I gave comprehensive reasons in Qantas No 2 why I did not accept that Mr Watson was in the course of his employment at the time of his injury and why his injury did not arise out of his employment. The submission that Mr Watson was doing something that he was encouraged to do was considered and rejected in Qantas No 2 and there is nothing in Da Ros that suggests or implies that that conclusion was wrong.
CONCLUSION
Having reconsidered Qantas No 2 in the light of Mr Watson’s submissions, I am not persuaded that the factual findings on “in the course of” and “arising out of” should be reversed or varied. It follows that the correctness of my finding on the substantial contributing factor issue does not arise.
DECISION
Having reconsidered the matter of Qantas Airways Limited v Watson(No 2) [2010] NSWWCCPD 38 under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 the findings and orders in that matter are confirmed and the respondent worker’s application for reconsideration is dismissed.
COSTS
Each party is to pay his or its own costs of the reconsideration application.
Bill Roche
Deputy President
11 August 2010
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
7
0