Watson v Qantas Airways Ltd
[2009] NSWCA 322
•8 October 2009
Reported Decision: 75 NSWLR 5397 DDCR 113
New South Wales
Court of Appeal
CITATION: Watson v Qantas Airways Limited [2009] NSWCA 322
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 22 June 2009
JUDGMENT DATE:
8 October 2009JUDGMENT OF: Allsop P at 1; Beazley JA at 1; McColl JA at 1; Basten JA at 69; Handley AJA at 1 DECISION: 1. Appeal allowed.
2. The decision of the Workers Compensation Commission of 26 June 2008 be set aside.
3. The matter be remitted to the Commission for rehearing.
4. The respondent pay the appellant's costs.CATCHWORDS: WORKERS' COMPENSATION – entitlement to compensation - injury in the course of employment or arising out of employment – injury occurring away from place of employment – injury occurring away from employee’s home –characterisation of overall period of work – circumstances of injury in context of identified overall period of work - WORKERS' COMPENSATION – appeal from Workers Compensation Commission – error in point of law – error apparent in expression of principle - failure to direct adequately to test in binding High Court authority - Workers Compensation Act 1987 (NSW) – s 4 - s 9 - WORDS AND PHRASES –“in the course of employment” – “arising out of employment” LEGISLATION CITED: Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)CATEGORY: Principal judgment CASES CITED: ATL Limited v Rolls [1980] 54 WCR (NSW) 327
Baudoeuf v Department of Main Roads (1968) 68 SR (NSW) 406
Bill Williams Pty Limited v Williams [1972] HCA 23; 126 CLR 146
Blacktown City Council v Smith [1996] NSWCA 52
Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344
Commonwealth v Lyon (1979) 24 ALR 300
Commonwealth v Oliver [1962] HCA 38; 107 CLR 353
Danvers v Commissioner for Railways (NSW) [1969] HCA 64; 122 CLR 529
Davidson v Mould [1944] HCA 10; 69 CLR 96
Dew v Maher [1996] NSWCA 154; 14 NSWCCR 56
Favelle Mort Limited v Murray [1976] HCA 13; 133 CLR 580
Goward v Commonwealth [1957] HCA 60; 97 CLR 355
Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473
Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42
HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292
Humphrey Earl Limited v Speechley [1951] HCA 75; 84 CLR 126
ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257
Inverell Shire Council v Lewis [1992] NSWCA 114; 8 NSWCCR 562
Le Brocq v Workcover Authority of NSW [2008] NSWCA 125; 6 DDCR 257
Mason v Social Welfare Department [1974] VR 506
McCurry v Lamb [1992] NSWCA 169; 8 NSWCCR 556
McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348
Mendez v Telstra Corporation Ltd (1998) 147 FLR 394
Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740
Moran v Amoret Installations Pty Ltd [2000] NSWCA 106
Newstead v Gulgong RSL Club Ltd [1995] NSWCA 318
Pollock v Stickfast Labels Pty Limited (in liq) [2002] NSWCA 360; 24 NSWCCR 279
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Qantas Airways Ltd v Kirkland (New South Wales Court of Appeal, 9 October 1980, unreported)
Qantas Airways Ltd v Watson [2008] NSWWCCPD 65
Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115
Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250
Vdovic v Peter A Cox & Associates Pty Ltd [1999] NSWCA 247
White v Qantas Airways Ltd (unrep, NSWWCC, 23 June 2006
Workcover Authority of NSW v Walsh [2004] NSWCA 186PARTIES: Peter Michael Watson
Qantas Airways LimitedFILE NUMBER(S): CA 40302/08 COUNSEL: Mr L King SC, Mr G Niven (Appellant)
Mr J Maconachie QC, Mr J Catsanos (Respondent)SOLICITORS: White Barnes Solicitors (Appellant)
HWL Ebsworth Lawyers (Respondent)LOWER COURT JURISDICTION: Workers Compensation Commission LOWER COURT FILE NUMBER(S): WCC7586/2007 LOWER COURT JUDICIAL OFFICER: Deputy President Byron LOWER COURT DATE OF DECISION: 26 June 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Qantas Airways Limited v Watson [2008] NSWWCCPD 65
CA 40302/08
Thursday 8 October 2009ALLSOP P
BEAZLEY JA
McCOLL JA
BASTEN JA
HANDLEY AJA
The appellant was a pilot employed by the respondent. Whilst in Los Angeles on a compulsory break from flying the appellant was seriously injured in a motor vehicle accident. The accident occurred when the appellant was returning to his hotel after visiting friends and was the fault of the other vehicle involved in the collision.
The appellant sought and was awarded compensation by an arbitrator in the Workers Compensation Commission. On appeal of that decision to a Presidential Member of the Commission the appellant’s claim was rejected. The appellant appealed to this Court from that decision, submitting that the Presidential Member erred in point of law in holding that the injury did not fall within the requirements of Workers Compensation Act 1987, ss 4 and 9 because the appellant was not in the course of his employment when the accident happened, nor did the accident arise out of his employment.
Held, allowing the appeal and remitting the matter to the Workers Compensation Commission
Per Allsop P, Beazley JA and McColl JA and Handley AJA:
2. In Hatzimanolis it was held that an injury sustained during an interval in an overall period or episode of work will ordinarily be seen as occurring in the course of employment when the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or engaged in a particular activity and the injury occurs at that place or during that activity, unless the employee is guilty of gross misconduct: [27], [29].1. Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 reformulated the test to be applied in determining whether an employee’s injury could be characterised as occurring “in the course of employment” for the purposes of Workers Compensation Act 1987 (NSW), ss 4 and 9. This case provides the approach to be taken and the test to be applied: [9], [15]-[16].
3. The reformulated test in Hatzimanolis requires in the first instance a determination or characterisation of the period or periods of work as one overall period or episode of work or two or more period or episode of work: [30], [58].
4. Once the period of work of the employee is characterised, the circumstances of the injury, including how the interval between actual performance of work was spent, is to be analysed in that framework: [30], [58].
5. There was an error of law in the failure of the Presidential Member to direct himself in accordance with the reformulated test in Hatzimanolis and therefore the Presidential Member effectively asked himself the wrong question. The matter should be remitted to the Workers Compensation Commission: [9].
Per Basten JA, concurring:
7. Although the claimant was unsuccessful on the issue of causation, whether or not the injury occurred in the course of employment may be a relevant matter to be taken into account in determining causation: [77].6. The principles to be applied in determining whether an injury occurs in the "course of employment" are identified in Hatzimanolis, although the language used by the high Court as appropriate in the circumstances of that case, may not chart the outer limits of the principle: [79], [86], [94].
Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281; Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, referred to.
8. The determination of whether an injury occurred in the course of employment requires a consideration of the general nature, terms and circumstances of the employment. The Commission erred by failing to pay due regard to these factors: [82], [100].
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473, applied.
Danvers v Commissioner for Railways (NSW) [1969] HCA 64; 122 CLR 529; White v Qantas Airways Ltd (unrep, NSWWCC, 23 June 2006); Qantas Airways Ltd v Kirkland (unrep, NSWCA, 9 October 1980), referred to.
9. Failure to pay due regard to a material factor may render the decision of the Commission erroneous in point of law: [114].
HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292, referred to.
CA 40302/08
Thursday 8 October 2009ALLSOP P
BEAZLEY JA
McCOLL JA
BASTEN JA
HANDLEY AJA
Peter Michael Watson v Qantas Airways Limited
Judgment
1 ALLSOP P, BEAZLEY JA, McCOLL JA and HANDLEY AJA: The appellant, a pilot employed by the respondent, was seriously injured in a motor vehicle accident whilst on a “layover” in Los Angeles. The accident occurred whilst the appellant was returning to his hotel after visiting friends. The accident was the fault of the driver of the other vehicle involved in the collision.
2 The respondent refused to pay the appellant workers compensation. The appellant thus sought and was awarded compensation by an arbitrator in the Workers Compensation Commission. On the respondent’s appeal to a Presidential Member of the Commission, the appellant’s claim was rejected by Deputy President Byron on the basis that the appellant was not in the course of his employment when the accident happened, nor did the accident arise out of his employment.
3 The appellant appeals from the decision of the Deputy President. An appeal lies to this Court where a party is aggrieved by a decision of a presidential member in point of law: the Workplace Injury Management andWorkers Compensation Act 1998 (NSW), s 353(1).
4 The principal issue arising on appeal is whether the Deputy President erred in point of law in determining whether the arbitrator properly dealt with the question whether the appellant’s injuries arose out of or in the course of his employment: the Workers Compensation Act 1987 (NSW) (the WC Act), ss 4 and 9.
5 Also said to arise on a notice of contention was the meaning and operation of the WC Act, s 9A and the correctness of what this Court said about s 9A in Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; 48 NSWLR 740. The possible challenge to Mercer led to the convening of a five judge bench. As the matter has fallen out, it is unnecessary to deal with s 9A in any substantial way.
6 The question as to the proper construction of s 9A was also raised in Badawi v Nexon Asia Pacific Pty Limitedt/as Commander Australia Pty Limited [2009] NSWCA 324. Accordingly, the two matters were heard by the same court constituted by five judges to consider the reasoning of the Court in Mercer. We have dealt with Mercer in our reasons in Badawi.
Introduction
7 The Deputy President recorded, at [27] the following “general factual background” as agreed by the parties:
- “
- [The appellant] was at all relevant times employed by Qantas as an international aircraft pilot;
At the time of injury, [the appellant] was in Los Angeles on “lay-over” between flights;
[The appellant] 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;
[The appellant’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, [the appellant] 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.”
8 It will be unnecessary to deal with the facts in any detail. It suffices to say that the appellant was enjoying a compulsory break from flying when his injury occurred. He was away from home, undertaking recreation of a kind approved of by his employer. He was returning home to his hotel when injured.
9 We are of the view that the Deputy President did not approach his task in accordance with binding High Court authority: Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473. For this reason, the matter should be remitted to the Workers Compensation Commission.
The legislation
10 A worker is entitled to compensation under the WC Act pursuant to s 9, which provides:
“ 9 Liability of employers for injuries received by workers-general
(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
11 “Injury” is defined in s 4 and means “personal injury arising out of or in the course of employment”. (The definition extends to include disease, which is not presently relevant.)
12 Pursuant to s 9A, compensation is not payable to a worker unless the employment is a substantial contributing factor to the injury. The terms of s 9A are as follows:
“ 9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(a) the time and place of the injury,(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
- (b) the nature of the work performed and the particular tasks of that work,
- (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
- (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Sections 10, 11 and 12 deal with journey claims, recess claims, and claims by trade union representatives respectively. Section 10 was not relied upon in this case and s 12 is not relevant.
13 Section 11 was sought to be relied upon by the appellant at the hearing of the appeal. It had not been relied on before the Arbitrator or the Deputy President. Counsel for the respondent opposed the amendment of the notice of appeal to raise the section. The Court refused the appellant leave to raise it, indicating that reasons would be given in the judgment for this course. These are those reasons. First, the late raising of the matter put the respondent’s counsel at a disadvantage in arguing the appeal. The appeal would either have had to be adjourned or conducted in part by written submissions. This would have been unfair and against the interests of justice. Secondly, and more importantly, the point was bound to fail. The appeal to this Court in respect of a grievance as to the decision of the Deputy President is in point of law only. If a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it.
The conclusions of the Deputy President
14 The Deputy President concluded that the appellant did not sustain his injuries in the course of his employment. The Deputy President also found that the injury was not sustained arising out of the employment.
Injury arising in the course of employment: relevant principles
15 The question whether an employee is in the “course of employment” has proven to be difficult to determine in two particular circumstances, both of which arise in this case: the first is where injury is sustained away from the place of employment and the second is where the employment is in a place remote from the employee’s home.
16 Central to the disposition of this appeal is the recognition that the High Court in Hatzimanolis was marking out the approach to the question of “course of employment”, particularly in the two circumstances just mentioned.
Hatzimanolis
17 In Hatzimanolis the appellant was working in a remote location in Western Australia. Before leaving New South Wales, he had been briefed on his conditions of work by the supervisor, a Mr Pope. Workers were required to work six 10 hour days and there was a possibility that some work might have to performed on Sundays. Tools were supplied and accommodation and living expenses paid for by the employer. The employer also made vehicles available for the workers’ transport. The workers were told they might have an opportunity to visit areas around Mt Newman and the Pilbara during their time away. The appellant’s accident occurred on one such occasion. Mr Pope had organised a Sunday trip to Wittenoom Gorge, some 400 km from the work site. He encouraged the appellant to go on the trip. Mr Pope provided the employer’s vehicles for transport and he also provided food for the trip.
18 The High Court held that the appellant was in the course of his employment when the accident occurred, in circumstances where they found that Mr Pope was acting on behalf of the employer when he “organised the excursion, provided the vehicles and the food, and invited the appellant ‘to come along’”. Mason CJ, Deane, Dawson and McHugh JJ held at 476 that the appellant:
- “… sustained injury during an interval occurring within an overall period or episode of work and while engaged, with his employer’s encouragement, in an activity which his employer had organised.”
Toohey J agreed, essentially for the same reasons.
19 Mason CJ, Deane Dawson and Mc Hugh JJ referred, at 479 to the test stated by Dixon J in Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281, that in cases not concerned with injuries sustained during actual work, the test whether an injury had been sustained in the course of employment:
- “… ultimately depended upon whether the workman was doing something which he was ‘reasonably required, expected or authorized to do in order to carry out his actual duties’”
Their Honours noted that Dixon J had applied the same test in Humphrey Earl Limited v Speechley [1951] HCA 75; 84 CLR 126 at 133, although in the latter case the adjective “ actual ” had been omitted; the reference being to matters that the employee had been authorised etc to do “in order to carry out his duties”.
20 Their Honours, at 479, observed, however, that while the test stated in Henderson had provided in its “flexible operation” a “satisfactory line of demarcation” between cases where the injuries were within the course of employment and those that were not, many cases had only succeeded because of “a strained interpretation of the words ‘in order to carry out his duties’”. As their Honours noted at 480, many such cases had involved circumstances where the worker was engaged in an activity “ordinarily performed for private necessity, convenience or enjoyment”: Baudoeuf v Department of Main Roads (1968) 68 SR (NSW) 406; Danvers v Commissioner for Railways (NSW) [1969] HCA 64; 122 CLR 529; Mason v Social Welfare Department [1974] VR 506; Favelle Mort Limited v Murray [1976] HCA 13; 133 CLR 580; Commonwealth v Lyon (1979) 24 ALR 300; Qantas Airways Ltd v Kirkland (New South Wales Court of Appeal, 9 October 1980, unreported); ATL Limited v Rolls [1980] 54 WCR (NSW) 327.
21 At 482, their Honours expressed the view that a reformulation of principle was required, stating the following:
- “Beneficial as the Henderson-Speechley test has proved to be in the law of workers' compensation, its formulation no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment. A finding that a worker was doing something ‘in order to carry out his duties’ at the time he sustained injury is in many cases simply fictitious. Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers .”
22 Their Honours then noted, at 482, that the “striking feature” in these cases was that:
- “… in almost all of them the employer has authorized, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way.”
23 Their Honours considered, however, that to make the test one that only depended upon the consent, encouragement or permission of the employer as the determining principle would involve an unacceptable extension of the concept “in the course of employment”.
24 At 483, their Honours explained the distinction between a case like Danvers, which involved the death on a weeknight of a railway line worker who travelled up and down the lines doing maintenance and repair work from Monday to Friday and where it was accepted that the injury was sustained in the course of employment, and:
- “… a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterization of the period or periods of work of those employees. For the purposes 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 periods of work.”
25 Their Honours then explained, at 483, how that notion operated, first by reference to injuries occurring at a permanent place of employment, as follows:
- “Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home.”
26 Their Honours then considered, at 483, the position where an employee was required to work at a remote location and live in accommodation provided by the employer until a particular task or project was completed, such had been the position in Danvers. In that situation, it was more likely that the entire period away was an entire period or episode of employment, rather than a series of discrete periods of employment. Their Honours stated:
- “Where, for example, as in Danvers , an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.”
27 Their Honours continued, at 484:
- “Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, …an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode 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. Furthermore, 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 the course of employment.”
These propositions were derived from Commonwealth v Oliver [1962] HCA 38; 107 CLR 353 and the cases that followed it.
28 Their Honours then emphasised at 484 that this approach had always to be considered in the context of:
- “… the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’: [see Danvers at 537].”
29 In the application of this approach, the High Court accepted that not every activity in which an employee engaged whilst in a remote location was within the course of employment. An activity that had not been expressly or impliedly induced or encouraged by the employer (and short of misconduct by the employee) would not fall within the “course of employment”: see at 485. Their Honours referred by way of example to Goward v Commonwealth [1957] HCA 60; 97 CLR 355 where the High Court upheld a finding that a linesman employed by the Postmaster-General’s Department who lived in a camp as part of his employment was not killed in the course of his employment, because the evidence was that he had been struck by a train on a nearby railway line some hours after finishing that day’s work.
30 What is central to the decision in Hatzimanolis and to the resolution of this appeal is the recognition that the earlier approach in Henderson and Speechley was reformulated in Hatzimanolis. In that reformulation, it was crucial first to characterise the period or periods of work, before focussing on how the interval between actual performance of work was spent. This can be seen as especially important when the employee is sent on travels away from home.
Hatzimanolis and the jurisprudence of this Court
31 A number of decisions of this Court have dealt with Hatzimanolis: McCurry v Lamb [1992] NSWCA 169; 8 NSWCCR 556; Inverell Shire Council v Lewis [1992] NSWCA 114; 8 NSWCCR 562; Newstead v Gulgong RSL Club Ltd [1995] NSWCA 318; Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250; Dew v Maher [1996] NSWCA 154; 14 NSWCCR 56; Blacktown City Council v Smith [1996] NSWCA 52; Mendez v Telstra Corporation Ltd (1998) 147 FLR 394; Vdovic v Peter A Cox & Associates Pty Ltd [1999] NSWCA 247; Moran v Amoret Installations Pty Ltd [2000] NSWCA 106; ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257; Pollock v Stickfast Labels Pty Limited (in liq) [2002] NSWCA 360; 24 NSWCCR 279; McMahon v Lagana [2004] NSWCA 164; 4 DDCR 348; Workcover Authority of NSW v Walsh [2004] NSWCA 186; Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158; and Le Brocq v Workcover Authority of NSW [2008] NSWCA 125; 6 DDCR 257.
32 In McCurry v Lamb and Inverell Shire Council v Lewis (argued together and delivered on the same day) Handley JA (with whom Clarke JA agreed generally and Sheller JA agreed) expressly recognised the importance of the reformulation of the law in Hatzimanolis.
33 Many of these decisions can be seen as particular applications of principles to the facts: see, for example, Newstead; Dew v Maher; Mendez v Telstra; Vdovic v Peter A Cox; Moran v Amoret Installations; ICM Agriculture v Perry; Pollock v Stickfast Labels; McMahon v Lagana; Chubb Security v Trevarrow; Hevi Lift v Etherington and Le Brocq v Workcover. As particular application of the provision, they contain no relevant principle.
34 In Van Haeften v Caltex Oil, Priestley JA (with whom Clarke and Meagher JJA agreed) stated, at 255, that Hatzimanolis extended beyond the “camp” cases and made Henderson and Speechley not an entirely reliable source of principle.
35 In Blacktown City Council v Smith, Mahoney P (with whom Handley and Beazley JJA agreed) commented upon the place of Hatzimanolis and said that it did not provide a “single ‘controlling principle’”, referring to what Toohey J had said in Hatzimanolis at 489. It is to be recalled that in this Court in Hatzimanolis, Mahoney JA reviewed the existing authorities and had sought to distil a criterion or controlling principle. In this context, Mahoney P said the following in Blacktown City Council v Smith about Hatzimanolis:
- “The High Court, on appeal, considered whether the state of development of the law permitted the formulation of a new ‘organising principle’ for this purpose: at 479. It saw the then existing law as covering ‘many situations that were not contemplated’ when the existing tests were formulated: at 479-80. It held: at 482; that:
- ‘... the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of the employment so that their application will accord with the current conception of the course of employment as demonstrated in the recent cases, particularly the decisions of this Court in Oliver and Danvers.’
The Court took its analysis further. The Court saw injuries as ‘more readily’ held to be compensable injuries if they occurred ‘in an interval or interlude occurring within an overall period of episode of work than when it has been sustained in the interval between two discrete periods of work’.”The Court said that ‘almost all of’ the relevant decisions were cases in which the injury had been suffered, as Hatzimanolis was, during a break from or interval in the course of the employment and cases in which ‘the employer has authorised, encouraged or permitted the employee to spend his time during that interval at a particular place or in a particular way’. But the Court held that words such as ‘authorised, encouraged or permitted’ were not an exhaustive criterion, because they would allow ‘an unacceptable extension of the course of employment’. The Court held the relevant distinction in such cases to lie ‘... not so much in the employer’s attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees’: at 483.
Mahoney P thus recognised the importance of the characterisation of the periods of work in the formulation of a new “ organising principle ”.
36 In Workcover v Walsh, Tobias JA (with whom Hodgson JA and McClellan AJA agreed (substantially)) dealt with the issue of “in the course of employment” on the basis of the common ground that the expression was governed by Henderson, Speechley and Hatzimanolis: see Workcover v Walsh at [32]. To the extent that this way of putting it takes emphasis away from the reformulation in Hatzimanolis and its importance, the case is not authority for any considered gloss upon, or qualification to, Hatzimanolis in the High Court.
37 In Haider, Basten JA discussed the applicable principles in a manner consistent with the importance of the reformulation in Hatzimanolis, but recognising the continuing utility of prior expressions of principle in that new context.
38 The jurisprudence of this Court since Hatzimanolis is consistent with an approach that recognises, as Mahoney P and Handley JA did shortly after the delivery of Hatzimanolis, that the majority judgment is an important reformulation of the organising principles in determining what is “in the course of employment”. Whilst not making cases such as Henderson and Speechley redundant, its reformulation of principle at 482-484 requires those and other earlier cases to be read in the framework of Hatzimanolis. Importantly for present purposes, that reformulation requires at the outset the process of characterisation of the period or periods of work to ascertain whether there is one overall period or episode of work or discrete periods of work.
39 We refer to these cases dealing with Hatzimanolis not to encourage those at the Commission to employ them in reasons; to the contrary. Most are particular factual applications of the principles in Hatzimanolis. They are not precedents. The task is to approach the matter with the assistance of Hatzimanolis. Four cases in this Court, McCurry v Lamb, Inverell Shire Council v Lewis, Blacktown City Council v Smith and Van Haeften v Caltex Oil are important sources of recognition of the importance of starting any analysis with Hatzimanolis.
The arguments of the parties
40 The essence of the appellant’s argument was that when regard was had to the reformulation of the test of “in the course of employment” in Hatzimanolis, there was but one answer to the question: that the appellant was in the course of employment. Thus, it was said, the Deputy President erred in concluding otherwise. Essential to this proposition was the submission that, properly characterised, the layover should not be seen as a division or interlude between two periods of employment. This submission did not focus on the use of Hatzimanolis by the Deputy President; rather, it stressed that if Hatzimanolis was correctly applied, there could be but one answer to the enquiry as to “course of employment”.
41 The complaints of the appellant as to “arising out of” reflected the arguments put forward above regarding “in the course of employment”. The injury should have been viewed as occurring in the course of employment. Further, a “but for” analysis should have been employed in considering “arising out of” and what was submitted to be the lesser, or less stringent, requirement of s 9A.
42 The respondent submitted that the Deputy President approached the matter correctly as a question of principle and the complaints of the appellant raised questions of fact legitimately open to the Deputy President.
The disposition of the appeal
43 The error of law, here, arose from the failure of the Deputy President to direct himself in accordance with the reformulated test in Hatzimanolis. In our view, the Deputy President effectively asked himself the wrong question. The appellant put the argument by submitting that, on the facts, properly applying Hatzimanolis only one answer was possible. That overstated the matter, but it was a reflection of the appellant’s essential complaint, a misapplication of Hatzimanolis. The Deputy President dealt with the applicable principles at [46]-[57] of his reasons.
44 At [46] of his reasons, the Deputy President referred to Hatzimanolis at 484, saying:
- “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 …”
45 He then referred to Bill Williams Pty Limited v Williams [1972] HCA 23; 126 CLR 146, saying:
- “Stevens J [sic] 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.”
46 This statement does not accurately record what Stephen J said, nor is it a correct statement of principle of the test to be applied in determining whether injury arose in the course of the employment. Stephen J, in the passage to which the Deputy President appears to have referred, stated, at 158 - 159:
That which is incidental to a worker's work depends upon ‘the sufficiency of the connexion between the employment and the thing done by the employee’ …”“Injury in the course of employment means an injury sustained while the worker is engaged in the work which he is employed to do or in something incidental to that work : Kavanagh v. The Commonwealth per Fullagar J.[(1960) 103 CLR at 559]. It is a concept devoid of any causal link between the work which the worker is employed to do and the injury sustained, ‘there is nothing more in the concept than time measured by activity of a particular character’: Kavanagh v. The Commonwealth per Menzies J. [(1960) 103 CLR at 570]. It is a temporal concept but the relevant time span during which the course of employment runs is determined by the activities of the worker ; so long as he is engaged in his work or something incidental to it the time span endures ; as soon as he ceases to be so engaged the time span ends and with it the course of employment.
47 The Deputy President then correctly recognised, at [46], that no causative element was involved in determining whether injury was sustained in the course of employment. This can be seen in Bill Williams.
48 From [47] to [57], the Deputy President discussed various cases dealing with “course of employment”. Many of the cases referred to were decided before Hatzimanolis and reflected aspects of the approach that their Honours in Hatzimanolis had found to be unsatisfactory. For example, Davidson v Mould [1944] HCA 10; 69 CLR 96 was cited, in [47] of the Deputy President’s reasons, for the following proposition:
- “… 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.”
49 At [48] of his reasons, the Deputy President referred to T Blundell (ed) Mills Workers Compensation New South Wales (Sydney: Butterworths, 2002) at 965 as stating the general position:
- “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’ ].”
50 This passage does not, with respect, reflect the High Court’s reasoning in Hatzimanolis. It might, if anything, reflect the approach of Stephen J in Bill Williams, but it does not pick up the nuances of the majority judgment in Hatzimamolis, at least insofar as the Court was considering an injury sustained in a remote location.
51 Reference was next made, at [49] of the Deputy President’s reasons, to the test stated in Speechley, which their Honours, in Hatzimanolis, said required reformulation. The Deputy President went on to state:
- “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.”
It should be noted that these comments by the majority in Hatzimanolis were made in the context of a person being in a permanent locality. It is appropriate to set out the next passage in the Deputy President’s reasons, at [49], which more correctly accords with what the majority said in Hatzimanolis at 484:
- “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.”
52 The Deputy President returned to Hatzimanolis at [51], [53], and [54], referring to the passages set out above. He stated, at [57], what he saw as the “critical factor” in the following terms:
- “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…; Dew t/as AG and PG Dew v Maher …; Black v New South Wales Fire Brigades [1994] NSWCC 18; (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’ ).”
53 Two matters should be noticed about this statement. First, the Deputy President did not mention the overall period of employment, which is an integral part of the passage in Hatzimanolis that constitutes the ratio, and that it is necessary to consider an interval or interlude in an overall period of employment. At no time did the Deputy President consider what the majority in Hatzimanolis saw as central (at 483): the characterisation of the period or periods of work of the employee. This failure is reflected in how the Deputy President commenced his consideration of the question whether the injury was sustained in the course of employment by reference to a “sufficiency of connection between the employment and the incident”, which he understood was the principle stated in Bill Williams. As we understand the reasons of the Deputy President, he did not put that matter aside at any time. It remains necessary, however, to consider the manner in which his Honour applied what he saw as the principles to the facts in the case, to which we will come.
54 The second matter that should be noticed in the Deputy President’s comments at [57] (though perhaps of less importance), is the reference to “actual or direct benefit to the employer”. His Honour referred, inter alia, to Maher in support of this proposition. In Maher, the worker was a farm hand who was injured whilst on a weekend pig shooting expedition on his employer’s property. At the time of his injury, he was in the company of the employer’s stock manager, who was also a professional pig shooter. The employer encouraged the shooting of feral pigs on the property and authorised the stock manager to do so and encouraged other employees to accompany the stock manager for that purpose. The worker was injured when a bomb which the stock manager had constructed exploded, in circumstances where the worker and stock manager had proposed to scare others who had accompanied them on the trip by letting the bomb off. Cole JA (Handley JA and Cohen AJA agreeing) held that the pig shooting activity, even if occurring in an interval during the employment was an activity that was encouraged by the employer and was for the employer’s benefit.
55 In Maher the Court was concerned with all of the circumstances of the employment, including that the worker lived on the farm. Although the shooting had a recreational aspect to it, the fact that the pig shooting was of benefit was a relevant consideration in that case in determining whether the injury was sustained in the course of the employment. As is apparent from the reasons of Cole JA, whether or not the fact that the activity concerned is of benefit to the employer, and how close or direct such benefit is, is simply part of the factual matrix encompassed within the High Court’s requirement, that “regard must always be had to the general nature, terms and circumstances of the employment”. It is not correct to elevate a practical consideration in a particular case of “benefit to the employer” to a requisite requirement of “course of employment”, or to an element of principle in resolving a question about the case.
56 In reaching his conclusion as to whether the appellant was in the course of his employment, the Deputy President’s decision (set out at [75]-[81] of his reasons) was based on the following considerations:
(a) The respondent required its employees to take slip leave to rest and recuperate so as to be fit to undertake their duties. The Deputy President noted that this could be seen as a feature of its requirements for all employees whether on long haul flights away from their home base or not: [75].
(b) The respondent was not prescriptive in how employees were to spend their leisure time whilst on slip leave: [75].
(c) The appellant had engaged in a social activity that was “ above, beyond and unrelated to his employment in a periods of time that was not required for work, and knowing that he was not required for work ”: [76].
(d) The appellant was not engaging in any activity that he was “ reasonably required or authorised to do in order to carry out his duties ” [emphasis added] Speechley : [77].
(e) The appellant was not at a particular place or doing something at the direction of the respondent: [77].
(f) It was of no particular interest or benefit to the respondent that the appellant was engaged in a wholly private social activity above and beyond being prepared and available to take his next assignment, an inherent responsibility of his job whether in Australia or abroad. The absence of benefit was reiterated: [77].
(g) Notwithstanding the need to meet certain routine requirements (which appears to be a reference to being on call), the appellant was able to embark upon a trip to spend a private social evening with friends: [78].
(i) The appellant’s activity was entirely unrelated to his employment and he utilised his own leisure time in Los Angeles choosing to do something of a private nature: [80].(h) The latitude and flexibility allowed to long haul employees did not bring all activities into the course of employment: [79].
57 The Deputy President’s conclusions were in these terms:
[81] On a consideration of the authorities and the evidence in this matter, I do not agree with the Arbitrator that [the appellant] 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 [the appellant] 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 [the appellant’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 [the appellant’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.”“[80] On the evidence, [the appellant’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’ ). [The appellant’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.
58 The test that was required to be applied was that stated in Hatzimanolis. This requires, in the first instance, a determination or characterisation of the period or periods of work of the employee as one overall period or episode of work, or two or more; one does not first, before that task, examine aspects of, and employers’ attitudes to, how the period of work is spent: see Hatzimanolis at 483. Once the period of work of the employee is characterised, the circumstances of what occurred are to be analysed within that framework. This was not done. Nowhere does the Deputy President analyse the question whether the layover was to be characterised as part of the one overall period or episode of work. If that had been done, and if the view had been reached that the appellant 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.
59 For these reasons, in our view, the Deputy President failed to direct himself adequately by reference to Hatzimanolis. This was an error of law. It suffices to require the decision to be set aside and remitted to the Workers Compensation Commission for rehearing.
60 Given the views that we have come to, it is unnecessary to express a concluded view as to whether, as a matter of fact, there was only one conclusion legally open to the Deputy President if Hatzimanolis were correctly applied.
61 Here, the error is not to be inferred by looking at the factual outcome. Rather, the error is apparent in the expression of principle which lacks the proper attendance to, and focus upon, the reformulated approach in Hatzimanolis. If that reformulation were to be applied and, if the periods of work were characterised as one overall episode of work including the layover, there may well be an argument, on the facts here, that only one factual conclusion as to “in the course of employment” was open. We would not, however, draw that conclusion in the absence of considered reasons of a Presidential Member properly addressing the issue.
62 However, we should say that any answer to “in the course of employment” properly applying Hatzimanolis, would not necessarily answer any other relevant question such as satisfaction of s 9A.
Second issue on appeal: ‘arising out of employment’
63 The Deputy President’s reasons were short on this issue:
[84] Consequently, it is not evident that [the appellant’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 per Jordan CJ [(1941] 41 SR (NSW) 119]).”“[83] Further to and consequent upon the finding in [82] above, the injury did not arise out of [the appellant’s] employment with Qantas. It was sustained as a result of a motor vehicle accident, which occurred while [the appellant] 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)).
64 It is apparent from [83] of the Deputy President’s reasons that his errors of law on the “in the course of” issue affected his decision on the “arising out of” issue. His first reason for rejecting this part of the claim was his decision that the worker was not in the course of his employment when he was injured.
65 The Deputy President gave other reasons for rejecting this part of the claim, but they are not clearly severable from his error of law in determining the course of the worker’s employment. We refer in this regard to the discussion in the joint reasons in Badawi of the legal principles which define the scope of this limb of the definition.
Section 9A
66 In the light of the above view and subject to the next paragraph, it is unnecessary for the resolution of this appeal to deal with Mercer. We have, however, expressed our views on Mercer in Badawi.
67 It was submitted by the appellant that the decision in Mercer required the Deputy President to address s 9A even if he concluded that the personal injury did not arise out of or in the course of employment for the purposes of the WC Act, s 4. That is not what was said in Mercer. The WC Act, s 9 requires there to be an injury for compensation to be payable. Section 4 defines “injury”. Section 9A places a further restriction on the payment of compensation by reference to the notion of “substantial contributing factor”. If the Deputy President had, without error, concluded that the personal injury did not arise out of or in the course of employment, there would be no error in not dealing with s 9A.
Orders
68 For the above reasons, we would make the following orders:
1. Appeal allowed.
2. The decision of the Workers Compensation Commission (the Commission) of 26 June 2008 be set aside.
4. The respondent pay the appellant’s costs.3. The matter be remitted to the Commission for rehearing.
69 BASTEN JA: Mr Watson (“the claimant”) suffered severe injuries in a motor accident on the outskirts of Los Angeles. He was, at the time, returning from visiting friends during a “layover” between international flights. He was then engaged as a long-haul pilot with the respondent.
70 His claim for compensation under the Workers Compensation Act 1987 (NSW) was rejected by the Workers Compensation Commission on the basis that he had not suffered personal injury “arising out of or in the course of” his employment with the respondent: Qantas Airways Ltd v Watson [2008] NSWWCCPD 65.
71 The two limbs of the definition of “injury” in issue are expressed disjunctively in s 4 of the Workers Compensation Act. The first limb, “arising out of” requires a causal connection, whereas the second, “arising … in the course of”, a temporal connection with the employment. Where a worker satisfies one of these limbs in respect of his or her injury, an entitlement to compensation arises under s 9(1) of the Act. That provision also declares that compensation is payable “whether the injury was received … at or away from the worker’s place of employment”: s 9(2).
72 There is a further requirement with respect to the causal connection, namely a prohibition on payment of compensation unless “the employment concerned was a substantial contributing factor to the injury”: s 9A(1). Criteria are specified as “examples of matters to be taken into account” in addressing the test in s 9A(1): see s 9A(2).
73 Section 9A does not apply in respect of an injury to which s 11 applies: s 9A(4). Section 11 is in the following terms:
- “ 11 Recess claims
- If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service …:
(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,
(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and
(c) receives a personal injury during that absence,
the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.”
74 Before this Court, the claimant sought to rely upon s 11 as an alternative basis for his claim. Because the Commission made no decision with respect to the operation of that section, let alone a decision in point of law, that course was not open to him. Section 11 was, nevertheless, part of the statutory scheme and relevant to the proper construction of the definitions of injury in s 4.
75 It is apparent from the background to the accident, explained in more detail in the joint judgment, that the claimant faced serious difficulties in establishing a relevant causal connection between the accident and his employment. However, the Deputy President of the Commission resolved the claim by reference to the first limb of the definition in s 4, namely whether the injury arose in the course of employment: at [46]-[82]. The causal connection was dealt with peremptorily at [83]:
- “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 ….”
76 Further, in relation to the requirement that the employment be a substantial contributing factor, the Deputy President merely stated that it followed “from the foregoing that the requirements of Section 9A of the 1987 Act cannot be satisfied”: at [86].
77 In its written submissions, the respondent placed much weight on the fact that a relevant causal connection was not established in the present case. However, that was a matter for the Commission to determine. Whilst the question of causation is generally fact-specific, whether or not the injury occurred in the course of employment may be a relevant matter to be taken into account. This appears to have been accepted by McHugh, Gummow, Callinan and Heydon JJ in the joint judgment in Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 at [17], holding that comments in Henderson v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281 addressing “the course of employment” were relevant to a test of causal connection. The temporal connection is not necessarily determinative of causation, but it may well be a significant factor in some circumstances. As explained in Badawi v Nexon Asia Pacific Pty Limitedt/as Commander Australia Pty Limited [2009] NSWCA 324, if the primary cause of the injury is an accident arising from the conduct of the claimant, which has occurred in the course of employment, it is likely that, absent some countervailing factor, causation will be made out.
78 This case differs from Badawi in a critical respect: the primary cause of the injury was not the conduct of the claimant, but the drunken driving of a third party. Although the claimant may face difficulties in establishing that the employment was a substantial contributing factor, it is apparent that the Commission did not approach the question of causation on the basis that the injury occurred in the course of employment, but on the contrary, that it did not. If the Commission were wrong in that regard, there is a further exercise to be undertaken. If it applied wrong principles, it may nevertheless have reached the same result that would be reached by the application of correct principle. If that were the case, the findings with respect to causation may well be beyond challenge. Nevertheless, if the claimant makes good his challenge in respect of the findings with respect to the course of employment, it is inevitable that the matter must be remitted to the Commission for further consideration according to law. The alternative course would involve this Court making findings of fact (even if only by accepting findings made by the Commission on a different basis) in circumstances where it is not correct to say that only one finding is open. Accordingly, the only issue for determination on the appeal is whether the claimant has established an error on the part of the Deputy President of the Commission of a kind which would allow this Court to intervene pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Workplace Injury Act”).
Nature of error in Commission
79 The Deputy President correctly identified the decision of the High Court in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473 as providing authoritative guidance with respect to the “course of employment”, particularly in the case of an employee working away from home. In the course of his reasons, the Deputy President identified relevant passages in the joint judgment of Mason CJ, Deane, Dawson and McHugh JJ. Nevertheless, in doing so he departed from the organised structure of the reasons and placed an emphasis on particular passages which, in my view, was contrary to that intended.
80 His reasoning commenced with an acceptance that “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”: at [46]. That was an important statement in Hatzimanolis, 173 CLR 473 at 484, in the conclusions as to general principle.
81 The Deputy President also noted that the course of employment was “not [coterminous] with a worker’s paid hours of employment”, nor limited to the time in which the worker is “directly engaged in the performance of his duties” and “may extend beyond the strict hours of duty”: at [47] referring to Davidson v Mould [1944] HCA 10; 69 CLR 96.
82 All of these statements should be accepted, but the latter factors identify where the boundaries of employment should not be drawn. What did not happen in the consideration of the primary facts was to pay due regard to the general nature, terms and circumstances of the employment. This would have required reference (to the extent that the evidence permitted) to the contract of employment, the terms and conditions of any relevant award and any lawful directions or instructions given by the employer. This was the case of a long-haul pilot who was not (presumably) paid on an hourly basis, but by way of an annual salary. Nor were his working hours those of a normal working week. One significant consideration may have been whether, for the purpose of fulfilling his obligations under the contract, his employer was required to take into account not merely days on which he flew, but days in which he was on layover in a place which was not his home. The fact that the employer paid for sustenance and accommodation during that period was a significant factor in considering whether the period was within the course of employment, the fact being noted at [42]. The facts also suggested that the employer exercised a degree of control over crew during layovers: at [38].
83 There are long passages in the reasons which make no reference to the contractual obligations or the terms of employment. When the Commission returned to those considerations, including “the restrictions that apply”, as identified by the claimant, certain matters were listed from the submissions “[f]or the sake of completeness”. As will be seen, the Commission did return to give further consideration to these matters, but in the meantime it had diverted itself in a significant respect.
84 That appears from the following passages:
- “57 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 …. 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 … . Finally, mere authorisation of the employer of a particular activity may not itself, be sufficient to bring it within the course of employment ….
58 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.
85 The key passage in the Commission’s reasons appears to commence at or about [72] with the following statement:
- “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?”
86 Each of these passages identifies factors which have been considered in the authorities, but they are taken out of context and given an inappropriate emphasis. Thus, events which may not have fallen within the course of employment as identified by reference to the contractual obligations of the employee, may fall within the course of employment for the purposes of the Workers Compensation Act if they were incidental to the contractual obligations or were “authorised, encouraged or permitted” by the employer: Hatzimanolis at 482. These ideas are expansive, not restrictive. They cannot properly be applied until the nature and scope of the employment, in its essential features, has been determined. To focus on them to a significant extent to the exclusion of the core concepts was at least conducive to error.
87 Further, it is possible to place too much or too little weight on the circumstances in the existing authorities. Questions of causation are likely to be highly fact-specific and it may be that limited assistance will be obtained from considering cases which have turned on questions of causation. The same is not true in respect of the course of employment. While the circumstances may vary to some extent from case to case, one would expect the current position of Qantas crew on layovers away from their homes to give rise to broadly consistent conclusions in this respect. To the extent that their circumstances depend upon common terms and conditions of employment they (and their employer) are entitled to manage their affairs with the greatest degree of certainty that can be permitted under the law. (Similar considerations apply to the commercial interests of insurers.)
88 The Commission referred again to the need to identify the general nature, terms and circumstances of the employment and matters which were reasonably incidental to the performance of the employee’s duties: at [73]. It was noted, again by reference to Hatzimanolis, 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”: at [74]. However, taking that statement out of its context in Hatzimanolis is misleading for two reasons. First, the next two pages of the joint judgment provided further assistance in determining whether there is an interval or interlude within an overall period or episode of work, or rather there has been an interval between two discrete periods of work: at 483. Secondly, although the facts are not stated in this regard, it seems unlikely that a long-haul pilot’s employment could properly be identified by reference to “daily periods of work”.
89 The Commission continued, saying that “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”: at [74]. However, the joint judgment in Hatzimanolis went further at 483:
- “The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterisation of the period or periods of work of those employees.”
90 Danvers v Commissioner for Railways (NSW) [1969] HCA 64; 122 CLR 529 was a case falling within a category closer to the present, namely that of an employee (a railway worker) who lived away from home and died when a van provided by his employer for accommodation caught fire during the night. The High Court in Danvers concluded that it was open to the Commission to find that the worker’s death occurred in the course of his employment.
91 The Commission (in the present case) then returned to the nature of the job, stating it was “not unreasonable for Qantas to expect that its pilots … should be sufficiently rested, fit and alert to carry out the responsibilities of flying commercial aircraft”: at [75]. The fact that there was such an expectation, and that it was not unreasonable, did not expressly address the point, which was to determine whether whilst away from home and whilst being provided for by their employer, long-haul pilots remained in the course of their employment. The fact that Qantas made provision for them in such circumstances, and required them to be contactable and available, was described as flowing “consequently” from the not unreasonable expectation and was further diminished by the characterisation of the relationship as one which 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’ … as was the case with Mr Watson on the occasion in question”.
92 The Commission continued in similar vein, noting that the claimant “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”: at [76]. This fact was treated as rendering this case distinguishable from another decision in the Commission of White v Qantas Airways Ltd (unrep, NSWWCC, 23 June 2006) in which a member of Qantas crew “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”. (Mr White recovered compensation.)
93 Of critical importance in determining a case such as this is the relationship between the duties of employment, the circumstances in which the employee finds himself or herself as a result of carrying out those duties and the activity which gave rise to the injury. This is helpfully illustrated by the manner in which Hatzimanolis was determined on its own facts. Hatzimanolis involved an employee engaged by the respondent to work for some three months at a mine at Mt Newman in Western Australia. The employer provided free accommodation, full board and some recreational facilities at a camp near the mine. The manner in which the case was determined appears from the following passage at 485:
- “Counsel for A.N.I. conceded that ‘when a person such as the appellant has been taken to a remote part of Australia and has there performed work and is housed and fed there for the duration of the employment the course of employment will go beyond the hours at which the appellant is engaged in his actual work’. Consequently, he conceded that ‘the appellant would have been in the course of his employment while working at the mine, travelling to and from the mine, eating and sleeping and even enjoying recreational activity at the camp’. But he contended that it did not follow that the appellant was in the course of his employment ‘during the whole of the time’ that he spent in the Mt Newman area. This contention is correct because the appellant would not necessarily be in the course of his employment while engaged in an activity during an interval or interlude in his overall period or episode of work if A.N.I. had not expressly or impliedly induced or encouraged him to engage in that activity during that interval.”
94 The injury occurred whilst the employee took part on a rest day in a trip to Wittenoom Gorge. That trip was held to fall within the course of employment, because it had been organised on behalf of the employer, using vehicles and food supplied by the employer, for its employees. That reasoning illustrates the proposition that an employee may take himself or herself outside the course of employment (which would otherwise be continuing) by engaging in an activity unrelated to the employment and not positively supported by the employer. What is less clear is whether the facts of Hatzimanolis identify the outer limits of the doctrine applied. At 484, the joint judgment said:
- “Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way.”
95 In the present case, the Deputy President appears to have accepted that going to a shop to buy food with a sustenance allowance provided by his employer, was within the course of employment. Whether it mattered that the shop was “quite near to” the hotel used by the crew, or whether it would have mattered if the sustenance allowance had been used up, is unclear.
96 Oliver, referred to in Hatzimanolis, was a case in which an employee sustained injury while playing cricket during the lunchbreak in front of a hangar in which he worked: The Commonwealth v Oliver [1962] HCA 38; 107 CLR 353. The claim succeeded. The Court in Hatzimanolis stated at 480:
- “Since Oliver , appellate courts have upheld many awards of compensation in favour of workers in cases where injury has occurred away from the place of work, outside of or between working hours, and while the worker was engaged in an activity which is ordinarily performed for private necessity, convenience or enjoyment.”
97 It is apparent that the cases which followed Oliver were not disapproved. They included Qantas Airways Ltd v Kirkland (unrep, NSWCA, 9 October 1980). Kirkland involved a Qantas crew member who had arrived in Athens, booked into his hotel and proceeded to a restaurant in the vicinity of the hotel for a meal. He slipped and was injured whilst at the restaurant. This Court found no error on the part of the Commission in upholding an award of compensation. In the Commission, Wall DCJ had held that what the claimant was doing at the time of his injury was “reasonably incidental to his employment”, “in the course of his employment” and “arose out of his employment”.
98 The present case may be distinguishable from Kirkland and White. The potential points of distinction are threefold. The first is that the claimant in the present case ventured further from the hotel at which the crew were accommodated by their employer. Secondly, he was taking an opportunity to see friends, with whom he had a meal, but declined an invitation to stay the night due to his concern not to be absent from the hotel for too long. Thirdly, the older cases involved the additional connection of the meal to the employment, because the meal was paid for out of a sustenance allowance. However, the claimant’s use of a car, available at well below commercial rates, appears to have been a benefit made available to him in his capacity as an employee of Qantas, through a commercial arrangement between Qantas and the car hire company, as apparently accepted by the Commission at [64]. A finding was available that use of a car to travel beyond the immediate vicinity of the hotel was actively encouraged (and possibly organised) by the employer. These factors were not addressed in these terms.
99 That leaves a question as to whether a restriction is imposed by the language in Hatzimanolis of encouragement “to spend the interval or interlude at a particular place or in a particular way”: at 484. That language may have been adopted because it appropriately covered the facts before the Court. It could not be said, in Kirkland, that Qantas encouraged its crew member to eat at a “particular” restaurant. It would seem to have been sufficient, the case not being criticised in Hatzimanolis, for there to have been general provision for meals, without any intention to restrict the location at which crew members were to eat. Once it is accepted in the present case (as it was) that the employer provided access to vehicles at a highly subsidised rate, there appears also to have been an expectation that, subject to other requirements with respect to availability, crew members could use the vehicles as they wished. It was open to the Commission to find that the activity in which the pilot was engaged at the time of the accident was within the course of his employment.
100 The errors which appear from the reasons of the Deputy President were as follows:
(a) failure to focus upon the general terms and conditions of the employment;
(b) consequentially placing inappropriate emphasis on the nature of the activity which gave rise to the injury, and
(c) failing to consider the significance of the employer’s conduct in making available to the members of its crew on overseas layovers access to subsidised car hire.
Nature of appealThe next question is to determine whether any of these errors fell within the terms of s 353 of the Workplace Injury Act .
101 The appeal to this Court is brought under s 353 of the Workplace Injury Act which relevantly provides:
- “ 353 Appeal against decision of Commission constituted by Presidential member
- (1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.
(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.”
102 Section 354 provides that proceedings before the Commission are to be conducted with “as little formality and technicality as the proper consideration of the matter permits”, and that the Commission “is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”: s 354(1) and (3).
103 The arrangements for statutory appeals from lower courts and tribunals in this State are bedevilled by minor variations in terminology from statute to statute, which give rise to a need for caution in translating a construction adopted in respect of one statute to a similar but not identical provision in another: see HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [20] (Spigelman CJ). Nevertheless, some general principles can be identified from the case-law.
104 The first principle is that a provision in this form identifies as the subject matter of the appeal to this Court “a decision of the Presidential member in point of law”. The relevant “decision” may not have been separately identified by the Presidential member for determination, but must be at least implicit in the ultimate decision arrived at in the Commission. Whether identified in express terms or not, there will almost certainly be a decision as to the relevant legal principles to be applied in determining the matter before the Commission.
105 Secondly, where a matter has not been decided by the Commission, for example because the issue was not raised by the parties, there will be nothing to constitute the subject of an appeal.
106 Thirdly, because sub-s (4) envisages that there may be appeals from interlocutory decisions, it is apparent that the decision in point of law could arise at an earlier stage of the proceedings than the final determination. The provision differs from statutory appeal provisions which permit an appeal from an interlocutory decision to admit or reject evidence, no doubt because the Commission is not bound by the rules of evidence: s 354(2).
107 Fourthly, because the decision is one by which the appellant must be “aggrieved” it may be inferred that the decision must be material to an outcome unfavourable, or less favourable than might otherwise have been the case, to the appellant. Further, the appellant must, in order to obtain the intervention of this Court, demonstrate that the decision was erroneous.
108 Fifthly, there is no reason, in a textual sense, to treat the reference to a decision in point of law as different in kind from a decision on a matter of law or a decision on a question of law.
109 Sixthly, the true meaning of the provision will be determined by reading it not merely by reference to surrounding provisions, but having regard to the purpose, scope and subject matter of the statute.
110 An appeal is brought to this Court under s 353 only from a Presidential member of the Commission. A Presidential member means the President or a Deputy President: Workplace Injury Act, s 4. An essential qualification for appointment as the President is being a judge of a court of record, while the essential qualification for a Deputy President is to be either a judicial officer or an Australian lawyer of at least five years standing: s 369. This is not a statute in which the right of appeal is given from legally unqualified persons. That there is a right of appeal within the Commission from the decision of an arbitrator, who need not be a qualified lawyer, to a Presidential member provides an initial level of control over the legality of decision-making. Although the Commission is to act according to equity, good conscience and the substantial merits of the case, that provision does not exempt it from the proper application of legal principle: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. There is no privative clause which would limit the forms of judicial review available against decisions of Presidential members. The Commission is a body which is no doubt expected to enjoy a high level of experience and expertise in dealing with compensation claims, that being the sole subject matter of its jurisdiction. None of these matters invites an expansive view to be taken of the scope of the appeal.
111 The power of the Court to remit the matter to the Commission for determination by the Commission “in accordance with any decision of the Court” should be understood as a reference to a decision of this Court on the subject matter of the appeal, which is the decision of the Commission in point of law. Although the powers of this Court include making “such other order in relation to the appeal as the Court thinks fit” this language should not be understood as expanding the subject matter of the appeal beyond that identified in sub-s (1).
Conclusions
112 To the extent that the errors identified above include a failure properly to determine the correct legal approach to identifying whether the injury arose “in the course of employment”, that was a decision in point of law made by the Commission and reviewable by this Court. If the Commission erred, its decision in that respect should be set aside and the matter be remitted for reconsideration.
113 If it were thought that the Commission correctly identified the relevant principles but misapplied them, it might be necessary to identify the nature of the error more precisely. Misapplication of a legal principle correctly identified, is likely to involve no more than the drawing of an inference or reaching a conclusion with which the appellate court disagrees. That is not, however, a decision of the Commission in point of law. On the other hand, a misapplication of legal principle may appear, on closer consideration, to reveal a misapprehension as to the scope of the legal principle itself. If that were the proper understanding of the decision below, that would constitute an erroneous decision in point of law.
114 The three errors identified at [100] above, taken together and for the reasons explained demonstrate a misapprehension of the correct legal test. This was an erroneous decision of the Deputy President in point of law. In accordance with the approach outlined at [78] the appeal should be allowed.
115 I agree with the orders proposed in the joint judgment.
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