DA ROS v QANTAS AIRWAYS LIMITED

CATCHWORDS: APPEAL - civil - statutory appeal - Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353 - point of law - competency - WORDS AND PHRASES -"substantial contributing factor" - Workers Compensation Act 1989 (NSW) s 9A - WORKERS COMPENSATION - employer's liability - whether employment a "substantial contributing factor" - accident occurring during 'slip-time' but in the course of the employment

LEGISLATION CITED: Workers Compensation Act 1987 (NSW), ss 4, 9, 9A Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 Dayton v Coles Supermarkets Pty Ltd (2000) 19 NSWCCR 526 CASES CITED: Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46 Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313 Watson v Qantas Airways Limited [2009] NSWCA 322 Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310

PARTIES: Saverio Da Ros (Appellant) Qantas Airways Limited (Respondent)

COUNSEL: L King SC/B G McManamey (Appellant) J W Catsanos (Respondent)

SOLICITORS: Turner Freeman (Appellant) Moray & Agnew (Respondent)

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER: Deputy President O'Grady

LOWER COURT MEDIUM NEUTRAL CITATION: Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/00298345 WCC 7547/08

TOBIAS JA McCOLL JA BASTEN JA

28 April 2010 Saverio DA ROS v QANTAS AIRWAYS LIMITED Headnote On 9 September 2005, the appellant, then a long-haul flight attendant working with Qantas Airways Limited ("Qantas") was in Los Angeles, USA on 'slip-time' between flights. Whilst returning to the hotel accommodation provided by Qantas for its crew, he was knocked off his bicycle and suffered injuries. He claimed compensation under the Workers Compensation Act 1987 (NSW).

On 23 September 2008, the appellant filed with the Workers Compensation Commission an application to resolve a dispute. On 2 January 2009 the Commission dismissed his claim. The appellant appealed to the Commission constituted by the Deputy President. On 27 May 2009 the appeal was dismissed. The Deputy President considered whether the appellant's employment was a substantial contributing factor to the injury, pursuant to s 9A(1) of the Workers Compensation Act 1987 (NSW). He found that the employment factors involved in the appellant's case "were not important, nor serious weighty, sizable or large" and as a result, dismissed the appeal. The appellant appealed to this Court from that decision.

(i) whether the proper construction of s 9A of the Workers Compensation Act involved a point of law; and

(ii) whether the appellant's employment was a substantial contributing factor to the injury pursuant to s 9A(1) of the Workers Compensation Act;

(iii) whether any other conclusion was open on the facts as found.

The Court held, allowing the appeal (per Basten JA, Tobias and McColl JJA agreeing):

(1) The proper construction of 'substantial contributing factor' requires it to be considered in its statutory context, and this gives rise to a question of law: [27]. Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 cited.

(2) The substitution of "serious, weighty, sizable or large" for "substantial" was a wrong formulation on a point of law: [20]. Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153, applied.

(3) It is erroneous to assess the causal connection by weighing 'employment factors', such as whether the activity constituted an essential incident of the employment or was subject to a specific direction by the employer, against the negligence of the other cyclist, such consideration not being required by s 9A of the Workers Compensation Act 1987 (NSW). The bicycle accident was an incident to which the applicant was exposed in the course of his employment and to which he would not otherwise have been exposed. It is thus open for the appellant's employment to be considered a substantial contributing factor: [21]-[24]. Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 applied.

(4) There being only one conclusion open on the facts, namely that the employment was a substantial contributing factor, orders should reflect that conclusion: [24], [30].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/00298345 WCC 7547/08

TOBIAS JA McCOLL JA BASTEN JA

28 April 2010 Saverio DA ROS v QANTAS AIRWAYS LIMITED Judgment 1 TOBIAS JA: I agree with Basten JA. 2 McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes. 3 BASTEN JA: On 9 September 2005, the appellant, then a long-haul flight attendant working with Qantas Airways Limited ("Qantas") was in Los Angeles, USA. Whilst returning to the hotel where the crew were accommodated he was knocked off his bicycle and suffered injuries. He claimed compensation under the Workers Compensation Act 1987 (NSW). 4 On 23 September 2008, having failed to reach agreement with Qantas, the appellant filed with the Workers Compensation Commission an application to resolve a dispute. On 2 January 2009 the Commission (constituted by an arbitrator) dismissed his claim. From that determination he appealed to the Commission constituted by a Deputy President. On 27 May 2009 that appeal was dismissed. The present proceedings are an appeal from the decision of the Deputy President, pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act"). Issues on appeal 5 In order to establish his entitlement to compensation under s 9, the appellant needed to satisfy the Commission that he had suffered a personal injury "arising out of or in the course of" his employment with Qantas, within the meaning of s 4(a) of the Workers Compensation Act. He also needed to establish that the employment concerned was a substantial contributing factor to the injury, pursuant to s 9A(1). 6 The Deputy President accepted that he had suffered a personal injury in the course of employment, thereby satisfying s 4 and, subject to the qualification imposed by s 9A, the entitlement to compensation under s 9. He did not accept that the employment concerned was a substantial contributing factor and therefore dismissed the appeal: Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58. 7 The subject matter of an appeal to this Court must be a decision of the Deputy President in point of law: Workplace Injury Act, s 353(1). The appellant contends that the Deputy President erroneously determined the legal requirements of s 9A. If correct in that respect, he sought in his notice of appeal to have the decision of the Deputy President set aside and the matter remitted to the Commission for determination according to law. 8 On 8 October 2009, this Court handed down judgment in two matters dealing with the proper construction of ss 4, 9 and 9A of the Workers Compensation Act: Watson v Qantas Airways Limited [2009] NSWCA 322 and Badawi v Nexon Asia Pacific Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324. In Watson the Court dealt with factual circumstances not dissimilar to the present case, but focusing on whether an injury to a member of a Qantas long-haul crew, whilst on "slip-time" between flights in Los Angeles, occurred "in the course of" his employment. In Badawi, the Court considered whether the employment substantially contributed to an injury suffered by the claimant whilst skiing during an interlude or interval in the employment. The latter case is of most direct relevance in the present circumstances, but the Deputy President did not have the benefit of those decisions at the time he determined the present matter. 9 In Badawi the Court held that, on the findings made by the Commission, only one conclusion was open with respect to liability and made an order accordingly. In the course of oral argument counsel for the appellant submitted that the circumstances of the appellant were indistinguishable from those in Badawi and that only one conclusion was open: Tcpt (C/A), 16/04/10, p5(45). 10 For reasons which will be explained below, there is some difficulty in identifying the construction placed by the Deputy President on the relevant terms in s 9A. Nevertheless, the following matters have been established by the appellant:

(a) the proper construction of s 9A constitutes a decision in point of law; (b) the Deputy President adopted a construction which was erroneous in a material respect, and (c) the appellant is entitled to the relief he seeks. Background facts 11 It is no part of this Court's function to determine factual issues. The following facts were accepted by the Deputy President, most of them not being in dispute: at [3]-[5] and [92] of his reasons. 12 The appellant, who had worked with Qantas as a long-haul flight attendant from 11 October 1976, arrived in Los Angeles on 8 September 2005, between 6am and 7am. He was accommodated with other members of the crew at accommodation provided by Qantas. His next flight was to depart Los Angeles for Sydney on the following day, 9 September 2005, at 11pm. He was paid at an hourly rate throughout the period of his absence from his home base in Sydney. 13 The appellant was a member of the Qantas Flight Staff Recreation Club. In that capacity he had access to recreational facilities provided by Qantas in Los Angeles, including a bicycle. On the morning of 9 September, he obtained a bicycle and caught a bus to the waterfront at Santa Monica. He had lunch there and spent much of the day cycling along a trail behind the beach from Santa Monica to Marina Del Rey, as part of his regime to maintain fitness and also for relaxation. 14 At the end of the day, he returned to the hotel in downtown Los Angeles by bus. The Deputy President stated at [31]: "After alighting from the bus he mounted the bicycle and commenced riding towards the hotel. At an intersection a short distance from the hotel he was struck whilst riding by another cyclist, a courier rider who had ridden through a red light striking the rear wheel of the Appellant's bicycle. The impact caused the Appellant to be thrown to the ground causing the subject right arm/shoulder injury. The courier cyclist left the scene of the accident. The Appellant continued to make his way to the … hotel with difficulty wheeling the bicycle." 15 The accident occurred at approximately 7pm. He anticipated a "wake-up call" at approximately 8pm with a departure time for the bus taking the crew to the airport at approximately 9pm. As a result of his injury, he was sent to a hospital for treatment and did not join his scheduled flight to Sydney. 16 In addition to the circumstances of the layover in Los Angeles, the Deputy President accepted a number of further matters, which he described as not having been the subject of any serious challenge by Qantas, in the following terms at [92]: "(i) at all relevant times the Appellant was on slip-time in the city of Los Angeles occupying hotel accommodation provided by the Respondent; (ii) the Appellant was a member of the Qantas flight staff recreation club and had access in Los Angeles to recreation facilities including bicycles provided by the Respondent; (iii) the Respondent encouraged the Appellant, both in the course of his training and in various publications made available to staff to familiarise himself with slip ports. The Appellant was also encouraged by the Appellant not to remain inactive in the accommodation provided in slip ports; (iv) the Appellant was encouraged to familiarise himself with slip ports to enable proper advice to be given to the Respondent's passengers visiting those ports; (v) the Respondent encouraged, and indeed required that, the Appellant maintain his physical fitness; (vi) the Respondent conducted training sessions on a biannual basis which included emergency procedures and mock ups of distressed aircraft during which the Appellant and fellow staff members were required to demonstrate agility and fitness; (vii) repeated failure to attain appropriate standards during the course of training may result in dismissal from employment; (viii) the Appellant had utilised one of the Respondent's bicycles for use at Santa Monica; (ix) the excursion made on the bicycle by the Appellant commenced at the hotel and he arrived at Santa Monica after transport by public bus at 10.30am on the day of his injury; (x) the injury occurred when the Appellant's bicycle was struck by another cyclist who had breached a red light signal. At that time he was a short distance from the staff accommodation hotel to which he was returning for the purpose of reporting for duty on a flight returning to Sydney that night, and (xi) having regard to the duration of the Appellant's stay in the slip port Los Angeles he was being paid for those hours he was absent from his home port of Sydney." Construction of s 9A 17 The Deputy President noted that a number of authorities in this Court had dealt with the proper construction of s 9A, since its commencement in 1997, and provided guidance as to the manner in which the provision is to be applied: at [86]. He made reference to the decision of this Court in Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740. In the same passage (at [86]) the Deputy President set out a summary of the "matters of principle" established in Mercer which had been extracted in the judgment of Einstein J in this Court in Murray v Shillingsworth [2006] NSWCA 367; 4 DDCR 313. As will be noted below, these authorities were reconsidered in Badawi, but after the Deputy President had delivered his judgment. 18 The next stage in the Deputy President's reasoning involved reference to the decision of the arbitrator and the setting out of the relevant factual matters at [92] and [93]. Further authorities were noted at [94]-[107], where he concluded that the employment "was a contributing factor to the injury", but that he was "not satisfied having regard to all the circumstances that the employment was a substantial contributing factor to the injury" (emphasis in original). 19 It will be necessary to return to aspects of the reasoning set out in those paragraphs, but it was not the whole of the reasoning adopted by the Deputy President. Following his conclusion at [107], he made reference to the consideration of s 9A in this Court in Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46. The Deputy President then concluded at [111]: "The employment factors in the present matter which may be seen as being to some extent causative include those matters which I have set out at [92(i)-(v), (viii) and (x)]. Those factors, relative to the negligent conduct of the courier bicycle rider cannot in my view be said to be 'important'. Such factors were not serious, weighty, sizeable or large as addressed by his Honour Judge Burke in Dayton . In the circumstances I conclude that the Appellant's claim in respect of compensation benefits is defeated by application of section 9A to all relevant facts." 20 This statement reveals two potential misdirections in respect of a point of law. First, the phrase "serious, weighty, sizeable or large" was substituted for the statutory term, "substantial". Although Burke J had used such language in Dayton v Coles Supermarkets Pty Ltd (2000) 19 NSWCCR 526 at [125], it was criticised by Davies AJA in the same matter on appeal: Dayton [2001] NSWCA 153, at [38]. Use of such language "may carry the vice of introducing concepts with different nuances from the words used by the legislature and which would take the meaning of the word beyond that needed to fulfil the purpose of the provision in its legislative context": Badawi, at [82]. The causal connection required by the phrase "a substantial contributing factor" is one that was "real and of substance": ibid. 21 The second and more important error arose from what the Deputy President referred to as "employment factors". Those factors were to be weighed against the other causal element, which was seen to be the negligent riding of the other cyclist. That, however, is not the exercise required by s 9A. In simple terms, the accident occurred because the two bicycles were in the same place at the same time. The appellant was there, on his bicycle, "in the course of his employment". That finding having been made, it would appear to follow that the employment concerned was a substantial contributing factor. That conclusion would not seem to be in doubt if the appellant had himself been a bicycle courier and had been carrying goods in the course of his employment as a courier. Some other consideration thus appears to have been introduced into the Deputy President's analysis in order to support a contrary conclusion in this case. The employment concerned appears to have been discounted on the basis that, although the class of conduct in which the appellant was engaged was both permitted and encouraged by the employer, the specific activity was not required by it. Alternatively, it may have been thought that riding a bicycle for relaxation, exercise or recreation whilst in a "slip port" was too far removed from the activities for which the appellant was employed, namely as a flight attendant on an international flight. If reasoning of either kind were applied, it would have been erroneous. 22 The activity in which a claimant may be involved when he or she suffers injury is either within the course of employment or it is not; if it is, it is usually neither necessary nor appropriate to ask whether it constitutes an essential incident or core element of the employment. Similarly, it is usually neither necessary nor appropriate to inquire whether the particular activity was the subject of a specific direction by the employer or was simply a permissible activity, chosen by the employee. The "employment concerned" as referred to in s 9A(1) is the same concept as the "employment" referred to in s 4(a) when determining whether the injury arose "in the course of employment". In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 at 632-633, Kitto J rejected the proposition that the word "employment" in the definition of injury was confined to "the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work". In rejecting that approach, and in dealing with the concept of a factor contributing to the aggravation of a disease, his Honour concluded: "Where it is possible to identify as a contributing factor to the aggravation … of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation …."

23 It is true that in Semlitch Kitto J was considering exposure "in the performance of [the worker's] duties", but given his Honour's rejection of the distinction between inherent features or essential incidents of employment on the one hand and occurrences in the course of the work on the other, it is apparent that his Honour was not seeking to distinguish between performance of duties and other activities. 24 In the present case, the collision with the courier was an incident or state of affairs to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed. Because it was one of two contributing factors (the other being the presence of the courier at the same place at the same time) it is difficult to understand why it would not be a substantial contributing factor. No satisfactory alternative having been proffered on behalf of Qantas, and in accordance with the reasoning in Badawi, there was only one conclusion reasonably open on the findings of primary fact.

25 It does not follow from this approach that whenever an injury occurs in the course of employment there will be a substantial causal connection between the employment and the injury. For example, a worker who suffers injury as a result of a congenital condition, where the employment neither aggravated nor caused the expression of the condition, may not satisfy the test in s 9A: cf Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310. (There may be other kinds of circumstances where no substantial contributing factor is established.) Conclusions 26 If the Deputy President correctly identified the evaluative exercise for determining whether the employment substantially contributed to the injury, but erred in carrying out that exercise his decision would be beyond review in this Court, even if the result were one at which this Court would not have arrived. The erroneous application of a legal principle would not be reviewable, absent some basis for concluding that there had been error in identifying the correct legal test to be applied. However, where the legal test has not been clearly identified and its application exposed, and where the result appears unreasonable on the supposition that the correct legal test was applied, the proper inference may be that the supposition is false: see Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360 (Dixon J). 27 The proper construction of s 9A involves a question of law. Although the term "substantial" is no doubt to be given its ordinary meaning and the phrase "contributing factor" denotes no more than a causal connection, the proper construction of the phrase taken as a whole requires that it be considered in its statutory context, including (i) the matters to be taken into account in its application - sub-s (2), (ii) the matters which are insufficient of themselves to establish its satisfaction - sub-s (3), and (iii) the circumstances in which it does not operate - sub-s (4): see Badawi at [135]-[136]. Accordingly, its proper construction is a question of law: see Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 397. A decision as to its proper construction, which was necessary for its application by the Deputy President, constituted a decision in point of law for the purposes of s 353 of the Workplace Injury Act. 28 In the present case there are two reasons for concluding that the test to be applied pursuant to s 9A was erroneously formulated. First, the Deputy President introduced qualifying epithets into the statutory language, which had the effect of increasing the strength of the causal connection beyond that required by the word "substantial". Secondly, he applied an additional requirement which diminished the connection between the activity giving rise to the injury and the employment, although that activity was found to have occurred in the course of the employment. 29 It should properly be inferred that the Deputy President adopted an erroneous construction of s 9A and thus erred in point of law. It was not suggested by Qantas that such an error, if identified, was immaterial. 30 The circumstances as otherwise found by the Commission are amenable to only one inference, namely that the appellant's employment was a substantial contributing factor to his injury. Accordingly, the following orders should be made:

(1) Allow the appeal and set aside the decision of 27 May 2009 made by the Workers Compensation Commission constituted by Deputy President O'Grady.

(2) Order that the Commission reconsider the appellant's appeal against the decision of the Arbitrator according to law, on the basis that the appellant's employment was a substantial contributing factor to the injury.

(3) Order that the respondent pay the appellant's costs of the appeal. **********

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