(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 …."