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: