Harvey v Workers' Compensation Regulator
[2016] ICQ 14
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- Harvey v Workers' Compensation Regulator[2016] ICQ 14
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Harvey v Workers' Compensation Regulator[2016] ICQ 14
Harvey v Workers' Compensation Regulator[2016] ICQ 14
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Harvey v Simon Blackwood (Workers’ Compensation Regulator) & Anor [2016] ICQ 014 |
PARTIES: | COLIN CECIL HARVEY (appellant) v SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR) (first respondent) QANTAS AIRWAYS LIMITED (second respondent) |
FILE NO/S: | C/2016/1 |
PROCEEDING: | Appeal |
DELIVERED ON: | 18 July 2016 |
HEARING DATE: | 7 June 2016 |
MEMBER: | Martin J, President |
ORDER/S: |
|
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – GENERALLY – where the appellant was a flight attendant for Qantas staying in a Los Angeles hotel with other cabin crew – where allegations of sexual assault were made against him by another colleague leading to his arrest and incarceration – where the appellant was later released, no charges having been laid – where an internal Qantas investigation found the allegations were unsubstantiated – where the appellant was diagnosed with post-traumatic stress disorder and major depressive disorder as a result of his arrest, incarceration and the allegations of sexual assault – where the appellant appeals the decision of the Commission to dismiss his appeal of the Regulator’s decision to reject his claim for compensation – whether the Commission erred in the process of finding that the injury had not arisen out of or in the course of the appellant’s employment – whether the appellant’s injury was sustained by reference to the place at which the injury occurred for the purposes of the test in Comcare v PVYW (2013) 250 CLR 246 and associated cases – whether the appellant’s employment was a significant contributing factor to the injury Workers’ Compensation and Rehabilitation Act 2003, s 11, s 32, s 33, s 34 |
CASES: | Blackwood v Civeo [2016] ICQ 001, considered Comcare v PVYW (2013) 250 CLR 246, applied Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529, considered Harvey v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 211 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, applied McCurry v Lamb (1992) 8 NSWCCR 556; [1992] NSWCA 169, considered Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, considered Westrupp v BIS Industries Ltd [2015] FCAFC 173; (2015) 68 AAR 188, considered |
APPEARANCES: | RD Green instructed by LHD Lawyers for the appellant SP Gray directly instructed by the first respondent MT O'Sullivan instructed by HWL Ebsworth for the second respondent |
- [1]Colin Harvey was a long-haul flight attendant employed by Qantas Airways. Early in the morning of 23 May 2013 he was asleep in his room at a hotel in Orange County, California. He was woken by officers of the Los Angeles Police Department who arrested him, handcuffed him, and took him to a police station where DNA swabs were taken. Later that morning he was transferred to Orange County Jail where he was placed in a holding cell with 20 to 30 prisoners. He was released the following day.
- [2]Mr Harvey sought workers’ compensation for a psychiatric injury caused by the treatment he received. That was refused and his appeal from that refusal to the Queensland Industrial Relations Commission was dismissed.
Hearing before the Commission
- [3]The appeal before the Commission was conducted on the basis of an agreed statement of facts, a statement of stressors, and a report from a psychiatrist retained by Qantas – Dr Andrews.
- [4]The agreed facts were:
- “1.On 22 May 2013, the appellant, Colin Harvey, was engaged on a Qantas flight from Brisbane to Los Angeles in his capacity as a Qantas long haul flight attendant.
- 2.The flight landed in Los Angeles on 22 May 2013. The scheduled return flight for the appellant was QF16 departing in the evening on 23 May 2013.
- 3.Following the flight, the appelant was transferred to the Hilton Hotel, Costa Mesa in Orange County.
- 3A.The relevant employment conditions applicable in relation to the appellant’s time in the Los Angeles slip port are as follows:
- Mr Harvey signed off 30 minutes after flight arrival in Los Angeles;
- Qantas provided transport to the hotel from the airport;
- Qantas provided accommodation for the duration of the appellant’s stay in the Los Angeles slip port;
- The appellant was supplied with a meal allowance on a per day basis in accordance with the Enterprise Bargaining Agreement;
- In the early hours of between 1:00 am and 2:00 am of 23 May 2013, the appellant left the “crew room” at the hotel; having socialised with other flight attendants for some time in that room.
- During his journey back to his hotel room, the appellant encountered Ms Seanne Vass, a fellow flight attendant and crew colleague, in a state of collapse. The appellant attended upon Ms Vass, who did not have her room key. After some time with Ms Vass, Mr Harvey went to the hotel reception to request a key for Ms Vass’s room, but he was advised that a key to her room could not be given to him.
- Mr Harvey returned to his room where Ms Vass had remained. Ms Vass left Mr Harvey’s room and he went to bed; whilst Ms Vass ran to the reception in a very distressed state making allegations that Mr Harvey had indecently dealt with her and the Los Angeles police were notified of those allegations.
- After some time in bed in his hotel room, the appellant was woken by a knock at his hotel room door and upon opening it, was encountered by two police officers. The officers proceeded to advise Mr Harvey of Ms Vass’s allegations against him and he was arrested.
- Upon arrest he was handcuffed and escorted to a police car waiting outside the hotel and then transferred to a local police station. DNA swabs were taken from the saliva of his mouth at this time.
- Mr Harvey was then placed in a cell at the police station overnight and in the morning was transferred by van with other prisoners to the Orange County jail.
- Mr Harvey was then processed at the Orange County Jail firstly by way of a basic medical check and then he was placed in a holding cell with 20 to 30 other prisoners. He felt intimidated, concerned for his safety and alienated as a result of these events.
- Mr Harvey was then taken from the holding cell by an officer from the Sheriff’s Department whereupon he was finger printed and shown a series of photographs from his multiple entries into the United States during the previous two years.
- Mr Harvey was then seen by a female nurse at the jail.
- Mr Harvey was then provided prison clothes that were emblazoned with the words “Orange County Jail” across his shirt and placed in a solitary cell overnight.
- On the following morning, Mr Harvey was offered some breakfast and then taken to a holding cell with other prisoners where he was held for up to three hours. He was then advised by the Clerk of the Court that he would not see a Judge on that day because there were too many cases and that he could be held for up to 72 hours without a court appearance. He was advised that the weekend was the “Memorial Weekend” with a public holiday on Monday, 27 May, and that he would not have a court appearance until Tuesday, 28 May 2013.
- Mr Harvey was then transferred to a different area within the jail and placed in cell number 6. After up to four hours in this cell he was then advised over the intercom that he was being released.
- Mr Harvey was then placed on QF108 from Los Angeles to Sydney and then QF512 from Sydney to Brisbane arriving in Brisbane on 26 May 2013.
- On 3 July 2013, the appellant’s general practitioner, Dr David Hope, issued him with a workers’ compensation medical certificate that provided a diagnosis of “anxiety/depression”.
- In a report dated 21 November 2014, Dr Doug Andrews, consultant psychiatrist, diagnosed the appellant as suffering from post-traumatic stress disorder and a major depressive disorder.
- The primary events which caused the appellant’s psychological injury, as diagnosed by Dr Andrews, was his arrest, incarceration in jail and accusation he committed a felony sexual offence.”
- [5]The police in Los Angeles did not proceed with any charge against him and he was released unconditionally. After his return to Australia, Qantas conducted an internal investigation and he was stood down on full pay. According to Dr Andrews the investigation resulted in a finding that the allegations of sexual assault were unsubstantiated.
- [6]The Commissioner records that the parties also agreed that:
- Mr Harvey was a “worker” for the purposes of s 11 of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”),
- he had suffered a psychiatric/psychological injury in the form of a PTSD with Major Depressive Disorder, and
- the primary events which caused his injury were his arrest, incarceration and accusation that he had committed a felony sexual offence on 23 May 2013.
- [7]The Statement of Stressors were set out, in an abridged form, in the Commissioner’s reasons:[1]
- “[21]…
Stressor 1 - being awoken by Police in his hotel room.
Stressor 2 - being accused by Police Officers that he had put his penis into the mouth of Vass.
Stressor 3 - being told that in putting his penis into Vass’ mouth he had committed a felony.
Stressor 4 - his denial of putting his penis into Vass’ mouth being rejected by the Police Officers.
Stressor 5 - being given difficult instructions when being handcuffed by Police and being handcuffed in an aggressive manner.
Stressor 6 - having to submit to DNA testing whilst handcuffed.
Stressor 7 - having his passport taken by Police in the course of his arrest.
Stressor 8 - being forcibly removed from his hotel dressed only in a pair of shorts and escorted through the hotel lobby in handcuffs and in fear of being seen by a colleague.
Stressor 9 - being placed in a Police car and left alone for several minutes without explanation.
Stressor 10 - being repeatedly accused of putting his penis into Vass’ mouth.
Stressor 11 - detention by Police and subsequent processing as a detainee in prison and a penitentiary.”
The Commission’s decision
- [8]The Commissioner identified the question to be answered in this way:
- “[81]The matter for determination in respect of the Appeal is whether the Appellant's personal injury in the form of a psychiatric/psychological injury aroseout of or in the course of employment and if his employment was a significant contributing factor to the injury.”[2]
- [9]
- “[86]I am satisfied on the material before the proceedings that the Appellant's requirement by Qantas to be accommodated at the hotel room in question on 23 May 2013 does not justify the claim that his injury arose out of his employment as a direct consequence of him being in that place.
- [87]In addressing the matter of an activity in Campbell the principles enunciated in PVYW were said by Martin P to be relevant regarding an employee engaged in an activity and identified those principles at paragraph 10 of the decision in Campbell:
- ‘(a)For an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.
- Where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
- Where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place.
- An employer is not liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but has merely required the employee to be present at the place where the activity is undertaken.
- There is no justification for taking a 'wide view' of an employer's liability in circumstances where the employer could be seen to have encouraged the employee to be at a particular place.’
- [88]In this particular instance it is necessary to find an activity that was engaged in by the Appellant that warranted the attendance by two Police Officers at his hotel room on 23 May 2013 and his eventual arrest and incarceration. The only activity for consideration relates to the allegations levelled against him by a fellow flight attendant that he had attempted to place his penis in her mouth thus participating in a felony sexual offence against her.
…
- [92]The Appellant has effectively failed to [sic] on the requisite standard of proof [to] satisfy the Commission that [the] principle regarding an activity in Hatzimanolis was enlivened to the extent that a finding of the activity engaged in would have his injury having occurred in the course of employment.”
The grounds of appeal
- [10]The appellant set out nine grounds of appeal in his notice of appeal. Some of them overlap and the thrust of the submissions which were made concerned the proper test to be applied and the manner of its application.
- [11]The grounds were, in brief, as follows.
The Commissioner:
- erred when applying the proper test for determining whether or not the injuries were sustained in the course of employment;
- erred by taking into account irrelevant considerations;
- erred in holding that the cause of injury was the activity of Vass in making the complaint;
- failed to apply the proper test in determining whether or not the injuries were sustained in the course of employment;
- failed to make a determination as to whether or not the injuries were sustained in the course of employment on relevant consideration;
- erred in holding that the presence of the appellant in his hotel room upon his arrest did not justify a finding that his injuries arose out of or in the course of his employment;
- erred in holding that it was necessary to find an activity that was engaged in by the appellant that warranted the attendance of police officers at his hotel room, his arrest and incarceration, for the purpose of determining whether or not his injury was sustained in the course of employment;
- erred in holding that the appellant failed to establish to the requisite standard of proof that his injury occurred in the course of employment; and
- erred in holding that the injuries did not arise in the course of his employment with Qantas or that his employment was not a significant contributing factor to the injury.
- [12]These grounds could have been, and should have been, reduced to the minimum necessary to mount the appeal. It serves no useful purpose to repeat the same ground by merely using different expressions.
The appellant’s argument
- [13]In both the appellant’s written and oral submissions a more confined argument was advanced. Notwithstanding internal references to the grounds of appeal the argument was, essentially, that the Commissioner misapplied the appropriate test, took into account irrelevant circumstances and, thus, reached the wrong decision.
What was the injury and what was its cause?
- [14]Before turning to the identification of the appropriate test it is convenient to resolve the nature of the injury and its cause. As is noted above, the parties were agreed that:
- Mr Harvey had suffered a psychiatric/psychological injury in the form of a PTSD with Major Depressive Disorder, and
- the primary events which caused his injury were his arrest, incarceration and the accusation that he had committed a felony sexual offence on 23 May 2013.
In the respondents’ submissions for the respondents references are made to the stressors nominated by the appellant and to the allegations made by Ms Vass. It must be noted that the “accusation” was regarded by Dr Andrews as only being one of the primary events which caused the injury. Further, the allegations were not made known to Mr Harvey immediately. He was given a summary by the police[5]but, on the evidence, would probably not have been aware of the detail until his return to Australia.
- [15]The parties’ agreement was, no doubt, drawn from the uncontested opinion of Dr Andrews. In his report he observed:
- “Mr Harvey went through an experience which was extremely traumatic for him. He was brought in by police in the early hours of the morning and taken into custody. He was not given time to fully address or [to notify] anybody of his detention. He was not informed of the reasons for his arrest except for a comment which suggested that he had inserted his penis in someone’s mouth without consent.”
- “He found the process of arrest and detention to be humiliating and held fears that he would be bashed or raped in jail.”
- “At the time of Mr Harvey’s arrest and incarceration he suffered a severely traumatic event.”
- “I make no comment on whether the processes followed by Qantas [were] procedurally correct or not as I have no expertise in their internal processes. I simply make the comment that Mr Harvey felt poorly supported and victimised and that this exacerbated his condition. While all of this is important, especially to Mr Harvey, on the balance of probabilities he would still have developed PTSD and depression given the circumstances of his arrest and detention, i.e. the primary cause of his problem.”
What is the test?
- [16]
“32 Meaning of injury
- An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…”
“Subdivision 3 When injury arises out of, or in the course of, employment
33 Application of sdiv 3
This subdivision does not limit the circumstances in which an injury to a worker arises out of, or in the course of, the worker’s employment.
34 Injury while at or after worker attends place of employment
- An injury to a worker is taken to arise out of, or in the course of, the worker’s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker’s employment—
- while the worker is at the place of employment and is engaged in an activity for, or in connection with, the employer’s trade or business; or
- while the worker is away from the place of employment in the course of the worker’s employment; or
- while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.
- For subsection (1)(c), employment need not be a significant contributing factor to the injury.”
- [17]For an injury to fall within the definition in s 32(1) it must:
- arise out of or in the course of employment, and
- the employment must be a significant contributing factor to the injury.
Did this injury arise out of or in the course of employment?
- [18]An injury sustained in an interval or interlude which occurs within an overall period of work may still be an injury arising “out of or in the course of employment” – Hatzimanolis v ANI Corporation Ltd.[7] The decision in Hatzimanolis was the subject of close consideration by the High Court of Australia in Comcare v PVYW.[8]In PVYW a Commonwealth employee was, at the relevant time, employed by a Commonwealth government agency. She had been required to visit a regional office of the agency in New South Wales with a work colleague in order to observe the budget review process, meet the regional staff and undertake training. For that purpose, she stayed overnight at a nearby motel which had been booked by her employer. During the course of the evening at the motel, the respondent engaged in sexual intercourse with an acquaintance. In that process, the glass light fitting above the bed was dislodged from its mount and it struck the respondent on her nose and mouth. As a result of that, the respondent suffered physical injuries and a psychological injury.
- [19]French CJ and Hayne, Crennan and Kiefel JJ considered that the question of whether or not an injury arose from a person’s employment was to be determined according to the principles set out in Hatzimanolis. Their Honours stated:
“[38] The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not while engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.” (emphasis added)
- [20]It is not in contest that Mr Harvey suffered an injury and suffered it when he was not engaged in actual work. The analysis in PVYW requires an answer to the question: what was the employee doing when injured? In order that Hatzimanolis might apply Mr Harvey must have been injured while engaged in an activity or injured at and by reference to a place.
- [21]The Commissioner accepted that Mr Harvey was at the hotel because he was required to be there by Qantas. But he held that that did not “justify the claim that his injury arose out of his employment as a direct consequence of him being in that place.” He said:
“[85] This particular case is quite different to that of Danvers where a person had been required to reside in a caravan (or such like accommodation) whilst working away from home and unfortunately perished as a result of a fire that destroyed the accommodation. The cause of death was a direct consequence of having utilised the accommodation provided. In the present circumstances there is acceptance that the Appellant sustained an injury as a result of primary events which were his arrest, incarceration and accusation that he had committed a felony sexual offence on 23 May 2013. The Police Officers that attended his room on that night did so for the purposes of responding to a complaint made by Vass that he had attempted to put his penis into her mouth which was clearly related to an alleged activity engaged in by the Appellant and quite distinct from being a place issue.”
- [22]The reference to Danvers was to the High Court’s decision in Danvers v Commissioner for Railways (NSW).[9] In that case the employer had provided a van to be used as a dormitory when the work which was required to be done was in a place remote from habitation. On the day in question, the employee had completed his day’s work and returned to the van early in the evening. During that evening a fire, the origin and cause of which is unknown, broke out in the van and the employee was suffocated and died. The court was content to draw the inference that at the relevant time the employee was asleep. The Full Court of the Supreme Court of New South Wales was not satisfied that the arrangement for accommodation led to the conclusion that the use of the accommodation came within the course of employment. Barwick CJ disagreed with this and said:
“No doubt even when a workman's presence at some particular place at or in which he has no duty to perform for his employer is in the circumstances of his employment incident to that employment, every injury sustained by him at the place will not be compensable. But in this case there is no room for any finding that the deceased at the time of the receipt of his injury was doing any particular thing which caused or contributed to that injury. Nor could any finding of misconduct be made adversely to him or to his dependants. Thus, if to use the van as his nightly residence whilst working at a place whence he could not reasonably be expected to return to his home was an incident of his employment, an injury attributable to that use and to no other activity could be regarded as occurring in the course of the employment.”[10](emphasis added)
- [23]That reasoning and the requirement that the injury be attributable to the use of the residence and “to no other activity” has been overtaken by the test as it is explained in PVYW. The Commissioner, in applying that test did not, with respect, correctly observe its requirements. In [88] of his reasons he said:
“In this particular instance it is necessary to find an activity that was engaged in by the Appellant that warranted the attendance by two Police Offices at his hotel room on 23 May 2013 and his eventual arrest and incarceration.”
- [24]The Commissioner then went on to say:
“The only activity for consideration relates to the allegations levelled against him by a fellow flight attendant that he had attempted to place his penis in her mouth thus participating in a felony sexual offence against her.”
- [25]It must be observed that in the first sentence the Commissioner says it is necessary to find an activity that was engaged in the by the Appellant but, in the second, accepts that the only activity was not that of the Appellant but were the allegations made by the other flight attendant.
- [26]In [89] the Commissioner went on to say:
“Upon his return to Australia an investigation was undertaken by Qantas where it was found that the allegations were unsubstantiated. The allegations having been unsubstantiated and with no criminal proceeding ongoing against the Appellant removes in my view any argument that he had engaged in proven gross misbehaviour however it is still the case that the activity in question had brought in to the equation the involvement of Police and the Appellant's eventual arrest and incarceration.”
- [27]There is, with respect, an inconsistency in the recognition that the “allegations” were unsubstantiated but then to refer to the “activity in question” bringing in to the equation the involvement of the police. This conclusion involves an assumption that there was some activity for which Mr Harvey was responsible or in which he had some involvement. But that assumption is in conflict with the acceptance that there is nothing to support the allegations. The error which arises comes about because of the mischaracterisation of the “activity”. It was not Mr Harvey’s actions which brought about the police action but the unsubstantiated allegations of Ms Voss.
- [28]This error is then amplified in the following:
“[90] In the matter of Campbell the section of the PVYW decision relied upon by Martin P was that an employer was not liable for an injury that occurred when an employee undertook a particular activity, if the employer had not encouraged the employee to undertake that activity but merely required the employee to be present at the place where the activity was undertaken. This principle applies ‘in spades’ in respect of the activity the Appellant is alleged to have engaged in with Vass as such an activity was not suggested to have been encouraged by Qantas in any event.”
- [29]It was not suggested, before the Commission or in this court, that Mr Harvey had engaged in the alleged activities. It was not a part of the case for the Regulator or Qantas that he had engaged in gross misbehaviour. The argument for both the respondents concentrated on the identification of an “activity” that gave rise to the injury. The activity, it was said, consisted of the allegations which were made and which could not be said to have been induced or encouraged by the employer. It was not Mr Harvey’s case that the allegations were so induced or encouraged. There was not, in any event, a skerrick of evidence to support such a claim.
- [30]The reasoning of the Commissioner, and the arguments of the Respondents, overlooks the dichotomy in the test set out in PVYW. I return to that test. It requires that this question be answered first: how was the injury brought about? When that is answered, one of the following must be answered:
- If it occurred at and by reference to a place then the question is: did the employer induce or encourage the employee to be there?
- When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?
- [31]The “activity” referred to in the second question is an activity of the employee, not someone else.
- [32]While the analysis of the Commissioner was flawed in the way described above, it does not necessarily follow that the test with respect to place is satisfied. In order to come within the definition an employee must have been injured while present at a place in the sense in which that expression is used in Hatzimanolis. It was explained this way in the joint reasons in PVYW:
“[40] … An injury occurs at a place when the circumstance of the injury is referable to the place. The circumstances of Danvers, which was the basis of this criterion of liability, make this plain. They explain why the mere presence of an employee at a place in circumstances where an injury is associated with that place may be sufficient to bring that injury within the course of the employee’s employment.
[41] … It was because of the decision in Danvers that the Hatzimanolis principle was said to apply to a circumstance where injury occurred at a place where the employer induced or encouraged the employee to be. The circumstances of that case could not be explained by reference to activity, not least because the evidence did not permit a finding about what the employee was doing when the fire which killed him broke out.
…
[43] … The principle in Hatzimanolis focuses instead upon what the employer might be taken to have induced or encouraged the employee to do. That question is to be determined by reference to the matters identified in Danvers and restated in Hatzimanolis as relevant: the general nature, terms and circumstances of the employment.
[44] Attention must then be directed to the circumstances of the employee’s death in Danvers. He died because the van in which he was required to live caught fire. His death occurred by reference to that place and that circumstance. The place where an employee is required to be assumes particular importance when it is the cause of an injury or death. This is not to inject notions of causation into the application of the principle, just as the statement that an injury occurred as a result of being engaged in an activity does not involve such notions. To identify the relevant connection does not raise any question about causation. It simply identifies the circumstance in which the injury is suffered. It is that circumstance which must be the subject of the employer’s inducement or encouragement.
[45] An injury occurring to an employee by reference to or associated with a place where the employee is present may involve something occurring to the premises or some defect in the premises. For example, if the light fitting in this case had been insecurely fastened into place and simply fell upon the respondent, the injury suffered by her would have arisen by reference to the motel. The employer would be responsible for injury because the employer had put the respondent in a position where injury occurred because of something to do with the place. Liability in those circumstances is justifiable. Liability for everything that occurs whilst the employee is present at that place is not.” (emphasis added)
- [33]In order to satisfy the test the injury must have occurred at and by reference to the place.
- [34]The circumstances of this case differ in some ways from those considered in Blackwood v Civeo Pty Ltd[11] and Westrupp v BIS Industries Ltd.[12]In Civeo the employee had been assaulted while he was sleeping in his allocated room in a mining village. In Westrupp the employee had been assaulted while he was staying at a mining camp. In some circumstances the degree of control an employer has over the premises, such as a mining camp, will be important.
- [35]Another instance of an employee being injured while at accommodation provided by an employer can be found in McCurry v Lamb.[13]In that case, the worker was a shearer. He was sleeping in the bed of a female employee, in lodgings provided for the workers by the employer, when he was shot and seriously injured by a deranged fellow employee. The New South Wales Court of Appeal held that he was entitled to compensation because he sustained his injuries “at a particular place”, namely the shearer’s camp, where the employer had induced or encouraged him to stay, and while he was doing something that was reasonably incidental to his temporary residence there, namely sleeping. The fact that the injuries were caused by the deliberate criminal conduct of a fellow employee did not affect his right to compensation.
- [36]The argument in Westrupp concerned whether or not the injury occurred during an interval which would be covered by his employment and the extent of employer “encouragement” to stay at the camp. In the Full Court’s reasons the following observation is relevant:
“[67] If Mr Westrupp had been injured by a fire at his quarters while sleeping (Danvers) or whilst showering (Comcare v McCallum (1994) 49 FCR 199 (“McCallum”)) or had been struck by a car while returning to his accommodation (Mather; see also Watson v Qantas Airways Ltd (2009) 75 NSWLR 539) (“Watson”)) or had been assaulted by strangers while returning to his quarters after a meal and a few beers (Kennedy v Telstra Corporation (1995) 61 FCR 160 (“Kennedy”)), then, on the authority of Danvers, and cases in this Court and in other courts which have applied Hatzimanolis, he would have been entitled to compensation. We do not understand those authorities to have been overruled, expressly or by implication, by PVYW. The circumstances of the present case, in our view, are not materially different.”
- [37]That observation is apposite here. The injury occurred by reference to the place because the hotel was the place in which the airline staff were quartered during the layover. Had, for example, the people who entered Mr Harvey’s room assaulted him, then the test would have been satisfied in accordance with a number of authorities. In the absence of gross misconduct there can be no difference where someone suffers a non-physical injury at the hands of others even though they were acting lawfully.
Was the employment a significant contributing factor to the injury?
- [38]This requirement (absent in the cognate Commonwealth legislation) was discussed by Keane JA in Newberry v Suncorp Metway Insurance Ltd[14]:
“[41] … I should also observe in passing that the fact that an injury has been suffered arising out of employment, or in the course of employment, is not sufficient to establish that the employment has been “a significant contributing factor to the injury”. To read s 32 of the WCRA in that way would be to read the latter words out of the section, and in my respectful opinion to accord scant respect to the evident intention of the legislature to require a more substantial connection between employment and injury than is required by the phrases “arising out of employment” or “in the course of employment”.
[42] Further, there is no warrant in the language of s 32 of the WCRA for reading the words “if the employment is a significant contributing factor to the injury” as lessening the stringency of the requirement that the injury “arise out of the employment”, as was suggested in the course of argument on the appeal. It is clear, as a matter of language, that the words “if the employment is a significant contributing factor to the injury” are intended to be a requirement of connection between employment and injury additional to each of the requirements that the injury occur in the course of employment or arising out of the employment. It cannot, in my respectful opinion, sensibly be read as lessening the stringency of the latter or increasing the stringency of the former.” (emphasis added, citations omitted)
- [39]The first respondent argues that this factor is absent from the appellant’s case and seeks to distinguish these circumstances from those in Civeo. It was submitted that while the exigencies of the employment required that the appellant be accommodated in the hotel room, that accommodation did not have the necessary causal connection to his injury. I do not accept that there is a relevant distinction between these circumstances and those in Civeo. In Civeo the worker was required to sleep in the mining camp and was assaulted while he was doing that. In this case, the appellant was required to use the hotel room which was arranged for him by Qantas.
- [40]
“The test applied in determining whether employment was a significant contributing factor must be applied in a practical way. It is the ‘exigencies’ of employment which must be considered and, while that will ordinarily include the contractual terms of engagement, it will generally require an analysis of the circumstances surrounding the employment.”
- [41]The exigencies of the employment – the appellant flew into Los Angeles on 22 May and was required on the return flight scheduled to leave on the evening of 23 May – inevitably required that accommodation be provided.
- [42]The “requirement of connection between employment and injury” is provided by the fact that Qantas required the appellant to be in that place and that he was, at the time his injury was first suffered, using the room for the purpose intended by the employer, namely, to rest or sleep before the return flight.
Conclusion and orders
- [43]The appellant has demonstrated that the Commissioner erred in the application of the relevant test.
- [44]The appeal is allowed. The decision below is set aside and in lieu thereof the following orders are made:
- The decision of the Regulator of 17 April 2015 is revoked.
- The appellant’s claim is one for acceptance.
- [45]I will hear the parties on costs.
Footnotes
[1][2015] QIRC 211.
[2][2015] QIRC 211.
[3](2013) 250 CLR 246.
[4](1969) 122 CLR 529.
[5]Dr Andrews’ report at p 6.
[6]The Act, current as at 14 August 2012.
[7](1992) 173 CLR 473.
[8](2013) 250 CLR 246.
[9](1969) 122 CLR 529.
[10]Op cit at 535.
[11][2016] ICQ 001.
[12][2015] FCAFC 173; (2015) 68 AAR 188.
[13](1992) 8 NSWCCR 556; [1992] NSWCA 169.
[14][2006] 1 Qd R 519.
[15][2016] ICQ 001 at [24].