JKL Limited v STU[2018] QCATA 29

No appearance for the second or third respondents.

REASONS FOR DECISION

Introduction

1. [1]
   The principal issue on this Appeal concerns whether, on the facts of this case, a person engaged by the Appellant as a contractor, and who was the perpetrator of sexual harassment at a Brisbane hotel under its management, is vicariously liable for the conduct of that contractor in circumstances in which the harassment occurred to a person who was employed by an entity associated with the appellant, and was at the time of the incident sleeping in a  room in the hotel to which the perpetrator had access while being on-call during his shift as caretaker.
2. [2]
   The critical issue concerns the proper construction of s 132 and s 133 of the Anti-Discrimination Act 1991 (Qld) (the Act) and whether the conduct of the perpetrator of harassment in this case was done “in the course of work or while acting as agent”, to use the language of s 133 of the Act.
3. [3]
   The Appellant also appeals the findings of the Tribunal in relation to allowed past and future economic loss.
4. [4]
   In 1991, the Queensland Parliament enacted the Act under which s 117 provides:

117 Act’s freedom from sexual harassment purpose and how it is to be achieved

1. One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from sexual harassment.
2. This purpose is to be achieved by—

1. prohibiting sexual harassment; and
2. allowing a complaint to be made under chapter 7 against a person who has sexually harassed; and
3. using the agencies and procedures established under chapter 7 to deal with the complaint.

5. [5]
   Section 118 of the Act provides that a person must not sexually harass another person. Section 119 defines the meaning of sexual harassment.
6. [6]
   At the time of the Act’s second reading speech on 26 November 1991, the Queensland Act was the only legislation in Australia in which the prohibition of sexual harassment extended to sexual harassment of all people in all areas, and was not limited to particular relationships, for example, employer to employee, or teacher to student.^[1] It was also not limited to areas such as employment or education. During the second reading speech, the Minister stated that “sexual harassment in and of itself is outlawed.”^[2]
7. [7]
   Sections 132 and 133 extend the Act to make a person “vicariously liable” for certain acts of the person’s workers or agents.
8. [8]
   The events to which this Appeal relates concern an incident which occurred more than seven years ago. It is unfortunate that in this jurisdiction such a matter has taken so long to be concluded.
9. [9]
   There was an earlier trial of the matter with reasons handed down on 29 August 2015, but on appeal it was ordered by consent that the decision be set aside and that a rehearing take place.
10. [10]
    That rehearing took place in May 2016.  The Member’s Reasons upholding the claim on the basis of vicarious liability were delivered on 6 December 2016.
11. [11]
    Orders were made by the Tribunal in 2013 that the parties to this decision be de-identified. In consequence, there has been a substitution of the parties’ names both throughout the Reasons under Appeal, and in this Appeal. These Reasons adopt the same party titles as did the decision below.
12. [12]
    It is convenient to avoid confusion between the parties to identify that the Third Respondent below is the Appellant here and shall be referred to as the Appellant. The victim of the harassment is the First Respondent to this Appeal, but in these Reasons we shall refer to her as the Complainant. The Second Respondent to the Appeal, who was the Complainant’s employer at the time of the incident, shall be referred to as the Complainant’s employer. The Third Respondent to the Appeal shall be referred to as the Night Caretaker.

Appeal on question of law and leave to appeal

13. [13]
    Pursuant to s 142 of the Queensland Civil and Administrative Act 1991 (Qld) (QCAT Act), an appeal only lies to this Tribunal on questions of law, unless in relation to appeals on a question of fact or a question of mixed law and fact the Appellant has obtained the Appeal Tribunal’s leave to appeal.
14. [14]
    Pursuant to s 146, in deciding an appeal against a decision on a question of law, the Appeal Tribunal is not engaged in a rehearing of the matter.  By s 147 an appeal to this Tribunal on a question of fact only or a question of mixed law and fact, if leave is granted, is by way of rehearing.
15. [15]
    The Appellant raised 15 grounds of appeal. Seven of the grounds were characterised as errors of law, with the remaining grounds said to be either errors of fact or mixed errors of law and fact.  Two of the grounds concern the appeal on the assessment of economic loss.  Those grounds will be considered separately.  
16. [16]
    The Notice of Appeal is prolix and repetitive as are the submissions supposed to support them.
17. [17]
    In large part, the Appeal was conducted as an attempt to re-argue a multiplicity of issues which were raised at trial, both in evidence and in law, and as to the proper interpretation to be placed upon evidence where it fell into some particular context or other.
18. [18]
    The central proposition of the Appellant is that the Tribunal found that the factor establishing vicarious liability was that, as the ‘Night Caretaker’ was on call during the hours of 10.00 pm to 6.00 am, he was ‘working’ during all of that period, and necessarily, that an assault, which occurred about 5.00 am in the Unit provided to the Night Caretaker, was an event occurring in the course of work. That is a challenge to the learned Member’s conclusion in law for which the leave of this Tribunal is not required.^[3]
19. [19]
    Although some of the grounds of appeal are expressed to be against findings of fact or mixed findings of law and fact for which leave is required, they essentially relate, in one way or another, to that central issue.
20. [20]
    The Appeal was primarily conducted on the basis of the findings made by the learned Member.  The primary evidence was not in dispute.  The Appeal, even though said to involve errors of fact, was conducted as a challenge to the characterisation of the events and circumstances found by the learned Member, rather than as a challenge to the primary facts found by the Member.
21. [21]
    For the reasons that follow, those challenges cannot be accepted and leave to appeal on questions of fact and/or mixed questions of law and fact is refused.
22. [22]
    For the reasons that follow the appeal on the question of law fails.

The findings in relation to sexual harassment

23. [23]
    The Member’s findings in relation to the sexual harassment of the Complainant by the Night Caretaker on 1 December 2010 are set out in the Member’s Reasons at [11]. She held, and those findings are not challenged on appeal, that the Complainant retired to sleep in her bedroom in Unit 402 of the hotel apartments, on the first night of her accommodation in that apartment, which she was to share with the Night Caretaker.
24. [24]
    The Night Caretaker occupied a separate bedroom within that apartment. How he came to do so involves some significant factual complexities. At 5.00 am on 1 December 2010, the Complainant awoke to find the Night Caretaker in her bedroom. He was naked. He touched her body including her upper thigh and groin and attempted to remove her underpants. The Complainant asked him to stop and to leave the room. She broke down crying. The Night Caretaker left the room, saying words to the effect: “I’ll let you get changed.” He returned saying: “This can be our little secret.”
25. [25]
    Section 119 of the Act provides:

119 Sexual Harassment

"Sexual harassment" happens if a person—

1. subjects another person to an unsolicited act of physical intimacy; or
2. makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
3. makes a remark with sexual connotations relating to the other person; or
4. engages in any other unwelcome conduct of a sexual nature in relation to the other person;

and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so—

5. with the intention of offending, humiliating or intimidating the other person; or
6. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

26. [26]
    The Member found that the Night Caretaker subjected the Complainant to unsolicited acts of physical intimacy and engaged in unwelcome conduct of a sexual nature with her. She found that a reasonable person would have anticipated the possibility that the Complainant would be offended, humiliated or intimidated by the conduct.
27. [27]
    The Member found that the events constituted sexual harassment within the terms of s 119 of the Act.
28. [28]
    In this Appeal, the Appellant acknowledged that this conduct amounted to sexual harassment under the Act.
29. [29]
    Prior to the hearing below, the Complainant resolved a claim against her employer at the time.
30. [30]
    The Member found that the Complainant suffered post-traumatic stress disorder and a depressive illness following the assault upon her. She found that at some point the Complainant also developed alcohol abuse disorder. She found that the sexual assault caused her psychiatric condition and that her condition continued until at least October 2014. She did not consider that the Complainant suffered from any active pre-existing psychiatric condition which caused or contributed to her psychiatric injury as a result of the sexual assault.
31. [31]
    The Member found that as a result of treatment, the support of her family and her ability to resume work, the Complainant had a disability equating to 1% on the Psychiatric Impairment Rating Scale, which was a figure agreed by the medical experts.
32. [32]
    The Member found that the sexual assault caused the Complainant’s impairment and inability to work, until she recommenced work in late March 2015. She held that her substance abuse had been a factor, but that its escalation was the result of her psychological conditions.
33. [33]
    The Member found that the Complainant had suffered a serious and shocking sexual assault. Her psychiatric conditions of post-traumatic stress disorder, major depressive illness and alcohol abuse disorder were severe and prolonged. She made an award of general compensation of $70,000, which is not challenged on this Appeal.
34. [34]
    The Member found that that the Complainant suffered economic loss and awarded an amount of $145,714.90 for past economic loss for the period from 12 December 2010 to 17 May 2016, the date of the re-hearing. Assuming the same rate of loss had continued from then to 29 November 2016, she calculated a further amount of $16,879.52 as past economic loss and awarded the total sum of $162,594.42 for past economic loss.
35. [35]
    In later reasons dated 3 January 2017, this award was reduced by $16,879.52 and other minor variations were made to adjust interest. Part of that award for past economic loss is challenged on this Appeal. There were other economic losses allowed for in the judgment that do not concern this Appeal Tribunal.
36. [36]
    The Member found that the Complainant should recover future economic loss on a “global” or lump sum basis in the sum of $25,000, net of tax. Although the Appellant made no submissions in relation to future economic loss at the hearing, it seeks to challenge that finding allowing future economic loss in this Appeal.

Anti-Discrimination Act 1991 – Vicarious liability

37. [37]
    Section 132 of the Act provides:

132 Act’s vicarious liability purpose and how it is to be achieved

1. One of the purposes of the Act is to promote equality of opportunity for everyone by making a person liable for certain acts of the person’s workers or agents.
2. This purpose is to be achieved by making a person civilly liable for a contravention of the Act by the person’s workers or agents.^[4]

38. [38]
    Section 133(1) of the Act provides that if any of a person’s workers or agents contravenes the Act “in the course of work or while acting as an agent” the person is jointly and severally liable with the worker or agent for the contravention.
39. [39]
    “Work” is defined in the dictionary to the Act to include work under a contract for services and does not depend on whether it is remunerated or not. It provides:

work includes—

1. (a)
   work in a relationship of employment (including full-time, part-time, casual, permanent and temporary employment); and

2. (b)
   work under a contract for services; and

3. (c)
   work remunerated in whole or in part on a commission basis; and

4. (d)
   work under a statutory appointment; and

5. (e)
   work under a work experience arrangement within the meaning of the Education (Work Experience) Act 1996 , section 4; and

(ea) work under a vocational placement; and

6. (f)
   work on a voluntary or unpaid basis; and

7. (g)
   work by a person with an impairment in a sheltered workshop, whether on a paid basis (including a token remuneration or allowance) or an unpaid basis; and

8. (h)
   work under a guidance program, an apprenticeship training program or other occupational training or retraining program.^[5]

40. [40]
    Section 132 provides that the purpose of the Act is to be achieved by making a person civilly liable for a contravention of the Act by a person’s workers or agents.  Nothing in the language of s 132 suggests that there is to be a gloss on that clear language requiring some close or special relationship between the work being done and the act of harassment.
41. [41]
    Section 133(2) provides that it is a defence if the person (employer) proves on the balance of probability that the person took reasonable steps to prevent the worker or agent contravening the Act.
42. [42]
    The learned Member found that the Night Caretaker’s contravening conduct occurred in the course of work within the meaning of s 133(1) and, on that basis, found the Appellant to be vicariously liable for the Night Caretaker’s contravention of the Act.  It is that finding, as stated previously, which is at the heart of the Appeal. The learned Member further found that the defence was not made out. There is no demonstrated error in her so finding; nor is that finding challenged.

Factual findings relevant to vicarious liability

43. [43]
    The Member found that as at 1 December 2010:

    1. the Appellant’s business was in the management and operation of hotels and resorts, including various accommodation centres,  including a hotel in the CBD where the Complainant was being placed as a guest service agent, as well as another Brisbane CBD hotel (the Hotel) where the incident took place;
    2. the Appellant managed the caretaking services for the Hotel;
    3. the Complainant’s employer at the time of the incident was a wholly-owned subsidiary of the Appellant and one of the JKL group of companies;
    4. the Complainant’s employer supplied labour to the Appellant at certain hotel properties managed by the Appellant;
    5. Mr CD was the sole Director of the Complainant’s employer. He was also a Director of the Appellant and the Chief Executive Officer of both the Appellant and of the JKL group of companies;
    6. at the request of Mr CD, the Complainant was employed on 9 August 2010 as a guest service agent at another hotel outside of Brisbane CBD, managed by the JKL corporate group;
    7. the Complainant remained employed by the Complainant’s employer until termination of her employment on 1 February 2011;
    8. by early November 2010, there was no ongoing employment for the Complainant at the other accommodation outside Brisbane where she had worked. At the request of Mr CD, a suitable position was sought for the Complainant. A position was found at one of its other Hotels in Brisbane as a guest service agent. The Complainant had agreed to commence in that position on 1 December 2010;
    9. the Night Caretaker was engaged as a contractor to the Appellant pursuant to a verbal agreement made with Mr CD for the provision of services as a caretaker at the Hotel;
    10. the Night Caretaker of the Hotel occupied Unit 402. It was a two-bedroom unit or apartment as it is referred to in the affidavit material. The second bedroom of Unit 402 was unoccupied until the night of the harassment;
    11. Mr CD suggested to the Complainant that she reside free of charge in Unit 402 to assist her in moving to Brisbane to take up her new job. Mr CD spoke to the then-occupant of the Unit, the Night Caretaker and to a Human Resources officer of the Appellant to put in train a meeting between the Night Caretaker and the Complainant for the purpose of ensuring they were comfortable to share the Unit together;
    12. the Night Caretaker and the Complainant spoke over the telephone. They met on 30 November 2010. After that, the Complainant moved into Unit 402 on 30 November 2010; and 
    13. the Complainant did not enter into a written tenancy agreement with either the Night Caretaker, her employer or the Appellant.^[6]
44. [44]
    The Member found, in broad terms, and in our view there is no demonstrated error in her finding, that the services to be performed by the Night Caretaker included attending to any issue which arose in the building between 10.00 pm and 6.00 am and included:

    1. attending reception before 10.00 pm to be advised of any late check ins to whom he must attend once reception staff left at 10.00 pm;
    2. answering his work provided phone between 10.00 pm and 6.00 am. The caretaker’s contact details were available at the Hotel in the event of an urgent request or an emergency. He was required to assist the person who had called;
    3. to look into any alarm and if necessary implement emergency procedures; and
    4. to report to reception staff at 6.00 am in relation to contacts during the previous evening and early morning.^[7]
45. [45]
    In consideration for these services, the Night Caretaker lived in Unit 402 rent-free. The Appellant paid his electricity and phone costs. There was no written tenancy agreement. The Appellant had control of Unit 402 as part of its management and caretaking role at the Hotel. Indeed, it is common ground that the Appellant, as the managing caretaker and letting agent, was contractually obliged to own Unit 402 for the purposes of conducting its contracting activities. In the relevant agreement, Unit 402 was called the “Manager’s Lot”.^[8]
46. [46]
    In her Reasons at [55]-[57] the Member found, and there was no contest to her findings, that the Night Caretaker’s duties were accurately described in an exhibit, which were particulars of a pleading, but may be treated for the purposes of this Appeal as accurately stating the position. They were:

    1. providing an after-hours on-call service for late guest arrivals and emergencies;
    2. to be available for after-hours call-outs to respond to any emergencies;
    3. to be able to liaise with the building manager to find a suitable replacement to be on-call;
    4. to facilitate late arrivals for check-in;
    5. to respond to emergencies in the building during the evening for example fire-alarms, lift breakdown, mechanical failure, security complaints;
    6. to providing guest assistance if answering service unable to deal with problem;
    7. to complete the after-hours call-out logbook for all call-outs;
    8. to present in a professional manner at all times;
    9. to have a limited understanding of front office policies and procedures;
    10. to maintain guest privacy and confidentiality at all times;
    11. to undertake effective, honest and professional communication with JKL staff members to ensure the smooth operation of the property;
    12. to ensure all pertinent information is handed over to oncoming JKL employees;
    13. to remain vigilant for situations that could cause a safety risk and remove or advise the building manager; and
    14. to ensure all accidents on the property were reported to the hotel manager on an incident report.^[9]
47. [47]
    On the day before the incident, the Complainant travelled to Brisbane from the Sunshine Coast and on her arrival in Brisbane received a call from the Night Caretaker telling her to come to the Hotel because he had important work-related things to show her. When she went there, the Night Caretaker gave her a direction that she could not go to the family dinner she had planned and was required to do exactly as he said. He told her she had to be at the Hotel that night, she was to do exactly what he said, and she had a lot to learn. He said that if he were to break his arm she would have to know what to do. He then directed her to put on her swimming costume and go for a swim with him, which direction she duly obeyed despite already holding some concerns about his behaviour. Those statements reveal a perception by the Night Caretaker that the Complainant was under his supervision and control that night.
48. [48]
    During the period of his shift, namely from 10.00 pm to 6.00 am, the Night Caretaker had a master key and therefore had access to the office and other places within the Hotel. At 6.00 am he would hand over that master key and any relevant documentation that related to his activities that evening.
49. [49]
    Indeed, the Complainant swore that when the incident occurred, and whilst she was still very distressed, the Night Caretaker left her room, returned to ask if she was going to tell anyone, asked that this be their “little secret” and then left the room again. She waited for him to go down to reception to pick up the paperwork for the end of his shift at 6.00 am. The Night Caretaker told her the night before that he would have to take his paperwork down in the morning. This evidence is consistent with his being on a specific shift for the performance of whatever of the duties his role required of him during that period.
50. [50]
    Another matter which the learned Member might well have averted to in her consideration of the question of whether the act occurred in the course of work was the extent to which there was a degree of control exercised by the Appellant or the Complainant’s employer in relation to the availability of staff accommodation and staff behaviour at the Hotel. The Member did give some consideration to this issue. She decided that it was relevant to know the circumstances which led to the Complainant being in that room by arrangements made by Mr CD, who was both an officer of her employer and of the Appellant, and who employed or engaged the Night Caretaker. There is nothing to suggest on the evidence here that for the period that the Night Caretaker was on his shift, he was other than under the control of the Appellant, and would have been obliged to carry out any task allocated to him during that period should he be called upon or required to do so.
51. [51]
    During oral submissions, senior counsel for the Appellant appeared to imply on a number of occasions that there was no such control being exercised because he asserted that the Night Caretaker was not required to be in the Unit during the hours of service, and there was no evidence that he was doing anything associated with the discharge of his duties other than being on call. It was also submitted that the Complainant’s presence in the Unit was not in discharge of the Night Caretaker’s obligations to his employer. It was submitted that the finding of the learned Member was that vicarious liability was established whether the caretaker was “in the Unit asleep, not in the Unit, out on the street, no matter what, having a social function”.^[10] The Member’s Reasons make no such finding.
52. [52]
    It was submitted in oral submissions that the Night Caretaker was not required to be at the Hotel, although he was required to be in close proximity to it.
53. [53]
    Although in our view the evidence did not establish any foundation for these contentions having regard to what the Member set out at [55]-[57] were his duties, those matters would not of and in themselves suggest that during the period for which he was “on call” to provide those duties, he was not under the control of the Appellant in relation to the caretaking duties to be carried out.
54. [54]
    One matter of significance is, as the CEO Mr CD swore, the Complainant reported the incident to him shortly after it had occurred. Other meetings and consultations then occurred. As a result, the Appellant “decided that it would be appropriate for the company to end its contractual arrangement with [the Night Caretaker] we could not have in place at the [Hotel] a caretaker who displayed such behaviours to any person be they guests, somebody sharing accommodation or other employees of the company”.^[11] He was then duly terminated.
55. [55]
    That fact is circumstantial evidence that the Appellant considered itself as having control over the activities of the Night Caretaker on that evening, and that insofar as he conducted himself in the way that he did, it was conduct that it considered such as to warrant termination of his services. A similar point arose in South Pacific Resort Hotel Pty Ltd v Trainor^[12] at 408 and the significance of such an event was recognised there.
56. [56]
    Both Mr CD and Mr A (Chief Executive Officer of the JKL Group of companies) gave evidence at the initial hearing in relation to the Night Caretaker’s duties. The Member observed that they were cross-examined at the initial hearing but not at the re-hearing which she conducted. Some of their evidence appears to conflict with the documentary evidence referenced above.
57. [57]
    The Member found, and in our view there is no demonstrated error in her finding, that Mr CD’s evidence in cross-examination in the first hearing was that the Night Caretaker was “on call between the hours of 10.00 pm and 6.00 pm”. The Member found that Mr A cavilled with the term “on call”, but agreed in cross-examination that the Night Caretaker was required to be available to respond if necessary to a range of issues which might occur. The Member noted that in re-examination, Mr CD explained that “there is no on call unless the phone rings”.
58. [58]
    That evidence in re-examination is incapable of being reconciled with what the Member accepted to be the case set out in her reasons at [55]-[57] and referred to above.
59. [59]
    At [62] of her reasons, the Member rejected the submission that the Night Caretaker was not required to provide any services at all if the phone did not ring or if no issue arose. She held that the evidence from Mr CD and Mr A made clear that the Night Caretaker was to be “available” between 10.00 pm and 6.00 am. In our view, there is no demonstrated error in her so finding.
60. [60]
    The Member found that being “available”, that is, ready and able to respond when called upon, was a service. She found that the Night Caretaker was providing that service between the hours of 10.00 pm and 6.00 am and that he was required to do so as a necessary part of his engagement.
61. [61]
    She referred to the evidence that the Night Caretaker was not free, when not being actively called upon, to do as he liked to or to locate himself wherever he liked. For example, she held the Night Caretaker was required to remain sober between the hours of 10.00 pm and 6.00 am. He had to be located close enough to the Hotel during those hours to be able to respond in a suitable period of time to any call on him. He had to remain “vigilant for situations that might cause a safety risk”.

The findings of relevant association with “the course of work”

62. [62]
    The Member found that but for her employment the Complainant would not have been in Unit 402 at the time the sexual assault took place. She described another way of expressing this was, as put in the Complainant’s submissions, that “her accommodation in the spare bedroom of Unit 402, was connected with her employment by the First Respondent”.^[13]
63. [63]
    The Member made that finding based on the following matters which in our view are not open to challenge in this Appeal because there is no demonstrated error in her so finding:

    1. the Unit was under the control of the Appellant;
    2. Mr CD, CEO of the Appellant, made occupation of the Unit available to the Complainant to assist her move to Brisbane to take up work at the Complex. He set the terms of that occupation, namely, that it was rent-free and subject to the Complainant and the Night Caretaker feeling comfortable in sharing the Unit;
    3. it was not the case that the Complainant was a stranger to the Appellant invited by the Night Caretaker to share the Unit for reasons completely unconnected with his work for the Appellant or her work for the Complainant’s employer.
64. [64]
    The Member rejected the submission of the Appellant that the Complainant was merely a “guest” of the Night Caretaker, who had the capacity to consent to her presence. There was no evidence from the Night Caretaker that he actively extended a personal invitation to the Complainant to live in the Unit, as one would normally do with a guest.
65. [65]
    The Member rejected the submission of the Appellant that the Complainant was no more than an invitee of the Night Caretaker in his private capacity. This finding of fact is challenged in the 12th ground of appeal. There was no evidence that the Night Caretaker was acting in his private capacity. The evidence showed that she was there not as his invitee, but by arrangement with her employer, and by its association with the Appellant.
66. [66]
    The Member held there was evidence which suggested that the Night Caretaker was not acting in his private capacity. First, she held he had no control over whether the Complainant paid him rent. He was directed that she was to live in the Unit rent-free. Secondly, there was a letter referred to from the Night Caretaker to Mr A setting out the “Rules for the Complainant’s residence”. As the Member held, if the Night Caretaker was entering into a private arrangement there would be no reason for him to send such a letter.
67. [67]
    The Member rejected the submission by the Appellant that the sexual assault did not take place in accommodation provided and arranged by the Appellant. Below, the Appellant had argued that such a conclusion was not “supported by the totality of the evidence”. It was submitted that the Appellant – the company that had the contract for services with the Night Caretaker – had no involvement at all in the Complainant residing in the apartment.
68. [68]
    The Member rejected that submission, in circumstances in which there is no demonstrated error in her so finding, where she held:

    1. the Appellant controlled the Unit, pursuant to its management  agreement;
    2. Mr CD suggested the accommodation as a means of enabling the Complainant to commence work at a hotel in Brisbane;
    3. Mr CD determined the accommodation should be provided rent-free and telephoned the Night Caretaker to obtain his agreement to sharing with the Complainant;
    4. Mr CD encouraged the Complainant to take up the offer of accommodation, assuring her that the Night Caretaker was trustworthy; and
    5. Mr CD instructed the human resource officers of the Appellant to facilitate contact between the two to ensure they were comfortable sharing the Unit. It was in this context that the Complainant agreed to move into the Unit.^[14]
69. [69]
    Based on this evidence, the Member found that the sexual assault took place in accommodation provided and arranged by the Appellant. There is in our view no demonstrated error in her so finding.

What is the correct approach to for whether a contravention occurs “in the course of work”

70. [70]
    The central issue of course in this Appeal is whether the Member was entitled to conclude, on the proper application of the language of s 133, that the sexual harassment occurred in the course of the work of the Night Caretaker.
71. [71]
    McHugh, Gummow, Kirby and Hayne JJ observed in Project Blue Sky Inc v Australian Broadcasting Authority^[15] that the context, the general purpose and the policy of a statutory provision are among the best guides to its meaning.^[16] The starting point for an analysis of what the proper construction of the likes of s 133 is, is to observe the importance of the context, general purpose and policy of the statutory provision, which are amongst the best guides to its meaning.
72. [72]
    Sections 117 and 133 are remedial provisions found in legislation which protects human rights and ought to be broadly construed.^[17]
73. [73]
    There is no warrant for narrowly construing provisions such as s 117 and s 133.^[18] Reading legislation in light of its objects has been said to be of particular significance in the case of legislation which protects or enforces human rights.^[19]
74. [74]
    Section 118 was enacted in furtherance of the object expressed in s 117 of the Act and, as such, ought to be construed by reference to parliament’s stated objective of prohibiting with a view to protecting persons from and thus eliminating, so far as is possible, discrimination involving sexual harassment.
75. [75]
    In the context of an analysis of the meaning of similar words to those in s 133 under s 106 of the Sex Discrimination Act 1984 (Cth) (the SDA), Kiefel J gave a demonstration of consideration of context, general purpose and policy in statutes such as the Act under consideration here. Considerable effort was spent by the Appellant in seeking to distinguish Trainor and identifying differences in language in s 106 of the SDA, which rather than founding vicarious liability on contraventions “in the course of work”, focused upon a contravention by “an employee or agent of a person... in connection with the employment of the employee or the duties of the agent as an agent”.^[20]
76. [76]
    For present purposes, it is unnecessary to decide what the level of commonality is between what is required to be established for the application of vicarious liability under the Commonwealth Act and that under s 133 of the Queensland Act.
77. [77]
    In the course of argument, we were directed to a body of case law which considered expressions in some cases using very similar, and in others very dissimilar, language to that in s 133 but in different statutory contexts. Critically, those different contexts were those arising under the workers’ compensation statutes, and those arising at common law where vicarious liability was to be imposed in the tortious context. We would respectfully adopt the statement to be found in the joint judgment of Black CJ and Tamberlin J in Trainor:

We would add that the expression chosen by the Parliament to impose vicarious liability for sexual harassment would seem, on its face, to be somewhat wider than the familiar expression “in the course of” used with reference to employment in cases about vicarious liability at common law or in the distinctive context of workers compensation statutes. Nevertheless cases decided in these other fields can have, at best, only limited value in the quite different context of the SDA.^[21]

78. [78]
    On behalf of the Appellant, it was submitted that the approach of the Member was inconsistent with the approach adopted in Commonwealth of Australia v Lyon,^[22] a decision of Deane J when he was on the Federal Court concerning the test to be applied to whether an injury was sustained by an employer “in the course of employment” in the context of a workers’ compensation statute. In oral submissions on the Appeal, senior counsel submitted that if this Tribunal decided to set down what it regarded as the test under s 133 to be, it should decide that if it was not a common law test for vicarious liability, it was “going to be something relatively close to it” and in that context referred to the decision in Lyon.^[23]
79. [79]
    Reference was also made in this context to what was said to be the approach to vicarious liability in tort by the High Court in Prince Alfred College Inc v ADC.^[24]
80. [80]
    These submissions are in our view inconsistent with the observations which were made by Black CJ and Tamberlin J (with whom Kiefel J agreed) in Trainor.^[25] They are also concerned in each case with statutes with demonstrably different purposes. Of course, in the workers’ compensation environment, a threshold issue is whether a worker was injured in the course of employment in the context of particular statutory language chosen to reflect what the Parliament regarded as the appropriate test to decide if an injured worker was entitled to compensation. It is not concerned with the achievement of some purpose or policy which is to eliminate sexual harassment in the community, and impose vicarious liability on persons whose workers or agents contravene the Act.
81. [81]
    Nor are such statutes concerned in any way with the emanation of any particular anti-social or other undesirable practices.
82. [82]
    In the decision in Lyon, which Deane J described as raising a question of law which was “a difficult one”, he held:

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 which is a concomitant of, or reasonably incidental to, his employment to do that work (Kavanagh v Commonwealth (1960) 103 CLR 547 at 559; Commonwealth v Oliver, supra, at 358). The course of employment is a temporal concept and it is unnecessary that there be any causal connection between the work which the employee is employed to do and the injury which he sustains (Kavanagh v Commonwealth, supra, at 555, 570; Commonwealth v Oliver, supra, at 359, 362). The scope of what is within it depends upon “the sufficiency of the connection between the employment and the thing done by the employee” which “cannot but remain a matter of degree, in which time, place and circumstances, as well as practice, must be considered together with the conditions of the employment” (per Dixon J, Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, and see, generally, per Stephen J Bill Williams Pty Ltd v Williams [1972–73] ALR 303; 126 CLR at 158–9.^[26]

83. [83]
    Further, Deane J said:

It must be recognized that the control which an employer enjoys over his premises is commonly a critical factor in determining that an employee is in the course of his employment, notwithstanding the fact that he is off duty in an interval between working hours. It may well be that, in most cases, the fact that a worker has left his employer's premises altogether will constitute a prima facie interruption of the course of his employment (see, eg Davidson v Mould, supra, at 120 and Commonwealth v Oliver, supra, at 363). It cannot, however, be said as a matter of law that an employee's course of employment is, of necessity, broken whenever he leaves his employer's premises during an interval between work periods.^[27]

84. [84]
    In the context of consideration of the circumstances in which vicarious liability would be imposed in tort, the purpose of the common law was to confine liability, in order to reflect some balance between competing interests, and therefore imposing a requirement that an employee’s wrongful act be committed in the course or scope of employment.
85. [85]
    In Prince Alfred College, the High Court commented:

Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.^[28]

86. [86]
    In that case, the High Court also commented that:

Difficulties, however, often attend an enquiry as to whether an act can be said to be in the course or scope of employment. It is to some extent conclusionary and offers little guidance as to how to approach novel cases. It has the added disadvantage that it may be confused with its use in statutes, where it has a different operation. In statutes providing compensation for injury suffered by employees it operates as a limit upon a right to compensation; in the common law it is an essential requirement for vicarious liability. But it has not yet been suggested that it should be rejected. It remains a touchstone for liability.^[29]

87. [87]
    On the other hand, there is a body of case law which has had cause to consider language in anti-discrimination statutes and considered the language of those particular statutes where vicarious liability was imposed, having regard to the purpose sought to be achieved by the legislation. It is largely unnecessary to go to those decisions individually, because each of them was considered in detail in the judgment of Kiefel J in Trainor.^[30]
88. [88]
    Trainor^[31] concerned an application for compensation for loss and damage suffered because of sexual harassment perpetrated on an employee by her fellow employee. The conduct occurred on two occasions, each at night, and each in the Complainant’s room in staff accommodation provided by the employer as part of its hotel complex on Norfolk Island. The employer was held to be vicariously liable. One of the challenges on appeal was to the finding that the employer was vicariously liable, it being contended the evidence did not support a conclusion that the conduct in question was “in connection with the employment”.
89. [89]
    In the joint judgment of Black CJ and Tamberlin J, they conclude that the expression “in connection with” in its context in the Commonwealth Act was “a broad one of practical application”. Irrespective of what comparisons can be made between the language in s 106 of the SDA, and the Queensland Act, in our view the expression “in the course of work” is also a broad one of practical application. In a similar vein, Kiefel J noted that “each case will turn on its facts and it may be that it is difficult to draw the line in some cases”.^[32]
90. [90]
    Kiefel J conducted a comprehensive analysis of the meaning of s 106 of the SDA, having regard to its desired purpose.
91. [91]
    After referring with approval to the approach in Project Blue Sky^[33] and the statement that the context, general purpose and policy bring the best guides to the meaning of a statutory provision, Kiefel J referred to the second reading speech which introduced s 106 of the SDA.  It identified that the practice of sexual harassment can be eliminated in the workplace only when employers take further steps towards that end and make it clear to their staff that it cannot be tolerated.
92. [92]
    There is no material distinction for present purposes between the purpose and aims of the SDA and the purpose and aims sought to be achieved by the Act in prohibiting sexual harassment.
93. [93]
    For the Appellant it was submitted that the approach in Trainor^[34] could be distinguished because the purpose of s 106 of the SDA was identified as being to prohibit harassment, whereas the purpose sought to be achieved under s 117 of the Queensland Act were those set out in s 6 of the Act concerning the protection of individuals from unfair discrimination and the promotion of equal opportunity. Indeed it was submitted that the purpose of the enactment of s 117 carried no obligation on employers to take steps to achieve the elimination of sexual harassment. That submission is directly contrary to what is set out in Chapter 3 of the Act, and its stated purposes and the method by which it is to be achieved, as set out at [4] of these reasons. We reject that submission.
94. [94]
    Kiefel J agreed with the observations of the other members of the court that a wide operation needed to be given to the language of the section otherwise it would “unduly restrict the operation of the [Act] and in a way that could not have been intended”.^[35] We would also adopt that approach here.
95. [95]
    Her Honour rejected an argument, the equivalent of which has been made before us, that there needs to be a sufficiently strong nexus between the conduct and the work for the vicarious liability to apply. She held that such an argument seeks to import the doctrine of vicarious liability in tort into an anti-discrimination statutory context. We respectfully agree.
96. [96]
    Her Honour referred to a Canadian decision in Robichaud v Canada (Treasury Board)^[36] where the language of the statute prohibited discriminatory practice “in the course of employment”. That wording is similar, but not identical, to the language of s 133 in its reference to something “occurring in the course of” something else. Importantly, her Honour took the view that she did not think there was any material difference between the language in the Canadian statute and that under the SDA, despite the wording differences. She held that: “The provisions are directed to the same purposes and should be construed accordingly. There seems to be no reason to regard them as stating a different requirement in relation to the conduct.”^[37] This focus upon the purposes of the Act, and adopting a construction consistent with it, rather than searching for any difference in the language of the statutes discussed in the cases with a view to distinguishing those cases is the preferred approach. Her Honour agreed with the observations by La Forest J in Robichaud that any analogy with tort law would seen inappropriate for the reason that legislation of this type is “directed to removing certain anti-social conditions”,^[38] just as is s 117 of the Act.
97. [97]
    In rejecting any analogy with the test in tort law, Kiefel J noted La Forest J had further observed:

...a limitation such as that recognised in tort cannot meaningfully be applied to a statutory scheme with that purpose. In tort law, his Honour explained: “what is aimed at are activities somehow done within the confines of the job a person is engaged to do, not something, like sexual harassment, that is not really referable to what he or she was employed to do”. His Honour concluded (at p 584):

Hence, I would conclude that the statute contemplates the imposition of liability on employers for all acts of their employees “in the course of employment”, interpreted in the purposive fashion outlined earlier as being in some way related or associated with the employment. It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions.^[39]

98. [98]
    Her Honour referred also to the English Court of Appeal decision in Jones v Tower Boot Co.^[40] As her Honour said:

In Jones v Tower Boot Co [1997] 2 All ER 406 the Court of Appeal was concerned with the vicarious liability of an employer for acts of an employee that were done ”in the course of employment” in connexion with the Race Relations Act 1976 (UK) s 32(1). The need for a wide interpretation to be given to this and the corresponding provision in the Sex Discrimination Act 1975 (UK) was recognised by Waite LJ (at 413-414). His Lordship also observed that to construe the words in accordance with the common law doctrine of tortious liability of an employer would mean that the more heinous the act of discrimination, the less likely it would be that the employee would be liable (at p 415).^[41]

99. [99]
    Her Honour went on to find:

In my view no narrow approach to the operation of s 106(1) is warranted. It is consonant with its purpose to read the words “in connection with the employment of the employee” as requiring that the unlawful acts in question be in some way related to or associated with the employment. Once this is established it is for the employer to show that all reasonable steps were taken to prevent the conduct occurring, if they are to escape liability under s 106(2). In this way the aim of the SDA, to eliminate sexual harassment in the workplace, might be achieved. This will require that employers take steps to ensure that it does not occur. The SDA encourages that approach. Whilst I am not suggesting that the employer takes on proof about the steps taken at the outset, the operation of s 106(1) is wide and an employer must be vigilant of the possibility of such practices in the workplace.^[42]

100. [100]
     In Smith v Christchurch Press Company Ltd,^[43] a New Zealand decision concerned with sexual harassment, the conduct occurred at lunch time away from the workplace. The context was whether to find vicarious liability in a statute with similar language to that which was considered in Robichaud,^[44] namely, whether the harassment was “in the course of employment”. It involved a claim of unlawful dismissal as a result of alleged sexual harassment between two co-workers during a lunch break on a working day and was a common law claim.
101. [101]
     The New Zealand Court of Appeal held that the sexual harassment was “in the course of employment” because it was between two present employees, arose out of the work situation and had the potential to adversely affect the working environment. That, of course, is not a statement of principle but identification of the evidence which created the necessary nexus for the conduct to have been “in the course of employment”. It was so despite the fact that neither of them, but specifically the perpetrator, was at the place of employment or doing anything in discharging a role as an employee.
102. [102]
     Precisely the same circumstances arose here, namely, two current employees, albeit not each actually employees of the same corporate entity, employed by associated entities, thrown together in consequence of that corporate relationship. It undoubtedly arose out of the work situation because they had spent time together the previous day at that workplace discussing work, and the Complainant was in the apartment herself because of her own work situation. The Night Caretaker was in her room because he was at the premises “on call” to perform his duties as Night Caretaker. He had no “office” and no other designated place from which to be “on call” during that shift. Undoubtedly it had the potential to adversely affect the working environment, and this explained the dismissal by the Appellant of the Night Caretaker in the days after the event. Although the focus here under s 133 is not so much upon the relationship the Complainant had with the workplace, and most to do with whether what the Night Caretaker was doing was in the course of work, that is, his not hers, what she was doing there and how she came to be there and its relationship with the Night Caretaker’s work is relevant.
103. [103]
     The Appellant urged the Tribunal not to conclude that this particular conduct occurred in the course of work, because were it to do so it would verge upon imposing some kind of strict liability on principals whose employees or agents committed acts of sexual harassment. We disagree that this would be, or could potentially have, that effect. As Kiefel J said in Trainor, each case will turn on its facts and it is difficult to draw the line in some cases.^[45] Giving a meaning to the words “in the course of work” which facilitates a purpose of the Act in removing certain anti-social conditions, in circumstances in which a defence is made available to a person against whom vicarious liability might lie, to prove that it took reasonable steps to prevent the contravention, is a conventional approach. The interpretation of s 133 does not create or have the potential to create strict liability, but it is certainly not to be construed in the way that similar but different expressions have been construed in tort law or in workers’ compensation law so as to require some close or significant connection with the carrying out of a work activity by the perpetrator.
104. [104]
     Support for the view that we have expressed above also can be found in the decision of White J in the Supreme Court of Queensland in Brown & Anor v Moore & Anor^[46] where her Honour held:

The intention of the legislature apparent in the Act is to make an employer or principal vicariously liable for the contravention of the Act by its workers or agents, s 132. The factors which limit that liability are that the unlawful conduct must occur in the course of work or while acting as an agent and, by way of defence, if the respondent proves that it took reasonable steps to prevent the worker or agent contravening the Act.^[47]

105. [105]
     As her Honour clearly identifies, the factor, relevantly for present purposes, that limited the liability imposed on an employer to make it vicariously liable for a contravention by its workers, is that it must occur “in the course of” work. That does not require the actual performance of a work task, nor does it require any consideration of whether there was authorisation, permission or facilitation in any way of the relevant act.
106. [106]
     It is to be noted that the second aspect of s 133(1) is that vicarious liability attracts when a person’s workers or agents are acting as agent, which does not have any necessary connection with the performance of work, merely the existence of any agency. For the purposes of s 133, one might be the agent of another both as an express or actual agent, or an ostensible agent. In the circumstance in which the person was an ostensible agent, there would of course be no actual agency and no question of actual authority, rather only apparent authority.
107. [107]
     The discussion of the ways a person might be vicariously liable for a contravention of the Act as agent “actual, implied or ostensible” was discussed by the Court of Appeal in JM v QFG.^[48] Vicarious liability for a contravention of the Act can be attracted by the conduct of an ostensible agent. That could only occur where a party held itself out as the principal. Liability for acts within ostensible authority exists only while the person to whom the representation is made relied on it in making the contract or supposed contract. On the facts of that case, ostensible agency was not established.
108. [108]
     What that case does demonstrate, however, is that a person who might fall within the definition of an employee, but who might also be an agent, including an ostensible agent, might fall into either limb of s 133, either because the contravention occurred in the course of work, or because the contravention occurred while that person was acting as agent, including as ostensible agent. Demonstrably, the question of whether the employer authorised the relevant conduct, was even aware of it, or whether the conduct in question was within some perceived scope of apparent or ostensible authority is not an element for deciding whether vicarious liability arises.
109. [109]
     Hence, the submissions made by senior counsel for the Appellant that agency was irrelevant in this case because no party asserted that the Night Caretaker was an agent and, further, that the reference to agency in s 133 was a reference to that person “acting within the scope of the agency in making the contravention”, are rejected.
110. [110]
     It would seem to us to be anomalous if under s 133 the test which attracted vicarious liability to a principal where the conduct in question was by an agent was materially different from the test to be applied where the perpetrator was an employee, who at common law might also be treated as an agent but in respect of whom it must be established that he was doing some specific thing constituting “work” at the time that he did it.  In the results, there was no error of law in the learned Member’s conclusion that the Appellant was vicariously liable for the sexual harassment of the Night Caretaker.

The specific grounds of appeal

111. [111]
     Ground 1 asserts an error of law occurred when the Member held the Appellant was vicariously liable for something that happened in the Night Caretaker’s “private residence”.
112. [112]
     At best, this can only be a subsidiary factual issue which goes to the question of whether what was occurring in the apartment was something done by him in the course of work or while acting as agent. The learned Member dealt comprehensively with the evidence about whether it was or was not a private residence and what specifically the association was between the Appellant and the availability of, indeed, the necessity for that unit to be owned by it for the purpose of facilitating the management and caretaking of the Hotel.
113. [113]
     In any event, the question of whether it was his private residence, which the learned Member resolved adversely to the Appellant, is of only peripheral significance to the question which arises for resolution under s 133. The notion that it was a mere private residence of the Night Caretaker which had no association with the performance of his duties as caretaker, and had no relationship with his employer, and the expectations of his employer as to the tasks he was to carry out as caretaker, demonstrates that the Member made no error either in fact or law in concluding that it was not a private residence provided to him in such a way as to take it outside of the scope of what he did in there, to an employee of an associated entity, being something “done in the course of work.”
114. [114]
     Ground 2, characterised also as an error of law, challenges the findings in the Reasons at [65] that the Night Caretaker was working during the hours from 10.00 pm to 6.00 am because he was “on call”. The learned Member was entitled to conclude that being “on call”, which has as an essential characteristic of caretaking activity, during the period for which one is on call, a liability to respond to any call, constituted activity on his part in the course of work onsite, within the unit provided for the purpose of conducting the caretaking, and in circumstances in which there were other direct associations between the purpose for which the unit existed in the Appellant’s name, and its being made available to the Night Caretaker.
115. [115]
     Ground 3 asserts an error of law in finding (Reasons [69]) that the assault occurred in the course of the Night Caretaker’s work “by reason of it having occurred during the hours of 10.00 pm to 6.00 am”. The first thing to be said about this ground is that it manifestly misstates the conclusions that the Learned Member reached at [69]. At this point the Member is merely summarising what her findings hitherto have been, and she explains elsewhere why it is that she has made those findings. She clearly concludes that being available or ready to respond to an issue between those hours was an integral part of the Night Caretaker’s work pursuant to his contract of service and that therefore he was engaged in the work that he was required to perform at the time of the sexual assault.
116. [116]
     Criticism has been levelled at the Member for adopting a statement of Dixon J in Automotive Fire Sprinklers v Watson to the effect that “they also serve who only stand and wait”.^[49] Whilst the context of that statement had no legal application to the facts of this case, in our view this case involved a caretaker performing all or any of the duties and tasks imposed upon him pursuant to his contract, and irrespective of whether in fact a direction or call was made upon him to actually perform those services, he was there to perform his work tasks that night after 10.00 pm. In our view the presence of a caretaker or indeed any other occupation where one was in attendance at one’s workplace but where one might or might not be called upon to actually perform any services on a given shift, does not alter the position. One can be in the course of work but be standing and waiting to perform some particular task. The course of work there is “to stand and wait”.^[50]
117. [117]
     An ancillary criticism of the Member in this context was of her application of a decision to which she was referred by the Appellant in argument, namely, Lyon.^[51] That was a case concerned with a workers’ compensation statute, which has an entirely different purpose to the purpose sought to be achieved by the Act. The three elements of what were referred to in the Lyon decision are set out at [67] of the Member’s Reasons.
118. [118]
     Seeking to apply and/or distinguish similar or different words in a different context, both in terms of the statutory purpose sought to be achieved and the context of the language, is apt to confuse rather than elucidate. It is not evident from either the written or oral submissions precisely what the Appellant complains about the learned Member’s review of that case. The statutory language there was about identifying whether a worker is engaged in the work he is employed to do, where a worker is engaged to do something concomitant with or reasonably incidental to it, and that the question was one of degree in which time, place and circumstance as well as practice must be considered together.
119. [119]
     Ground 4 contains three different elements. The first asserts that the Member did not conduct an analysis or make findings about the matters relevant to determine whether the assault occurred in the course of the Night Caretaker’s work. There is no substance to this contention because the Member clearly did such an analysis and we have set out what the basis for that analysis was earlier. The second element again criticises her application of something in the decision in Lyon. We have dealt with this in relation to Ground 3, except that on this occasion it is contended that she did not identify what the findings of fact were to which she was applying that decision. She did identify those, and it is readily apparent from reading paragraph [69] of her Reasons what facts she took into account in deciding that the test in Lyon was of assistance. The third element is a repetition of a point made in Ground 1, which we have dealt with in [111] to [113] of these Reasons.
120. [120]
     Ground 5 contends that it was an error of law for the Member to apply as relevant a statement by Dickson J in Automotive Fire Sprinklers^[52] about employees who serve while only standing and waiting. We have dealt with this issue already under Ground 3 in [115] to [118] of these Reasons. There was no demonstrated error of law, or any other error, in her finding as she did in [70] of her Reasons for the reasons we have set out in [116] of these Reasons.
121. [121]
     Ground 6 contends that the Member erred in law in finding in [74] of the Reasons that it did not matter how the Applicant came to be in Unit 402. She made no such finding in [74]. Her comments in [74] are concerned with what the legislation specifically prohibits, namely sexual harassment of any person, and that it does not matter where the person is or the circumstances by which it occurred if the test in s 118 is made out. She made no error in so concluding. We refer to what we have said about the operation of s 119 in [6] of these Reasons.
122. [122]
     Ground 7 contends that the Member erred in law in finding at [72] of the Reasons that it did not matter whether the assault occurred in a private residence or elsewhere in the Hotel. She did not make that generalised finding either. This is just another restatement of the proposition in Ground 6 and it fails for the same reason.
123. [123]
     Ground 8 contends that the Member erred in law and fact in [65] and [69] in finding that the Night Caretaker was working between the hours of 10.00 pm and 6.00 am. This is yet another repetition of the fallacious proposition behind Ground 2 which we have already dealt with; albeit this time said to be an error of mixed law and fact.
124. [124]
     Ground 9 seeks to make the same point as in grounds 2 and 8, however, this time referable to findings in [69]. For the same reasons expressed previously, we consider that ground to be without substance.
125. [125]
     Ground 10 asserts the existence of an error of mixed law and fact in her findings at [70] that when the Night Caretaker was “on call” between his working hours, he was at work performing work. This is yet another repetition of grounds 2, 8 and 9 and fails for the same reasons.
126. [126]
     Ground 11 contends that there was an error of fact in her holding that the Appellant provided and arranged the Complainant’s accommodation there and that the Complainant set the terms of the occupation of the unit. In our view there was evidence before the Member that she was entitled to accept which established each of those propositions in the way that she describes them in [39] and [40] of her Reasons. Reference is also made to what we have said above at [47] to [50].
127. [127]
     Ground 12 makes a similar complaint about a finding in the same [39] and [40] about the Complainant not being an invitee. There was no error of law in her so finding, and there was evidence the Member accepted, and which has been set out earlier in these Reasons, to demonstrate that the Complainant was not an invitee of the Night Caretaker and as to the circumstances by which her employer, together with the Appellant, were responsible in part or in her whole for her being in the Unit on that night. Even if she were an invitee, the test to be applied under s 133 of the Act is the same.
128. [128]
     Ground 13 asserts that there was an error of fact in [73] and [76] of the Reasons in the finding that Unit 402 was the Night Caretaker’s place of work. She made clear in a number of places in her Reasons, and specifically in [73] which is complained about under this ground, that it was not necessary to find that the assault took place in the Night Caretaker’s place of work but that it added force to a finding that the assault occurred in the course of his work. The Member had evidence before her which she was entitled to accept that Unit 402 was the place where the Night Caretaker was based whilst being available to respond to any call to perform any of the specific duties he was to perform. There is no substance to this ground. Again, we refer to the matters at [47] to [50] of these Reasons.
129. [129]
     It follows that, in our view, the learned Member did not err in law, or make errors of mixed fact or law, or errors in her application of the law to the relevant facts and the appeal on grounds 1 to 13 must fail. To the extent that leave was required to appeal on any of those grounds, leave is refused.

The quantum appeal – Grounds 14 and 15

130. [130]
     The Appellant contends that an award of economic loss in an amount of $145,714.90 ought be reduced to an amount of $116,213.65 on the basis that past economic loss was allowed from 12 December 2010 to the date of re-hearing, namely 12 May 2016. The Appellant contends that it should be reduced because the evidence was that the Complainant was only totally incapacitated up to 15 March 2015 and that was the date that she ceased to have a loss of earning capacity. The Appellant argues that there is no evidence that she had a loss of earning capacity which was productive of financial loss after March 2015.
131. [131]
     A related award of compensation in a global award of $25,000 for future economic loss is challenged on a similar basis, namely that there was no future economic loss because there was no diminution in earning capacity after March 2015.
132. [132]
     The Appellant has contended, in its written submissions, that the Member found in relation to loss of earning capacity associated with impairment to March 2015, including any in the future, that the medical evidence demonstrated that the sexual assault caused the Complainant’s impairment and inability to work until she commenced work in a new job in late March 2015, as opposed to a later period in May 2016 for which allowance was made in the judgment for past loss. That submission is developed later in the Appellant’s argument to suggest that there was no medical evidence of any loss of earning capacity after March 2015, and that the medical evidence was not to the effect that the Complainant was rendered less capable of earning income after that date, but merely suggested that she would need some support from family members in the employment in which she was engaged after that date. It was argued that there was no evidence that the Complainant had any loss of earning capacity which was productive of financial loss from March 2015.
133. [133]
     An initial reading of the Member’s Reasons does raise some confusion about whether there was a finding that there was any residual incapacity.^[53] However, it is clear that on a more careful reading the Member has identified and made findings that there was ongoing residual risk or disability for the purpose of calculating the economic loss components. The Reasons do not relate the allowance for past loss specifically to the extent or quality of that diminution.
134. [134]
     It is clear, however, from the report of the relevant medical practitioner, Dr Beech, that he in fact identified that there was a continuing residual impairment after the March 2015 employment was taken up. He identifies that that residual impairment was present even at the time she commenced the March 2015 job, and it was the case that whilst she could work in hospitality, the Complainant could only do so if she was provided with a support person, for example, her sister. She had to leave that job in hospitality later when her sister had to move on and could no longer provide that support. She then went on to work for another organisation part time.
135. [135]
     In the report from Dr Beech dated 25 October 2015, under the heading which reflects that he was asked whether the Complainant would in the future “have a permanent disability and if so, the degree of disability”, Dr Beech said:

In my opinion (the Complainant) will in the future have an ongoing permanent disability. The disability arises from the residual post-traumatic stress disorder, the continuing anxiety and reduced confidence, and the continued need to have some support in her employment. It is notable that she has returned to work this year but in order to do that she required the close presence and support of her sister. She has been able now to take up work as a truck driver and she hopes to progress with this, but in my opinion in the foreseeable future she will still require the support of family members, as in this case, and it is likely she will be able to work as a truck driver (with its relative isolation) but not in other areas such as guest services manager without support. The difficulties might be remedied by a host-employment period, as offered by the work rehabilitation assessment.^[54]

136. [136]
     Later under the heading which asked him to consider “whether the condition prevents or restricts her from engaging in any areas of employment”, he replied by reference to the abovementioned statement and then went on:

I think the restriction (is) that it is likely that she will still require the support of someone such as her sister to return to a guest services role. Similarly I think that she requires at present the support of family members in her truck driving role. I believe it is the general support of her family which has allowed her to return to work and which continues to support her employment. Without this I think that her fears that she might relapse are well founded. With the passage of time and increasing exposure to work, it is likely that this will continue to improve but I suspect that there will be continuing residual impairment for some time.^[55]

137. [137]
     He went on to conclude that it was possible that she could suffer an exacerbation or relapse in the future, identifying that her conditions have been severe and prolonged and that a relapse could be triggered by a number of events both within a workplace and outside of it.
138. [138]
     Therefore it is quite incorrect to suggest that the evidence showed that she had not lost any capacity, or that she had no physical incapacity which reflected in her ability to perform work of the kind she previously performed and at the rates of pay she previously had.
139. [139]
     Even if that were not the case, the Member was entitled to conclude on the evidence of Dr Beech, having regard to the Complainant’s history of employment after the incident, that she had lost her employment with the employer she had at the time of the incident and was unable to return to an equivalent position at equivalent pay at any time later as a consequence of the harassment and its effect upon her. Even if she had no ongoing residual disability, and we have found that the evidence demonstrates that she did, the economic loss she suffered later was causally related to her earlier suffered incapacity in the sense that her loss of position at those pay levels was not able to be resumed or matched in any other equivalent capacity.
140. [140]
     There was no suggestion that the Complainant did not mitigate her loss by attempting to obtain other employment, so an alternative basis upon which she was entitled to recover economic loss after March 2015 was that she lost her employment initially as a result of the sexual harassment, then once she obtained employment, but at a lower rate of pay, that loss reflected in the diminution in earnings was causally related to the loss of employment which was itself a result of her inability to perform her tasks in hospitality as a guest services agent.
141. [141]
     In the circumstances we would dismiss the appeal on grounds 14 and 15 in relation to the awards of economic loss.

Orders

142. [142]
     The orders that we make are that the Appeal be dismissed and that the application for leave to appeal be refused. We grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.