The New South Wales Court of Appeal recently considered the
entitlement to compensation for a long-haul flight attendant who
was knocked off a bicycle whilst on 'slip-time' between
flights in Los Angeles, USA. The case of Da Ros v Qantas
Airways Limited  NSWCA 89 involved consideration of
entitlement under section 9A(1) of the Workers Compensation Act
1987 (NSW) (Act). Facts
Mr Da Ros worked as a long-haul flight attendant and arrived in
Los Angeles on 8 September 2005 between 6:00 am and 7:00 am. He was
due to depart Los Angeles for Sydney at 11:00 pm the following day
and was paid throughout the period of his absence from his home
base in Sydney.
Being a member of the Qantas Flight Staff Recreation Club he had
access to Qantas recreational facilities in Los Angeles including a
bicycle. On 9 September Da Ros obtained a bicycle and caught a bus
to Santa Monica.
He spent much of the day cycling there as part of his fitness
and relaxation regime.
He returned to the hotel in downtown Los Angeles by bus and
after alighting from the bus commenced riding the bicycle towards
his hotel. He was struck by a courier bicycle rider who had
proceeded through a red light and struck the rear wheel of Da
Ros' bicycle. Da Ros suffered a right arm and shoulder injury
and was sent to hospital for treatment. He did not join his
scheduled flight to Sydney.
Issues on Appeal
The Workers Compensation Commission dismissed his claim and he
subsequently appealed the decision.
To establish an entitlement to compensation under section 9 of
the Act, Da Ros needed to satisfy the Commission that he had
suffered a personal injury 'arising out of or in the course
of' his employment with Qantas. Da Ros also needed to establish
that the employment was a substantial contributing factor to the
Deputy President O'Grady of the Commission had accepted that
Da Ros had suffered a personal injury in the course of his
employment but did not accept that the employment was a
'substantial contributing factor'.
The New South Wales Court of Appeal, comprising Justices Tobias,
McColl and Basten, found that the Deputy President had failed to
apply the correct test of 'a substantial contributing
factor' and had also erred in weighing what he referred to as
'employment factors' against the causal element, being the
negligent riding of the other cyclist.
The Appeal Justices found that:
'in simple terms, the
accident occurred because the two bicycles were in the same place
at the same time. The appellant was there, on his bicycle, "in
the course of his employment". That finding having been made,
it would appear to follow that the employment concern was a
substantial contributing factor.' Reliance was placed on the
comments of Justice Kitto in Federal Broom Co Pty Ltd v Semlitch
 HCA 34. In that decision, Justice Kitto had rejected the
proposition that the word 'employment' in the definition of
injury was confined to 'the inherent features or essential
incidents of the employment, to the exclusion of occurrences in the
course of the work'.
Accordingly the Court allowed the appeal and set aside the
decision made by Deputy President O'Grady. It ordered that the
Commission reconsider the appeal on the basis that Da Ros'
employment was a substantial contributing factor to the injury.
The decision is an example of the wide reach of Australian
workers compensation law and will no doubt be of interest to those
in the airline industry, and to those exposed to the risk of injury
overseas whilst on 'slip-time' between flights.
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
entity. For more information visit
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