Australia: Soaring to new heights: the Industrial Court considers the definition of "injury" under the WCRA

QCOMP and John Kennerley and Qantas Airways Limited (C/2012/16)

Introduction

In QCOMP and John Kennerley and Qantas Airways Limited (C/2012/16) President Hall found Qantas (a self-insurer under the Workers' Compensation and Rehabilitation Act 2003 (WCRA)) liable to pay statutory compensation for injuries suffered by its employee, Mr John Kennerley, sustained in a motor vehicle accident on a trip to Brisbane, the day prior to his planned flight from Brisbane to Sydney to renew a visa, required for the purposes of his employment.

This decision considers the fundamental concepts of:

• "arising out of or in the course of employment"; and
• "significant contributing factor"

which are central to determining whether a personal injury sustained by a worker is a compensable "injury" under the WCRA.

Facts

At the time of the incident Kennerley worked as a Qantas long-haul flight steward on the route from Brisbane to the US. A requirement of this role was that Kennerley hold a US visa. To renew his US visa it was necessary for him to travel to the US consulate in Sydney.

The incident causing injury occurred on the afternoon of 10 March 2010 as Kennerley was traveling on his motorbike to Brisbane from his home on the Gold Coast. Kennerley had arranged to stay the night, just south of Brisbane, with a former colleague so that he would have a shorter trip to the Brisbane airport for his 5:00am flight to Sydney the next day. He was required to be at the US Consulate in Sydney at 8:15am (NSW time) in preparation for an 8:45am appointment. Approximately 500m from his home Kennerley collided with a car.

It was agreed by both parties prior to the proceedings that this claim was not a journey claim. The issues in dispute were whether the claimant's personal injuries arose out of or in the course of his employment and whether his employment was a significant contributing factor to the injuries.

It was not disputed that it was the worker's responsibility to renew his visa in his own time on a day on which he was not rostered for work. Kennerley was on annual leave at the time of the accident. However, Qantas assisted its employees who needed to renew their visas in several ways, including providing a flight from an employee's home port to Sydney, and the payment of six hours wages in "compensation" for the trip.

In his evidence Kennerley submitted that he left a day earlier due to the time of his flight and concerns about the safety of riding his motorbike in the dark, if he left from the Gold Coast in the early hours of 11 March 2010.

Decision

President Hall determined that the earlier decision of the Commission, which upheld the rejection of the worker's application or compensation, should be set aside. He found that Commissioner Thompson had erred in finding that, due to Kennerley not having undertaken any duties for Qantas on the day of the incident and the fact that he would not have performed any the next day, the injuries were not sustained in the course of his employment.

President Hall in his judgement quoted from the High Court case of Humphrey Earl Ltd v Speechley,¹ which found that:

"The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties."

When applied to the case at hand, President Hall found that although the activity during which Kennerley was injured was outside his usual work hours and duties, the terms of his employment required him to maintain a current US visa. This requirement was facilitated by Qantas who also stood to gain from their employee's successful application for a visa. Furthermore, President Hall noted that it was a standard practice for Qantas employees to conduct such journeys to complete visa applications outside of their standard working hours.

It was held that Kennerley would not have injured himself if he had not been required to travel to Sydney from Brisbane to maintain his employment in his current role. Although leaving a day early, his journey was still required by the "general nature, terms and circumstances of the employment".² The nature and terms of Kennerley's employment and the decisions and initiatives of Qantas caused Kennerley to be riding his motorbike where and when he was injured. It was therefore held that Kennerley's employment was a significant contributing factor to the injury.

In deciding that Kennerley's employment was a significant contributing factor to his injuries, President Hall highlighted the vague nature of the word "significant" in section 32(2) of the WCRA. He concluded that this standard does not call for the level of contribution attributed to a person's employment to be large, great, weighty or substantial. President Hall stated that when deciding if a claimant's employment contributed significantly to the injury, the weight of the term "significant" falls to the lower end of the spectrum, requiring a person's employment only to have a link to the injury suffered that is more than nominal.

It was also noted that, had Kennerley made the trip to Brisbane without incident, any injuries he may have suffered while socialising with the colleague he sought to stay with in Brisbane would not have been considered to arise out of or in the course of his employment.

President Hall declined to make a decision concerning the potential application of section 130 of the WCRA, which limits compensation in circumstances where a worker's serious and wilful misconduct caused the incident resulting in the injuries. It had been argued that because Kennerley was issued with (and paid) an infringement notice for failing to give way to an oncoming vehicle while turning right, his conduct amounted to serious or wilful misconduct and section 130 ought preclude him from obtaining compensation. President Hall determined that it would be unsafe for the Court to make findings of fact in relation to that issue.

Implications

This decision highlights the potential for workers to recover compensation in relation to injuries sustained while undertaking activities in their own personal time, if those activities are necessary to maintain their employment. The decision again confirms that a low standard is applied when determining the significant contributing factor test, such that the employment merely needs to have some indirect connection or link with the mechanism of the injury that the claimant suffered.

Footnotes

¹(1951) 84 CLR 126
²Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473

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