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 [2010] 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 injury.

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 [1964] 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.

Conclusion

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.

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