Jadoul v Qantas Airways [2001] NSWCC 175

Reported Decision : (2001) 22 NSWCCR 229

Compensation Court of New South Wales

CITATION : Jadoul v Qantas Airways [2001] NSWCC 175 PARTIES : Veronique Jadoul v Qantas Airways Limited MATTER NUMBER(S) : 47497 of 2000 JUDGMENT OF: Burke J at 1 CATCHWORDS: Elements of Workers Compensation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 27/06/2001 DATE OF JUDGMENT: 07/13/2001

FOR APPLICANT: Mr G M Swinton instructed by Jones Staff & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr C S Robertson instructed by Moray & Agnew

JUDGMENT: 1. The applicant seeks weekly payments in respect of a period of incapacity from 5 May 2000 to 1 November 2000. That claim arises from a fracture of the distal fibula of the right leg and injury to the right ankle sustained on 5 May 2000 when the applicant fell at her home. The issues raised are, whether in the particular circumstances, the injury arose out of or in the course of her employment and whether the employment was a substantial contributing factor to the injury within s. 9A. 2. The applicant is employed by the respondent as a flight attendant on long haul flights. On occasion, though not allocated any flying duty, the applicant can be rostered on standby. On 5 May 2000 the applicant was so rostered from 4 a.m. to 4 p.m. When so rostered the applicant must remain contactable by the employer and prepared, if necessary, to undertake duty within 90 minutes of contact. For all practical purposes it is really necessary to stay at home though not strictly required. The flight attendant is compensated for the inconvenience by being paid the equivalent of two hours salary for the 12 hours rostered on standby - 10 minutes per hour as Miss Jadoul phrased it. 3. On 5 May 2000 at 9.49 a.m. the applicant was contacted by the employer and advised that she was required to crew a 9 day flight including Los Angeles. The employer provides taxi transport to the airport and arranged a taxi to pick up the applicant at her home at 11.15 a.m. The applicant dressed in her uniform, packed her bags and was ready to proceed to the airport. Approaching 11.15 a.m. she put her bags in the hallway of her home. When the taxi arrived she went out on to the verandah to indicate to the driver that he had found the correct address and then returned inside to get her gear. The hallway is tiled and has mats or rugs. It was a wet day. For no reason of which she is aware, while approaching her luggage, the applicant slipped in the hallway, fell and sustained the injuries giving rise to this claim. 4. The taxi driver, after some little delay, came up to the house and found the applicant on the floor. She insisted that Qantas be contacted and advised of her problem. This was done. On reporting her injury and advising that she would proceed to hospital the respondent's controller advised that she better have some money with her as the respondent paid for cabs to the airport, not to the hospital. As it happened the applicant did not have any money on her and had the cab driver retrieve her ready cash before he conveyed her to the nearby Ryde Hospital. Really, that little interlude has no relevance to any issue raised. 5. The period of incapacity that followed is not the subject of any dispute. 6. In the course of addresses I had suggested to counsel that, superficially, similarities to Archer v East West Airlines [1976] WCR 41 could indicate that the applicant, at the relevant time, was in the course of her employment. The parties accepted that this was probably so. 7. For the moment accepting, without deciding, that such was the case would then direct inquiry to whether the employment was a substantial contributing factor to the injury. 8. Within s. 4(a) the personal injury is the fracture of the leg. The inquiry is therefore directed to the causes of the fracture of the leg. 9. A pertinent set of facts to such an inquiry arose in Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504. The worker was employed in a position that necessarily took him in close proximity to carding machines. The access to those machines was provided with guard rails. He suffered a syncopal attack as a result of an intercurrent diabetic condition, fell against the guard rail and sustained injury to his ribs. He was clearly in the course of his employment but the statute was then in conjunctive form and the injury had to also arise out of the employment to be compensible. It had to have a causal nexus to employment. The High Court was of the view that: the precise question is not whether the fall arose out of the employment, but rather, whether the injury sustained in falling arose out of the employment. The Court concluded that: the nature and extent of the hurt that he suffered was thus determined by the fact that he was at work and that his work brought him into proximity with a particular structure capable of inflicting injury, a structure which is not part of the ordinary surrounding of daily life, but is part of the equipment of the employer's manufacturing premises, and is distinctively industrial. 10. The implicit concept in that decision as far as Miss Jadoul is concerned is that the critical factor is not what caused her to fall but rather what caused the fractured leg when she did fall. What part did the employment play in bringing about that consequence of the fall for whatever reason she may have fallen? Notwithstanding that such be so it would, as I see it, follow that if the employment relevantly caused the fall then it also caused the consequence. 11. Smith has overtones of the long moribund doctrine of "special exposure" - that the employment must add some factor to the cause of injury beyond that (or those) to which the general population is exposed as classically propounded in Craske v Wigan [1909] 2 KB 635. The suggestion that s 9A could have the effect of reviving such doctrine made at first instance in Dayton v Coles (2000) 19 NSWCCR 526 at 540 [111] - [116] was rejected in the Court of Appeal in Mercer v ANZ Banking Group (2000) 20 NSWCCR 70 at 80 [31]. So, whether the risk equally affects the general populace or not, if, in fact, that factor be introduced by the employment in the particular case it is a relevant employment factor for the purposes of assessing whether it is a substantial contributing factor within s 9A. 12. What part did the employment play in bringing about either the fall or the fracture? It certainly indirectly determined what she was doing at the time. But for the necessity to prepare to crew the flight later that day she would probably not have been so engaged. 13. The payment for the "on-call" period apart there appears nothing to distinguish the situation of Miss Jadoul getting ready to go to work and gathering her "tools of trade" about her from that of, say, a plumber similarly engaged at home preparatory to setting off for work. Any injury to the latter while so doing would not be conceived as either arising out of or in the course of his employment. The mere fact of Miss Jadoul being paid an allowance while on call, while perhaps serving to put her in the course of her employment, does not appear to add any employment factor to the cause or causes of her injury. 14. In Klevjer v NSW Ambulance Service (12 June 2001, unreported) I dealt with a somewhat similar situation. The worker was transferring from the Mt Druitt establishment of the respondent to that at Corrimal. Under the relevant Award he was entitled to two days special leave on full pay to pack up his goods and chattels at Mt Druitt for the move to Corrimal. While on such leave and packing up he had a fall and sustained a fracture of the right arm. The question arose as to whether the employment was a substantial contributing factor to such injury. Inter alia I commented: Even allowing that the employment dictated that the applicant was at home and engaged in gathering his chattels it did no more than dictate a locus in which other events then transpired. Much as in McCurry v Lamb (1992) 8 NSWCCR 556 and Inverell Shire Council v Lewis (1992) 8 NSWCCR 562 the employment placed the worker in a particular location where matters completely extraneous to the employment then operated to result in injury. Even if the employment provided the stage it had nothing to do with the script. It would seem that much the same could be said of the circumstances in which the applicant in this matter received injury. 15. In Dayton v Coles [2001] NSWCA 153 Davies AJA observed: Likewise, in their context and particularly having regard to the list of factors specified in s 9A(2), the words "substantial contributing factor" require that compensation be paid only when the employment can be said to have contributed to the injury in a manner that is real and of substance. The section intends to exclude those many instances where, as a matter of legal theory and extension of thought, liability has been found in cases where, as a matter of practical reality, the contribution which employment has made to the injury has little substance. The "many instances" referred to would include circumstances such as Lamb and Lewis already referred to as well as matters such as Weston v Great Boulder Mines (1965) 112 CLR 30; Kavanagh v The Commonwealth (1960) 103 CLR 547 and, of course, Zichar v MGH Plastics (1996) 13 NSWCCR 680. In each matter the worker was in the course of employment at the time of injury but there was no causal nexus to the employment. Weston, while at the mine face, was shot by a jealous husband: Kavanagh, while at his work station, for reasons unknown vomited, ruptured his oesophagus and died; Zichar, while at work, suffered a rupture of a cerebral aneurysm. In no way could it be conceived that the employment was a substantial contributing factor to the several injuries nor, for that matter, that the injuries arose out of the employment. 16. That raises the relationship between "arising out of the employment" and "the employment concerned was a substantial contributing factor". Bishop J. at first instance in Mercer v ANZ (1998) 17 NSWCCR 264 had held that the latter was an equally or more stringent test than the former. The Court of Appeal expressly disagreed that it was so. That, as suggested by Neilson J. in Muscat v Woolworths (2000) 20 NSWCCR 283 and Healey v Delta Electricity (2000) 20 NSWCCR 491, appears to constrain me to find that if the injury arose out of the employment it also necessarily infers that the employment was a substantial contributing factor. 17. Without the guidance of the Court of Appeal I, like Bishop J., would have tended to think otherwise. With s.9A(3)(a) providing that the worker's employment is not to be regarded as a substantial contributing factor merely because the injury arose out or in the course of the employment or both it seemed to indicate a legislative intent that merely finding that injury arose out of the employment did not, per se, satisfy the mandates of the provision. Superficially, if there were to be an equivalence between the two concepts it seemed to me that the legislature may have gone to a lot of unnecessary trouble in enacting s.9A when that result, in the vast majority of cases, could have been very simply achieved by returning to the former conjunctive provision of requiring injury to arise both out of and in the course of the employment. Such a change would, perhaps, have over-corrected the position. Cases such as Carr v Donnelly [1937] WCR 294 would still be excluded from compensation though the injury there clearly arose out of the employment (but not in the course of the employment) and where the employment was clearly a substantial contributing factor to the injury and, indeed, the major operative factor. To avoid that unhappy consequence it seems some distinct provision was necessary to ensure that an adequate causal nexus sufficed of itself to entitle a worker to appropriate compensation. 18. Both Victorian and Commonwealth legislation have very similar provisions directed to ensuring a degree of causal nexus to employment. The Commonwealth Act requires that employment be a "material" contributing factor and the Victorian Act that it be a "significant" contributing factor. Personally I have difficulty in regarding the adjectives "material", "significant" and "substantial" as synonymous. This is so in relation to the latter two. 19. The 1996 amendment to the NSW Act introducing s.9A seems to me to be modelled on the provisions of sections 5 and 82 of the Victorian Accident Compensation Act, 1985, which were introduced into that Act in 1992. S.9A(2) appears to virtually reproduce the elements of s.5 of the Victorian Act which provides: [ Significant contributing factor ] In determining for the purposes of this Act whether a worker's employment was a 'significant contributing factor' to an injury— (a) the duration of the worker's current employment; and (b) the nature of the work performed; and (c) the particular tasks of the employment; and (d) the probable development of the injury occurring if that employment had not taken place; and (e) the existence of any hereditary risks; and (f) the life style of the worker; and (g) the activities of the worker outside the workplace– must be taken into account. If the NSW legislature adopted these considerations as relevant why bother to change the operative adjective from 'significant' to 'substantial' if it were conceived that they were identical concepts. The decision on the wording of the Victorian Act in Popovski v Ericsson Aust. P/L [1998] VSC 61 seems to have strongly influenced the interpretation adopted in Mercer. 20. The conclusion of a greater degree of causal nexus than merely arising out of the employment would also seem follow from the very first case reported in the Workers' Compensation Reports, McCooey v Blackwell [1926] WCR 1, where Perdriau J held that the words "to which the employment was a contributing factor" are equivalent to the phrase "arising out of the employment". If a contributing factor equates to arising out of the employment then a substantial contributing factor would seem to mean something more than merely arising out of the employment. 21. However, be all that as it may, I am bound by the decision in Mercer and that I take to require that the concept of substantial contributing factor is to be regarded as, at least, no more onerous than the concept of arising out of the employment. If injury arises out of the employment then the employment is necessarily a substantial contributing factor to the injury. 22. Did Miss Jadoul's injury arise out of her employment? In Healey (at 495) Neilson J., discussing the test of whether a particular event arises out of the employment, cites a long passage from Lord Sumner in Lancashire & Yorkshire Railway Co v Highley (1917) 10 BWCC 241 the gravamen of which is encapsulated in two sentences: There is, however, in my opinion, one test which is always at any rate applicable, because it arises from the very words of the statute, and is generally of some real assistance. It is this: Was it part of the injured person's employment, to hazard, to suffer, or to do that which caused his injury? 23. In the case of Miss Jadoul it suggests that the relevant question is whether it was part of her employment to essay to collect her luggage from the hallway and submit to the risk of injury involved in doing so, whether that be falling, as she did, or injuring a shoulder lifting a heavy bag or whatever. Concisely, was what she was doing a sufficiently employment related activity? 24. The factual similarities with Healey are quite strong. He was temporarily moving himself into a place to comply with the exigencies of the employment. Miss Jadoul was temporarily moving herself out of a place for a similar reason. Both were in the process of transporting personal luggage needed to fulfill their employment obligations. If injury to one arose out of the employment as was held by Neilson J then, superficially, so did injury to the other. The employment not only dictated the locus at which the particular activity was performed but also the nature of the activity that was undertaken. 25. It therefore appears to me that the employment dictating what was done and, but not merely, where it was done the injury to the applicant arose out of the employment. If that be so it is unnecessary to definitively determine whether or not the applicant was in the course of her employment at the time of injury. The injury arising out of the employment it follows, compatibly with Mercer, that the employment was a substantial contributing factor. If the test of a substantial contributing factor was more onerous than that of arising out of the employment perhaps it may have been otherwise. 26. The applicant's unchallenged wage schedule gives the current weekly wage rate at $871.50. 27. For those reasons I formally find: 1. On 5/5/00, arising out of her employment, the applicant received injury to her right leg. 2. The employment was a substantial contributing factor to such injury. 3. The applicant thereby totally incapacitated from 5/5/00 to 1/11/00. 4. CWWR $871.50 28. I hereby order and award that the respondent pay to the applicant: 1. A weekly payment pursuant to s. 36 of $871.50 p.w. from 5/5/00 to 1.11.00 2. Medical, hospital and other expenses of treatment in accordance with s. 60. 3. Costs. GM Swinton instructed by Jones Staff & Co appeared for the applicant. CS Robertson instructed by Moray & Agnew appeared for the respondent.