Reported Decision : (2001) 22 NSWCCR 331 Compensation Court of New South Wales CITATION : Farrelly v Qantas [2001] NSWCC 162 PARTIES : Clive Farrelly v Qantas Airways Limited MATTER NUMBER(S) : 46284 of 1998 JUDGMENT OF: Bishop J at 1 CATCHWORDS: :- Substantional Contributing Factor S.9A. LEGISLATION CITED: Mercer v ANZ Banking Group Limited (1998) 17 NSW CCR 264; Hatzimanolis v ANI Corporation Limited (1991/92)173 CLR 473; Reed v Qantas Airways Limited (1999) 18 NSW CCR 461; Muscat v Woolworths Limited (2000) 20 NSW CCR 283; Dominguez v Sanchez Constructions Pty Limited (2000) 20 NSW CCR 295; CASES CITED: Worrell v Longworth and Anor (2000) 20 NSW CCR 400; Jadoul v Qantas Airways Limited (Burke AJ 13 July 2001 unreported); Cant v Catholic Schools Office (2000) 20 NSW CCR 88 at para 28; Supair Pty Limited v Sweeney (2000) 20 NSW CCR 514 at para 9; Ericsson Pty Limited v Popovski (2000) VSCA 52; Lancashire and Yorkshire Railway Co v Highley (1917) 10 BWCC 241 DATES OF HEARING: 24/7/01 DATE OF JUDGMENT: 08/10/2001 FOR APPLICANT: Mr J Sharpe appeared for the applicant instructed by Jones Staff & Co LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr J Catsanos appeared for the respondent instructed by Moray & Agnew JUDGMENT: 1. This is a reconsideration pursuant to CCR Pt 27(1) of an award made on 26 November 1999 such reconsideration being of the court's own motion. 2. This situation has arisen in the following fashion. The applicant had brought proceedings relating to an injury received by him whilst in Los Angeles on an authorised break between flights in his employment as a flight steward. The issue in the case was for practical purposes the effect of s 9A which had shortly before the hearing of the original proceedings been the subject of some exposition in Mercer v ANZ Banking Group Limited (1998) 17 NSW CCR 264. An award was entered for the respondent based essentially on the type of reasoning in Mercer's case. An appeal was lodged by the applicant but following the Court of Appeal's decision in Mercer's case the parties filed terms of settlement in the Court of Appeal to the effect that the appeal was by consent dismissed and the matter remitted to this court for rehearing. 3. When the matter came before me I expressed some misgivings about this procedure for having the matter reargued and raised the question of whether the appropriate course would have been an application by the applicant to reconsider the award. In the upshot as both parties desired to reargue the matter and it was ready for hearing the court exercised its discretion to reconsider the award of its own motion. The essential reason for the exercise of that discretion was that since the original award the appeal in Mercer's case had been handed down and there had been a number of subsequent decisions reported on the application and meaning of s 9A. 4. In dealing with the reconsideration no additional evidence was called by either party and each party agreed that the factual background was adequately set out in the judgment of 26 November 1999 and that the reconsideration should proceed on legal grounds only. It is accordingly appropriate to set out the background of the original award. BACKGROUND 5. The applicant's claim was for weekly compensation from 18 August 1998 to 12 October 1998 together with an order under s.60 for medical and other expenses in connection with an injury to his right shoulder caused when he fell from a bicycle. The applicant was a totally acceptable witness. The medical material confirmed an undisplaced fracture at the outer end of the right clavicle and certificates covered the relevant period of incapacity. There was accordingly no issue on the question of quantum. 6. The applicant was a flight attendant on international flights and operated under a roster system. In broad terms after flying a predetermined period of hours there was a prescribed minimum break for flight crew referred to as slip time. The applicant's recollection was that in flights to Los Angeles because of the length of the flight the minimum break was 38 hours but it could be longer. During this slip time the respondent would put the flight crew up in a hotel and pay all accommodation and like costs but not private expenses. At the relevant time the hotel being used in Los Angeles for its crew was at Long Beach some 30 or 40 minutes from the airport and the crew members would be taken there by bus. The applicant described his training and there were tendered in evidence two booklets handed to him at the time of his employment and these he explained were directed to advice to staff on keeping healthy while flying and also on questions of style and appearance on the aeroplanes. Evidence was given that the appropriate grooming of flight attendants was taken seriously by the respondent. 7. With regard to the circumstances of the accident the applicant had arrived in Los Angeles the afternoon before had a sleep and when he got up decided to take advantage of what was described as the Qantas Recreational Club. The respondent would fly various items of recreational equipment around the world for the use of staff on slip time. The staff would pay a nominal amount each week for the use of this equipment. The applicant decided to obtain from the hotel concierge a bicycle which was part of this relevant equipment and go for a ride along a very lengthy exercise track at Long Beach. He had done this type of thing before and whilst riding along this track he was overtaking a little girl who moved out and in trying to avoid her he overbalanced and was thrown off the bike. The bicycle in question had the respondent's name written on it. The bicycle track was smooth with sand at each side. The applicant was a very fit individual and he said that this had been his lifestyle even prior to joining the respondent. He was an experienced bicycle rider and took part in triathlon competitions for exercise in Australia. Yoga, swimming and tennis were also activities in which he engaged. With regard to the circumstances of the injury he said that he elected to ride the bike but he could equally have gone for a walk or done some swimming. He was not at that time under a compulsion to exercise. 8. Dealing briefly with the reasons for the award which was entered for the respondent, it was held that during his slip time in Los Angeles the applicant was on the authority of Hatzimanolis v ANI Corporation Limited 173 CLR 473 in the course of his employment even whilst undertaking recreational activities. A decision of Armitage J in Reed v Qantas Airways Limited (1999) 18 NSW CCR 461 was distinguished and a comment was made that the principle expressed in that case was probably too broad. This will be referred to hereunder. It was held that the applicant's interest in bicycle riding was one that he had at and away from his employment activities and there was nothing in the circumstances of the accident to indicate that it could not equally to have occurred anywhere else. The interpretation of s 9A(3) in Mercer was relied upon to require for a substantial contributing factor that the employment concerned contributed to an extent at least as onerous as to meet the test of arising out of the worker's employment. Riding a bicycle to contribute to a state of fitness which whilst encouraged by the respondent was an objective of the applicant anyway for personal reasons was not sufficient to reach this result. Accordingly an award was entered for the respondent. SUBSEQUENT DEVELOPMENTS 9. To set the subsequent legal developments into context it is appropriate to set out the provisions of s 9A in full: (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) The time and place of the injury, (b) The nature of the work performed and the particular tasks of that work, (c) The duration of the employment, (d) The probability that the injury or a similar injury would have happened anyway, at about the same time or in the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) The worker's state of health before the injury and the existence of any hereditary risks, (f) The worker's lifestyle and his or her activities outside the workplace. (3) The worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) The injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) The worker's incapacity for work, loss as referred to in Div4 of Pt3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Div3 of Pt3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which s10, 11 or 12 applies. 10. It is also helpful to set out the following remarks made by the Attorney General and Minister for Industrial Relations in his Second Reading Speech introducing the Bill containing what became s 9A when he said that the aim was to ...limit compensation coverage to situations where employment is a substantial contributing factor to the worker's injury or disease. 11. My judgment at first instance in Mercer was reported at (1998) 17 NSW CCR 264. This decision was reversed with the appeal being reported at (2000) 48 NSW LR 740. In the judgment at first instance I expressed the view that the juxtaposition of s 9(3)(a) with the term substantial contributing factor meant that such a substantial contributing factor was a concept the establishment of which was at least as onerous as the concept of an injury arising out of a worker's employment. This interpretation was specifically rejected by the Court of Appeal. From the decision in that appeal and from a number of subsequent decisions of the Compensation Court and one further decision of the Court of Appeal it seems to me that three principles may be extracted. 12. 1. To establish that the employment concerned was a substantial contributing factor to the subject injury it is sufficient to establish that the injury arose in the course of his worker's employment and that there was some casual connection with the employment of a lesser degree than what is required to establish that the injury arose out of it. Illustrations of this principle may be found in Muscat v Woolworths Limited (2000) 20 NSW CCR 283, Dominguez v Sanchez Constructions Pty Limited (2000) 20 NSW CCR 295 and Worrell v Longworth and Anor (2000) 20 NSW CCR 400. 13. 2. If the relevant injury is found to arise out of the worker's employment then the employment concerned must be a substantial contributing factor to such injury. This is because as principle number one illustrates the employment concerned must have a level of causation which is lower than that required to be established to have it found that an injury arose out of the employment. Illustrations of this principle may be found in Muscat's case (supra) and also Jadoul v Qantas Airways Limited (Burke AJ 13 July 2001 unreported). 14. 3. These first two principles may seem to sit uncomfortably with s 9A(3). However it is now established that s 9A(2) and s 9A(3) are provisions which are non determinative. See Cant v Catholic Schools Office (2000) 20 NSW CCR 88 at para 28 and Supair Pty Limited v Sweeney (2000) 20 NSW CCR 514 at para nine per Meagher JA. 15. In connection with this third principle it is appropriate to revisit the decision of Reed v Qantas Airways Limited (supra). In that decision at para 55 Armitage J made the following remark: Nevertheless, as I have said, the fact that he was where he was doing what he was doing in the precise location where he was doing it was, in my view, a matter dictated by the requirements of his contract of employment, so that the employment in this case contributed substantially to the occurrence of the injury. 16. I expressed the view in the original judgment that this as a statement of principle may well be too broad. The authorities referred to in the last paragraph would tend to support this conclusion but even more support is found in the decision of Ericsson Pty Limited v Popovski (2000) VSCA 52. The Court of Appeal in Victoria reversed the decision of Ashley J in this case which was the subject of some discussion in the Mercer appeal. A subsequent application for special leave to appeal to the High Court was unsuccessful on 15 December 2000. The decision dealt with amongst other things the interpretation of s 5(1B) of the Accident Compensation Act (Vic). In determining whether the employment was a significant contributing factor to an injury that section in terms remarkably similar to s 9A(2) required consideration inter alia of the concept of: the probable development of the injury occurring if that employment had not taken place 17. The judgment on the appeal was given by Brooking JA and in para 36 thereof he observed: I do not think it correct to say, either as a proposition of general application or as one confined to that facts of this case, that a finding that the injury would not have been in caused to the worker if the employment had not taken place necessitates a finding of "significant contributing factor". 18. Such a remark it seems to me with respect is totally consistent with the views expressed in the authorities referred to earlier that the matters listed in s 9A(2) and s 9A(3) are to be taken into account but are not of themselves determinative. CONCLUSIONS 19. During the hearing of the reconsideration neither party wished to reagitate the finding that the applicant received his injury in the course of his employment. Indeed such a conclusion is it seems to me inescapable bearing in mind the decision in Hatzimanolis (supra) - see (1991/92) 173 CLR 473 at 483-4. This being so the issue now is the application to the facts of this case, of the principles outlined above developed from the appeal in Mercer and subsequent decisions. 20. It has been established that the applicant was in the course of his employment when he sustained injury. It is relevant to determine whether the injury also arose out of such employment. The cases on what it means for an injury to arise out of the employment are legion. However some recent decisions (eg Healey and Jadoul - supra) have referred with approval to some remarks made by Lord Sumner in Lancashire and Yorkshire Railway Co v Highley (1917) 10 BWCC 241. At page 263 His Lordship made the following remarks: I doubt if any universal test can be found. Analogies, not always so close as they seem to be at first sight, are often resorted to, but in the last analysis each case is decided on its own facts. There is however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it 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? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment. To ask if the cause of the accident was within the sphere of the employment, or was one ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of employment, are all different ways of asking whether it was part of his employment, that the workman should have acted as he was acting or should have been in a position in which he was, whereby in the course of that employment he sustained injury. 21. As has been noted above the applicant's evidence which was accepted was that whilst he was encouraged to keep fit by the respondent he was under no compulsion to ride the bicycle on the date of his injury in the way in which he rode it and where he rode it. He could equally have selected other forms of exercise or elected not to have any exercise. The factual background I think falls far short of Lord Sumner's test and accordingly I am of the view that it can not be said that the applicant's injury in this instance arose out of his employment with the respondent. 22. How then does one determine whether the employment concerned had a relevant causative element to the injury falling short of the test of arising out of the employment? It seems to me that the task is best expressed in the words of Burke AJ in Cant's case (supra at para 30): Broadly speaking, s 9A requires an evaluation of the factors operating in the causality of the worker's injury and a determination of whether or not the employment added a factor of substance to other non employment factors. 23. It is clear on the evidence as noted above that the applicant had a long time interest in bike riding for his personal fitness objectives and in connection with his interest in triathlon competitions. Such an interest it would seem to me falls short of establishing any more than a possibility of an accident riding a bicycle outside the employment context if one was examining the provisions of s 9A(2)(d) or (f). As was pointed out by Mason P in Supair (supra at para 22) the application of the subparagraphs in s 9A(2) should not be left to uncertain inferences but be the subject of specific evidence. It is also clear on the evidence that the applicant made his own selection of bicycle riding prior to the injury but could have equally gone swimming, gone walking or presumably gone shopping. There is however in addition his own interest in keeping fit. However the most important causative element in the accident appears to have been the little girl who suddenly moved out and forced the applicant to swerve thereby losing his balance. It may be argued that there was some degree of contribution by the general nature of the applicant's employment by way of the respondent's encouragement for its cabin staff to remain fit and the provision of equipment for doing this through the recreation club. Even if this was to be regarded as a contributing factor to the subject injury the contribution was not in my opinion substantial and in particular not substantial in comparison to the action of the little girl and the applicant's own freely expressed interest in personal fitness. 24. Under the circumstances having reconsidered the earlier award in light of subsequent developments I am of the opinion that the award for the respondent should be confirmed. Mr J Sharpe instructed by Jones Staff & Co appeared for the applicant Mr J Catsanos instructed by Moray & Agnew appeared for the respondent. 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