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

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.

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.

This article is available in full at Mondaq.