Harvey v Simon Blackwood (Worker’s Compensation Regulator) & Anor [2016] ICQ 014

Martin J

The appellant was employed by Qantas as a flight attendant. In 2013, he was subject to allegations of sexual assault made against him by a colleague which led to his arrest and incarceration. Relevantly, an internal Qantas investigation found that the allegations were unsubstantiated. Later that year, the appellant’s general practitioner diagnosed the appellant with anxiety/depression while in 2014 a consultant psychiatrist diagnosed post-traumatic stress disorder and a major depressive disorder. It was agreed that the psychological injury was caused by the appellant’s arrest, incarceration and the accusation that he committed a sexual offence.

The appellant sought compensation for the injury but was refused as was his appeal from that refusal to the Queensland Industrial Relations Commission. The Commissioner, by virtue of the alleged sexual assault occurring at the hotel, found that the injury did not occur in the course of the appellant’s employment.

The central question therefore for Martin J was whether the Commissioner misapplied the appropriate test and took into account irrelevant circumstances which led to an incorrect decision. Relevantly, for an injury to fall within the statutory definition, it must arise out of or in the course of employment, and the employment must be a significant contributing factor to the injury. Fatal to the Commissioner’s decision was defining the appellant’s alleged conduct as being about the police action. Martin J said in this regard:

[27] This conclusion involves an assumption that there was some activity for which Mr Harvey was responsible or in which he had some involvement.  But that assumption is in conflict with the acceptance that there is nothing to support the allegations. The error which arises comes about because of the mischaracterisation of the “activity”. It was not Mr Harvey’s actions which brought about the police action but the unsubstantiated allegations of Ms Voss.

In finding that the incident did occur in the course of the appellant’s employment, Martin J relied on the test set out by the High Court in Comcare v PVYW. In that case, referring to the principles in Hatzimanolis v ANI Corporation Ltd, French CJ and Hayne, Crennan and Kiefel JJ stated that:

[38] In some cases, the injury will have occurred at and by reference to the place … When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.

In the present case, Martin J stated that:

[33] In order to satisfy the test the injury must have occurred at and by reference to the place.

[37] The injury occurred by reference to the place because the hotel was the place in which the airline staff were quartered during the layover.

Further, the employment must be a significant contributing factor to the injury. In this regard, His Honour stated:

[42] The “requirement of connection between employment and injury” is provided by the fact that Qantas required the appellant to be in that place and that he was, at the time his injury was first suffered, using the room for the purpose intended by the employer, namely, to rest or sleep before the return flight.

Martin J accepted the appellant’s submissions, holding that the Commissioner had erred in the application of the test laid out in PVYW.

David Cormack – Brisbane Barrister & Mediator

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