DA ROS v QANTAS AIRWAYS LIMITED [2010] NSWCA 89

DA ROS v QANTAS AIRWAYS LIMITED [2010] NSWCA 89

The Deputy President erred in point of law by formulating the s 9A test using stronger qualifying epithets than the statutory word "substantial" and by weighing selected "employment factors" against the negligence of the other cyclist. On the facts found, the bicycle collision was an incident to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed; only one conclusion was reasonably open, namely that the appellant's employment was a substantial contributing factor to his injury.

Jurisdiction
Australia
Judgment Date
28 April 2010
Procedural Posture
Civil Statutory Appeal Under S 353 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw) From the Workers Compensation Commission / Appeal to the New South Wales Court of Appeal From the Decision of Deputy President O'grady Dated 27 May 2009
Outcome
Appeal allowed; decision of the Workers Compensation Commission constituted by Deputy President O'Grady set aside; Commission ordered to reconsider the appellant's appeal on the basis that the appellant's employment was a substantial contributing factor to the injury; respondent ordered to pay the appellant's costs...
Legal Topics
['substantial Contributing Factor' 'injury in the Course of Employment' 'slip Time' 'point of Law' "employer's Liability"]
['workers Compensation' 'employment Law' 'civil Appeals'] ['substantial Contributing Factor' 'injury in the Course of Employment' 'slip Time' 'point of Law' "employer's Liability"]

Case Brief

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Procedural Posture

Civil Statutory Appeal Under S 353 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw) From the Workers Compensation Commission / Appeal to the New South Wales Court of Appeal From the Decision of Deputy President O'grady Dated 27 May 2009

Legal Issues

  1. 1 ['Whether the proper construction of s 9A of the Workers Compensation Act 1987 (NSW) involved a point of law for the purposes of s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).' "Whether the appellant's employment was a substantial contributing factor to the injury pursuant to s 9A(1) of the Workers Compensation Act 1987 (NSW)." 'Whether any conclusion other than that the employment was a substantial contributing factor was open on the facts as found.']

Ratio Decidendi

The Deputy President erred in point of law by formulating the s 9A test using stronger qualifying epithets than the statutory word "substantial" and by weighing selected "employment factors" against the negligence of the other cyclist. On the facts found, the bicycle collision was an incident to which the appellant was exposed in the course of his employment and to which he would not otherwise have been exposed; only one conclusion was reasonably open, namely that the appellant's employment was a substantial contributing factor to his injury.

Court Disposition

Appeal allowed; decision of the Workers Compensation Commission constituted by Deputy President O'Grady set aside; Commission ordered to reconsider the appellant's appeal on the basis that the appellant's employment was a substantial contributing factor to the injury; respondent ordered to pay the appellant's costs...

Orders

  • ["Allow the appeal and set aside the decision of 27 May 2009 made by the Workers Compensation Commission constituted by Deputy President O'Grady." "Order that the Commission reconsider the appellant's appeal against the decision of the Arbitrator according to law, on the basis that the appellant's employment was a...