Outside Workers Comp Scheme - Drowning

11/7/2007

Source: Workplace OHS

The NSW Court of Appeal confirmed a ruling that an employee who drowned during a party was not acting in the course of employment and so his dependants did not qualify for workers compensation.

Background

Mr Zaidi was an employee of the employer-respondent, JP Morgan Holdings Australia Ltd. On the evening of 20 August 2004, he went on a harbour cruise organised by an unincorporated association known as the 'JP Morgan Social Club'.

As the cruise vessel was turning to dock, Mr Zaidi slipped, fell into the water and drowned. His wife, Ms Haider, made a claim for workers compensation benefits pursuant to s25 and s26 of the Workers Compensation Act 1987 (NSW), arising out of the death of her husband. The deceased's father, mother and brother made similar claims.

The Workers Compensation Commission constituted by an arbitrator found that Mr Zaidi died as a result of an injury arising out of or in the course of his employment and that his employment was a substantial contributing factor to his injury and death. The employer appealed against the arbitrator's determination.

Acting Deputy President Roche upheld the appeal and substituted for the arbitrator's decision an award in favour of the employer. The dependant-appellant brought the present appeal pursuant to s353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

Appeal dismissed - employer not liable

The Court of Appeal dismissed the appeal. Justice of Appeal Basten gave the leading judgment with Giles and McColl JJA agreeing.

The four issues in the appeal are noted below. The Court of Appeal's views on each issue are also noted:

Whether the Commission failed to identify and apply the correct legal test in relation to 'injury'

There is no generally applicable 'sufficient connection' test in deciding whether an injury arose out of or in the course of employment.

It was open to the Acting Deputy President to make a distinction between support for the social club generally and support for a particular activity organised by the club, and between activities organised by the social club and activities organised by the employer itself.

There was no error of law in his finding that an injury occurring in the course of the harbour cruise did not arise out of or in the course of the deceased's employment.

Whether the Commission made findings for which there was no evidence

In general, an error of law will arise where there is no relevant and probative material capable of supporting a finding of fact, or where an inference is drawn from a particular fact which is not reasonably capable of supporting that inference.

The reasoning of the Commission demonstrated no failure to take into account relevant material, nor did it involve a factual finding without supporting material.

Justice Giles noted that the reference to 'no evidence' by the Acting Deputy President was intended to indicate that there was no additional evidence on the appeal beyond that on which the arbitrator made her findings. Accordingly there was no error of law in the nature of asserting that there was no evidence of a matter when there in fact was.

Whether the Commission erred in dismissing an application to adduce further evidence

An appeal to a Presidential Member of the Workers Compensation Commission from the decision of an arbitrator is subject to no greater constraints than a rehearing. The Acting Deputy President erred in fettering the exercise of his discretion through the inflexible application of the practice direction.

Whether the Commission failed to take into account all relevant considerations in determining whether the employment concerned was a 'substantial contributing factor' to the injury, for the purposes of s 9A of the Workers Compensation Act 1987 (NSW)

The Acting Deputy President did not impermissibly limit the matters he took into consideration in deciding whether the employment was a substantial contributing factor to the injury.

Haider v JP Morgan Holdings Aust Ltd trading as JO Morgan Operations Australia Ltd [2007] NSWCA158 (2 July 2007)