In the world of workplace injuries and workers’ compensation, there is one phrase that can make employers feel both at ease, and a little unsure and that is ‘in the course of employment’.
Whilst on its face the criteria for compensation for a workplace injury could be perceived as being straight forward, every now and again there is a case that leaves us feeling like anything is paw-sible (strap in for some dog puns, please fur-give me).
Along comes the decision in N. v Hydro Electric Corporation  TASWRCT 2 where an employee was successful in a claim for compensation for an injury he sustained whilst out walking his dog whilst on-call.
At the time of the injury, the applicant was employed by the Hydro Electric Corporation as a relief area coordinator and was staying at the employer’s Tullah accommodation for a 7 day period during which he was required to be on-call.
One evening, whilst on-call, the worker ventured out for a walk along the Tullah with his partner and his dog, when he slipped and fell on a wet log suffering a fractured left femur (oof, that’s ruff).
The issue before the Tribunal was whether the injury sustained by the worker arose out of or in the course of the worker’s employment with the employer.
In a nutshell, A worker will suffer an injury that ‘arises out of’ his or her employment if there is a causal connection between the injury and the work. An injury will arise out of a worker’s employment if the worker suffered it whilst performing work that he or she is retained to perform or other work incidental thereto.
Whether a worker suffers an injury ‘in the course of’ his or her employment is a more vexed question and less easily identified. It denotes a temporal connection.
Finding in favour of the worker, the Chief Commissioner found that the worker’s injuries arose ‘in the course of his employment’. In coming to this decision, the Chief Commissioner Clues applied the test in Comcare v PVYW and examined:
In this case, the worker conceded that his injury did not ‘arise out of’ his employment. He argued that he suffered the injury ‘in the course of’ his employment because it was sustained in circumstances possessing a sufficient connection to his work and Chief Commissioner Clues agreed.
The case really turned on the fact that the worker was walking along the Tullah lake house whilst he was required to: be on call for work after normal hours; be contactable within 15 minutes; and ready to commence work within 15 minutes of being contacted.
The worker was authorised to spend the time between periods of on-call work in any way he wished that was not inconsistent with him being contactable and able to attend work. The Chief Commissioner therefore held that the act of walking along the Tullah lake house was relatively an unexceptional activity and would have likely have been held by the employer to have been an acceptable activity.
The worker’s injury was subsequently held to have occurred in the course of his employment with the employer.
Whilst the decision is from the Workers Rehabilitation And Compensation Tribunal of Tasmania (and I’m writing this from my 691 m above sea level hill in Toowoomba) and you might think that we are fur-tunate that it wasn’t set in Queensland, it may still be considered as being persuasive here in Queensland and our very own Workers’ Compensation and Rehabilitation Act 2003 contains very similar provisions.
Ultimately this decision highlights the fact that the concept of arising ‘in the course of employment’ is not a narrow one and that the circumstances of the employment are crucial to determining whether there is a nexus between the activities performed, the injury and the employment.
For advice and support on how to safeguard your business and mitigate the potential of similar claims, contact Enterprise Legal’s Workplace Relations team today and request a free initial consult:
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