Driver’s fall and worker’s assault ruled as having occurred outside the course of employment
Two recent appeal cases involving employees of transport and logistics and mining services companies have reinforced stringent interpretations of workplace injury.
Employees of national company BIS Industries, in a worker’s appeal against BIS, and Queensland firm Anything’s Possible Transport, in a driver’s claim against the Queensland Workers’ Compensation Regulator, have seen their cases fail on the point of whether injuries were sustained in the course of employment.
Decisions in both the Westrupp and BIS Industries case in the Administrative Appeals Tribunal of Australia (AATA) and the Huhu v Simon Blackwood (Workers’ Compensation Regulator) appeal in the in the Industrial Court of Queensland hinged on whether the High Court of Australia’s 1992 decision in Hatzimanolis v ANI Corporation Ltd, applied.
This was that “it should now be accepted that an interval interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.
“Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.
“In determining whether the injury occurred in the course employment regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’.”
The cases were also informed by the salacious 2013 Comcare v PVYW case, where an unidentified public servant’s dalliance in a hotel room resulted in an injury.
The Comcare case resulted in the following principles:
- for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs
- where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so
- where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place
- an employer is not liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but has merely required the employee to be present at the place where the activity is undertaken
- there is no justification for taking a “wide view” of an employer’s liability in circumstances where the employer could be seen to have encouraged the employee to be at a particular place.
In the Huhu case, the evidence was that the driver took a truck home over the weekend and injured his back when falling from the cab while washing it.
It was found the driver had gone beyond expectation in cleaning the truck, which was merely that rubbish should be removed from the cab at day’s end, and no permission was given to take the truck home.
Therefore he could not show that he had been ‘encouraged’ to undertake the task out of hours.
The Westrupp case involved a fly-in fly-out worker’s injury sustained between shifts in a fight at a mine tavern, a place the employer had not asked him to attend.
“Other jurisdictions within Australia are also adopting a similarly narrow view when determining whether an employer induced or encouraged a worker to engage in a particular activity,” Hopgood Ganim senior associate Jacqi Marshall and solicitor Hannah Staunton note of the Huhu case.
“In the recent decision of Pioneer Studios Pty Ltd v Hills, a worker was denied access to workers’ compensation after having sustained personal injury at a party held at the employer’s premises.
“Similarly in the decision of Westrupp and BIS Industries Ltd, a worker failed in his claim for compensation as he could not prove that his employer required or encouraged him to be at a tavern on a mine site when he was assaulted.”