Appeal win loosens narrow view on work injury

Three Federal Court judges say tight take on injury circumstances in compensation law misconstrues the facts

Appeal win loosens narrow view on work injury
The Federal Court decision backs the appeal.


A Federal Court appeal has overturned an Administrative Appeals Tribunal of Australia (AAT) decision that was seen as reinforcing a narrow legal and administrative view of injury in the workplace.

The case focuses ostensibly on liability of employers of fly in/fly out (FIFO) workers to pay compensation for injuries incurred in remote locations where employees are required to live and work but when they are not engaged in actual work.

However, aspects of the case could conceivably relate to long-haul truck driving or remote warehousing operations.

The AAT decision in case of Westrupp v BIS Industries, which had Comcare as a second respondent, came at around the same time asthe failure of a commercial driver’s claim against the Queensland Workers' Compensation Regulator.

Together, they were seen by legal experts as making a clear and close delineation between work and private responsibilities.

But while the AAT had ruled that the worker’s injury was sustained between shifts in an assault at a mine tavern, a place the employer had not asked him to attend, the Federal Court had a wider view, with the tavern as part of the mine site and therefore the place of work.

It also mentions other cases where injuries have occurred outside of normal work hours but away from home when fulfilling employers' tasks.

These included being injured by a fire at quarters while sleeping, struck by a car while returning to accommodation or assaulted by strangers while returning to quarters after a meal and a few beers.

"In our view, the AAT’s approach was too narrow," the Federal Court judgement reads.

"It paid insufficient attention to the general nature, terms and circumstances of the employment."

The AAT gave too much prominence to the circumstances of the particular occasion and focused just upon the occasion giving rise to the injury.

Under  the correct application of the law, "the injury occurred in an interval or interlude between actual periods of work, but in an interval or interlude in an overall period or episode of work.

"Although the injury occurred during an interval or interlude in an overall period of work . . . it may not be said that he was temporarily absent from his place of work "during an ordinary recess" such as, for example, on a lunch break."

The AAT had erred in a question of law and the court used a case this year, May v Military Rehabilitation and Compensation Commission, in which the Full Court had rejected the commission’s approach and thinking, including the "construction error, and the misapplication of the statutory concept of injury" under the Safety, Rehabilitation and Compensation Act (SRC Act).

In effect, it says, the AAT had "asked . . . the wrong question".

It quotes the Full Court in the May case: "What is and is not an "injury" for the purposes of s 4(1) of the SRC Act involves a statutory concept. It is apparent from the large number of authorities in state and federal jurisdictions, to some of which we have referred, that what can constitute an injury for the purposes of workers’ compensation regimes may require constructional choices . . . the tribunal proceeded on a misconstruction of "injury" in s 4, then applied that misconstruction to the facts as found by it which led it, erroneously, ... to impose restrictions and limitations not present in the statutory concept of injury . . ."

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