Many of you will recall this case in which an employee visiting
a regional office required an overnight stay at a local motel
booked by her employer. That evening, during sex with an
acquaintance at the motel, a glass light fitting above the bed was
pulled from the wall and struck her on the nose and mouth causing
injuries. She claimed workers' compensation.
The various courts involved in the matter have been required to
consider whether her injuries were suffered "in the course
of" her employment.
At first instance the AAT concluded they were not. The Federal
Court then set aside that decision and a Full Court of the Federal
Court dismissed the employer's subsequent appeal.
The Federal Court's position was that injuries to employees,
which did not occur during periods of actual work, would still be
treated as arising in the course of employment provided the
employer had "induced or encouraged" them to spend an
interval or interlude (i.e. time not spent actually on the job) at
a particular place or in a particular way.
The Full Court of the Federal Court held that it was enough to
show that the injury occurred at a place where the employer had
required or encouraged the employee to attend but that it was not
necessary to show that it had actually encouraged or required her
to engage in the particular activity which led to the injury. So,
mere presence in such a place whilst employed was enough to allow a
claim, whereas the AAT had considered that there needed to be a
connection between the activity undertaken and her employment
(which they said was absent).
The employer appealed to the High Court. The worker argued that
her employer should be liable for any injury she might suffer at
that place even if the activity in question was entirely unrelated
to her employment. The High Court disagreed.
Separating the activity from the place
In a typical situation, where work is performed at a permanent
workplace, an injury occurring after hours is not normally regarded
as occurring in the course of employment. On the other hand, an
injury during a lunch break might be found to have occurred in an
interval in an overall period of work.
Where an employee is required to live in a remote location
whilst a particular work-related activity is completed (a common
situation here in WA), the entire time spent at the remote
location, and in accommodation provided by the employer, may well
constitute one continuous period of work, rather than a series of
distinct periods, in effect creating a single, unbroken sequence.
An injury occurring during an interval in such circumstances might
be more easily understood as "within the course of
employment" than one occurring out of hours in a more typical
The High Court emphasised the need to consider the general
circumstances of the employment to determine whether the injury
occurred in the course of employment, not just the occasion giving
rise to the injury. The circumstances must correspond with what the
employer induced or encouraged the employee to do and the employee
must be doing the very thing that the employer encouraged them to
do when the injury occurs.
Injury and place
The mere presence of an employee at a place when an injury
occurs may be sufficient to bring that injury within the course of
the employment and may involve something occurring to the premises
or some defect in the premises.
For example, if the light fitting in this case had been
insecurely fastened and simply fell on the worker, her injury would
have arisen by reference to the motel. The employer would be liable
for the injury because it had put her in a position where injury
occurred because of something to do with the place. Liability in
those circumstances was justifiable. Liability for everything that
occurs whilst an employee was present at a place was not.
There is no general rule that an employer will be liable for an
injury which occurs when an employee undertakes a particular
activity, if the employer has not 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 has to
be a connection between the activity in question and encouragement
to undertake it. In this particular case, it seems reasonably clear
that this was not such an activity.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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