Australia: On the job? High Court provides guidance for workers' compensation

Last Updated: 4 December 2013

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 situation

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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