Last year, in a case which achieved notoriety for its unusual
facts, the High Court handed down a decision finding against a
worker who was injured during sex with an acquaintance on a work
related trip when a light fitting was pulled from the wall and
struck her on the face.
We are now beginning to see the application of that High Court
decision in lower courts, such as the WA District Court decision
(on appeal form WorkCover WA) in Smith v Ranger Camping &
Outdoor Pty Ltd  WADC 40.
On the day of the accident, Ms Smith was driving towards
Busselton to collect equipment on behalf of Ranger. During the
journey, the vehicle travelling immediately in front of Ms Smith
was involved in a collision. Together with other passers-by, Ms
Smith assisted the injured occupants and, in so doing, witnessed
the driver die from his injuries.
She was subsequently diagnosed with post-traumatic stress
disorder with reactive depression and anxiety as a result of
witnessing the accident, its immediate aftermath and the death of
the driver she assisted.
Ms Smith's WorkCover application was originally dismissed by
Registrar Melville on the basis that her injuries did not occur by
accident arising out of, or in the course of, the employment of the
She appealed the decision, contending that Registrar Melville
erred in determining that there was insufficient connection between
the injuries she suffered and her employment. In doing so, she
relied on the well-known case of Hatzimanolis v ANI Corporation
Ltd (1992) 173 CLR 473 and its underlying principle that the
'course of the employment' covers not only the actual work
which a worker is employed to do but also anything which is
incidental to a worker's services.
Hatzimanolis sought to provide a legal justification
for injuries occurring between periods of actual work, being
regarded as occurring in the course of the employee's
employment. However, it only did so by characterising the interval
by reference to the employer's inducement or encouragement.
Hatzimanolis did not seek to extend the employer's
liability beyond that.
In the present case, the critical question was whether Ms
Smith's act of remaining at the scene and providing assistance
was an act that was reasonably required, expected or authorised to
be done in order to carry out her actual duties or necessarily
She was employed as an administration manager and on the day of
the accident her role involved travelling to Busselton to collect
It is clear that she was not employed as an ambulance officer or
any other form of Emergency Services worker.
The question was whether her involvement in providing assistance
was an act that was 'reasonably required, expected or
authorised to be done in order to carry out her actual
Whilst the journey to Busselton was being undertaken pursuant to
the employer's instruction, the activity that caused her injury
was her conduct in remaining at the scene to provide assistance to
the injured driver and witnessing his death some time later during
an interruption to that journey.
Ranger did not engage or encourage her to provide assistance to
the victim of a motor vehicle accident. Further, there was no basis
to infer that Ranger, would expect an employee to assist the victim
of a motor vehicle accident that has no connection whatsoever with
the employment or where the employee was not personally involved in
The appeal was dismissed and Ms Smith's application for
workers compensation failed.
In making its decision, the Court commented on similarities with
the decision of Drury v Industrial Roofing Contractors Pty
Ltd WCR, in which the WA Workers Compensation Board refused to
order compensation to a worker who, in a journey between two places
of work, was injured when he stopped to assist a truck driver to
secure what he regarded to be a dangerously secured load.
This decision clarifies the principles to be applied in cases
where a worker is injured whilst undertaking an activity that is
not strictly related to their employment duties.
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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