Australia: WA worker was injured when she attended work out of usual work hours to complete a form – is the injury compensable?

Last Updated: 21 December 2017
Article by Ashley Crisp


The worker was employed as a nurse at the Peel Health Campus and was not rostered to work during 5 – 9 April 2014. On 8 April 2014, one of her rostered days off, she attended the hospital to complete a form that she had been requested to complete previously.

Her attendance at her place of employment did not relate to performing nursing duties. When at the employers premises the worker went to sit on a chair near the computer she intended to use, misjudged the location of the chair and landed heavily on her buttocks on the floor.

She suffered injury and claimed workers compensation, her claim was denied and she commenced proceedings against the employer at WorkCover for weekly payments of compensation and statutory expenses.

The worker claimed she had suffered an 'injury' in s 5(a) of the definition of injury in s 5 of the Workers' Compensation and Injury Management Act 1981 (the Act), that is to say, 'a personal injury by accident arising out of or in the course of her employment'.

The employer denied liability on the basis they said the injury did not arise out of or in the course of her employment.

His Honour Birmingham QC DCJ stated –

"The respondent's application was heard by a sessional arbitrator over six days during a six-month period from April to October 2015 and thereafter his decision was reserved. The arbitrator's decision was not forthcoming prior to his appointment ceasing. In September 2016 the Registrar of the Arbitration Service allocated the matter to Arbitrator Nunn to determine the application from the transcript of proceedings and the evidence adduced before the sessional arbitrator." and "On 29 November 2016, Arbitrator Nunn found for the respondent and ordered that the appellant pay the respondent weekly payments of compensation for total incapacity for the period from 8 April 2014 to 12 November 2014 and from 12 to 22 January 2015. Whilst the arbitrator was not satisfied that the respondent had suffered the injury as alleged by her, he found that she had suffered 'injury' as defined in s 5(d) of the definition in s 5, that is to say, that the respondent's employment had contributed to the acceleration of a pre-existing disease – a case not generally articulated or pursued by the respondent."

The employer appealed the decision pursuant to s 247(1) of the Act.

There was one ground of appeal –

The learned arbitrator erred in law in finding that the respondent's fall occurred 'in the course of the employment' and that 'employment' was a contributing factor to the aggravation of a pre-existing disease for the purpose of the definition of 'injury' under s5 of the WCIMA in that he:

  1. Articulated an incorrect test derived from Overstone v Fire & Emergency Services, C4-2009, 11 February 2009, namely whether a worker's act was reasonably required or authorised to be done in order to carry out his actual duties – which test was not applicable to a case of alleged injury occurring outside ordinary work hours and was not supported by the principles articulated by the High Court in ComCare v PVYW [2013] HCA 41; (2013) 250 CLR 246 and Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473;
  2. Failed to hold that where the employer did not require, induce, encourage, expect or authorise the employee to perform an activity at the time and place, outside ordinary work hours, where the activity occurred that activity and any resulting aggravation of a pre-existing disease was not 'in the course of the employment' and not 'employment' for the purpose of deciding whether there was an 'injury' under s5of the WCIMA;
  3. Failed to hold that the conduct of the respondent by attempting to sit in a chair outside ordinary work hours was neither 'in the course of the employment' nor 'employment' and that the respondent's intention of using a computer in the future to complete the graduate evaluation form was irrelevant.

The learned Arbitrator had found the worker's injury 'arose in the course of her employment' in that the injury was suffered when attending the hospital for a purpose 'reasonably incidental' to her employment.

His Honour went on to state –

"In the present case, the critical question to be addressed by the arbitrator was whether the evidence satisfied him that the appellant's activity was an act that was reasonably required, expected or authorised to be done in order to carry out her actual duties or necessarily incidental thereto, that is to say, in the context of what the respondent was employed to do. Having reviewed the arbitrator's findings and reasons, I am satisfied that in making the finding at [301] the arbitrator did not apply the correct test when determining if the respondent's injury occurred in the course of her employment. The respondent suffered her injury outside ordinary work hours. The arbitrator ought to have considered, and applied, the test as articulated by the High Court in Hatzimanolis v ANI Corporation Ltd, 484; Comcare v PVYW [19], [30], [31], [35]." and "The arbitrator positively found that the respondent was not expressly required or requested to attend the hospital and complete the form on 8 April 2014 ([283(j)]). Seemingly, when considering what might have been impliedly required, expected or authorised by the appellant, the arbitrator took into account the respondent's subjective belief."

His Honour concluded –

"Having regard to the findings made, I am satisfied that ground 1 of the appeal has been made out. It follows that leave to appeal should be granted, the appeal allowed, and the decision of the arbitrator set aside. Having undertaken a review of the facts found by the arbitrator that are unchallenged in this appeal, I am satisfied that, had the proper test been applied, the only finding open on the evidence was that the injury suffered by the respondent was not a personal injury by accident arising out of or in the course of her employment, or whilst the respondent was working under the appellant's instructions, as defined in the Act. Accordingly, the respondent's claim must be dismissed."

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.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ashley Crisp
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions