The work/life blur, when is a personal injury by accident an "injury from employment”?

The previous two editions of The CompAct provided an overview of some of the more relevant case law to be considered when determining whether, pursuant to the provisions of the Workers Compensation and Injury Management Act 2023 (WA) (WCIMA), a worker has suffered:

- A personal injury by accident; or

- A disease (or the recurrence, aggravation or acceleration of a pre-existing disease).

There are different causation or connection tests for the 2 types of injuries pursuant to the WCIMA. In the following two editions of The CompAct, we will discuss when a personal injury by accident will be found to be an “injury from employment” under the WCIMA, before we move on to a discussion of when a disease (or the recurrence, aggravation or acceleration of a pre-existing disease) will be an “injury from employment”.

Connection with employment - onus of proof

The worker who makes a claim for compensation under the WCIMA bears the burden of having to prove both that he or she sustained a personal injury by accident and that the personal injury by accident was an “injury from employment” under the WCIMA.

Where an employer or its insurer seeks to show that some other event or condition is the cause of the worker’s incapacity, the onus of proof falls on the employer/its insurer.

In Watts v Rake[1], Dixon CJ observed that the employer must disentangle and exclude a previously accepted contributory cause of incapacity, in circumstances where there is more than one cause of a worker’s injury or incapacity. ?

Out of or in the course of the employment – causal vs temporal connections

Section 6(2) of the WCIMA states that a personal injury by accident can be an injury from employment if the injury arises either:

1. out of the employment – meaning there is a causal relationship between the employment and the injury; or

2. in the course of the employment or while the worker is acting under the employer’s instructions – meaning there is a temporal connection between the injury and the employment.

Blurred lines

It is increasingly difficult to determine when “employment” starts and ends. The digital age and flexible working policies mean that work hours and workplaces stretch beyond 9-5 in the office. The offering of employment benefits such as gym memberships, team lunches and retreats, social sporting competitions and even work sponsored vaccinations extend the boundaries beyond what might typically be considered to be an “employment” environment and potential sources of accidents and injuries.

Alternative working arrangements such as fly-in-fly-out, drive-in-drive-out, remote work and being “on call” all create complicated scenarios when determining whether an injury arises in the course of employment.

Incidental to the employment

As stated by Dixon J in Humphrey Earl Ltd v Speechley[2]:

“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties”.

Illustrative of the liberal interpretation of what is incidental to one’s employment, the Supreme Court of Western Australia held in L J Newing & Co v Newing[3] that the worker, who suffered injury when he was making repairs to a television aerial not owned by his employer and carried out on property not owned by the employer, did suffer an injury from his employment. That worker was a farm hand whose duties required him to observe the weather forecasts. The repair of the television aerial was, therefore, held to be incidental to those duties because it enabled him to observe the weather forecasts as required by his employer.

Personal injuries by accident sustained before work

In Waterhouse v Bassendean Nursing Home[4], the worker was injured when she attended the workplace one day prior to her official start date with the employer.?The worker’s evidence that her attendance had been for the purpose of familiarising herself with the work which she was to perform was accepted, such that she was found to have sustained an injury in the course of her employment.

The above decision can be contrasted with the facts in Government Printer v Reeves[5].?The worker in that matter had arrived at his place of work early (by twenty minutes) and was feeling unwell.? As a result, the worker went onto the employer's roof to get some fresh air.? The worker was injured when he fell backwards off the roof and onto the ground below.?The Court held that the worker’s injuries had not arisen out of or in the course of his employment.

Intervals between employment

In Hatzimanolis v ANI Corp Ltd[6], the High Court found that the expression arising out of or in the course of the employment included intervals or interludes which occur in the course of employment where the employer had induced or encouraged the employee:

1. to spend that interval or interlude at a particular place or
2. to spend that interval or interlude in a particular way.

A West Australian case which has adopted the approach in Hatzimanolis is Sealcorp Holdings v Riddle[7]. In that case the worker was found to be in the course of his employment, when following a social function at the employer’s premises, he left the function took the lift to the lobby. ?He then realised he had left his keys in his office drawer (on a separate floor to where the function had been held).?When he took the lift back up with the intention of getting his keys from his office, he became trapped in the lift and was injured. These events were held to be in the course of the employment.

In Comcare v Mather and Mitchell[8] Kiefel J held that two workers, as part of their employment, sent to camp at Darwin Showgrounds.? The workers left the camp site, after work hours, to drink and socialise at a nearby hotel. When those workers left the hotel and walked back to the camp site, they were struck by a car and killed. Kiefel J held that, consistent with Hatzimanolis, the employees had been encouraged to participate in drinking and socialising at hotels.? As they were injured when returning to camp from not distant points, the Court held that they were in the course of their employment when injured:

“To be said to have, expressly or impliedly induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestions, recognition of practices, fostering of participation, or providing assistance and may include the exercise of discretion or choice on the part of the employee…In each case, the question will be whether the attendance at the place at which, or the undertaking in which the employee is involved when injured in an interval falls within the ambit of statements, acts or conduct made by the employer and what may be said to lodge a clear rise from them, and in each case, importantly, they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed”.

Hatzimanolis was applied in Ramsay Healthcare Australia Pty Ltd v Wyatt[9] to deny a worker compensation when she attended her usual workplace on her rostered day off. ?The worker had fallen and sustained injuries when she attended the workplace:

1. on her rostered day off; and
2. to complete a form, unrelated to her work duties.

As the worker was not performing her usual work duties within scheduled work hours, it was necessary to for her to prove that the employer had required, induced, authorised, expected or encouraged her to spend the particular time in a particular way and to do the very thing when the injury occurred. On appeal, the court found that the Arbitrator had incorrectly applied the test as articulated by Hatzimanolis:

“[The Arbitrator] was in error in focusing on what the [worker] was doing at the time, rather than whether the [employer] had induced or encouraged the [worker] to engage in that activity at the time and place when [the worker] suffered the injury”.

By majority, in Comcare v PVYW[10] the Federal Court held that determination of whether an injury sustained in an interlude or interval between work periods occurred in the course of employment required consideration of both elements of the "arising out of, or in the course of" test.?The worker in this matter was injured while engaging in consensual sexual intercourse in her motel room during an overnight work trip.

The Court held that regard must be had to both the worker’s presence at the place the injury was sustained, and the activity being undertaken when the injury was sustained:

"For an injury occurring in an interval or interlude in a period of work to be in the course of employment, the circumstance in which an employee is injured must be connected to the inducement or encouragement of the employer".

Whilst the worker’s presence at the hotel could be said to have been sufficiently connected to her employment, the activity she was engaged in when injured whilst at the hotel was not.? Compensation was denied in those circumstances.

But wait, there’s more…

In the next edition of The CompAct, we will look at causation of personal injuries by accident in certain specific circumstances, such as when a worker is working from home or when the injury arises from an assault.?We will also take a closer look at section 9 of the WCIM and the case law authorities relating to injuries sustained whilst a worker is on a work-related ‘journey’.

Written by Ashleigh Glasson , Senior Associate Insurance & Risk

[1] (1960) 108 CLR 158; [1961] ALR 333; (1960) 34 ALJR 186.

[2] (1951) 84 CLR 126.

[3] (WASC, SCL 8531, 12 September 1990, unreported).

[4] (1983) 2 WCR(WA) 57.

[5] (WASC, SCL 2112, 25 August 1977, unreported).?

[6] (1992) 173 CLR 473; 106 ALR 611; 66 ALJR 365 (Hatzimanolis).

[7] (WASC, full court, 53/94, 26 May 1995, unreported).

[8] (1995) 56 FCR 456; 37 ALD 463; 21 AAR 297.

[9] [2017] WADC 145.

[10] (2013) 136 ALD 1; 303 ALR 1; [2013] HCA 41.