You can go your own way…to a certain extent

The last edition of The CompAct discussed the factors relevant to when a personal injury by accident will be found to be an “injury from employment” under the Workers Compensation and Injury Management Act 2023 (WA) (WCIMA), including the consideration of whether a particular worker was “…doing something which he was reasonably required, expected or authorised to do in order to carry out his duties”[1] when injured. ?

We also discussed the principles to be applied when a worker is injured during an interval between employment and looked at the decision in Comcare v PVYW[2], where it was held that you must first look at whether the injury occurred because of the worker’s presence at the place that the injury was sustained, or because of an activity. The next step is to examine whether there is a connection between employment and the place, or employment and the activity (whichever is most relevant).

In this 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 WCIMA and the authorities relating to injuries sustained whilst a worker is on a work-related ‘journey’.

Working from home

The shift to employers permitting work from home arrangements as the norm, or “COVID-19’s silver lining” as some may refer to it, has seen a change in the circumstances in which a worker can be found to have suffered an “injury from employment”. In short, despite being at their own residence when the injury was sustained, a worker can still be found to have suffered an “injury from employment”.

The relevant consideration in such matters is what a particular worker was doing at home at the time they were injured, and whether the activity engaged in was something reasonably connected to their employment.

• In Van Oosterom v Aust Metropolitan Life Assurance Co Ltd[3] the Victorian Supreme Court considered a worker who primarily worked from home, without any set hours. The court held that all activities undertaken by the worker which were incidental or related to the carrying on of his work would be regarded as being in the course of his employment. In such cases, it is necessary to have regard to the nature of the work and style of business of the employer.
• ?In Re Ledwidge and Optus Administration Pty Ltd[4], a worker was injured when he was at home, on a Sunday, cleaning his work vehicle in preparation for his normal work duties the following day. The evidence showed that the worker was entitled to maintain the vehicle at home and was under instructions from his employer to keep the vehicle in good repair.? The worker was found to be entitled to compensation in those circumstances.
• ?In Lauren Vercoe v Local Government Association Workers Compensation Scheme[5], Ms Vercoe was employed by the City of Charles Sturt (the Council) as an Asset Programmer/Operations Programmer. The day before the incident, she received prior approval by her team leader to work from home as she was looking after a colleague’s puppy. While working from home, Ms Vercoe was taking a coffee break, and tripped and fell over a metal pet fence that she had erected so that the dog could be kept away from her pet rabbit whilst working. Ms Vercoe injured her right knee and right shoulder. Section 7(5)(b) of the Return to Work Act 2014 (SA) contemplates that the definition of employment extends to attendance at a worker’s place of employment during an authorised break which is compensable. The Council encouraged employees to take regular short breaks from their work stations, which includes employees working from home. The Deputy President, applying the test in PVYW, concluded that Ms Vercoe’s injuries were compensable because her home was her place of employment on that day, and her injuries were caused by a feature of her place of employment – the pet fence. The fact that her employer knew that this was the reason for her working was home was also taken to be tacit approval or at least knowledge of the general circumstances in which she would be working.
• ?In State of New South Wales (Western NSW Local Health District) v Knight[6] Ms Knight was employed as a case worker in a court diversion program. Due to COVID-19 restrictions, she had worked from home, and conducted her duties at home through phone and video calls. On 8 October 2021, Ms Knight was bitten by a dog on her right hand after she attempted to intervene in dog attack on her daughter’s puppy outside her front door. She sustained severe lacerations on her right hand and also sought treatment for post-traumatic stress disorder. This case went on appeal against a decision of the Personal Injury Commission (PIC) constituted by a Member. The ground was that the Member rejected the employer’s assertion “that in leaving her workstation and leaving her house to attend to her daughter’s puppy, the worker had taken herself out of employment.” President Judge Phillips upheld the Member’s findings that although Ms Knight ceased performing her duties to investigate and then intervene in the attack, this was a reasonable practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances and therefore Ms Knight did sustain an injury ‘in the course of employment’. Also, that to keep the environment quiet and professional, it was required that her household pet was to kept outside and that this arose due to being at work and the nature of her employment. Therefore, her employment was a substantial contributing factor to their injury.
• ?In Nazar V Hydro Electric Corporation[7], Mr Nazar was employed by Hydro Electric Corporation as a relief area coordinator. His employer provided him accommodation to stay in Tullah and stayed with his partner and dog. On 25 May 2018, Mr Nazar slipped and broke his leg, whilst on a walk beside a lake. Mr Nazar injured himself whilst on a call. The employer required him to attend the work site within 15 minutes of the notification and he would be paid an allowance of $68.15 per day for each day he was on a call. The case went up to the Full Court of the Supreme Court, made up of three judges where it was unanimously decided that the injury occurred in the course of his employment. The Chief Justice was satisfied that he was complying with the requirements of his contract of employment, which was to be on Availability Duty and proceed to commence work within 15 minutes of being contacted, and for which he would have been paid.? There were also clear restraints on where he needed to be which is Tullah, and that was integral to his performance obligations.

Assaults

Injuries caused by serious or willful misconduct (eg if a worker starts a fight) are excluded, but what if a worker is assaulted by a colleague (and they didn’t start the fight)? Is the colleague “in the course of employment” if they are engaging in unlawful conduct? The case law authorities indicate that, when determining whether a worker injured by way of assault was injured in the course of his or her employment, the following factors need to be taken into account:

1. how the assault occurred;

2. if there was an argument or disagreement preceding the assault, what was the substance of that argument and its relationship with the employment; and

3. whether the assault occurred with or without any warning being given to the injured person.

• In South Maitland Railways Pty Ltd v James[8], it was noted:

“It would not be in the course of the employment for workers to discuss their private affairs or ventilate their private quarrels in their employer's time; but it must often be necessary for workmen in the course of their employment to discuss some matter relating to their work. A discussion between Hindle and James in order to ascertain whether Hindle was making charges that James was a favourite with the management who had been given work which he was incompetent to do would be a conversation which the commission could reasonably find was incidental to James’ employment and not to his private affairs”.

• In Martin v Bailey[9], the Court of Appeal of Victoria considered a case where a worker was assaulted by another worker, by way of retaliation to a racist slur. The majority held that the particular circumstances in which the altercation arose were not so far removed from the employment contemplated by the employer and the worker as to exclude it from the course of the employment. The minority held that by racially abusing his co-worker, the worker (who was subsequently injured by assault), had abandoned his employment.

• In Weston v Great Boulder Gold Mines Ltd[10], the High Court held that a worker was entitled to compensation for injuries he sustained from an assault, even though the disagreement which led to the assault began weeks earlier and involved issues entirely unconnected with the injured person's employment.? It was held that the circumstances of the injury were such that the worker was actively engaged in performing his duties at the time of the accident when he was assaulted by another employee.

Domestic violence risks

A recent decision in NSW raised the question of when an employer might be liable to pay compensation for an injury caused to a worker who is injured by an assault occurring when the worker is working from home.

In Workers Compensation Nominal Insurer v Hill[11], the deceased worker and her de facto partner worked in a family company, S L Hill & Associates Pty Ltd, which carried on its business of financial advising from their family home. On 16 June 2010, the deceased was sadly killed by her de facto partner. The partner was charged with murder but pled not guilty on the ground of mental illness, as the attack was inspired by paranoid delusions. Their two children made claims for workers compensation and gave evidence about how their parents worked long and ad hoc hours, and were basically always on the clock. An Arbitrator at the Workers Compensation Commission determined that the deceased had died as a result of injury arising out of and in the course of her employment and ordered payments in favour of the two children, however this was appealed by the Workers Compensation Nominal Insurer (Appellant). Basten JA, Payne JA and Simpson AJA from NSW Supreme Court of Appeal unanimously dismissed the appeal. This was based on the finding that the partner’s ‘paranoid beliefs’ related to the way that the Deceased performed her work duties, which thus led him to assault her, and provided the necessary connection between the assault and employment.

Journey claims

The WCIMA has largely retained the wording of the relevant provisions regarding journey claims. Consistent with section 19(2)(a) of the 1981 Act, section 9 of the WCIMA states that, where a worker sustains a personal injury by accident whilst on a journey from his or her place of residence, either to or from work, that injury is not one for which the employer is liable. The basis for that provision is clear - that travel is undertaken outside of work hours and employers generally have little or no control over how a worker travels between work and home.

There are exceptions to the above rule; however, such as where the employer provides the means of transportation (between home and work) and requires the worker to use that transportation. ?Once the employer takes control over that period of travel, it is harder to separate it from a period of employment.

In Fagan v Byrnecut Mining Pty Ltd[12] it was observed that the facts of each case under section 19 (of the 1981 Act) should be considered on their facts. The facts of that matter showed that the worker was injured in circumstances that arose out of his employment, despite the worker having been injured when he was driving a work vehicle between his place of residence and his place of employment.

Factors that might point to a journey from home to work (or vice versa) being compensable include:

• if employer has supplied the worker with a car or has paid for the worker’s transport;
• if the worker is transporting equipment that is necessary for work (eg if they are taking files home that they need to work on later that night, or that they need for work the next day at a different location);
• if the employer also supplies the worker with housing.

When does the journey start and end?

In Gilbert v JRR Nominees Pty Ltd[13], the Supreme Court considered where a worker's residence ended, and a journey commenced:

“All that is required for the present purposes is to identify and mark out the “place of residence” … I take this to mean the building in which the worker eats, drinks or sleeps. The place of residence in my opinion has nothing to do with meters and bounds of the land on which that building stands”.

This becomes important if a worker is injured in a work funded car park, or in the driveway of their home.

More clear cut are the scenarios where a worker is injured when on a ‘work journey’ - defined as “a journey arising out of or in the course of a worker’s employment”. Some examples of such work journeys may include:

• a worker taking a taxi or ride-share from their usual place of work to attend a work meeting held at the office of a client;
• a worker being directed by their employer to drive to a supplier’s premises to pick up products; or
• a worker having to take a flight from Perth to give a presentation to their colleagues based in the employer’s Melbourne offices.

This follows the line of authorities imposing liability on the employers of workers injured through activity which is incidental to their work activities. ?It then becomes less clear cut if the worker is injured while doing something on that journey that their employer may not have expected. For example, leaving their hotel to go in search of food and ending up drinking slushies in the park with some new friends who rob you.[14]

If a worker is injured while undertaking a task on their journey that is not part of, or incidental to, their work duties, then section 9 of the WCIMA may be held to be irrelevant to that particular matter.?

The decision in Smith v Ranger Camping and Outdoors Pty Ltd[15] concerned a worker who suffered a post-traumatic stress disorder (PTSD) as a result of an incident which occurred whilst she was on a work journey to collect equipment on behalf of her employer. ?Whilst on the work journey, the worker stopped and exited her vehicle so that she could assist the victim of a road accident.?The worker was with the victim, offering assistance as she could, for about half an hour after the road accident, at which point the victim passed away from the severe head injuries sustained in the accident.

The Arbitrator, referring to case law including Hatzimanolis v ANI Corp Ltd[16], noted that the worker was employed as an administration manager and, therefore:

“…providing assistance to people injured in motor vehicle accidents was not part of the contract of employment, and the question then becomes whether the evidence satisfies me the worker’s involvement in providing assistance in the accident, was an act that was ‘reasonably required, expected or authorised to be done in order to carry out her actual duties’.

…

I am unable to find that the worker sustained an injury as defined in s.5 (a). This being the case, the employer’s argument advanced pursuant to the provisions of s.19 becomes irrelevant”.

• The moral of the story being – if you want to carry out an act of extraordinary human grace, setting a wonderful example of kindness and decency, make sure you do it on your own time, call your employer for permission first, or make sure you work at Jackson McDonald where that kind of behaviour is induced, encouraged or expected.

A personal injury by accident suffered by a worker whilst on a work journey will not be found to be an injury arising out of, or in the course of, that worker’s employment if:

1. that injury is sustained while the work journey is substantially interrupted for a purpose unconnected with the worker’s employment, or after an interruption of that kind; or

2. during a substantial deviation from a work journey for a purpose unconnected with the worker’s employment, or after a deviation of that kind.

Unlike the 1981 Act, the WCIMA does not define ‘substantial interruption’ as including any interruption of a journey for a period of more than one hour. This omission, and a consideration of the extensive case law surrounding claims arising from injuries sustained during a work journey, tells us that it is more pertinent to look at the particular circumstances surrounding the journey rather than simply its duration alone.?

As an example, in Lukatelich v Brambles Manford[17], a worker who was injured during the course of his 1500 km work journey, was not held to be disentitled to compensation on the grounds there had been a substantial interruption in the journey, notwithstanding that he made numerous stops along the way, for periods of up to three hours.

The decision in Scobie & Tallar v K D Welding Co Pty Ltd[18] concerned a pair of workers who left work and went to a hotel for 1.5 hours, before then travelling home by motorbike, that journey including the decision to deviate from a bitumen road onto a gravel road. The worker who was the passenger on the motorbike was held to be disentitled to compensation for injuries he sustained when the motorbike left the road whilst the rider was attempting to avoid a pedestrian. The High Court took into account that the deviation was substantial and had materially increased the risk of injury; however, in Western Australia, it is not necessary for an employer to show that an interruption to, or deviation from, a journey materially increased the risk of injury.

Next fortnight, The CompAct will move on to a discussion of the relevant causation test for when an injury defined as a ‘disease’, or the ‘recurrence, aggravation or acceleration of a pre-existing disease’ is an “injury from employment”.

This article was written by Ashleigh Glasson , Senior Associate Jackson McDonald

[1] As per Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 126.

[2] (2013) 136 ALD 1; 303 ALR 1; [2013] HCA 41.

[3] [1960] VR 507.

[4] [2008] AATA 58.

[5] [2024] SAET 91

[6] ?[2023] NSWPICPD 63

[7] ?[2022] TASFC 11

[8] (1943) 67 CLR 496; [1943] ALR 173; (1943) 17 ALJR 37.

[9] [2009] VSCA 263

[10] (1964) 112 CLR 30; [1965] ALR 329; (1964) 38 ALJR 208.

[11] [2020] NSWCA 54

[12] (CM(WA), Packington J R, 5/03, 17 December 2003, unreported).

[13] [1985] WAR 209 as per Burt CJ at 212.

[14] Douthwaite v MEDISERVE Pty Ltd [2023] WADC 56

[15] [2014] WADC 40.

[16] (1992) 173 CLR 473; 106 ALR 611; 66 ALJR 365.

[17] Unreported, SC(WA), 15/89, 27 October 1993.

[18] (1959) 103 CLR 314