The High Court rules on what is and is not a work related injury
Nov 2013 |Comcare v PVYW [2013] HCA 41
Summary
On 30 October 2013 the High Court overturned the widely publicised decision of the Full Court of the Federal Court in which a travelling worker's facial injuries sustained during an after hours sexual encounter was held to be work related.
In ruling that the injuries were not work related (and therefore not compensable), the High Court considered the circumstances in which an injury occurring during a work interval (such as after work hours but during a business trip) will be an injury 'in the course of employment'. The majority of the High Court confirmed that:
- Where an employer requires an employee to remain at a particular place, the time spent at the particular place will ordinarily be considered to be one whole period of work. The times when no actual work is being performed (eg. lunch breaks and evenings) are treated as intervals in the period of work / work interval;
- In order for an employer to be held liable for injuries sustained by an employee during a work interval, there must be a connection between the circumstance which caused the injury and the employment; and
- The mere fact that an employer requires an employee to be at a particular place where an injury occurs will not always be sufficient to render the employer liable.
Background
In 2007, the employee was required to travel to regional NSW in the course of her duties. As the work extended over two days, the employer made a motel booking on the employee's behalf. Whilst staying at the motel, the employee met with an acquaintance and had a sexual encounter with him, which resulted in her sustaining physical and psychological injuries when a glass light fitting was pulled from its wall mount above the bed, striking her in the face.
The employee claimed workers compensation through Comcare, arguing that her injuries arose 'out of, or in the course of, (her) employment' because her employer required her to stay at the motel.
At first instance, the Administrative Appeals Tribunal (AAT) dismissed her application, ruling that her injuries were unrelated to her employment because they were sustained during sexual activity which was neither induced nor encouraged by the employer. On that basis her injuries did not arise in the course of employment.
The employee successfully appealed the AAT's decision to the Federal Court, which Comcare then appealed unsuccessfully to the Federal Court and then the Full Federal Court, resulting in this appeal to the High Court.
High Court's reasoning
The majority of the High Court applied the following reasoning in determining that the employee was not entitled to compensation:
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In some cases, the fact that an employer requires an employee to be at a particular place during a work interval may, in and of itself, be a circumstance which causes injury. For example, an employee working at a remote mine site may be required to stay in a caravan supplied by the employer. If there is an electrical fault and the caravan catches fire, causing injury to the employee, the employee would be entitled to compensation because there is a connection between the circumstance which caused the injury and the employer's requirement that the employee be in a particular place.
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In cases where an injury is not caused by the employer's requirement that the employee be in a particular place, but rather is caused by the employee engaging in a particular activity whilst at the relevant place, the employee must establish a connection between the activity engaged in and the employment. For example, if an employer organised a cricket match during a work interval, and an employee was injured, the injured employee would be entitled to compensation because there is a connection between the circumstance which caused the injury and the employer's encouragement of the employee to engage in a particular activity.
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Employees who suffer injury during work hours at their ordinary place of work are not entitled to compensation unless they can establish that the circumstances which led to the injury arose out of employment. For example, an employee who suffers a heart attack at work would not be entitled to compensation if the heart attack was caused by lifestyle or genetic factors. However, if an employee could prove that high stress levels in the workplace caused the heart attack or were a significant contributing factor, compensation would be payable.
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It would be a perverse result if employees injured during a work interval whilst attending a place as a result of the inducement or encouragement of their employer were entitled to compensation regardless of the cause of injury and were not required to establish a connection between the circumstance which caused the injury and the employment.
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Put simply, for an injury to be in the course of employment during a work interval, 'the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs' .1
In the present case, the employee was injured as a consequence of engaging in sexual activity - an activity which both parties admitted was neither induced nor encouraged by her employer. As a result, the necessary connection between the activity and the employment was lacking, and the injury was held not to have occurred 'in the course of employment'.
Comment
The notion of a 'connection' between the circumstance which caused the injury and the employment should not be confused with notions of 'causation'. As workers compensation statutory entitlements are paid under a no-fault scheme, employees are often entitled to compensation even though there is no fault on the part of the employer.
The High Court's decision reinforces the importance for employers to give clear guidance to employees travelling to places other than their normal workplace in conjunction with work about work intervals. In order to limit liability, employers should:
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Discourage employees from engaging in dangerous or reckless activities during work intervals or define what is acceptable and work related and what is not. An employer who knowingly allows or 'turns a blind eye' to reckless activities could be found to have tacitly 'encouraged' the activity, resulting in any injurious consequences. By way of example, an employee on a business trip might be encouraged to 'socialise' with a client by taking them to dinner. Guidelines may be required outlining what is or is not acceptable for such client entertainment - that dinner is to have no or limited alcohol, is not to extend to nightclubs or other adult entertainment venues, that it is expected that the employee is rested and fully capable of attending to work the following day.
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Perform a risk assessment prior to organising any recreational activities for workers. While employee morale is important, employers should weigh the risks against the benefits in choosing particular team building activities. Cases have been reported of serious injuries being sustained in team building activities involving 'assault' courses, 'trust building' activities to 'catch' a falling co-worker and 'extreme sports' team building activities such as white water rafting and 'flying foxes'.
- Apply additional scrutiny to workers compensation claims arising out of injuries suffered during work intervals. If the injury was suffered as a result of a particular activity, ask whether the employee was induced or encouraged by the employer to engage in the particular activity. If the answer is 'no', any such workers compensation claim may be challenged.
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(1) Per French CJ, Hayne, Crennan and Kiefel JJ [35].
