WCRA: assaulted while sleeping – significant contributing factor for employment

Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001

Martin J, President.

Mr Cumbers (second respondent) was employed by Civeo Pty Ltd (first respondent) to repair commercial appliances at five accommodation camps. His job required him to travel between camps, and as such he was provided with a donga for personal use. A person who was present at the camp, but was not an employee assaulted Mr Cumbers in the early hours of the morning, after obtaining access to the master key for the camp.

Mr Cumbers made a compensation claim for the injuries he sustained, which the Regulator accepted. Civeo Pty Ltd appealed the decision to the Q.I.R.C. (the Commission), where it was held that Mr Cumbers’ employment was not a significant contributing factor to the injury within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003. The Regulator appealed the Commission’s decision.

Martin J considered the case of Oaks Hotels and Resorts (Qld) Pty Ltd v Blackwood and Anor [2014] ICQ 23 where a worker was assaulted by a co-worker whilst staying in employer-induced accommodation. Martin J also considered the Federal Court decision Westrupp v BIS Industries Limited [2015] FCAFC 173 where fly in/fly out worker was assaulted by fellow employee at an accommodation camp.

Mr Cumbers was not contractually obligated to reside or sleep at the accommodation camps in the donga. However, Martin J held that through examination of the “exigencies” of his employment, Mr Cumbers was practically obligated to stay at the camp in order to be able to perform his work, as his home was some 300kms away. But for Mr Cumbers staying at the camp, he would not have been assaulted by the other worker. Mr Cumbers  had been “induced or encouraged” by his employer to stay at the camp and therefore, his employment was held to be a significant contributing factor to his injury.

The appeal was allowed. The Commission’s decision was set aside and it was ordered that the appeal by Civeo Pty Ltd against the Regulator be dismissed.

David Cormack – Brisbane Barrister & Mediator

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