David Cormack, Barrister

WCRA: Christmas parties & “in the course of employment”

Australian Leisure & Hospitality Group Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Campbell [2014] QIRC 105

Given the festive season is upon us, it is timely to reflect on the phrase “in the course of employment” in s.32 of the Workers’ Compensation and Rehabilitation Act 2003. The employer appealed the decision of the Regulator to accept the claim flowing from the death of Mrs Campbell at a work party. Mrs Campbell died as a consequence of diving head first into Noosa River.

Deputy President O’Connor analysed it as follows:

“[20]    The majority in Comcare v. PVYW [2013] HCA 41 (‘PVYW’) held that when considered in proper context Hatzimanolis v. ANI Corporation Ltd (1992) 173 CLR 473 did not lay down an inflexible rule of universal application that ‘absent gross misconduct on the part of a particular employee, an employer who requires an employee to be present at a particular place away from their usual place of work will be liable for any injury which the employee suffers whilst present there’.

[21]      In Hatzimanolis the High Court held (at 483) that an injury will more readily be seen as occurring in the course of employment when it is sustained in an interval or interlude within an overall period of work than when it is sustained in an interval between 2 discrete periods of work. It was the principles relevant to determining what constituted ‘the course of employment’ in an interval or interlude within an overall period of work that PVYW was concerned with (see [6], [61], [99]).

[22]      The decision in PVYW has clarified the applicable principles to be applied in determining when an employee is ‘in the course of employment’ for the purposes of workers’ compensation legislation.

[23]      The majority in PVYW concluded that the essential inquiry is ‘how was the injury brought about’. They held that an injury will have been suffered in the course of employment if the injury was either:

  1. ‘suffered by an employee whilst engaged in an activity in which the employer has induced or encouraged the employee to engage’ or;
  2. ‘where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be.’

[24]      The majority held: ‘The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment. It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer’s inducement or encouragement to be present at a place is not relevant in such a case.’

[25]      The majority went on to state: ‘An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.’

[26]      Crucially, an inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured while engaged in an activity at that place.

[27]      The majority in PVYW held: ‘Because the employer’s inducement or encouragement of an employee, to be present at a particular place or to engage in a particular activity, is effectively the source of the employer’s liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis [54] that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.’

[28]      Adopting the reasoning in PVYW when an activity was engaged in at the time of injury, the question to be considered Commission is: did the employer induce or encourage the employee to engage in that activity? If the answer to the question is yes, then the injury is within the course of employment. If it is no, then it is outside the course of employment.

[29]      The activity to be considered is the diving into the Noosa River. It is not, as submitted by the Regulator, the Christmas party. It must be the injury engaged in by the employee at the time of the injury.”

David Cormack – Brisbane Barrister & Mediator

NB: upheld on appeal:

Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 01