Blackwood v Ziebarth [2016] ICQ 005

Further to the earlier post the appeal was dismissed.

Martin J, President

The respondent was injured at home when hurrying out of the shower to answer his work mobile. The respondent slipped and fell when attempting to exit the bathroom.

The Regulator’s refusal of compensation was overturned by the Deputy President in the Q.I.R.C. The Regulator appealed arguing that the Deputy President erred in broadly defining the relevant (work) ‘activity’ which led to the injury as “the answering of the work mobile telephone” and not “running” or “hurrying”. The Regulator argued that this was contrary to the test in Campbell v Australian Leisure & Hospitality Group Pty Ltd [2015] ICQ 016.

The test provided for in Comcare v PVYW  [2013] HCA 41(2013) 250 CLR 246 (and observed in Campbell) is:

  1. What was the activity being engaged in at the time of the injury? and
  2. Did the employer induce or encourage the employee to engage in that activity?

The Court found that trying to exclude the act of answering the telephone from the necessary physical activity of doing so was not a compelling argument. The fact that the appellant did not encourage the respondent to hurry from the shower to answer the telephone is irrelevant. Both parties had agreed the appellant’s contract of employment stipulated that he make himself available to be on call from time to time, therefore inducing the respondent to answer the telephone.

President Martin held that Deputy President did not err in the assessment of facts or the application of the appropriate test.

The appellant also submitted that the Deputy President did not provide adequate reasons for its decision, as there had been a failure to address contrasting statements regarding whether the respondent had been previously chastised for not answering his work telephone. To determine this, the Court queried whether a material issue had not been addressed or whether material evidence had been overlooked, as per Abbott v Blackwood [2014] ICQ 031. The court found that the difference in evidence in this case was not a material issue.

David Cormack – Brisbane Barrister & Mediator

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