WCRA: Running for the phone out of the shower at home – course of employment

Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121

In determining whether the injury arose of or in the course of employment, Deputy President O’Connor applied Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor [2015] ICQ 016 and Comcare v PVYW [2013] HCA 41 to the following unusual facts and found it was in the course of employment.

[7] The appellant told the Commission that he was at his Mission Beach home on Thursday, 21 March 2013. At about 10.00 pm, the appellant went for a shower.  Whilst showering, the appellant heard his work mobile telephone ringing.  He knew it was his work mobile telephone because of its distinctive ring tone.  The mobile telephone was located on his bedside table.  He told the Commission:

“I moved out of the shower through the gap and into the glass and headed towards the door.  And then I fell forwards and caught myself.  My right hand caught the corner of the vanity and my left hand went over – like, caught myself on the toilet bowl.  I feel forwards, and I’m not sure if I’ve twisted when I fell or what.  All I know is that I fell and I caught myself.”

[26] For the purposes of this appeal, the relevant test as set out in Comcare v PVYW is in two parts:

(a) What was the activity being engaged in at the time of the injury? and

(b) Did the employer induce or encourage the employee to engage in that

activity?

[27] In addressing the first part, the activity to be considered is the answering of the work mobile telephone. It is not, as submitted by the regulator, the running.  As was noted in paragraph [7] above, the evidence of the appellant was that he moved out of the shower through the gap and into the glass and headed towards the door before falling forward.  He was anxious to answer the phone before it went to message bank and he was hurrying to do so.  But the evidence was not that he was running at the time the injury occurred.

[28] In applying the second part of the test as set out in Comcare v PVYW, the question to be considered is: did the appellant’s employer induce or encourage him to engage in that activity that he did, namely, to answer the work mobile telephone?

[29] It is accepted between the parties, as set-out in the Statement of Agreed Facts, that it was a term of the appellant’s Contract of Employment with his employer that he make himself available to be on call from time to time; that he was supplied with a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him whilst he was on call; and at all material times the appellant was in fact on-call.

[30] There is little doubt in my mind that on the evidence before the Commission, the appellant was induced or encouraged to engage in the activity that he did. As is set out in paragraph [34], it was an activity within the scope of what his employer induced or encouraged him to engage.  Having answered the question in the affirmative, it must therefore follow that the injury sustained by the appellant has occurred in the course of his employment. (footnotes omitted)

David Cormack – Brisbane Barrister & Mediator

 

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