N. v Hydro Electric Corporation [2021] TASWRCT 2  (22 January 2021)

The Tasmanian Workers Rehabilitation and Compensation Tribunal held that an injury sustained while a worker was walking his dog with his partner arose ‘in the course of’ employment, while the worker was away for work and ‘on call’.

Background

The worker was employed by the employer as a relief area coordinator. On Thursday 24 May 2018, he commenced a 7 day shift on call. He was at the time residing at the employer’s Tullah accommodation for the purpose of work. The worker received an ‘on call’ allowance for each day of the shift.

The nature of being ‘on call’ was defined by the employer as ‘Availability Duty’:

“…duty whereby an Employee is available for recall to perform work after normal working hours. An Employee on Availability Duty must be contactable by Hydro Tasmania within 15 minutes and be ready to proceed to commence work within 15 minutes of being contacted. These times may be varied to meet local requirements.”

The employer did not limit activities performed by workers on call. They were free to spend time with family, play sport and the like as long as they could take a call, or call back quickly and leave for work soon after.

The Injury

At around 11am on Friday 25 May 2018, the worker was walking with his partner and their dog. They intended to walk to the Tullah Lodge. Whilst walking along the Tullah lakeside to that destination the worker noticed that he was outside mobile phone reception range. Due to the fact that he was on call and had to be contactable they decided to turn around. On the way back, the worker slipped on a wet log and broke his left leg (femur).

The worker submitted a claim for workers compensation. Liability was disputed on the basis that the worker’s injury did not arise out of or in the course of his employment.

Liability

The Workers Rehabilitation Compensation Act 1988 (Tas) (the Act) applied. There was no dispute that the worker suffered an injury as defined by the Act.

It was argued on behalf of the employer that walking the dog at the relevant place was not induced or encouraged by the employer and was not part of the worker’s duties so that the injury could be described as having arisen out of or in the course of employment, as required by s25(1)(a) of the Act. There are similar provisions in most jurisdictions in terms of liability on behalf of employers to pay compensation in response to an injury.

The worker conceded that his injury did not ‘arise out of’ his employment. He argued that he suffered the injury ‘in the course of’ his employment because it was sustained in circumstances possessing a sufficient connection to his work.

The Decision

The Tribunal referred to the case of Westrupp v BIS Industries Limited & Anor [2015] where the Full Court provided a detailed analysis of the relevant High Court authorities of Hatzimanolis v ANI Corporation Ltd [1992] and Comcare v PVYW [2013].

In Hatzimanolis, a worker who was away for work but injured during a non-work interval was compensated on the basis that the injury was sustained in the course of employment. It was relevant that the employer expressly or impliedly induced or encouraged the worker to spend the interval in a particular place or particular way.

In Comcare v PVYW, the majority judgment of the High Court sounded a warning against an approach that 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. In that case, the activity being performed by the worker when she was injured was held to be too remote from work to give rise to a finding that it occurred in the course of employment.

In Westrupp, a fly in fly out worker was performing shift work in a remote location for 2 week periods. He stayed in accommodation provided by the employer. When he was between shifts and not at work, the worker was assaulted by a colleague outside a tavern near to the accommodation. Although that he was performing recreational activities, the Full Court held that the injury did occur in the course of employment. The general nature, terms and circumstances of employment were taken into account in that regard.

In this case, the Tribunal acknowledged that there was a tenuous connection with the worker walking his dog and the employment. That said, the necessary connection between the activity and the employment was evidenced by:

  • The worker was rostered on a weekly roster, and at the time of the incident was on call and subject to ‘Availability Duty’. He was required to be available to perform work within 15 minutes of being contacted;
  • The worker was paid an allowance of $68.15 for each day he was on call, regardless of whether he was called out;
  • The worker was required to reside in Tullah during his rostered shift. This assisted the Tribunal to decide that the employer induced or encouraged the workers to be at the relevant place;
  • The employer did not direct the worker to remain inside his accommodation at Tullah, and instead  authorised the worker to spend his interval time between periods of work in any manner not inconsistent with him being ready to attend work; and
  • The worker was injured whilst returning to the accommodation when he realised that he may be out of range for a possible call out.

Walking the dog whilst being available for duty and intentionally remaining in range for a possible call out was found to be within the scope of activity that the employer encouraged the worker to undertake and as such, the injury was found to have arisen in the course of employment.

Conclusion

Employers should consider that injuries sustained in the context of non work activities either induced or condoned while employees are away for work or on call can give rise to a liability for compensation, if the requisite connection between the activity and the employment is present. The required connection to reach the threshold can be tenuous.