Dog Attack Whilst WFH Confirmed to be in the Course of Employment

State of New South Wales (Western NSW Local Health District) v Knight [2023] NSWPICPD 63 (10 October 2023)

The Respondent, Jessica Knight, was employed by the Appellant, State of New South Wales (Western NSW Local Health District) as a Case Worker.  She was working from home during the Covid-19 pandemic and as part of her job, was required to take telephone and video calls.

On 8 October 2021, she was looking after her daughter’s dog which she tied up near her front door so it did not disturb her work calls.  As she was working, she heard the puppy crying and when she went to investigate, saw the puppy being attacked by another dog.  She intervened and was bitten by the other dog on her right hand.  She sustained lacerations to her right hand and post-traumatic stress disorder.

The Respondent made a claim for workers compensation benefits which was disputed by the Insurer on the basis that the injury did not arise “out of or in the course of employment” pursuant to Section 4(a) of the Workers Compensation Act 1987 (the 1987 Act), and her employment was not a “substantial contributing factor” to the injury as required by Section 9A of 1987 Act.   (The Applicant filed an Application to Resolve a Dispute claiming weekly compensation and treatment expenses and was successful in establishing an entitlement to same as outlined in our previous case note.)  The Appellant subsequently lodged an Appeal against that decision.

Issues for determination

The Appellant relied on the following grounds of Appeal:

1. The Member erred in concluding that the Respondent sustained injury in the course of employment.
2. The Member failed to make a comparative assessment of competing factors.
3. The Member failed to consider if the Respondent’s employment was “of substance”.
4. The Member failed to take into account relevant matters, as mandated by the legislation, specifically Section 9A(2) of the 1987 Act.

Decision

Judge Gerard Philips dismissed each ground of Appeal and upheld Member Rachel Homan’s initial findings.

In relation to ground one, he rejected the Appellant’s submission that the Member was in error when she found that the injury took place on the Respondent’s property.  He noted that the Appellant’s assertion that the dog attack occurred away from the Respondent’s home, being her place of work, was based upon a number of entries in medical records which recorded the attack as taking place in the “street”.

He stated that “The Member quite appropriately directed herself to view such records with caution” and noted that there was other evidence to support that the attack had occurred on the Respondent’s property.

Judge Philips did not accept the Appellant’s submission that the Member was misdirected in regarding the fact that the employer would not have expected the Respondent to disregard the dog’s distress as significant or determinative.  He noted that this submission was put to the Member by the Respondent’s Counsel, was not challenged by the Appellant and was accepted by the Member.  Judge Philips also did not accept the submission that the Member failed to note that the phrase “in the course of employment” was a temporal concept.  He considered she was clearly aware of this and had applied this concept in her reasoning.

In relation to ground two, Judge Philips considered that no error had been made in relation to a failure to make a comparative assessment of competing facts.  He noted that the Appellant raised four factors which the Member failed to consider; namely, the Respondent buying the puppy as a gift for her daughter, the Respondent’s daughter being ill, the Respondent undertaking to care for the puppy and the Respondent’s home being in the vicinity of an aggressive dog.  He found that these matters had not been argued by the Appellant at the time of the initial proceedings.  In addition, he was satisfied the Member had considered all the relevant factors both work-related and non-work-related.

Judge Philips held that the Member had not failed to consider if the Respondent’s employment was “of substance”.  In particular, he referred to the Member’s reasoning that the probability of injury was substantially or materially increased by the puppy being unsupervised and tied up outside the Respondent’s home which the Member accepted arose due to the nature of the Respondent’s work.

Judge Philips considered the Member had adequately addressed the matters referred to at Section 9A(2) of the 1987 Act, outlining the paragraphs in which the Member had addressed each of these matters.

Implications

The initial decision in Knight v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 587 has been upheld, demonstrating that the tests under Section 4 and 9A of the 1987 Act may still be satisfied in the circumstances where an employee is working from home and carrying out activities which, at first instance, appear to be unrelated to their employment.

This decision also highlights the importance of challenging submissions raised in initial proceedings.

Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.