Dog attack whilst WFH – in the course of employment?

Knight v State of New South Wales (Western NSW Local Health District) [2022] NSWPIC 587 (24 October 2022)

An employee was found to have a compensable injury after suffering an injury during an attack by a stray dog whilst working from her home.

The Applicant was employed by the Respondent as a case worker in a Court diversion program. On 8 October 2021, whilst working from home, the Applicant was injured when she intervened in a dog attack. She had been working from home due to COVID-19 restrictions and her job required her to use the telephone and take video calls.

On the date of injury, the Applicant was looking after her daughter’s puppy and had to keep the puppy outside so it did not disturb her calls. She tied the puppy up to a post near her front door. At around 8.45AM, she heard the puppy crying and when she went to investigate, she saw that a stray dog had a hold of him. The stray dog bit her right hand as she tried to pull the puppy away and she suffered severe lacerations and post-traumatic stress disorder. She alleged that, as a result of the injury, she was unfit for work and continued to experience ongoing pain and restriction in her hand as well as severe psychological symptoms.

The Applicant made a claim for workers compensation benefits which the insurer disputed 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 1987 (the 1987 Act), nor was her employment 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.

Issues for Determination

• Whether the Applicant sustained an injury in the course of or arising out of employment pursuant to Section 4 of the 1987 Act; and
• Whether employment was a substantial contributing factor to the injury pursuant to Section 9A of the 1987 Act.

Member Rachel Homan followed the decision in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi) which found that an injury arises out of employment if the fact that the worker was employed in the particular job caused, or to some material extent contributed to the injury. For employment to be a ‘substantial contributing factor’ to the injury, the causal connection must be ‘real and of substance’.

Decision

Weighing all of the circumstances, Member Homan made the following findings:

• The Applicant was ‘in the course of employment’ at the time of her injury. Although the Applicant got up from her desk and walked out her front door when she heard the dog attack, the Member was satisfied that the injury occurred during the Applicant’s normal work hours and at her normal place of employment as she was permitted to work from home.
• It was not disputed that she had been performing her normal work duties at the time of the dog attack and there was no suggestion in the evidence that the Applicant was not permitted by her employer to have a dog at home while working.
• Although the Applicant ceased performing her normal work duties to investigate and intervene in the attack, the Member was satisfied that the Applicant’s actions were a reasonable and practical necessity and were consistent with what her employer would have reasonably expected of her in the circumstances.
• It was relevant that the Applicant was required as part of her work duties to “constantly” take phone and video calls and accepted that the Applicant’s employer expected her to perform the duties in a professional manner and in an environment within the home that was sufficiently quiet and amenable to her being able to concentrate. She further accepted the Applicant’s evidence that she placed the puppy outside in order to be able to perform her work duties in a professional manner.
• The probability of the injury was substantially or materially increased by the unsupervised presence of the puppy tied at the front of the Applicant’s home. It was accepted that these circumstances arose due to the Applicant being at work and the nature of her employment.

The Member was satisfied that the injury arose out of or in the course of employment, and that employment was a substantial contributing factor to same.

For these reasons, the Applicant was entitled to weekly compensation and medical expenses as claimed.

Implications

This decision demonstrates that the Sections 4 and 9A tests provided in the Workers Compensation Act 1987 may be satisfied in circumstances where an employee who is working from home is injured in the course of responding to an event which may seem, at first glance, to be unrelated to their employment.

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