Injury during an interval or interlude: activity must be encouraged to be compensable.
Li v Brighton Australia Pty Ltd [2020] NSWWCCPD 44
The Appellant worker suffered an injury to his left eye on 17 March 2019 whilst seeking to protect colleagues from a physical assault when working away in Adelaide.
Material Facts
The injury occurred at a local restaurant where the Appellant was spending the meal allowance allotted to him by the Respondent. The Appellant made a claim against the Respondent for compensation in respect of the injury. The claim was denied on the grounds that the Appellant did not suffer the injury arising out of or in the course of his employment and that employment was not a ‘substantial contributing factor’ within the meaning of Section 9A of the Workers Compensation Act 1987.
In the claim for compensation, in the first instance the Arbitrator determined in favour of the Respondent. The matter came before Acting President Michael Snell on Appeal.
Grounds of Appeal
The Appellant asserted that the Arbitral decision should be overturned for a number of reasons, however; the critical issue was whether there had been an error in the Arbitrator’s finding that the injury did not arise out of or in the course of the Appellant’s employment and that the employment was not a ‘substantial contributing factor’ within the meaning of Section 9A of the Workers Compensation Act 1987.
Section 9A(3) states that the worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment.
The Appeal also addressed the authorities of Hatzimanolis v ANI Corporation [1992] HCA 21 and Comcare v PVYW [2013] HCA 41 in that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.
Presidential Decision
The Appellant submitted that his injury occurred during the course of or arising out of his employment. Acting President Snell considered that “whether the Appellant was in the course of his employment when he attended the restaurant was not determinative of whether the injury occurred in the course of employment”. The issue was whether the Respondent induced or encouraged the Appellant to engage in the activity in which he was engaged at the time of injury. This involved the Appellant’s actions in seeking to protect his colleagues from physical assault. Acting President Snell upheld the findings of the Arbitrator that there was no evidence that the Respondent induced or encouraged the Appellant to engage in this activity.
Acting President Snell upheld the Arbitrator’s decision and the Appeal was unsuccessful.
Implications
When determining whether an injury that occurred during an interval or interlude within an overall period or episode of work is deemed to be an injury suffered in the course of employment, there must be evidence that the Appellant was induced or encouraged to engage in the activity at that time.
