Woman killed by her partner and co-worker whilst they were working from home.
Workers Compensation Nominal Insurer v Hill  NSWCA 54
In Workers Compensation Nominal Insurer v Hill  NSWCA 54 the Court of Appeal upheld the determination of the Workers Compensation Commission.
This case is demonstrative of the complex liability issues which arise when employees are injured or die whilst working from home.
The Deceased was employed by a family company which carried on its business of providing financial advice from the family home. On 16 June 2010, the Deceased was sadly killed by her de facto partner, who was also her co-worker. The partner was charged with murder, but it was found that the attack was inspired by paranoid delusions, so the partner was ultimately found not guilty on the ground of mental illness.
A claim for workers compensation was brought by the Deceased’s two children. In December 2018 an Arbitrator at the Workers Compensation Commission (the Commission) determined that the deceased had died as a result of injury arising out of and in the course of her employment and ordered payments in favour of the two children. The Nominal Insurer’s appeal of that decision was dismissed by the Deputy President of the Commission. A further appeal was made to the NSW Supreme Court of Appeal, where Basten JA, Payne JA and Simpson AJA unanimously dismissed the appeal.
Issues on appeal
In order to gain an entitlement to compensation, it must be established that the employee suffered an injury arising out of or in the course of his or her employment (Section 4 of the Workers Compensation Act 1987 (the 1987 Act)) and that his or her employment was a substantial contributing factor to the injury (Section 9A of the 1987 Act).
In this appeal, there was a question as to whether the partner’s assault, which caused the Deceased to die, was causally connected with the Deceased’s employment.
NSW Supreme Court Decision
Did the assault occur in the course of employment?
It was accepted that the death occurred between 8 am and 10 am; a range of time which fell both within and outside of the Deceased’s usual working day. The Arbitrator accepted that the Deceased was either actually performing employment related duties at the time of her assault and death or was “on call” so as to satisfy Section 4 of the 1987 Act. In reaching this conclusion, the Arbitrator relied on the following:
the Deceased’s son had provided evidence that the Deceased’s work tasks would continue throughout the day, starting as early as 7:30am and ending as late as 9pm;
on the day prior to her death, the Deceased had taken a call and made another call before 9am, which the Arbitrator considered were likely work related;
the bedroom contained office files, which supported the conclusion that the Deceased was working from her bedroom as early as 7:30am and during office hours whilst she took care of her baby.
Basten JA (Payne JA and Simpson AJA agreeing) found there to be sufficient evidence to support the Arbitrator’s conclusion.
Did death arise out of employment?
The Arbitrator was satisfied that the fact of the Deceased’s employment was a predominant and potent cause of the injury. That finding was based upon the fact that the partner’s paranoid beliefs related to the way that the Deceased performed her work duties, which thus led him to assault her.
Basten JA accepted that there was clear evidence of a causal link between the partner’s subjective motivations, albeit a product of his illness, and their common employment. The Arbitrator had drawn support from the medical evidence in reaching her conclusions that employment related factors, including a downturn in business and the partner’s distrust in the Deceased in the performance of her role, were key factors influencing the partner’s delusional beliefs. His Honour also referred back to the discussion of the evidence under the first element, and concluded that there was a causal connection between the attack and the employment. He therefore found that there was no legal error on the part of the Deputy President in rejecting the appeal in respect of this finding.
Was employment a substantial contributing factor to the death?
Noting that the purpose of Section 9A is to strengthen the causal connection to be established between employment and the injury, Basten JA acknowledged that the issues are closely aligned with those which arise under the previous headings.
In respect of this ground, the Appellant further submitted that the arbitrator failed to consider that:
- the Deceased’s employment was in clerical work in a peaceful environment;
- there was nothing in the Deceased’s employment which placed her at risk of a sudden and violent attack;
- the partner’s delusions were not part of the Deceased’s employment.
In finding that the Arbitrator had appropriately considered and rejected those arguments, Basten JA noted that it may have been true that the Deceased’s employment environment was generally “peaceful”, but it was not “peaceful” on the day she was killed by her co-worker, and may not have been so at other times. As was found by the Arbitrator, the Deceased’s duties required her to work with her partner, who had a psychotic episode on 16 June 2010 and attacked and killed her.
It had already been accepted that there was a causal link between the partner’s delusional motivations and the common employment. The appeal was dismissed.
When an employee who is working from home is injured, there may be some peculiar difficulties in proving a causal connection between the injury and the employment. In cases involving violent attacks, compensation is available only if the motivation for the attack was to some extent employment-related. In determining whether the injury was sustained in the course of employment, decision makers will turn to evidence such as statements from others in the household (including children) as to usual work habits, records of phone and computer use and locations in the house where office files are stored as indicators of when and where work was being performed.