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Worrying Wildlife at Work in WA?


In Smith v Woolworths the Arbitrator considered where a worker’s journey ended and the place of employment began to determine workers’ compensation.

Anita Smith sustained a right eye injury on 14 May 2017 when she was attacked by a magpie walking from the staff car park to the main entrance of the shopping centre where she worked. Her claim was denied and the issue for determination was whether or not the injury was sustained during the course of her employment.

As in WA, injuries sustained on a journey to or from work are generally not compensable in NSW. The arbitrator therefore needed to consider where her journey ended and where the course of the employment began.

Woolworths argued there was little connection between her injury and her work in terms of a bird attacking her whilst she happened to be walking to work. Her injury was also not sustained whilst she was performing her duties and not within working hours. However, it was held that her passage from the staff car park to the supermarket was necessarily incidental to her employment contract and that it was extremely unlikely she would have been attacked by the magpie at that time, had she not been in the course of her employment.

The arbitrator found:

  • Parking in the staff car park was within the course of her employment; and
  • The incident arose out of her employment as she was brought to that spot by reason of it.

Her claim therefore succeeded.

Apart from it being a claim of general interest as it involved Australia’s favourite bird  (take that, team bin chicken), it is useful in terms of considering where a journey starts and ends.

Section 19(2)(a)(i) Workers’ Compensation and Injury Management Act 1981 (the Act) excludes injuries sustained during journeys between a worker’s place of residence and worker’s place of employment.

Consequently, whether or not her claim would have succeeded in WA would depend on where her “place of employment” started and that phrase is not defined in the Act.

Again looking outside Western Australia, and this time in South Australia (think crows not magpies) it was noted in Farrelly v Royal Adelaide Hospital [2004] SAWCT 65 that it would be inappropriate to restrict the place of employment to a particular building, nor should it be determined by the “curtilage, messuage and appurtenances”, but that a common sense approach should be taken.

Conclusion

On balance we consider that had the unfortunate Ms Smith been attacked by a WA magpie, she would likely have been found to be entitled to workers’ compensation.

Key takeaways
  • In WA injuries sustained on a journey to or from work are generally not compensable.
  • Section 19(2)(a)(i) of the Act excludes injuries sustained during journeys between a worker’s place of residence and worker’s place of employment.
  • Whether or not a claim for a journey to or from work would succeed in WA depends on where the injured worker’s “place of employment” started.
  • The Act does not define “place of employment”.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.