Last year, in a case which achieved notoriety for its unusual facts, the High Court handed down a decision finding against a worker who was injured during sex with an acquaintance on a work related trip when a light fitting was pulled from the wall and struck her on the face.
We are now beginning to see the application of that High Court decision in lower courts, such as the WA District Court decision (on appeal form WorkCover WA) in Smith v Ranger Camping & Outdoor Pty Ltd  WADC 40.
On the day of the accident, Ms Smith was driving towards Busselton to collect equipment on behalf of Ranger. During the journey, the vehicle travelling immediately in front of Ms Smith was involved in a collision. Together with other passers-by, Ms Smith assisted the injured occupants and, in so doing, witnessed the driver die from his injuries.
She was subsequently diagnosed with post-traumatic stress disorder with reactive depression and anxiety as a result of witnessing the accident, its immediate aftermath and the death of the driver she assisted.
Ms Smith’s WorkCover application was originally dismissed by Registrar Melville on the basis that her injuries did not occur by accident arising out of, or in the course of, the employment of the appellant.
She appealed the decision, contending that Registrar Melville erred in determining that there was insufficient connection between the injuries she suffered and her employment. In doing so, she relied on the well-known case of Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 and its underlying principle that the ‘course of the employment’ covers not only the actual work which a worker is employed to do but also anything which is incidental to a worker’s services.
Hatzimanolis sought to provide a legal justification for injuries occurring between periods of actual work, being regarded as occurring in the course of the employee’s employment. However, it only did so by characterising the interval by reference to the employer’s inducement or encouragement. Hatzimanolis did not seek to extend the employer’s liability beyond that.
In the present case, the critical question was whether Ms Smith’s act of remaining at the scene and providing assistance was an act that was reasonably required, expected or authorised to be done in order to carry out her actual duties or necessarily incidental thereto.
She was employed as an administration manager and on the day of the accident her role involved travelling to Busselton to collect equipment.
It is clear that she was not employed as an ambulance officer or any other form of Emergency Services worker.
The question was whether her involvement in providing assistance was an act that was ‘reasonably required, expected or authorised to be done in order to carry out her actual duties’.
Whilst the journey to Busselton was being undertaken pursuant to the employer’s instruction, the activity that caused her injury was her conduct in remaining at the scene to provide assistance to the injured driver and witnessing his death some time later during an interruption to that journey.
Ranger did not engage or encourage her to provide assistance to the victim of a motor vehicle accident. Further, there was no basis to infer that Ranger, would expect an employee to assist the victim of a motor vehicle accident that has no connection whatsoever with the employment or where the employee was not personally involved in the accident.
The appeal was dismissed and Ms Smith’s application for workers compensation failed.
In making its decision, the Court commented on similarities with the decision of Drury v Industrial Roofing Contractors Pty Ltd WCR, in which the WA Workers Compensation Board refused to order compensation to a worker who, in a journey between two places of work, was injured when he stopped to assist a truck driver to secure what he regarded to be a dangerously secured load.
This decision clarifies the principles to be applied in cases where a worker is injured whilst undertaking an activity that is not strictly related to their employment duties.
For more information on this update or any other workers’ compensation matters please contact Ashley Crisp or Ken Grunder on (08) 9321 3755.
The information published on this website 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.