In Comcare v PVYW, the injured worker was employed by a Commonwealth agency and was visiting a regional office in the course of her duties. Her employer arranged for her to be accommodated in a motel overnight. After the workday had ended, the worker was having sex with an acquaintance in her motel room, when either she or her partner pulled the glass light fitting that was over the bed from its mount. The light fitting hit the worker’s nose and mouth, and caused her physical and psychological injury.
The worker lodged a claim with Comcare. In the resulting legal dispute, the Administrative Appeals Tribunal initially dismissed the worker’s claim, finding that the injury did not arise “in the course of employment”. However, a single Judge and, subsequently, the Full Bench of the Federal Court overturned that decision, finding that the worker’s injury had arisen “in the course of employment” as it had occurred during an interlude between periods of work, at a place which the employer had required or encouraged the worker to attend. The Federal Court concluded that it was not necessary for the worker to show that the activity which she was engaged in when she sustained the injury was encouraged or required by her employer.
The Federal Court’s decisions were based on a previous chain of authority, culminating in the High Court decision in Hatzimanolis.
Comcare appealed to the High Court and, on Wednesday 30 October 2013 the High Court handed down its decision. The High Court overturned the decision of the Federal Court and held that the worker’s injury did not arise in the course of her employment. The High Court held that the Federal Court had misapplied or misunderstood the reasoning in Hatzimanolis and that, in order for the worker to establish that the injury arose “in the course of employment”, she had to show some connection between her employment and the activity in which she was engaged when she sustained the injury. Although she was staying in the motel at her employer’s request, this was not sufficient to establish compensability in the circumstances at hand. A connection between emloyment and the activity which the worker was engaged in when the injury was sustained could be established if the employer had induced or encouraged the employee to engage in that activity. That was not the case here.
The High Court stated that the Hatzimanolis decision did not mean that an employer would be liable for every injury that occurred during an interval between work periods when an employee was present at a place the employer had encouraged or required them to attend. On the contrary, the Court stated, an employer is not liable for an injury which occurs when an employee undertakes a particular activity, if the employer had not in any way encouraged the employee to undertake that activity, but merely required the employee to be present at the place where the activity was undertaken.”
This decision is a welcome clarification of the test to be applied when a worker sustains an injury during intervals between work periods. It clarifies that, for example, if an employee is required to work at a remote location or stay somewhere overnight in order to perform their duties, they will not necessarily be entitled to claim workers compensation for any injury sustained while at that place.
