It pays to be the underdog

20 January 2023

An employee who was injured while on call for work has been found to have been injured in the course of his employment and therefore successful in his claim for workers compensation.

In issue

  • The issues to be determined by the Full Bench of the Supreme Court were (1) whether the Appellant’s injuries arose in the course of his employment, (2) whether on the facts this was an interval case and (3) whether primary judge erred in identifying with particularity the act causing the injury.

The background

Buddy Detlef Nazar (the appellant) was employed as a relief area coordinator by the Hydro Electric Corporation (‘HEC’) and for his work he was based at Tullah, having been provided a residence there by the HEC. The accident occurred during a ten-day relief shift on a day where the appellant was on call for work. The terms of his employment required him to be within 15 minutes of his place of employment and within phone reception range, and in return he was paid $68.15 for each day he was on call.

Mr Nazar was walking his dog along the Tullah lakeside with his partner when he realised that he was out of phone reception range and turned back. As he was walking back, he went to step onto a log beside the track, lost his footing and fell, fracturing his left femur.

The decision at trial

The appellant’s claim for compensation was successful at first instance before the Workers’ Compensation and Rehabilitation Tribunal, however this was overturned on appeal to the Supreme Court of Tasmania.

Justice Geason of the Supreme Court found that the appellant was not injured in the course of his employment because there was nothing on the evidence to suggest that the activity which led to the appellant’s injury (traversing over a log) was induced or encouraged by his employer, applying the test in Comcare v PVYW (2013) 250 CLR 245.

The decision on appeal

The Full Bench of the Supreme Court unanimously allowed the appeal and overturned Justice Geason’s decision.

All three justices found that Justice Geason had erred in failing to address the appellant’s primary submission that he was engaged in actual work when injured, and by instead treating the claim as one for an injury suffered in the course of an interval between periods of actual work.

Chief Justice Blow held that the appellant was injured in the course of his employment, either on the basis that he was doing actual work or on the basis that he was doing something that he was reasonably required or expected to do in order to carry out his duties. The Chief Justice reasoned that since the appellant’s contract of employment meant he was in essence being paid to be in the Tullah area and available and ready to respond to a call within 15 minutes, the injuries sustained by him during his walk were in the course of his employment and compensable.

Chief Justice Blow and Justices Estcourt and Jago also found that, even if this were an interval case, the injury still occurred in the course of the appellant’s employment as he had been induced or encouraged by his employer to be in the area or to engage in the activities he was undertaking. The Full Bench differed as to how they categorised this – Chief Justice Blow and Justice Jago held that the appellant had been induced to be in the area, while Justice Estcourt treated it as an activity case as in Comcare because the appellant’s injury was more closely associated with the act of traversing over a log rather than the place of the Tullah lakeside.

Only Justice Estcourt addressed the third issue of whether it had been inappropriate in law for Justice Geason to place his primary emphasis on the act causing the injury. It was the opinion of Justice Estcourt that Justice Geason had devoted too much attention to the specific circumstance giving rise to the injury, namely the appellant traversing over a log, and had failed to properly appreciate the general nature, terms and circumstances of the appellant’s employment.

Implications for you

This decision has significant implications for workers’ compensation and the liability of employers in Tasmania to compensate their employees for injuries suffered while on call; that is, not necessarily at work but required to be available to respond to workplace demands at any time during a set period.

Employers and other parties concerned should be aware that this sets a precedent for on call work and similar contractual arrangements being treated as falling within the course of employment and therefore as compensable under the Workers Rehabilitation and Compensation Act 1988 (Tas). However, the precedent established by this case may be limited in its application to cases with circumstances analogous to those which befell the appellant in this instance.

As noted by Justice Estcourt, the specific circumstances of the appellant’s case meant that it was ‘impossible to say, sensibly’ that the appellant was doing anything other than actual work or something he was reasonably required or expected to do to carry out the duties of his employment at the time of his injury. A similar outcome may not be appropriate in other cases with different factual circumstances.

Nazar v Hydro Electric Corporation [2022] TASFC 11

Katherine Barclay
Miles Kahles

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