Soldier by day, triathlete by night

04 March 2022

Was an employee of the Defence Force entitled to workers compensation for injuring himself while competing in a triathlon which was unrelated to the Army?

In issue

  • Was the worker entitled to compensation under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1998 (Cth) (DRCA) on the basis that he sustained injuries in the course of his employment?

The background

The worker was employed by the Department of Defence and made a claim for compensation after falling from his bike and sustaining multiple fractures while competing in a triathlon. At the time he was serving in the Army Reserve, but aspired to serve in the Special Air Service Regiment (SASR). The worker claimed he was injured while training in preparation for the SASR Selection Course.

The decision at trial

The Tribunal considered the “activity test” from Comcare v PVYW [2013] 250 CLR 246 and Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 which considers whether an employer has induced or encouraged a worker to engage in an activity which results in injury. If the answer is ‘yes’, the injury is captured by the meaning of “in the course of employment” and is compensable.

The Tribunal accepted evidence from the worker that while not in receipt of explicit instruction, Defence Force employees are subject to a general inducement to be prepared for whatever tasks lie ahead, including maintenance of physical fitness. The Tribunal was satisfied the worker’s injuries were sustained during physical fitness training in preparation for the upcoming stages of SASR selection and as such his injury was compensable.

The issues on appeal

Did the Tribunal misapply the “activity test” and award compensation under the DRCA erroneously?

The decision on appeal

The Court found the “activity test” is not concerned with ideals or expectations expressed in the abstract. Rather, it is actual conduct by the employer having effect on the employee which gives rise to a sufficient connection between the employment and the activity causing injury.

The Court did not consider the general expectation by the Defence Force that its employees maintain their physical fitness, sufficient to give rise to such a connection. There lacked actual conduct.

As such, the appeal was allowed.

Implications for you

Claims for compensation concerning injury arising from activity which the employee claims their employer induced or encouraged, must involve actual conduct having effect on the employee. A general expectation is insufficient.

Military Rehabilitation and Compensation Commission v Dalgrin [2022] FCA 83

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