The Court found that the worker's injury did not arise out of, or in the course of her employment and that, the worker's employment was not a significant contributing factor to the injury. This decision focuses on the extent an activity will be considered incidental to a worker's employment.
In issue
- Whether the worker suffered an injury that arose out of, or in the course of her employment and whether the worker's employment was a significant contributing factor to the injury.
The background
Brisbane Catholic Education (BCE) employed the worker as a teacher for Xavier Catholic College (XCC). In November 2016, the worker chaperoned a school trip to Vanuatu. XCC and the International Travel and Advisory Panel of the BCE approved the trip. On the second day of the trip, the original itinerary had to be changed. A decision was made to go to Blue Lagoon. At the lagoon, there was a platform with a knotted rope attached to a tree. As the worker climbed onto the rope and swung into the lagoon, she injured her shoulder. The worker's claim for compensation was rejected by WorkCover Queensland, the Workers' Compensation Regulator and the Queensland Industrial Relations Commission. The worker then appealed to the Industrial Court of Queensland where she was again unsuccessful.
The decision of the Queensland Industrial Relations Commission
The Commissioner was of the opinion that the injury occurred in an 'interval' of the worker not being engaged in actual work. Therefore the issue was whether the employer had induced or encouraged the worker to be in the place where the injury occurred (Hatzimanolis v ANR Corp Ltd (1992) 173 CLR 473, Comcare v PVYW (2013) HCA 41). In relying on the fact that no one of authority encouraged the worker to participate in the rope swinging activity (the activity), the fact that the activity was not approved, and the risk assessment of the activity was deficient, the Commissioner found that BCE did not encourage or induce the worker to engage in the activity.
In the alternative, the Commissioner found that the worker was not fulfilling her role as a teacher at the time she was participating in the activity, nor was the activity incidental to her work. The worker made a personal and voluntary decision to participate in an activity that fell well outside the ambit of her teaching duties and responsibilities and it was not necessary for her to participate in the activity to supervise the students.
Further, the Commissioner found that there was no connection between the worker's employment and the injury, given the activity had not been approved and permission was neither requested or granted.
The Commissioner dismissed the worker's claim.
The issues on appeal
Whether the Commissioner erred in finding that, the worker's injury did not arise out of or in the course of her employment.
The decision of the Industrial Court of Queensland
The Court considered that the 'interval' case principles were not a substitute for addressing the issues of whether or not the worker's injury arose out of or in the course of her employment.
The Court found that the Commission erred in finding that the actions were not incidental to the worker's employment because it was not necessary for the worker to participate in the activity in order to supervise the students. The correct test is whether the activity was incidental, not whether it was necessary. In any event, the Court found that the Commissioner correctly held that the activity was not incidental to the worker's employment (although the activity was part of the educational aspect of the trip), given the risk management guidelines that had been put in place, the fact that it was impossible for her to participate and supervise, the voluntariness of the action, and the fact that the activity was not a requirement of her employment.
As to whether the worker's employment was a significant contributing factor to her injury, whilst it was not submitted as a ground of appeal, the Court found that in any event, the Commissioner correctly observed that there was no urgency from her employer to use the rope swing. It was merely something that she decided to do and as such, her employment was not a significant contributing factor to her injury.
The Court dismissed the appeal.
Implications for you
Although a worker may be injured when purportedly performing his or her role, that will not always satisfy the test in s32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) if the activity is not incidental to the worker's employment.
