Tribunal finds injury to ‘on-call’ worker whilst walking his dog to have occurred ‘in the course of his employment’

10 March 2021

The Chief Commissioner of the Workers Compensation Tribunal finds in favour of a worker who was on-call at the time he sustained an injury to his left leg whilst walking his dog.

In issue

  • The issue before the Tribunal was whether the injury sustained by the worker arose out of or in the course of the worker’s employment with the employer.

The background

At the time of the injury the worker was employed as a relief area coordinator and was staying at the employer’s Tullah accommodation for a 7 day period during which he was required to be on-call. Whilst walking along the Tullah lakeside with his partner and his dog, the worker slipped and fell on a wet log suffering a fractured left femur.

The decision of the Tribunal

Finding in favour of the worker, the Chief Commissioner found that the worker’s injuries arose ‘in the course of his employment’.

In coming to this determination, the Chief Commissioner applied the test in Comcare v PVYW and examined the meaning of ‘in the course of his employment’, and whether the employer had induced or encouraged the worker to engage in the activity of taking a walk along the lakeside in the company of his dog and partner.

The essential inquiry in regards to whether the employer induced or encouraged the worker to engage in the activity undertaken, was how the injury came about. The general nature, terms, and circumstances of the employment must be considered.

In this case, the fact that the worker was walking along the Tullah lake house whilst he was required to: be on call for work after normal hours; be contactable within 15 minutes; and ready to commence work within 15 minutes of being contacted. The worker was authorised to spend his interval between periods of on-call work in any way he wished that was not inconsistent with him being contactable and able to attend work. In this context, the Chief Commissioner considered that the act of walking along the Tullah lake house was an unexceptional activity, which would have been recognised by the employer as an acceptable activity of workers working at Tullah.

Implications for you

This decision highlights the fact that the concept of arising ‘in the course of employment’ is not a narrow one and that the circumstances of the employment are crucial to determining whether there is a nexus between the activities performed and the employment.

N. v Hydro Electric Corporation [2021] TASWRCT 2

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