Walking the dog doesn’t pay – 'ruff'

05 July 2022

The Supreme Court of Tasmania finds employer not liable to worker for injury sustained whilst worker was walking his dog and being paid an ‘on call’ duty allowance.

In issue

This was an appeal from the Workers Rehabilitation and Compensation Tribunal (‘the Tribunal’) on whether an injury was compensable pursuant to section 25 of the Workers Rehabilitation and Compensation Act 1988 (Tas) (‘the Act’), that is whether the injury arose out of, or in the course of, the worker’s employment.

The background and Tribunal decision

The worker was injured when he fell, tripped, or slipped while climbing over a log on a beach as he was walking his dog on a leash with his partner. The Chief Commissioner of the Tribunal found that the act of walking the dog along the beach was performed in the course of the worker’s employment because he was being paid a duty allowance to be ‘on call’. The beach he was walking on allowed him to remain within the requisite fifteen minute range of being able to attend work if he was called in, pursuant to his contract of employment. The Chief Commissioner found these facts ‘provided the necessary nexus between the activity and his employment’.

The issues on appeal

The employer argued the Chief Commissioner had not correctly applied the case law on six separate grounds. Many of the pleaded appeal grounds overlapped with one another. Essentially, the argument put forward was that the findings failed to look specifically at the task being undertaken which caused the injury; the Chief Commissioner had made several factual findings which were not supported by evidence; the Chief Commissioner erred in finding the employer had induced or encouraged the worker to engage in the activity; and that the Chief Commissioner failed to undertake a more rigorous analysis of the evidence available at the time of the hearing.

The decision on appeal

The first issue for Justice Geason to consider was whether the matter fell within the first limb of s25 of the Act. In this respect he noted that just because the worker was at a place (in this case on standby at Tullah) at the direction of his employer, did not mean that the injury sustained arose out of the employment. He noted that a "causal connection needs to exist between the performance of the employment duties, including something incidental to those duties, and the injury". It was his Honour’s opinion that the facts did not fall within that category, but rather, although the worker was in Tullah and within the required reception range and response time for responding to a call, the worker was engaging in a recreational activity (being walking the dog with his partner and trying to climb onto or over a log) when he injured himself. In his opinion, it was the act of stepping on the log that caused the fall which then led to the injury and as such, the nexus between the employment and the injury was not established. He therefore found that the question for consideration was whether the injury was sustained in the course of employment.

The second issue for consideration was whether this was an “activity case” or a “place case”. That is, whether the employer induced or encouraged the worker to engage in an activity which caused injury or, if the injury involved the worker being in a place, whether the employer actively induced or encouraged the worker to be there. The employer argued the case was an “activity case” and the worker argued it was a “place case” for the purpose of applying the test of “arising out of or in the course of employment”.

After agreeing with the employer that this was an “activity case”, his Honour found that there was no causal connection between the relevant causal act (being during a recreational walk, attempting to step or climb over a log and slipping and injuring himself) and the requirement to be in Tullah and within reception range. His Honour considered that the worker was engaged in a recreational activity "on his own volition and for his own purpose and in the course of that activity sustained the injury". His Honour then concluded that there was nothing in the evidence that led to the conclusion that the worker was injured in the course of an activity that was induced or encouraged by the employer. Therefore the worker’s injury was not sustained in the course of his employment for the purposes of entitling him to compensation.

Implications for you

This decision re-defines how workers compensation claims may be assessed for “on call workers”. When considering liability for a claim for “on call workers”, this case suggests that the fact the worker is told to be “on call”, which may mean within a particular range of a worksite to be able to attend work promptly, does not necessarily mean that should the worker injure him/herself that the injury was sustained in the course of his/her employment. It will be important for any employers who have “on call” workers to have clear stipulations around the requirements of being “on call” or available to work, to carefully consider any workers compensation claims made. This case also provides useful insights into liability for work injuries occurring at a location outside a traditional workplace.

Hydro Electric Corporation v Nazar [2022] TASSC 37

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