Simon Blackwood (Workers’ Compensation Regulator) v Civeo Pty Ltd and Anor  ICQ 001
The Industrial Court of Queensland has overruled a decision of the Queensland Industrial Relations Commission regarding whether a worker who was injured while sleeping, fell within the parameters of the Workers Compensation and Rehabilitation Act 2003 (Qld) (Act).
The employee (Mr Cumbers) was employed by the respondent, now known as Civeo Pty Ltd (Civeo), as an appliance technician. Civeo owned five mining accommodation campsites in the Bowen Basin region in Queensland. Mr Cumbers was required to travel between the campsites to service each campsite’s commercial appliances.
On 15 December 2010, Mr Cumbers finished work at the Moranbah campsite and subsequently joined a group of people, which included coworkers, at the Civeo Moranbah mining accommodation village. Mr Cumbers consumed alcohol and smoked marijuana. Mr Cumbers returned to his onsite accommodation and went to sleep. In the early hours of the morning, the door to Mr Cumber’s employee room was opened by an intruder with a master key and the intruder assaulted Mr Cumbers. The intruder was present at the gathering the afternoon before, however, was not an employee of Civeo. Mr Cumbers suffered physical and psychological injuries as a result of the assault.
Mr Cumbers filed a Notice of Claim for Damages in respect to the damages he suffered. The Regulator accepted the claim. Civeo appealed the decision of the Regulator to the Commission. The Commission held Mr Cumbers was a worker for the purposes of the Act and held his injuries arose ‘out of, or in the course of employment’. However, the Commission held the employment of Mr Cumbers was not a significant contributing factor to the injury suffered (the second element of the test of whether someone is a ‘worker’) citing the fact that there was no relationship between the appellant and the assault and that it was not a condition of his employment that he stay at the campsite.1
Mr Cumbers appealed the decision to the Industrial Court of Queensland, contending the Deputy President erred in applying the test under s 32 of the Act.
The Industrial Court was required to determine the following critical issues:
- Whether the injuries arise out of or in the course of employment; and
- Whether the employment was a significant contributing factor to the injury?
Arise out of or in the course of employment
The court rejected the argument of Civeo that the injuries suffered by Mr Cumbers were as a result of the actions of a third party. The court commented that Civeo misconstrued the test and the proper inquiry was how the injury was brought about.2 As the injury occurred at and by reference to a ‘place’, the court was required to consider whether Civeo induced or encouraged Mr Cumbers to be there. The court held Mr Cumbers’ injury was held to have arisen out of or in the course of employment, reasoning the injury occurred by reference to a place (the campsite) where Civeo had induced or encouraged Mr Cumbers to be.3
Employment as a significant contributing factor
The Industrial Court provided a lengthy discussion concerning employment as a significant contributing factor to injury. The court highlighted an approach must incorporate a practical element in order to allow for exigencies of employment.4The court emphasised the nature of Mr Cumbers’ employment led to a practical requirement for him to live at the campsite during his work cycle. Further, but for this practical requirement, Mr Cumbers would not have been assaulted.5The court commented that Mr Cumbers was assaulted while doing something which Civeo intended him to do by allowing him to be accommodated in the campsite. The court reasoned the fact Mr Cumbers was encouraged to stay at Civeo’s campsite must be taken as an exigency of his employment.6 Further, the campsite was a closed environment, not open to the general public and was subject to the rules of Civeo.
Despite the key being forcibly removed from the housekeeping supervisor, the court held this did not mitigate the liability of Civeo. The court identified the system employed by Civeo for security of the key and the injury of Mr Cumbers was connected. The court explained the system used to administer the keys was insufficiently secure and this facilitated access to Mr Cumbers’ room.7
Lessons to be learned
This decision considers an instance on the outer edge of what is considered to fall within the boundaries of the Act. On its assessment of the facts, the Industrial Court of Queensland has continued with its broad interpretation of whether the injury arose out of or in the course of employment, and whether employment is a significant contributing factor to the injury. Further, the court gave attention to practical considerations such as inducements and encouragements made by employers to employees and how these can become an exigency to a worker’s employment.
This decision should prompt public liability insurers to carefully consider the facts of a claim made by a worker whose circumstance does not fall within the traditional domain of scope of employment. Insurers should evaluate whether a WorkCover policy instead of a public liability policy would apply in light of the recent broad approach taken by courts.