In this alert, Senior Associate Jacqi Marshall and Solicitor Hannah Staunton discuss the recent decision of Huhu v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 021 where the Industrial Court of Queensland upheld the Queensland Industrial Relations Commission’s decision to deny a truck driver access to workers’ compensation after suffering a lower back injury while cleaning a work truck at home on the weekend.

Facts

In January 2014, Mr Huhu (worker) commenced employment as a truck driver with Anything’s Possible Transport Pty Ltd (employer).  The workers’ normal hours of work were from Monday to Friday.  He did not work overtime. 

On Friday, 7 February 2014 the worker drove the employer’s truck home after he completed his work shift.  Allegedly, while cleaning the truck on 9 February 2014, the worker fell to the ground and subsequently injured his lower back when the door handle snapped off as he was climbing into the cab of the truck.  

The worker lodged an application for compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Act) but his application was rejected by WorkCover Queensland on the basis that he failed to satisfy section 32(a) of the Act which provides that an injury (for which compensation is payable) is a personal injury arising out of or in the course of employment, if the employment is a significant contributing factor.  The Workers’ Compensation Regulator (Regulator) confirmed WorkCover Queensland’s decision.  

The worker unsuccessfully appealed the Regulator’s decision in the Queensland Industrial Relations Commission (QIRC).  He argued that his injury did arise out of or in the course of his employment for the following reasons:

  • the truck was his office;
  • he was induced or encouraged to clean the truck because his employer expected that the truck remain clean;
  • cleaning products were kept in the truck for cleaning purposes;
  • other workers cleaned their respective trucks on the weekends;
  • the employer never specified where the cleaning should be performed; and
  • he told the employer that he was going to clean the truck on the weekend.

The QIRC preferred the evidence submitted by the owner of the employer company over the worker’s own evidence and found that the employer did not permit the worker to take the truck home on the weekend, and that the cleaning required was simply to remove any rubbish which might be accumulated in the cab of the truck at the end of his work shift.  

Latest Appeal

The worker appealed the QIRC decision to the Industrial Court of Queensland before Justice Martin.  Although there were a number of grounds for appeal, the worker’s main ground for appeal was that the QIRC erred by wrongly concluding that his injury did not arise out of or in the course of his employment.  

Judgment

Justice Martin delivered judgment against the worker on 13 August 2015.  In reaching a decision His Honour applied the test established by the High Court in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 which was later revisited in detail in Comcare v PVYW  (2013) 250 CLR 246. 

The Hatzimanolis test requires consideration of how the injury was brought about and whether the employer induced or encouraged the worker to be engaged in the activity.  His Honour found that the employer did not induce or encourage the worker to take the truck home and clean it over the weekend and, consequently, that he was not engaged in employment, nor was he doing anything incidental to his employment at the time of the incident. 

Take Away Points

The Queensland courts have made it clear in numerous recent decisions including Ziebarth v Simon Blackwoodand Campbell v Australian Leisure & Hospitality Group Pty Ltd & Anor[1] that the Hatzimanolis test will be applied when considering whether a worker has satisfied the definition of injury imposed by section 32 of the Act when his or her personal injury was suffered during an interval or interlude.

Other jurisdictions within Australia are also adopting a similarly narrow view when determining whether an employer induced or encouraged a worker to engage in a particular activity.  In the recent decision of Pioneer Studios Pty Ltd v Hills, a worker was denied access to workers’ compensation after having sustained personal injury at a party held at the employer’s premises.  Similarly in the decision of Westrupp and BIS Industries Ltd a worker failed in his claim for compensation as he could not prove that his employer required or encouraged him to be at a tavern on a mine site when he was assaulted.