This case considers the principles set out in Hatzimanolis v ANI Corporation1, Comcare v PYVW2 and Pioneer Studios Pty Ltd v Hills3 to determine whether the claimant’s injury arose out of or in the course of her employment with the appellant.
Facts and background
The claimant had been successful in obtaining common law damages against the appellants as occupiers of the premises on which she had been injured. The appellants public liability insurer had argued that the claimant at the time of her injury was an employee. The primary judge found that her injury was not suffered in the course of her employment. The appellants appealed this decision.
Ms Vo was employed by the appellants as a part-time casual shop assistant employed to work at its Cabramatta store, Thu Phung Desserts. The claimant had fixed rostered working days on which she worked limited fixed hours as a casual employee. On the day of the incident, she went to the appellants store to purchase a drink and to meet her friend who was working there at the time. The claimant was not rostered to work on this day. Upon arrival, an employee of the appellant (and friend of the claimant) asked her if she would help clean the floor and the sugar cane machine. The floor was wet and the claimant slipped coming into contact with an operating sugarcane juicing machine. Her left hand was crushed causing significant injuries.
The issue involved whether the claimant’s injury arose out of or in the course of her employment with the appellant, as defined by section 4 of the Workers Compensation Act 1987 (NSW). The appellants contended that the claimant was a worker for the purpose of NSW Workers’ compensation legislation and that the proceedings had been improperly commenced as relevant pre-conditions had not been met.
At first instance, the primary judge found that the claimant’s injury did not arise out of or in the course of her employment with the appellant. The primary judge found that the claimant’s status as at the date of the accident was not as an employee of the appellants on the basis that she had fixed rostered working days, worked limited fixed hours each day as a casual employee and the appellants did not ask or direct her to work on the day she was injured. The primary judge also dismissed the argument that the claimant was working ‘overtime’ at the time of her injury as there was no express or implied request from the appellants for her to work in addition to her ordinary hours of work. The primary judge found that the evidence established that no request had been made by or on behalf of the appellants for the claimant to work for them on the day of her injury and indeed the evidence suggested that they were completely unaware of her presence on their premises on that day. The primary judge found that the relationship of employer/employee had no bearing upon the claimant’s presence at the shop premises on the day she was injured.
As the claimant had not been found to be an employee, the court accepted that the ‘occupiers liability’ proceedings were valid and awarded the claimant damages in the sum of $512,764.94. The appellants appealed the decision on the basis that the claimant was an employee at the time of her injury.
In relation to the issue of whether the claimant’s injury arose out of or in the course of her employment with the appellant, the Court of Appeal held that whether an injury has arisen in the course of employment requires consideration of whether the claimant was induced or encouraged by the appellant to be engaged in the performance of the activity that led to the injury (Hatzimanolis v ANI Corporation and Comcare v PYVW).
The court found that the claimant’s injury was not suffered in the course of employment as:
- The claimant was not encouraged or induced by the appellant to be at its premises at the time of the injury.
- The performance of the cleaning activity that preceded the claimant’s injury was not performed due to any inducement or encouragement by the appellants.
- There was no evidence that the employee who had sought the claimant’s assistance had the implied or ostensible authority to induce or encourage the claimant to help her clean the shop on behalf of the appellant.
Consistent with Pioneer Studios Pty Ltd v Hills, the focus should be on the objective assessment of what the employment is. As the claimant was not required to work by the appellants on the day of her injury, that she had attended the premises to purchase a drink and meet her friend working there and as the claimant was not performing a task her employer had induced or encouraged her to perform, the court held that there was nothing the claimant did as part of her employment that caused the injury.
This case is an example of the application of the principles set out in Hatzimanolis and Comcare v PVYW, namely, an injury occurring during an interval between normal working hours may be regarded as one arising in the course of employment in circumstances where the employer has induced or encouraged the employee to spend the interval at a particular place or perform a particular activity.
For injury to be held to arise out of employment, the critical enquiry is to determine what the employee actually did in employment with the employer and to then consider whether there was anything the employee did as part of their employment with the employer that caused the injury.