Magistrates Court of Victoria
PAOLO ALOI v VICTORIAN WORKCOVER AUTHORITY (31 October 2013)

FACTS

The Plaintiff was a construction labourer, employed by Edcor Constructions working on site at the Swinburne Campus in Hawthorn.

At the end of his shift on 27 January 2010, the Plaintiff assisted in closing up the worksite by installing orange safety netting, with one side facing towards the worksite and the other side facing a public street, namely, William Street.

The Plaintiff left the site, entered his vehicle and was heading home when he realised that he had forgotten his wallet on site. He paid for his ticket with change found in his car and exited the carpark. He then walked back to the worksite with the intention of retrieving his wallet, stepped over the orange safety netting and fell onto the footpath on the William Street side, suffering injuries to his hand.

The Plaintiff lodged a claim for compensation which was initially accepted and thereafter terminated on the basis that the Plaintiff had not suffered a work injury as he suffered injury after he had finished work and whilst on his way home. The Defendant submitted that the Plaintiff's return to the worksite for the purposes of retrieving his wallet was unrelated to his employment and furthermore, the Plaintiff was not injured on the worksite but on the public street.

The Plaintiff sought compensation, claiming that the injuries sustained fell within the course of his employment. In support of this position, specific reference was made to the Plaintiff’s need to retrieve his wallet as it contained his red builders card, which he stated was required to show on site for work purposes.

Edcor gave evidence that the Plaintiff was not required to carry his builder's card at all times. Their requirements were met in the OH&S site induction process when the Plaintiff presented his builder's card. 

THE HENDERSON PRINCIPLE

The question before the Court was whether the Plaintiff's injury arose out of or in the course of employment or whether his injury was incidental to his employment. This is known as the Henderson principle.

His Honour made specific reference to the decision handed down by the Full Court of the Supreme Court of Victoria in Hickox v Education Department [1974] which endorsed the objective Henderson principle, as follows - 

 "Where a worker, whilst not performing the actual duties of his employment, was caused injury at a time and place doing something which might be regarded as reasonably incidental to, consequential upon or ancillary to, his employment - not necessarily being required to be done as part of his obligations as an employee, but rather as something that would be reasonably required, authorized or expected of the worker by his employer, as inferred from the facts and circumstances of the existing relations between the worker and the employer - then the worker is entitled to compensation as having suffered injury in the course of his employment".  
 

JUDGMENT 
 

The Court dismissed the proceeding, finding in favour of the Authority.

Although his Honour discussed the application of the Henderson test to the factual circumstances in great detail, the basis of his decision was in fact not the overall circumstances of the fall but where the injury actually occurred - being the “non-work” side of the orange netting (William Street public footpath).

His Honour noted that although the William Street footpath formed "part" of the worksite, it was also open to pedestrians and the public to use, therefore the Plaintiff suffered injury when he stepped over the worksite netting and onto the public footpath.

When applying the Henderson test, His Honour noted that the Plaintiff was not "reasonably required, authorised or expected" to carry his builder's card on him at all times whilst on site. Edcor requested the production of the builder's card once only at the Plaintiff's site induction and was not required to enable the Plaintiff to carry out his duties on site. Therefore, His Honour concluded that the absence of the card did not have any impact on the Plaintiff's ability to carry out his work duties. 

Following that reasoning, His Honour held that the Plaintiff had returned to the worksite for the purposes of retrieving the entire contents of his wallet (not just his builder's card) and the mere action of returning to his workplace was not "incidental to" his employment. Even if the Plaintiff successfully established a connection between the action of returning to the workplace to retrieve his wallet for the purposes of performing his work duties, His Honour noted that this was further insufficient to establish a causal nexus between employment and injury for the purposes of section 82(1) of the Act.

DISCUSSION

In the above case, His Honour's focus when considering whether the injury sustained was "incidental to" employment was moreso on the place the injury occurred rather than the purpose of the Plaintiff's return to his worksite.

Applying the same factual scenario above, we question whether the Court would have arrived at the same decision if the Plaintiff had fallen on the other side of the orange netting (that is, on the worksite and not on a public footpath).  

Although His Honour does not specifically discuss the flip side of his reasoning, he does qualify his findings by stating that each case is to be considered on its own merits.  We believe the Henderson principle will weigh more heavily in such circumstances (that is looking at the reasons why the Plaintiff was present at the site and any causal nexus between the purpose for return and the injury) when determining whether an injury is “incidental to” employment. 

Application of the above reasoning is not so transparent in circumstances where a Plaintiff returns to the worksite to retrieve a swipe card, required to access the work site. In this scenario, on balance a Court will find the injury occurred in compensable circumstances.