Service station brawls and 2am falls, can they result in compensable injuries?
With the silly season approaching, these recent decisions on injuries that occur in circumstances that are not ordinary to the workplace, serve as a useful reminder of how the Tribunals assess whether injuries arise ‘in or out of the course of employment’. In the Tribunal’s words, they must pass the pub test.
When do injuries away from the workplace arise in or out of the course of employment.
Dring worked for Telstra in Brisbane but was required to travel to Melbourne for work. Telstra arranged and paid for her accommodation and flights, and paid her incidental expenses. Dring worked in her hotel room until 6pm. She and a friend shared a bottle of wine in the hotel room. They left the hotel for dinner at 8pm. At 11:30pm they left the restaurant and attended a bar, where they stayed until 1:50am. Dring returned to the hotel at 2:15am. She urgently required the bathroom and used the bathroom in the hotel foyer. As she exited the bathroom she slipped over on the wet floor which had recently been mopped. She suffered an injury and made a workers’ compensation claim.
Telstra denied liability under the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) on the basis that the injury did not arise out of, or in the course of, her employment with Telstra (s5A). Dring applied to the Administrative Appeals Tribunal for a review of that decision, who affirmed the decision that Dring was not entitled to compensation.
O’Loughlin worked as a tanker driver for Linfox. He delivered a load of fuel to a service station. He discharged the fuel from his tank, and whilst waiting for the hoses to empty, a car entered the service station and started tooting its horn. A mechanic from the service station approached the car, yelling abuse and hitting the car. O’Loughlin told the mechanic to ‘cut it out’. The mechanic told O’Loughlin to ‘mind your own business’. A verbal exchange followed and ultimately a physical altercation which was instigated by the mechanic. O’Loughlin was injured and made a workers’ compensation claim.
Linfox denied liability under the Act on the basis (inter alia) that the injury did not arise out of, or in the course of, his employment with Linfox (s5A). O’Loughlin applied to the Administrative Appeals Tribunal for a review of that decision. The Tribunal decided in O’Loughlin’s favour. Linfox then appealed to the Federal Court (and ultimately Full Court on a different issue) who determined that O’Loughlin was entitled to compensation.
Dring’s position relied upon Comcare PVYW  HCA 41 and Hatzimanolis v ANI Corporation Ltd  HCA 21 as follows:
- The injury arose out of, or in the course of, her employment as it was sustained during an overall period of work. This is on the basis that she was required to travel to and from Melbourne for employment purposes;
- Alternatively, the injury occurred at the hotel where she was required to stay, as arranged by Telstra, and occurred because there was a hazard present, being the wet floor.
The Tribunal disagreed with Dring’s argument, determining that the injury occurred between two discrete periods of work. Whilst Dring was required to stay at the hotel and attend dinner as part of her work related travel, the extent and duration of Dring’s personal activity broke the nexus with her employment.
Further, the injury arose by reference to the activity which she had been engaged in; socialising with a friend for more than 8 hours, without her employer’s inducement or encouragement. This activity can be distinguished from eating, bathing or sleeping which would ordinarily be induced or encouraged by an employer.
In contrast, it was the employer who was unsuccessful in O’Loughlin’s case. It was Linfox’s position that:
- The injury occurred during an interval within O’Loughlin’s overall period of work (relying upon PVYW and Hatzimanolis) on the basis that O’Loughlin had discharged the fuel from his tank and that was the end of his work task at the service station;
- Alternatively, the injury was not sustained ‘in the course of’ his employment as his work duties do not include fighting (relying upon Martin v Bailey  VSCA 263 and a number of cases referred to therein).
The Court dismissed the first ground on the basis that the task had not been completed, as O’Loughlin had not yet packed away the hoses nor the safety cones that were around the tanker. Further, he likely had additional work duties to complete after leaving that service station, such as further deliveries. In these circumstances the Court will not divide workers duties into discrete tasks and interpret time between those tasks as an interval in employment.
On the second ground, the Court accepted that O’Loughlin’s employment duties did not include engaging in a fight with a member of the public. However, Martin v Bailey supports the proposition that an injury resulting from an altercation occurring whilst working is unlikely to arise in the course of employment if it originated from a private quarrel or personal grievance where the worker is the aggressor. The Court said the exchange and physical altercation must be taken as a whole and in this case O’Loughlin was not the aggressor as he had merely asked the mechanic to ‘cut it out.’ It was the mechanic who responded with aggression.
Implications for you
Injuries arising in abnormal work circumstances such as these may be compensable. It is not a black and white issue. The key for employers and their insurers is to conduct detailed investigations into all of the circumstances, so that the Tribunals can consider whether the circumstances pass the pub test.