In the Course of Employment By Craig Bell | February 2011 Area of Expertise | Workers Compensation
Summary A worker who was injured on her way home from a Christmas party has had her appeal dismissed by the NSW Court of Appeal: Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365. TurksLegal successfully argued that the worker was not in the course of employment at the time of the incident and that s14 of the Workers Compensation Act (WCA 1987) did not apply. Furthermore, the journey provisions did not apply because of the worker’s blood alcohol level.
Who Does This Impact? Employers and workers compensation insurers.
What Action Should Be Taken? In this case the worker lodged a journey claim but ultimately argued she was in the course of employment. Employers and insurers should screen journey claims and determine whether there are other relevant issues. If so, they should undertake appropriate investigations.
The Facts The worker was employed as a sales representative. The employer supplied the worker with a motor vehicle to attend customers in metropolitan Sydney. The worker was able to use the motor vehicle outside working hours and use it for personal transport. Most of the worker’s duties were performed outside of the office but the worker was required to attend the employer’s premises two days per week for clerical matters, attending meetings and stocking her vehicle. The employer arranged a Christmas party at a bar in Sydney. The purpose of the party was to express thanks to the staff for their efforts throughout the year. The evidence of the employer was that the sales representatives were encouraged to leave their cars at home and if they did take the car to the party, there was no compulsion that they had to drive the car home. After finishing her duties at the employer’s premises on that day, the worker drove the work vehicle to the party at approximately 7.00pm. It was accepted that while the worker was at the party she was in the course of employment. During the party she consumed alcohol and then left at 2am. The employer, during the course of the night, expressly asked the worker not to drive due to her intoxication. Approximately one hour after leaving the party, the worker suffered significant injuries as a result of a motor vehicle accident on Epping Road, near her home. The worker’s blood alcohol level reading was 0.124. The worker lodged the claim as a Journey Claim, however amended the claim during the Workers Compensation Commission proceedings to allege that she was in the course of employment at the time of the injury.
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Relevant Legislation - Workers Compensation Act 1987 Section 4 – (a) injury means personal injury arising out of or in the course of employment. .... Section 10 – (1) personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment and compensation is payable accordingly. (1A) subsection 1 does not apply if the personal injury is attributable to the serious and willful misconduct of the worker. (1B) the personal injury received by a worker is to be taken to be attributable to the serious and willful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily. .... Section 14 – (1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time of the injury was received: (a) acting in contravention of any statutory or other regulation applicable to the worker’s employment, or of any orders given by or on behalf of the employer, or (b) acting without instructions from the worker’s employer, if the act was done by the worker for the purposes of and in connection with the employer’s trade or business. (2) If it is proved that an injury to a worker is solely attributable to the serious and willful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement. (3) Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.
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Insurer’s Position The insurer disputed the claim on the following bases: 1.
At the time of the incident the worker was not in the course of employment and therefore did not suffer an injury. Accordingly s14 of the WCA 1987 was not relevant.
2.
If the worker was on a journey, the blood alcohol level was in contravention of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and therefore the injury received by the worker was attributable to serious and willful misconduct and thus the journey provisions did not apply (Section 10(1A) and 1(B) of the WCA 1987).
Arbitral Decision At first instance, the Arbitrator found that the injuries suffered arose out of or in the course of employment primarily because the worker was using a vehicle supplied by the employer and as such, the journey provisions did not apply. This was despite the Arbitrator’s finding that the worker drove in contravention of orders given by the employer. The Arbitrator also found that the defence in Section 14 of the WCA 1987 did not apply because the injury did result in the serious and permanent disablement of the worker.
Decision of the Deputy President The insurer, represented by TurksLegal, appealed the Decision of the Arbitrator. Deputy President O’Grady found that the worker was not in the course of employment once she elected to drive the staff motor vehicle. This was because the worker disobeyed directions of the employer not to drive and because of her decision to drive having such a high blood alcohol concentration. He found that Section 14 did not apply because the worker had not established that she was in the course of employment and therefore had not established ‘injury’. He concluded by finding that the worker was disqualified from compensation due to the operation of Section 10(1A).
Decision in the NSW Court of Appeal The worker appealed the decision of the Deputy President. The appeal was heard by McColl JA, Basten JA and Handley AJA. Basten JA and Handley AJA dismissed the appeal on the following basis: 1.
The Deputy President’s decision that the worker was not in the course of employment at the time of the injury was not based on legal error and such a decision could not be disturbed.
2.
Section 14 did not apply because Section 14 assumes that an injury arising out of or in the course of employment has been established.
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Handley AJA: ‘202. It cannot be said that the employer expressly or impliedly induced or encouraged the worker to drive herself home in the company vehicle. Her employer prohibited her from doing this and the worker is not protected from the consequences of her deliberate disobedience by s14(1) because the act of driving home was not done for the purposes of and in connection with the employer’s trade or business. I also reject the appellant’s general submission that her entitlement to use a company vehicle for private as well as corporate purposes brought all her driving of the vehicle for private purposes within the course of her employment. ‘
Conclusion This case is an example of how the words ‘in the course of employment’ can be interpreted. It also confirms that the worker must prove ‘injury’ as defined in the legislation before s14 can be applied.
For more information, please contact: Craig Bell Partner T: 02 8257 5737 craig.bell@turkslegal.com.au
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