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HG Insurance Alert: Co-worker’s assault on a FIFO worker at a mine site’s tavern was outside the ambit of their employment - 13 May 2015

In this alert, Partner, Robert Tidbury, and Solicitor, Matthew Boyce, discuss a recent decision of the Administrative Appeals Tribunal (AAT) in a case where an employee (the applicant) was assaulted and injured by a co-worker during a visit to a tavern in a small mining town where he was based.[1] 

Key Points

  • An injury suffered by an employee during a break from an overall period of work will only have occurred in the “course of employment” if it was suffered whilst either undertaking an activity or attending a venue, provided some aspect of the venue itself caused the injury, because they were induced or encouraged to do so by their employer.

  • A worker’s injury arising from an assault by a co-worker will only have occurred in the course of employment if there is a sufficient link between the injured party’s employment and the occurrence of the assault. 

  • An injury suffered by a worker following the conclusion of one shift and before the beginning of another will not have occurred during an ‘ordinary recess’ of that employment – it will have occurred between two ordinary discrete periods of employment.

Facts

The applicant was a fly-in fly-out worker employed by the respondent, BIS Industries Ltd (BIS).  During the two week periods he was required to work, the applicant resided at a BHP Billiton-owned Mining Camp in Western Australia.  At about 6.15pm on 26 March 2014, after the completion of one of his shifts, the applicant was invited to the Mining Camp tavern (Tavern) by a BIS colleague.

While attempting to leave the Tavern later that evening, the applicant was involved in a scuffle with another co-worker, who became aggressive after the applicant hugged a woman goodbye.  During the altercation, both parties fell to the ground, injuring the applicant’s right shoulder.

At first instance, the respondent employer was found not liable for the damage suffered by the applicant on the basis that the applicant’s injury did not arise out of, or in the course of, his employment with the respondent.[2]  The applicant sought to overturn this finding on appeal.

Decision

The major issue before the AAT was whether the applicant’s injury arose out of, or in the course of, his employment.  In this regard, the applicant relied on the case of Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis). 

Hatzimanolis provides a two-step precedent for the principle that:

  1. an interlude within an overall period of work will be considered to have occurred in the course of employment if an employee was induced or encouraged by his or her employer to spend that interlude at a particular place or in a particular way;[3] and

  2. an injury suffered by an employee during an interlude will have occurred within the course of employment if it occurred at that place (and was caused by some characteristic associated with that place)[4] or whilst the employee was engaged in that activity.[5]

The AAT found that the principles in Hatzimanolis were not applicable to the case at hand.  The respondent employer did not require or encourage the applicant to be at the Tavern.  Rather, the applicant’s attendance was merely the result of an invitation extended to him by his colleague.  However, even if Hatzimanolis did apply, the AAT found that the applicant still failed to satisfy the second part of the test in that he was neither engaged in a relevant activity, nor was the venue itself causative of his injury.  

The applicant also contended, in accordance with s 6(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA), that his injury was sustained due to an assault that would not have otherwise occurred but for his employment.  However, the AAT was satisfied that the dispute was personal in nature.  Therefore, the applicant failed to establish the necessary connection between his employment and the assault.

Finally, the applicant asserted, in accordance with s 6(1)(b) of the SRCA that the injury was sustained ‘while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment.’  Here, the AAT pointed to evidence suggesting that the applicant attended the Tavern socially.  Furthermore, no “ordinary recess” had occurred, as the assault happened whilst the applicant was visiting the Tavern between two separate and discrete periods of employment (i.e. the assault occurred between two separate shifts).

The AAT upheld the original decision.    

Case: Westrupp and BIS Industries Ltd [2015] AATA 298.

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[1] Westrupp and BIS Industries Ltd [2015] AATA 298.

[2] In accordance with s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

[3] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 617-18 (Mason CJ, Deane, Dawson and McHugh JJ).

[4] Comcare v PVYW [2013] HCA 41, [38]-[39] and [45] (French CJ, Hayne, Crennan and Kiefel JJ).

[5] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, 617-18 (Mason CJ, Deane, Dawson and McHugh JJ).