October 2012

Court of Appeal explains connection between employment and injury

Bartier Perry successfully appealed the Commission’s decision in Pioneer Studios Pty Limited v Kathryn Hills [2012] NSWCA 324.  The Court of Appeal unanimously held the evidence did not support the Commission’s conclusion there was a causal link between the worker’s employment and the injury sustained at a social event held on the employer’s premises. 

In this Bartier Bulletin, we review the events leading up to the social event and the subsequent injury, as well as the legal principles underlying:

  • the connection between employment and work injury; and
  • the intervention by the Court of Appeal where Commission findings were not supported by evidence or a conclusion could not be reasonably made.

The Court found the Deputy President did not direct himself according to law as he failed to address the evidence of what the worker was in fact doing in her employment that caused or contributed to the injury.  This was found to be essential to any determination of whether an injury arose out of employment and whether employment was a substantial contributing factor to the injury. 

Facts

A male worker, together with two of his flatmates, organised a party to celebrate their birthdays and as a farewell for the male worker who was leaving the company.  The flatmates had no employment or other relationship with the employer.  The employer made no financial contribution to the event, but permitted the use of one of its studios. 
Invitations were sent out by the party organisers.  Kathryn Hills, other employees and a number of outsiders were invited and attended the party.  The party started on a Saturday evening.  Hills suffered serious injuries when she fell over a balustrade.  The injury occurred at about 2.00am on the Sunday morning. 

Hills alleged she was invited to the party by the proprietor or her co-worker and was told it would be a good opportunity for her to meet clients and socialise with staff members.  The proprietor of the insured denied this.  The co-worker agreed she may have urged Hills to attend the function, but denied she mentioned it would be an opportunity to meet clients.

Findings

The Court of Appeal unanimously held the relevant test for determining the connection between employment and the injury is an objective one.  Any connection depends on what was actually required of an employee by the employer, and what an employee actually does, rather than the employee’s subjective impression of what was required. 

The Court considered it was essential to identify the specific requirements or tasks of the employment in order to determine the relationship between the injury and the employment. 

The Court considered social events and recreational activities can form part of the course of employment if such activities are encouraged and supported by the employers in terms of commitment of time and resources to organising the events.

The Court of Appeal also accepted it can intervene, as it did in this case and send a matter back for re-consideration and application of the correct law,  where:

  • A finding of fact made by the Commission is not supported by the material before it, or
  • The conclusion reached was not a conclusion that could reasonably be made.

Key Messages

The Court noted that the eroding of clear boundaries which define employment did not mean there were no boundaries.  In fact, the decision suggests the blurring of boundaries results in much closer scrutiny of factual circumstances. 

Employers ought to review the scope of employment and related activities.  Persons in authority need to make conscious decisions about what is and what is not an employment related event and ensure the employer’s actions reflect those decisions, including directives to employees and the commitment of time and resources.

The decision directs that the course of employment is determined by the employer and by a person in authority.  This includes what a worker is required to do as well as an assessment of what a worker actually does in that employment. 

For the determination of any claim, evidence addressing both these factors will be essential.  This would include evidence from persons in authority and job descriptions as well as evidence of a worker’s actual employment activities. 

Click Here to read the full decision.

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