Tribunal: Deputy President Stephanie Forgie
The applicant, an employee of the Department of Human Services (DHS), lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). She lodged her claim in respect of an injury when she fell and hit her head walking from her car in a Car Park connected to the building she worked in. On 11 November 2016, a delegate of Comcare accepted that the applicant had sustained a head injury – mild concussion, positional vertigo, neck sprain and lumbar back pain. The delegate did not accept that Comcare was liable for her injuries on the basis that they had not arisen out of, or in the course of, her employment. Another delegate of Comcare affirmed that decision on 3 January 2017. On 21 March 2018, the Administrative Appeals Tribunal set aside the decision and replaced it with a decision that the injury was sustained in the course of her employment.
Whether or not the applicant was entitled to compensation depended on whether the injury arose out of, or in the course of, her employment. Section 6(1) of the SRC Act lists a number of circumstances where this may be regarded as occurring. The Tribunal highlighted that where the circumstances in question cannot be brought within one of the specific circumstances described in the list, then the introductory words of section 6(1) of the SRC act can be relied on. These words explicitly state that the circumstances in which an injury may be regarded as arising out of, or in the course of, employment was not limited to the list.
The Tribunal concluded that the circumstances of the matter before it, where the injury took place in the entrance of the workplace, did not fit into any of the circumstances listed. Therefore, the Tribunal considered whether the general opening words of section 6(1) permitted an injury that takes place in an entrance to a workplace, as was the case in the matter at hand, could be considered as arising out of, or in the course of, employment. The Tribunal found that it did not arise out of her employment because it was clear her fall did not relate to the specific work she did. Therefore, the question before the Tribunal was whether the injury occurred in the course of her employment.
The Tribunal noted that the majority in the High Court case of Comcare v PVYW [2013] HCA 41 observed that the expression “course of employment” covered not only the actual work done by an employee, but also what was incidental to it. The Tribunal explained that to determine whether this was the case one needed to answer the question “how was the injury brought about?” The question can be answered by reference to the employee being in a particular place or carrying out a particular activity. Having identified which is relevant, the next question becomes “did the employer induce or encourage the employee to be at that place/undertaking that activity?”
The Tribunal applied the current facts to these questions. It found that DHS took responsibility upon itself for the management of the car park. The applicant was in the Car Park and in a Car Parking Bay that DHS had the use of under its lease because DHS permitted the applicant to be there. Had she not been rostered to use that Car Parking Bay, she would not have been there. In other words, the applicant was only in the Car Park because she was an employee of DHS and permitted by DHS to use one of the Car Parking Bays. The Tribunal concluded that the applicant’s presence in the Car Park was incidental to her employment and therefore the injury was sustained in the course of her employment.
Read the full written decision on Austlii.