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Employee injured while on-call – who's responsible?

17 June 2022

The Court's decision in Hydro Electric Corporation v Nazar [2022] TASSC 37 has narrowed the concept of arising 'in the course of employment'.

Hydro Electric Corporation v Nazar [2022] TASSC 37

Facts

On 25 May 2018, the employee (Worker) was walking with his partner and dog along Tullah lakeside when he slipped and fell on a wet log fracturing his left femur. 

At the time of injury, the Worker was employed as a relief area co-ordinator for Hydro Tasmania (Employer). The Worker was on-call at the Employer's Tullah accommodation, having commenced a seven day shift on 24 May 2018. 

The Worker received an on-call allowance for each day of the shift and resided in the accommodation provided by the Employer. The Employer's requirement for on-call workers was to answer the phone/respond to a call within 15 minutes of notification, be in a position to respond within 15 minutes of a phone notification, be fit to drive, rested to levels which enabled reasonable response and remain within suitable response times to the area of call coverage (i.e. not travel to other States). 

The Employer otherwise did not limit activities that may be performed by the Worker during their on-call shifts.

First instance decision

The Chief Commissioner considered the general nature, terms and circumstances of the employment (Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 was applied) as well as having regard for the place, time and circumstance of the activity being undertaken. 

Looking at these factors, the connection between the injury and employment became less remote. The evidence was that the Employer was in control of the Worker given he was limited in the activities he was able to perform (being on-call, able to respond within 15 minutes, and stay within mobile reception range).

The Chief Commissioner determined that the Worker's injuries arose in the course of employment, as the Worker walked with his partner and dog while remaining in mobile reception areas (to stay on-call), and was within the scope of the activity that the Employer had encouraged or induced the worker to undertake.

At appeal

Justice Geason overturned the Tribunals' decision—the Employer did not induce or encourage the act causing the injury. Within the course of the recreational walk, the Worker slipped and sustained an injury attempting to climb over or onto a log—this is the relevant causal act. 

There is not the required causal connection between the Employer's requirement that he be in Tullah and within mobile coverage area. Walking that day was not foreign to the Employer's interests but this is not material. What is material is the fact that the Worker was engaged in a recreational activity in his own volition and for his own purpose, and in the course of that activity sustained the injury. The fall is outside of the concept of an injury occurring in the course of employment and is not compensable. 

Take home

This decision narrows the concept of arising 'in the course of employment'.

The nature, terms and circumstances of the employment, in addition to the time place and circumstances of the worker must be taken into consideration.

If you require further information or have any queries in relation to this legal update, please contact Marissa Coward.

We would like to acknowledge the contribution of Maria Clemente (Solicitor) to this article.

Further Reading