When I hear employers and Members talk of their experiences with the workers compensation system, I normally see the abject pain and helplessness displayed on their normally pleasant facial expressions.
Invariably, the issue of unfair liability arises from business owners who rightly claim many injuries seem to have originated from a previous employer, or outside an employee’s working time, yet somehow the medical profession and/or the court/tribunal system pulls them into a costly liability situation.
Well, never let it be said that I don’t provide good news stories to my FTMA flock! In a recent South Australian Employment Tribunal hearing (Power v Return to Work South Australia May 2019), a significant matter was dealt with where an employee sustained an injury at a work place function; namely, he fell over and hit his head after attending an awards night hosted by his employer.
Whilst the employee had not consumed alcohol during the ceremony, it was noticed by several witnesses that he was walking unsteadily, and his eyes were rolled back. It was observed the employee collided with a bathroom door handle before falling backwards and hitting his head on the hard bathroom floor.
A witness left the scene immediately to seek assistance as blood flowed freely from the back of the employee’s head and ears.
In the aftermath, the employee sustained serious head injuries and had amnesia from the injury and absolutely no recollection of the incident. He took the firm legal position that he had been attending the function at his employer’s request and therefore the injury was sustained in the course of his work.
The South Australian Employment Tribunal considered the incident as it applied to the State’s Return to Work Act 2014. This Act provides that for an injury to be considered work related and compensable, there are two basic requirements. Firstly, the injury must arise in the course of the person’s employment. Secondly, the worker’s employment must be a significant cause of the injury.
In this case, the judge found that only one of these conditions was satisfied. The judge found that while the injury had occurred in the course of the man’s employment, the injury arose from a pre-existing medical condition that just happened to manifest itself at work but without his employment being a contributing factor.
The key finding in this judgement was that his employment was not in any real or meaningful sense a significant contributing cause of the injury.
Now, none of this means that as employers we don’t need to take steps to limit liability when hosting workplace functions. TTIA has provided guidelines on this issue in the past which FTMA members are welcome to access.
However, the significance of this case is that it is not enough for an employee’s injury to occur in the course of his/her employment. The employment must also be a significant contributing cause of the injury.
This article was written by Brian Beecroft, CEO of Safety Experts TTIA.
