Welcome to the latest edition of the HWL Ebsworth National Workers Compensation Bulletin.
We are delighted to bring you a series of articles reflecting recent developments across Australia.
We trust you will find this edition of our Bulletin helpful and informative.
Should you wish to discuss any of these articles in any more detail, please contact any of our partners.
The end of contributory negligence in ACT work injury damages claims?
In December 2020, Acting Justice Crowe of the Supreme Court of the ACT held that a breach of a statutory duty under the Work Health and Safety Regulation 2011 (ACT) did confer a right of action to claim damages.
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Applications for pre-approval for Arthroscopic surgery of the knee: to approve or not to approve
Arthroscopic knee surgery is one of the most common orthopaedic procedures in the world, however recent studies have revealed that this surgery is not effective in patients with degenerative knee disease, such as osteoarthritis. So what do you do if a worker submits an application for pre-approval of arthroscopic knee surgery? Should it be approved? Based on the available data, the consensus is that the application should be rejected.
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Employer conduct in relation to non-work related complaints
It is a sadly all too common occurrence that employers are faced with addressing complaints raised by co-workers relating to issues unrelated to their work. Commonly, these matters relate to bullying, physical and sexual assault and harassment that have not arisen out of or in the course of employment.
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A right of recovery in or outside the state?
Section 207B of the Workers’ Compensation and Rehabilitation Act 2003 (Act) provides a statutory right of indemnity to a workers’ compensation insurer, such as WorkCover Queensland, who has paid compensation to a worker who sustained an ‘injury’ within the meaning of the Act. To be entitled to compensation under the Act, a worker’s employment must be connected with QLD pursuant to s113 of the Act. However, is that the case for a right of recovery pursuant to s207B of the Act? The Court of Appeal recently determined that question in WorkCover Queensland v Wallaby Grip Limited & Anor [2021] QCA 11.
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‘Half wild, ill- tempered animals’ and sucking eggs: an employer’s duty to instruct
At common law, employers owe their employees a non-delegable duty to take reasonable steps to provide a safe system of work and a safe place of work. The scope of the instructions that an employer must provide to its employees in order to discharge that duty is, however, often the subject of dispute.
In the recent case of Gregory Spencer Ward trading as Ward’s Stock Transport v Watson [2021] WASCA 44, the Court of Appeal considered the issue of the level of instruction required to be given to experienced employees in order to provide a safe system of work.
The decision of the Court of Appeal is instructive. It is important for employers to appreciate and understand the level of instruction required to be given, even to vastly experienced long term employees.
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Off the (employment) leash? Employer liable for worker’s broken leg while walking his dog while on call in a remote location
In N. v Hydro Electric Corporation [2021] TASWRCT 2, the Workers Rehabilitation and Compensation Tribunal (Tasmania) considered the recurrent issue of whether an employer is liable for a worker injured whilst undertaking leisure activities at a remote location for work. Hydro Electric Corporation disputed liability for the worker’s claim for compensation on the basis that the worker’s injury did not arise out of or in the course of his employment when the worker slipped and fell on a wet log whilst on a walk with his partner and his dog.
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