When an assault at work is compensable?

23 February 2016

A worker is assaulted one night after work at the mining accommodation village he was staying at. Are the injuries he suffered from the assault compensable?

That question was considered by the Industrial Court in a recent matter of Simon Blackwood (Workers Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001.

The worker, Mr Cumbers, was a small appliance technician, who worked at the MAC Moranbah mining accommodation village (MAC camp) and other sites in the area. All the sites were owned and operated by his employer, Civeo Pty Ltd (Civeo). After drinking with some colleagues, Mr Cumbers returned to his room and went to sleep. In the early hours of the morning, his door was opened from the outside and he was physically assaulted, causing soft tissue and psychological injuries.

Mr Cumbers lodged a common law only claim, which WorkCover rejected (finding that if Mr Cumbers had made a statutory compensation claim prior to lodgement of his common law only claim, such claim would not have been accepted because Mr Cumbers would not have been able to prove he sustained an “injury” within the meaning of s32 of the Workers’ Compensation and Rehabilitation Act 2003 (Act)). He lodged a review with the Regulator, who set aside WorkCover’s decision, substituting a decision Mr Cumbers’ claim was one for acceptance and, subject to assessment, he was entitled to claim damages. Civeo appealed to the Industrial Relations Commission (IRC) and the appeal was allowed on the basis Mr Cumbers’ employment was not a significant contributing factor to his injuries.

The Regulator appealed to the Industrial Court, primarily on the basis the IRC misapprehended s32 of the Act by erroneously confining its enquiry to the “cause” of the injury (the assault) rather than examining whether the employment was a significant contributing factor. Civeo cross appealed, asserting Mr Cumbers’ injuries did not arise out of or in the course of employment and sought to rely on the infamous case of Comcare v PVYW (2013) 250 CLR 246 (PVYW).

Martin J of the Industrial Court allowed the Regulator’s appeal. Whilst he noted that the assault was the immediate cause of Mr Cumbers’ injuries, he found that it was not the only contributing factor. The fact was Mr Cumbers’ employment led to the practical requirement to live at the MAC camp and “but for” that fact he would not have met nor been assaulted by the assailant. He was also induced and encouraged to stay at the MAC camp as part of his employment such that there was a practical benefit to Civeo in Mr Cumbers staying there.

Martin J, essentially, found that had Mr Cumbers not been at the MAC camp, he would not have been assaulted and, in those circumstances, the IRC erred in finding his employment was not a significant contributing factor to his injury.

Martin J then proceeded to determine Civeo’s cross-appeal, finding Civeo had not correctly described the second element of the PVYW test with respect to injury by reference to a ‘place’. In doing so, the Court confirmed the law pertaining to claims by workers who suffer an injury in an interval period while not engaged in actual work.

This article was written by Kyle Norton, Senior Associate and Graeme Traves, Partner.

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