Interstate work ‘trips’ and employer liability for workers compensation

Introduction

In its recent decision of Dring v Telstra Corporation Ltd [2021] FCAFC 50, the Full Court of the Federal Court upheld an earlier decision of the Administrative Appeals Tribunal (the Tribunal) rejecting an employee’s claim for compensation following an injury she suffered whilst interstate attending a workshop organised by her employer, Telstra Corporation Limited (Telstra). The decision confirms that an employer will not be liable to compensate an employee for an injury they have suffered purely by being present at a place their employer required them to be.

Facts

Ms Danielle Dring was employed by Telstra in Brisbane. In April 2016, Telstra arranged for Ms Dring to attend a workshop it had organised that was being held in Melbourne. They booked Ms Dring into the Novotel Hotel on Collins Street so that she could attend this workshop. One night during her stay in Melbourne, at approximately 2:30am, Ms Dring slipped and fell outside a bathroom that had just been cleaned near the reception area of the hotel and suffered injuries to her hip. She was returning from a weeknight out with a friend who lived in Melbourne which had lasted roughly eight hours.

Ms Dring made a claim against Telstra for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), claiming that she had suffered an injury “arising out of, or in the course of” her employment. Telstra rejected her claim for compensation.

Decision of the Administrative Appeals Tribunal

Ms Dring sought a review of Telstra’s decision in the Tribunal where the decision not to pay compensation was upheld.

In affirming Telstra’s original decision, the Tribunal placed significant emphasis on the interpretations of the phrase “arising out of, or in the course of” employment adopted by the High Court in the decisions of Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 (Hatzimanolis) and Comcare v PVYW (2013) 250 CLR 246 (PVYW), and by the Full Bench of the Federal Court in Westrupp v BIS Industries Limited (2015) 238 FCR 354 (Westrupp).

In particular, the Tribunal emphasised the effect of these decisions in confirming that an injury suffered by an employee at a particular place is not compensable where an employee is merely present at that place at the direction of their employer. Instead, for injuries that occur at such a place to be compensable by the employer, the employee must have been engaged in an activity that had been “encouraged or induced” by their employer.

Considering the circumstances of Ms Dring’s case, the Tribunal concluded that her injuries occurred due to activities she engaged in without Telstra’s encouragement or inducement, specifically, socialising with a friend for more than eight hours until approximately 2:30 am. Accordingly, the Tribunal found that the extent and duration of Ms Dring’s personal activities broke the connection between her employment and her presence in the hotel foyer. Consequently, the injury did not arise out of, or in the course of, her employment and she was not entitled to compensation under section 14 of the Act.

Decision of the Full Court

Ms Dring appealed the Tribunal’s decision to a single Judge of the Federal Court, who upheld the Tribunal’s decision. She then appealed that decision to the Full Court of the Federal Court, which unanimously dismissed her appeal and upheld the Tribunal’s and the single Judge’s decisions.

Ms Dring’s argument on appeal essentially stated that she would not have been present at, and accordingly would never have slipped over in the foyer of, the hotel in Melbourne if she was not required to be there by her employer. She argued that her presence there was sufficient to find compensation for the injuries she suffered and that the time at which she suffered the injury was irrelevant. She also submitted that this was the natural conclusion that arose from a correct application of the decisions in Hatzimanolis, PVYW and Westrupp as considered by the Tribunal.

Justice Flick of the Full Bench rejected this argument for multiple reasons. Most relevantly, His Honour concluded that the Tribunal had not made any error in applying the decisions in Hatzimanolis, PVYW and Westrupp.

Following an earlier detailed discussion of each decision and the circumstances of each of those cases, Justice Flick particularly emphasised that the Tribunal properly understood the effect of those decisions as being that an employee’s mere presence at a place they are required to be at by their employer does not automatically attract compensation for any injury suffered there. Instead, an injury at such a place still requires there to be a connection between the injury and the course of employment. The Tribunal was found to have this correct understanding even if at times its expression of such understanding was clumsily worded.

Justice Flick also confirmed the Tribunal’s finding that Ms Dring’s hip injuries did not occur merely as a result of her presence at the Novotel Hotel booked by her employer. Instead, these injuries occurred due to the activities she had engaged in that night which she had not been encouraged or induced to do by Telstra, but that she had engaged in of her own accord. Accordingly, Ms Dring broke the connection between her employment and her presence in the hotel foyer at the time of her slip, and her injuries did not arise out of, or occur in the course of, her employment.

Justices Rangiah and Wigney of the Full Court agreed with the reasons to uphold the Tribunal’s decision given by Justice Flick and dismissed Ms Dring’s appeal. Justice Wigney also particularly stressed that each of Hatzimanolis, PVYW and Westrupp made it clear that an employer is not to be held responsible for everything that occurs while an employee is present at a place which their employer required them to be at. If this was the case then the employer would effectively be the “insurer” if an employee suffers an injury at that place.

Take Home Messages

This decision clarifies that the Tribunal was correct to find that an employer will not be liable to compensate an employee for an injury an employee suffers merely because they have directed the employee to be at a specific place.

Nonetheless, it remains prudent for employers to do their utmost to ensure that employee safety is not compromised, and consequently the employer is not potentially exposed to injury compensation claims, when they require an employee to be at a place other than the employer’s primary place of business. This advice flows from Justice Wigney’s warning that cases such as this are difficult, and that different decision makers may come to different conclusions on whether the connection between an employee’s employment is broken by the place they are in and the particular activities they are engaged in at the time of injury.

For more specific information on any of the material contained in this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Ganesh Krishnan on +61 8 8217 1395 or gkrishnan@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.