OCCUPATIONAL HEALTH & SAFETY
Commencement of Safe Work Australia Act 2008
In our May 2009 Safety Law e-update we commented on the re-introduction of the Safe Work Australia Bill into Parliament. 

The Safe Work Australia Act 2008 (Cth) commenced on 1 November 2009 and is responsible for establishing Safe Work Australia.  The body will develop the Model OHS Act which will be designed to create a nationally consistent OHS legislation.  The uniform OHS legislation is expected to commence on 1 January 2012.

Employers Have No Duty to Ensure Safety of “Heedless” Workers
In January 2004 a Jabbs Excavations (Jabbs) labourer was picking debris off the ground at a Sydney demolition site when a reversing bulldozer struck him.  The labourer suffered serious injuries to his right leg and made a personal injury claim.

During the initial proceedings in the District Court, Judge Gibb found that Jabbs had provided induction and toolbox meetings on how to work safely in the vicinity of bulldozers.  The worker attended these meetings.

Judge Gibb found that despite the warnings, the worker “…wandered off heedless of the danger to him…” into the blind spot of the bulldozer. 

Employers have a duty to ensure all workers, including those who are inattentive, are safe however, Judge Gibb stated that “It seems intuitively difficult to maintain the position that a worksite system should preclude operation of machinery in part or in whole whenever a manual worker not involved in the actual operation of the machine eludes surveillance or walks alone.”

Judge Gibb found that Jabbs had provided a safe system of work and there was no act of casual negligence on the part of the driver of the excavator. 

The worker appealed.

Justices Ipp, Young and Handley agreed with Judge Gibb and dismissed the worker’s appeal.  Their Honours found that the worker was aware that the bulldozer emitted a beeping noise while it was in operation and that workers were required to keep a specified distance from the bulldozer while it was in operation.  Despite this, the worker ignored the safe system of work and moved within the blind spot of the bulldozer. 

Their Honours stated “There was no way the bulldozer driver could have seen a person directly behind the vehicle…it was not reasonably foreseeable that a person would depart from instructions and stand in the blind spot.”  Further, it was found that the bulldozer driver had been operating on the same path since 7am that day and the worker had been present the entire time.

See: Doumit v Jabbs Excavations Pty Ltd [2009] NSWCA 360 (6 November 2009)

Comments
This case highlights the importance of a safe system of work and training employees in safe work methods.

In this case, Jabbs escaped liability for the injury sustained to the worker as the systems in place were safe and all employees had been trained in how to work safely in the vicinity of bulldozers. 

To ensure that your systems of work are safe and adequate, contact the team at Workplace Law.

WORKERS COMPENSATION
Workers Compensation Commission Christmas / New Year Arrangements
The Workers Compensation Commission (WCC) will remain open on all business days over the Christmas and New Year period.  However, for dispute applications registered between 16 November 2009 and 31 December 2009, the WCC will issue revised timetables.  Some of the revisions are as follows:

1) No teleconferences will be scheduled from 21 December 2009 to 8 January 2010;
2) Conciliation / Arbitration hearings will only be held during this period where requested by parties;
3) Extended service dates; and
4) Extended date for filing of a Reply for matters registered between 2 December 2009 and 31 December 2009. 

Injury During Compulsory Break May be Compensable
In our July 2009 edition of the Safety Law e-update, we reviewed a case involving a Qantas flight attendant who was injured in Los Angeles while on slip time.

In another case involving Qantas, another employee, this time a pilot, was also injured in Los Angeles during a compulsory break.

In this recent case the pilot was on a compulsory break between long-haul flights. He was returning to his hotel after visiting friends when he was seriously injured in a car accident.  The collision was entirely the fault of the other driver, who was under the influence of alcohol at the time.  As a result of his injuries he lost his pilot’s licence and suffered health problems.

The pilot claimed compensation however Qantas denied liability on the basis that the injury did not occur in the course of the pilot’s employment.  At Arbitration in the WCC it was found that Qantas was liable.  Qantas appealed the decision and the matter was referred to Deputy President Gary Byron (DP Byron) of the WCC.

DP Byron accepted that the pilot was in Los Angeles due to his employment however, he found that Qantas had not encouraged the pilot to take part in a ”wholly social activity”, i.e., visiting his friends.  DP Byron found that the pilot was not entitled to compensation and stated that not all injuries that occurred “…during intervals between daily periods of work…” could be regarded as “…within the course of employment.”  DP Byron stated “the critical factor is whether the employer either expressly or impliedly induced or encouraged a worker to spend an interval at a particular place or in a particular way.”  The pilot appealed the decision and the matter was referred to the full bench of the NSW Court of Appeal.

The full bench consisting of President Allsop and Justices Beazley, McColl, Basten and Handley found that DP Byron had erred in basing his determination on the employer’s attitude to how periods of work or compulsory breaks were spent.

The full bench referred to a case of Hatzimanolis v ANI Corporation Limited (Hatzimanolis’ case) and stated that it was binding High Court authority.  In Hatzimanolis’ case the employee was temporarily posted to a site in Western Australia.  While the employee was sight-seeing, he was injured.  The High Court held that the injury occurred during the course of employment.

In the present case, their Honours stated that DP Byron should have applied the test in Hatzimanolis’ case, which held that an injury sustained during an interval in an overall period or episode of work will ordinarily be seen as occurring in the course of employment when the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or engaged in a particular activity and the injury occurs at that place or during that activity, unless the employee is guilty of gross misconduct. 

The test in Hatzimanolis requires, firstly, a determination or characterisation of the period or periods of work as one overall period or episode of work or two or more periods or episodes of work. Once the period of work of the employee is characterised, the circumstances of the injury, including how the interval between actual performance of work was spent, is to be analysed in that framework. 

Their Honours found that DP Byron had failed to direct himself in accordance with the test in Hatzimanolis’ case and therefore DP Byron effectively asked himself the wrong question. Their Honours stated that DP Byron was obliged to determine whether the pilot was in the middle of “…one overall period or piece of work.”

The pilot’s appeal was allowed and their Honours ordered that the matter be reheard in the WCC.  We will keep you informed of the outcome.

See: Watson v Qantas Airways Limited [2009] NSWCA 322 (8 October 2009)

Comments
The outcome of this case will have a significant effect on employer’s who send employees away from the ‘workplace’ or ‘base’.  As was decided in Hatzimanolis’ case and applied by their Honours in allowing the pilot’s appeal, if an employee is injured while engaged in a social activity while away for work, the injury may be compensable.

What can be seen from Hatzimanolis’ case is that if an employee is induced or encouraged to spend the interval or interlude at a particular place or engaged in a particular activity and the injury occurs at that place or during that activity, then the employer is likely to be liable for the injury.

For further information and advice on how to limit your liability in relation to employees working away from the workplace, please contact the team at Workplace Law.

Link Between Injury and Employment Must be Probable
The Administrative Appeals Tribunal (AAT) has rejected a worker’s compensation claim and found that in order to be successful, a worker must establish that the link between the injury and employment is probable, not possible.

The worker was clinically obese and commenced full time employment as a bus driver for Australian Capital Territory Department of Territory and Municipal Services in August 2007. Several months after commencing work, the worker complained of increasing pain at the back of his right knee and he was diagnosed with deep vein thrombosis.  The worker lodged a claim which was rejected by Comcare.  The worker appealed the declinature.

In the appeal to the AAT, the worker stated that the design of the bus driver’s seat prevented him from resting his feet on the floor.  Additionally, the worker stated that the extended periods of immobility while driving significantly contributed to his injury.  He conceded that obesity increased the risk of deep vein thrombosis however, stated that his weight had remaining unchanged for many years and previously had not caused any difficulties.  The worker stated that the only change was to his employment.  He was formerly a baker and stated that role was more active than the sedentary bus driver position.

Members Simon Webb and Dr Peter Wilkins found that while there was a possible connection between the diagnosis of deep vein thrombosis and the worker’s employment, such a conclusion was speculative.

Members Webb and Dr Wilkins stated that the worker provided no direct evidence as to the cause of the onset of the thrombosis.  The condition is commonly associated with long-haul air travel but varies from case to case.

Members Webb and Dr Wilkins stated “the balance of probabilities test does not authorise us to choose between guesses, on the ground that one guess seems more likely than another. Mere possibility or conjecture alone is not sufficient.”

Further, in response to the worker’s contention that his obesity could not have contributed to the condition as he had no related problems in the past, Members Webb and Dr Wilkins stated “the risk of thrombosis as a result of obesity cannot simply be ruled out because that particular risk did not materialise for many years.” 

It was found that the worker had a number of breaks during his eight hour shift in which he could stretch his legs and that applying the brake and accelerator was similar in movement to the types of exercises recommended to reduce the risk of thrombosis.

Members Webb and Dr Wilkins concluded “…we are not able to find in Mr Hannan’s favour. There is not sufficient evidence to establish, to the reasonable satisfaction standard, that Mr Hannan’s employment contributed to the thrombosis in his right lower leg to a significant degree.”

See: Hannan and Comcare [2009] AATA 864 (10 November 2009)