McCabes News
COVID-19, Insurance, Workplace Insurance
Changes to Casual Employment – transitional period ending 27 September 2021
5 August, 2021
Is a working-from-home injury (or even death) compensable under the workers compensation scheme? The Court of Appeal has examined these issues in the following case.
Author: Chad Farah
Judgement Date: 31 March 2020
Citation: Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54
Jurisdiction: NSW Court of Appeal1
Principles
- Workers who are injured (or the dependents of workers who die) while working from home will have access to compensation under the Workers Compensation Act 1987 Act if the employment was a ‘substantial contributing factor’ to the injury or death.
- The ‘substantial contributing factor’ test is to be determined on the facts, on a case-by-case basis. One must look to see if there was a ‘palpable and direct connection’ between the employment and the harm suffered.
- The NSW Court of Appeal can only consider an appeal from the Workers Compensation Commission as to points of law, not points of fact.
Background
M and her de-facto partner, S, were employed by a family company as financial advisors. They operated from their home. M had two dependent children.
S became under the belief that M was conspiring with government authorities against him to take his clients and to ruin him professionally. He also became convinced that she was spying on him and recording his conversations. Outside the work environment, he became convinced she was unfaithful. He, at one point, required her to take a lie detector test paid for by the family business – which, in this case, was ‘the employer’.
Sadly, in 2010, S, who was suffering from paranoid delusions, killed M. He was later found not guilty of her murder on grounds of insanity.
The two dependent children made claims for death benefits under the Workers Compensation Act 1987. This was on the basis that the death resulted from injuries sustained by M arising out of, or during, the course of her employment with the family company. Liability was denied by the workers compensation Insurer.
The matter first came before the Workers Compensation Commission in 2018, long after the family business was de-registered. The Arbitrator, in the first instance, found in favour of the two dependent children. In doing so, the Arbitrator was satisfied that:
- M’s death arose out of, or during the course of, her employment within the meaning of s 4 of the 1987 Act; and
- M’s employment was a substantial contributing factor to her injuries and resulting death within the meaning of s 9A of the 1987 Act.
The Insurer appealed and the matter was determined, on the papers, by Deputy President Wood. The appeal was dismissed on 22 July 2019, with DP Wood concluding the Arbitrator had not committed an error that would warrant disturbing the primary decision. In other words, it was found that the Arbitrator’s factual findings were open to her on the evidence.
The Insurer appealed further to the NSW Court of Appeal.
Court of Appeal
His Honour Basten J remarked that the issues in the case were ‘quintessentially factual, not legal’. It followed that the Court was primarily required to determine the following question:
‘Did the Deputy President err in implicitly deciding that there was evidence capable of supporting the factual findings made by the arbitrator?’
The Insurer argued, amongst other things, that S’ delusions were ‘not real’. It submitted that they could not possibly form part of the conditions of M’s employment and, hence, there could be no connection between the employment and the death.
The Court went on to reject the proposition that the causal link between M’s employment and her death was not properly considered by the Arbitrator or DP Wood. It was pointed out that whether the offending conduct – be it a physical attack or, say, workplace bullying – was carried out mistakenly, vindictively or without justification, is of no consequence to the question of causation in this context. The correct question is whether the offending conduct, no matter how irrational or illogical, was the cause of the compensable harm.
Applying the principles to this case, his Honour Basten J held that the physical attack on M materialised as a result of a hostile work environment created by her de-facto partner, who was incidentally also her co-worker and supervisor. Summarising the position succinctly at paragraph 37, his Honour said:
‘There may, of course, be domestic violence between couples who work from home in the same business which would not attract liability on the part of the employer to pay compensation, because the violence had no connection with the work conditions of either party. However, on the findings of fact, that was not this case. The findings of fact demonstrated a palpable and direct connection between [S’] delusions, [M’s] employment and the harm suffered by her…’. (emphasis added)
His Honour Simpson AJA added that s 4 of the 1987 Act offers two alternate tests. The first is whether the injury was ‘arising out of’ the employment which requires a causal nexus between the employment and the injury. The second is whether the injury was sustained ‘in the course of’ the employment which requires a temporal connection.
His Honour went on to note that the Arbitrator accepted, from the totality of the evidence, that M died at a time when she was available to attend to work calls or other work matters in the course of her employment. It followed that she was not killed because of her employment duties per se, but rather while ‘on call’.2 In addition to that, his Honour remarked that the Arbitrator had accepted, following careful analysis, the evidence that the employment was a ‘substantial contributing factor’ to the death within the meaning of s 9A.
Moreover, his Honour said the above were all factual findings that the Insurer sought to challenge and the Court of Appeal had no jurisdiction to re-determine findings of fact. Reference was made to s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 which states:
‘If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.’ (emphasis added)
The appeal was unanimously dismissed.
Why this case is important
The recent COVID-19 Pandemic has given rise to various questions surrounding a workers compensation insurer’s liability for injuries sustained by a worker while working from home. This timely decision is a reminder that the tests under ss 4 and 9A of the 1987 Act cater for that scenario and that each case must be considered on its own facts.
To clarify, an injury sustained by a person at home, and at a time when they are expected to be working, will likely arise ‘during the course of their employment’. The late M, for example, was killed in her bedroom in the morning and the evidence suggested she was not yet dressed – but that did not mean she was not ‘at work’.
The key questions for insurers to consider will likely be whether the employment was a ‘substantial contributing factor’ to the injury within the meaning of s 9A. His Honour Basten J expressly stated this will not always be the case. Insurers are encouraged to conduct early factual investigations to understand precisely how – and more importantly, why – the injury occurred before a decision on liability is made.
1 Basten JA, Payne JA and Simpson AJA.
2 An example of worker dying as a result of their work duties is an electrician who dies of electric shock while dealing with a live wire. M, in this case, was a financial advisor. Her work duties as a financial advisor did not kill her, but she still died while ‘at work’ within the meaning of s 4.
