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  NSWCA 54
Jurisdiction: NSW Court of Appeal1
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:
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.
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.
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.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.