It is an enticing thought for a day’s work to consist of answering a few work emails between dips in the pool and the next banana daiquiri. But, if you slip on the banana peel whilst walking from your computer to the pool, do you have a valid workers’ compensation claim?
In a world where the place of work has become less defined, with hot-desking and working from home becoming the new norm, it is important to consider when an injury sustained at home will be held to arise “in the course of employment” for the purposes of the Workers’ Compensation and Injury Management Act 1981 (WA).
The phrase ‘in the course of employment’ was clarified in the decision of Kavanagh v Cth (1960) 103 CLR 547.
Dixon CJ at 556 importantly stated:
“the words ‘arising in the course of the employment’ describe a condition which is satisfied if the accident happens while the workman is doing something in the exercise of his functions although it is no more than an adjunct to or an incident of his service.”
In other words, an accident is considered to have occurred in the course of employment, when the task is in aid of or incidental to the work.
The phrase was further considered in the landmark decision of Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473.
The implication of this case was that the scope of the phrase “in the course of employment” was broadened to include intervals and interludes which occur during the course of employment, where the employer has induced or encouraged the employee to spend those breaks at a particular place or in a particular way.1
The scope of the phrase has since come to include various circumstances, such as:
In contrast, the following scenarios were considered not to fall within the scope of the phrase:
Within the context of ‘in the course of employment’ we now direct our focus on instances where accidents occur whilst the worker is at home.
In the matter of Van Oosterom v Aust Metropolitan Life Assurance Co Ltd  VR 507, liability for workers’ compensation was considered when an insurance agent who worked
from home with no set hours suffered a heart attack on a Saturday.
To provide some context as to the nature of his employment, the Applicant:
When the heart attack occurred, the Applicant was in the process of walking to his car in the garage, for the purpose of attending on a client with respect to reinstatement of an insurance policy. The Court held that this was in the course of employment.
The Court found that in such cases, there is no fixed place of employment; a liberal approach must be taken in regards to place.
What is of importance however, is that when the accident or injury occurs, the worker is performing a task which is incidental to his employment.
An example given by the Court was that if the worker was to be performing clerical work in the lounge room, but was required to travel to another room to collect ink, he would still be in the course of his employment.
In Re Ledwidge and Optus Administration Pty Ltd  AATA 58, the Administrative Appeals Tribunal found that a field technician who was cleaning his work vehicle at home on a Sunday was in the course of his employment.
The nature of his employment was that:
The Tribunal applied the principles of Hatzimanolis to conclude that the task he was performing was in preparation for his duties on Monday and thus incidental to his employment.
It was important that the Applicant was encouraged to have a clean vehicle; this suggested that cleaning the vehicle outside usual work hours was a reasonable task and incidental to his work duties.
In the matter of WorkCover/EML (Lauman Pty Limited t/a Roseworthy Roadhouse)  SAWCT 55, the worker and her husband were sole directors and operators of the Roseworthy Roadhouse.
The worker and her husband resided in the living quarters of the roadhouse, and on one occasion the worker fell down the stairs on her way to the toilet during the middle of the night.
She was found not to be in the course of her employment, with regard had to the following factors:
If it were the case that the worker moved from another residence, in order to live at the roadhouse (and if she was encouraged or induced to do so by her employer), this may have altered the Tribunal’s opinion.
In Hargreaves v Telstra  AATA 417, the worker, whilst working from home was struck by a violent coughing fit, as a result of which she left her work desk to get some cough mixture. In doing so, she fell down the stairs and sustained injuries.
This fall was found to be in the course of employment as the coughing constituted a need of absence from the work station for necessities of nature.
She fell again on another journey down the stairs; on this occasion her supervisor had asked her to check if her screen door at home was locked. This was established to be in the course of employment because the fall occurred whilst performing an instruction from her supervisor.
In Demasi and Comcare  AATA 644, the worker was a producer and presenter for the ABC. She regularly worked from home and did so on the date of the incident. She would frequently go jogging whilst working from home during work hours (not during her specified lunch break).
The Applicant injured herself on one of her on morning runs and the Tribunal found that her injury was not in the course of her employment.
Some of the factors considered included:
The Tribunal was of the view that the Applicant’s morning run was ‘indistinguishable’ from a lunchtime run, even though a lunchtime run is undertaken during an ordinary recess in the workers’ employment, and a run taken on an impromptu basis is not.
More recently, albeit in the industrial relations context, the issue was considered in the matter of Australian Maritime Officers’ Union v Remick Pty Ltd T/A Pro Dive Cairns  FWC 431 (30 January 2020).
This case does not specifically address working from home; however, it does demonstrate the element of a worker’s “free will” vs “obligation to the employment” as a factor which is taken into consideration to determine if they were in the course of employment.
The Commission was tasked with determining whether boat masters and crew of a Great Barrier Reef tour boat were in the course of their employment when assisting passengers during unpaid meal breaks.
The Deputy President took into account the following factors:
In these circumstances, employees may be required to perform tasks, even though they have been directed or encouraged by the employer to take an unpaid break. For example, if passengers engaged with staff during their meal and required assistance, staff would have no choice but to assist – given the nature of the industry and safety requirements.
On the facts established, the Commissioner found that the crew were in the course of their employment.
From the case law, it is evident that each case will turn on its facts; making it difficult to formulate a global approach to ‘working from home’ cases.
However from looking at the patterns of interpretation of the phrase, we can establish a guideline as to what factors need to be considered. These factors are:
It is a question of law that has not been recently considered in the Western Australian jurisdiction; therefore it has been necessary to broaden our consideration to interpretations of similar provisions interstate. By gaining a sense of the national approach to this question, local insurers will be able to adopt an approach to defending such claims which encompass the solidified principles in Hatzimanolis and the developments since.
Ultimately, such matters require an element of common sense; to answer the question of whether the worker was acting under the direction of their employer, incidentally/out of necessity to perform a work duty or if they were “free from the employment and the duties of the employment”.6
This case law update is intended for general information only and you should not act upon it or omit to act on the basis of anything contained herein without first obtaining legal advice in relation to any particular matter or issue.
1 J Fiocco and M A Tedeschi, ‘Section 5 Terms Used’, Workers’ Compensation and Injury Management Act 1981 Annotated Legislation.
2 Favelle Mort Ltd v Murray (1976) 133 CLR 580.
3 L J Newing & Co v Newing (WASC, SCL 8531, 12 September 1990, unreported).
4 Badawi v Nexon Asia Pacific Pty Ltd  NSWCA.
5 WorkCover/EML (Lauman Pty Limited t/a Roseworthy Roadhouse)  SAWCT 55.
6 His Honour Deputy President Judge McCusker, West v WorkCover/QBE  SAWCT 1999 at .
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.