The Court of Appeal of the Supreme Court of New South Wales considered this issue in Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54,[1] confirming that a death which happened while working from home occurred as a result of injury arising out of and in the course of the deceased’s employment.

Facts

The deceased and her de-facto partner performed their services as financial advisors for a family company. The de-facto partner was the deceased’s co-worker and supervisor. They rendered their services in their home in New South Wales (NSW), where they resided with the deceased’s two dependent children.

The de-facto partner had paranoid delusions which made him believe the deceased was conspiring with authorities to take his clients and ruin him professionally. At some time estimated to have been between 8 am and 10 am on 16 June 2010, acting on his delusions, the de-facto partner used a hammer to kill the deceased. The de-facto partner was later found not guilty of her murder on the ground of mental illness.

The deceased’s dependent children made claims for death benefits under the Workers Compensation Act 1987 (WC Act) against the Workers Compensation Nominal Insurer (Insurer) on the basis that the death resulted from injuries suffered in the course of her employment with the family company. The Insurer denied liability.

Litigation history and decision

The matter was initially dealt with by the Workers Compensation Commission where the arbitrator found that: (i) the deceased’s death arose out of her employment; and (ii) her employment was a substantial contributing factor to her injuries and resulting death.

The Insurer appealed the decision, but the appeal was dismissed by the Workers Compensation Commission Deputy President who determined that the arbitrator had not made an error that would change the decision.

The Insurer appealed the decision before the NSW Court of Appeal, arguing that there was no causal link between the employment and the assault.  The Insurer argued that the de-facto partner’s delusions were not real which showed no connection between the employment and the death.  The NSW Court of Appeal held that the death occurred in the course of the deceased’s employment, because there was a clear connection between the de-facto partner’s delusions, the deceased’s employment and her death.

  • Injury occurred in the course of employment:

It was accepted that the death occurred between 8 am and 10 am, and that the deceased was either actually performing employment related duties at the time of her assault and death or was “on call” so as to satisfy section 4 of the WC Act.  In reaching this conclusion, the following evidence was accepted:

o   The deceased’s work tasks would continue throughout the day, starting as early as 7:30am and ending as late as 9pm; and

o   The deceased’s bedroom contained office files, which supported the conclusion that the Deceased was working from her bedroom as early as 7:30am and during office hours whilst she took care of her baby.

The Court of Appeal approved the following statement of principle, which rests on long-established authorities:

When determining if an injury was suffered in the course of employment it is necessary to consider the temporal connection between the employment and the injury sustained. The course of employment extends beyond a worker’s normal hours and place of work, to ‘the natural incidents connected with the class of work’. If a worker ‘is doing something which is part of or is incidental to his service’, he is in the course of his employment: Whittingham v Commissioner of Railways (WA). Therefore, service is not confined to the actual performance of the work that the worker is employment to do, but includes all things incidental to the performance of that work.

  • Injury arising out of employment:

It was held that the deceased’s employment was a predominant cause of the injury.  This because the de-facto partner’s paranoid beliefs related to the way that the deceased performed her work duties.

  • Employment as substantial contributing factor to the death:

The Insurer submitted that the arbitrator failed to consider that: (i) the deceased’s employment was clerical work in a peaceful environment; (ii) there was nothing in the deceased’s employment which placed her at risk of a sudden and violent attack; (iii) the partner’s delusions were not part of the deceased’s employment (at [52]).

It was accepted that it may have been true that the deceased’s employment environment was generally “peaceful”, but it was not “peaceful” on the day she was killed by her de-facto partner and co-worker (at [56]).  This particularly considering that there was a causal link between the de-facto partner’s delusional motivations and the employment.

Implications for employers

This case turned on the two provisions of the WC Act, which require:

  • the injury to mean injury arising out of or in the course of employment;[2] and
  • the employment concerned was a substantial contributing factor to the injury.[3]

Bearing in mind the two principles above, there is no reason why an injury whilst working from home is not compensable.  It is also unsurprising, as these principles have been enshrined in legislation for some time.

Under Work Health and Safety legislation, the primary duty of care that an employer has in respect of its workers would encompass work completed from home because that duty relates to the breach of a quasi-criminal outcome.[4]

Given the working from home (WFH) environment because of COVID-19 (or any other reason), employers should implement mechanisms to allow employees to disclose their ability or inability to work from home safely.  Employers should be proactive in relation to WFH arrangements and should assess risks and hazards and adopt measures to mitigate them.

[1]  You can access the text of the decision here.

[2] Section 4(a) of the Workers Compensation Act 1987 (WC Act).

[3] Section 9A(1) of the WC Act.

[4] Sections 32 and 33 of the Work Health and Safety Act 2011 No 10 (NSW).

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