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Injured walking the dog while on call

A tribunal has found that the injury arose in the course of his employment.
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Injured walking the dog while on call

Injured walking the dog while on call

8 February 2021

By Gaby Grammeno

A tribunal has found that the injury suffered by a man who fell and broke his leg while walking his dog arose in the course of his employment, because he was on call at the time. The employer did not limit activities undertaken by workers on call, as long as they could respond promptly when required.


The incident

The worker was employed as a relief area coordinator by a major state government owned corporation providing hydro and wind powered electricity, water management, and environmental research services.  

At the time of the incident, he was on call at the employer’s accommodation in Tullah, in western Tasmania. The employer’s basic requirements for on call workers were that they must be mindful of the range of phone coverage and stay where they’d be able to answer the phone and respond to a call within 15 minutes. They were also required to be fit to drive and sufficiently rested to enable a reasonable response.

The employer placed no other restrictions on activities workers could engage in while on call. They were free to spend time with family, play sport and other such pastimes, as long as they’d be able to take a call or call back quickly and leave for work soon after.

On 25 May 2018, the worker went for a walk along the nearby lakeside with his partner and his dog. He slipped and fell on a wet log, breaking his left leg.

In due course he put in a claim for workers comp, but his employer disputed liability for the claim on the basis that the worker’s injury did not arise out of or in the course of his employment with the employer.

The case was heard in Tasmania’s Workers Rehabilitation and Compensation Tribunal.


In the tribunal

The first issue the tribunal had to determine was whether the injury arose out of, or in the course of, the worker’s employment with the employer.

The worker conceded that his injury did not ‘arise out of’ his employment, but a more vexed question was whether the injury was sustained ‘in the course of’ his employment.

The worker maintained that he was injured in circumstances possessing a sufficient connection to his work, and therefore ‘in the course of’ his employment. He said he’d made sure he walked in a place where there was mobile phone reception so he’d be contactable and could be ready to get to work within 15 minutes.

The employer’s argument was that the worker’s injury related to his activity in taking his dog for a walk along the lakeside with his partner, and specifically to his climbing over or onto a log while on the walk.

The employer said they had not induced or encouraged the worker to go for walks with his dog or his partner along the lakeside and climb onto logs, and therefore his injury was not sustained ‘in the course of’ his employment.

The chief commissioner considered the facts of the case in the light of the findings of cases previously heard in the High Court, that turned on the same issue. Amongst others, he considered a case referred to as ‘Hatzimanolis’ in which the court set out a general guiding principle to the effect that in determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen’.

Applying the principles of the previous cases, the chief commissioner concluded that the worker’s injury occurred during a period when he was rostered to be available for work, he was not doing anything inconsistent with being on ‘availability duty’ for his employer, and workers were encouraged to be proactive in managing their own health and wellbeing, with walking along the lakeside a recognised practice for workers at that location. This provided the necessary nexus between his employment and what he was doing when he was injured.

The tribunal found that the worker’s injuries arose in the course of his employment with the employer.

The bottom line: the question of whether an injury arose in the course of a person’s employment must take into account the time, place and circumstance of the worker’s activity when injured as well as the general nature, terms and circumstances of the worker’s employment.


Read the judgment

N. v Hydro Electric Corporation [2021] TASWRCT 2 (22 January 2021)

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