2.1.6 Define an injury
2.1.6.1 Contributing factor | 2.1.6.2 Significant contributing factor | 2.1.6.3 Heart attack and stroke injuries | 2.1.6.4 Arising out of or in the course of employment | 2.1.6.5 Injuries deemed to arise out of or in the course of employment | 2.1.6.6 Injury during a recess | 2.1.6.7 Travelling for work | 2.1.6.8 Attendance at other places | 2.1.6.9 Injuries sustained while working from home | 2.1.6.10 Predominant cause (for primary mental injuries only)
Different types of injuries attract different causation or eligibility tests.
Once the type of injury has been established, compensability is then determined by applying the relevant causation test.
The definition of injury has both a ‘primary’ sense and an ‘extended’ one.
Injury in the ‘primary sense’ relies on the first part of the definition of injury the legislation where ‘injury’ means any physical or mental injury. . The courts have described an injury in the primary sense as involving a physiological change that is sudden and ascertainable or dramatic. An example of an injury in the primary sense is a fractured arm.
An injury in the extended sense is a disease that does not involve a sudden physiological change. An example of an injury in the extended sense is dermatitis.
Diseases and pre-existing injuries
As mentioned, if ‘sudden physiological change’ is not present, a worker must establish an injury in its ‘extended’ sense.
In its extended sense, injury incorporates a disease, or a recurrence, aggravation, exacerbation or deterioration of a pre-existing injury or disease.
At different times, the legislation has stipulated that differing levels of work contribution have to be present for such a condition to constitute an injury.
| Between 1/9/85 and 30/11/92 |
employment must have been ‘a contributing factor’ |
| Between 1/12/92 and 2/12/03 |
employment must have been a ‘significant contributing factor’ |
Heart attack and stroke injuries
From 3 December 2003, ‘heart attack and stroke injuries’ as defined in the legislation, are specifically provided for. Employment must be a significant contributing factor, irrespective of whether the injury constitutes ‘sudden physiological change or is connected with a pre-existing condition or disease or not’.
2.1.6.1 Contributing factor
This has been interpreted to require a low level of work contribution. It means any identifiable contribution.
2.1.6.2 Significant contributing factor
Significant contributing factor means the employment must contribute to the occurrence of the injury in a way that is not insignificant, trivial or minimal.
It entails a comparison with other contributing factors.
In determining whether a worker’s employment was significant contributing factor to an injury:
- the duration of the worker’s current employment
- the nature of the work performed
- the particular tasks of the employment
- the probable development of the injury occurring if that employment had not taken place
- the existence of any hereditary risks
- the lifestyle of the worker
- the activities of the worker outside the workplace
must be taken into account.
2.1.6.3 Heart attack and stroke injuries
From 3 December 2003 the legislation has required that employment be a significant contributing factor to any injury or disease in respect of a heart attack injury or stroke injury or compensation is not payable.
Heart attack and stroke injuries are exhaustively defined in the legislation, with the effect that any incapacitating event that is linked with a circulatory condition will be caught by the definitions.
Employment must be a significant contributing factor
To be entitled to compensation for these injuries, employment must be a significant contributing factor, irrespective of whether the injuries were associated with sudden physiological change, happened spontaneously or were connected with an underlying vascular disease.
This applies irrespective of whether it is a gradual process or disease injury.
2.1.6.4 Arising out of or in the course of employment
Once the type of injury has been identified, the applicable causation test must be applied.
For physical injuries in the primary sense (any date of injury), and for primary mental injuries (before 31 March 2024)
The causation test is whether the injury arose out of or in the course of employment.
An injury can arise out of or in the course of employment if it occurs at the normal place of employment, an alternative place of employment, travelling for work or working from home.
This phrase 'arising out of or in the course of employment' has two distinct parts.
Arising out of employment
The phrase 'arising out of employment' is restrictive.
Something about the employment must have caused the injury, for example, the:
- tasks
- equipment
- surroundings.
‘In the course of employment’ inclusions
The phrase 'in the course of employment' is much wider and requires more of a temporal (time) relationship with employment provided that:
-
what the worker was doing at the time of injury was part of their work or something incidental to it; and
-
the injury would not have been sustained in the absence of employment circumstances.
The phrase is intended to cover those injuries which:
- are not directly caused by the nature of duties for which a worker is employed
- happen at the time the worker was working either by:
- an accident in the workplace (such as a falling object)
- doing some incidental task or duty that the worker could be reasonably expected or authorised to do.
Supreme Court of Victoria
Hickox v Education Department
Australian courts currently adopt the test expressed by a Full Court of the Supreme Court of Victoria in the matter of Hickox v Education Department (1974) in determining whether an injury arose in the course of employment:
'Where a worker, while not performing the actual duties of his employment, was caused injury at a time and place doing something which might be regarded as reasonably incidental to, consequential upon or ancillary to, his employment - not necessarily being required to be done as part of his obligations as an employee but rather as something that would be reasonably required, authorised or expected of the worker by his employer, as inferred from the facts and circumstances of the existing relations between the worker and the employer - then the worker is entitled to compensation as having suffered injury in the course of this employment'.
‘In the course of employment’ exclusions
The phrase ‘in the course of employment’ does not mean that all injuries that occur at work are '...in the course of employment…'.
An injury which occurs during a period of work may still not occur during the course of employment if it occurs while a worker is doing something for their own purposes without the knowledge or consent of the employer.
Course of employment
To satisfy the Agent that an injury occurred in the course of employment, the injury must:
- have occurred during the period recognised as working hours
- have occurred during a further period encompassing some activity which the employer allowed, encouraged or was reasonably incidental to the employment
- not have occurred whilst the worker was doing something for their own purposes without the knowledge or consent of the employer.
Different to serious and wilful misconduct
Determining that an injury did not occur in the course of employment is different to determining that it was caused by serious and wilful misconduct. The provisions about serious and wilful misconduct are more stringent and more difficult to sustain.
See: Serious & wilful misconduct
If a worker is not in the course of their employment, the claim is disallowed regardless of whether the injury results in death or severe injury.
Examples of outside course of employment
Examples of situations where a worker is at work but not acting in the course of employment include:
- the worker interrupts their work to do something for themselves such as using workshop equipment to repair their son's bicycle
- the worker, without authority, leaves work to move their private car from a restricted parking area
- the worker is intoxicated
- injury occurs through skylarking or assault
- if the worker unreasonably and unnecessarily exposes themselves to a risk The probability of the worker not returning to work is known as the risk or risk factor. For example: if a worker is likely to return to work, the claim is categorised as low risk. for which they were not employed.
The above examples are not exhaustive.
2.1.6.5 Injuries deemed to arise out of or in the course of employment
Certain injuries are deemed by the legislation to arise out of or in the course of employment.
Entitlement for deemed course of employment injuries
The legislation deems certain situations to be in the course of employment. It makes no difference to a worker’s entitlement whether an injury is actually in the course of employment or deemed to be so.
Contravention of regulations
An injury is deemed to arise out of or in the course of employment even if the worker was either acting:
- in contravention of a work regulation
- without instructions from the employer, providing that the worker's action was in connection with the employer’s business or trade.
Agents should also keep in mind serious and wilful misconduct.
See: Serious & wilful misconduct
Example of contravened work regulation
A courier is charged with speeding after sustaining an injury in an accident that occurred whilst doing a delivery.
2.1.6.6 Injury during a recess
Injuries that occur during certain recesses are deemed to arise out of or in the course of employment.
An injury is deemed to arise out of or in the course of employment if the following conditions are met.
The injury occurred when a worker:
- had been at work on a work day
- is temporarily absent during an authorised recess on that day
- does not during the absence voluntarily subject him or her to abnormal risk of injury.
2.1.6.7 Travelling for work
An injury while travelling is deemed to arise out of or in the course of employment if the worker is required to travel for work.
Travelling for a worker’s employment does not include travelling to and from the workplace or other places described in 2.1.6 Define an injury.
A workplace includes:
- a location in connection with employment
- anywhere the employer requires a worker to work.
If there is no fixed workplace (e.g. in the case of a travelling salesman) it includes the whole area, scope or ambit of employment.
The injury is not deemed to arise out of or in the course of employment, if:
- there is a substantial interruption or deviation to the journey
- the interruption/deviation is not connected with employment.
Whether there has been a substantial interruption or deviation will be a matter of fact. Consider all factors associated with a journey including the time it was undertaken and the usual or more convenient route or possible routes.
2.1.6.8 Attendance at other places
An injury is deemed to arise out of or in the course of employment if it occurs while the worker, who has an injury for which they are entitled to compensation, is in attendance at any place for one of the following purposes:
- obtaining a medical certificate The first medical certificate is for a maximum of 14 days and can only be issued by a registered medical practitioner.
- receiving medical, surgical or hospital advice, attention or treatment
- receiving a personal and household service or an occupational rehabilitation service
- receiving a payment of compensation for an injury for which the worker is entitled to receive compensation
- submitting to a medical examination, required by or under the legislation.
Trade or other school
An injury is deemed to arise out of or in the course of employment if both of these conditions apply:
- the injury occurs while the worker is at any school for any trade, technical or other training
- the worker is required or expected to attend:
- by the employer
- by the terms of his or her employment
- as an apprentice.
Sporting activities
WorkSafe policy
An injury is considered to arise out of or in the course of employment, if it occurs whilst the worker is engaged in any sporting activity if the employer:
- has sponsored the sporting activities either through cash or in-kind donations
- has allowed the employees time away from work for training or for matches
- encouraged participation in a team in any other way.
This is only relevant where an employer is sponsoring a team or sporting activity for their own employees.
Determining liability
An employer providing corporate sponsorship for sporting organisations that are at arms length from the employer is not liable for any injuries sustained by persons while participating as a contestant in a sporting activity, engaged in training or preparation with a view to participating, or travelling between a place of residence and the place at which the person is so participating or so engaged.
However, there may be situations where an employer provides specific incentives to workers to participate in sporting activities of a particular sporting club in preference to other sporting clubs. This situation might prevail where a worker’s employment is connected with the sponsorship. These types of situations might vary the general proposition described above.
If the sponsorship and employment are truly at arm's length, an employer will not be liable under the legislation for any injuries received by their employees while participating in sporting activity in local sporting organisations sponsored by them.
Example where employer is not liable
The following is an example, where the employer is not liable under the legislation for any injuries received by their employees while participating in a sporting activity.
Company ABC P/L provides corporate sponsorship to the local football club.
An employee of ABC P/L plays for that local football team. The employee’s participation in the local football team is not a condition of employee’s employment or of the sponsorship arrangement. In this case, the corporate sponsorship arrangements are at arm's length and the employee’s involvement is coincidental. Under this scenario ABC P/L is not liable under the legislation for any injuries received by the employee while playing for the local football team.
Example where employer is liable
The following is an example, where the employer is liable under the legislation for any injuries received by their employees while participating in sporting activity.
The same company as above provides sponsorship to the local athletics club. Employees of ABC P/L are actively encouraged to participate in sporting activities of the local athletics club. In this case, ABC P/L is liable for any injuries received by employees while participating in sporting activity of the local athletics club.
2.1.6.9 Injuries sustained while working from home
Any injury sustained while undertaking work duties away from usual work premises, such as working from home is considered to have occurred in the course of employment and is covered by employer’s policy. This includes injuries sustained during an authorised recess or break, but does not include after hours, or when the person is not performing work duties.
Employers and workers should work together to set boundaries and expectations about hours of work and timing of breaks. This helps determine whether any injury or illness sustained while working remotely is work-related An injury/disease is work related if it arose out of or in the course of employment and the scope of employment..
When employees are working from home their routines and patterns of work can be quite different to when in the office. Employers need to ensure that appropriate supports are in place to prevent workers sustaining injuries, where they have been asked to work remotely or from home.
2.1.6.10 Predominant cause (for primary mental injuries only)
Primary mental injuries sustained on or after 31 March 2024 are only compensable if they arise predominantly out of or in the course of the worker’s employment. This applies to exacerbations, aggravations etc under s40(3).
The adverb ‘predominantly’ comes from the adjective ‘predominant’, which means ‘having ascendancy, power, or influence over others; ascendant’ and ‘prevailing’.
‘Predominantly caused’ takes its ordinary meaning and refers to the strongest or largest contributing factor relative to all others. This may be proved by establishing that the contribution of employment is greater than the sum of all other contributing factors.
This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case. Decision makers should have regard to the Independent Medical Examiner’s (IME Independent Medical Examiner / Independent Medical Examination) opinion (if any), as well as any medical reports, clinical records, circumstance reports and information provided by the worker.