Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54 (31 March 2020)

Summary

The worker was tragically killed by her de facto partner and co-worker after he succumbed to schizophrenic delusions while the two worked from home. Both were employed by a family company, S L Hill & Associates Pty Ltd, which was a financial advisory business. At first instance, Arbitrator Rimmer found that the worker’s death arose out of and in the course of her employment and awarded benefits to the two dependent children.

The Workers Compensation Nominal Insurer appealed to Deputy President Wood who upheld the Arbitrator’s initial determination.

The Insurer then filed in the Court of Appeal and again, the initial decision was upheld.

Arbitrator’s decision

In the initial proceedings, the issues to be determined were whether the worker’s death arose out of or in the course of employment, pursuant to section 4(a) of the Workers Compensation Act 1987, and whether employment was a substantial contributing factor to the worker’s death, pursuant to section 9A.

In the course of employment

The Arbitrator considered the relevant authorities regarding working from home and acknowledged that a worker who works from home is not always in the course of their employment while there.

The following facts were considered relevant on the evidence:

• The worker usually started work at 9:00am, but would occasionally start as early as 7:00am to handle phone calls;
• The forensic evidence indicated a time of death between 8:00am and 10:00am;
• The worker did not work intermittently or on a token basis;
• The worker was in her pyjamas at her time of death (though she would often remain in her pyjamas while working);
• The work computers hadn’t been used between 7:30am and 3:45pm on the day of the worker’s death;
• The assault occurred in the worker’s bedroom, where she often worked.

On the whole of the evidence the Arbitrator was satisfied that, even if the assault occurred prior to the 9:00am regular start time, the worker would likely have been functionally “on call” from around 7:30am.

Substantial contributing factor

As required by section 9A the Arbitrator considered the time and place of the assault, the nature of the work performed (particularly noting the partner’s delusions related significantly to paranoid beliefs surrounding the worker’s dealings with AMP and ASIC required in her role) and whether the injury would have happened irrespective of the employment (on this point, the Arbitrator noted that given the domestic relationship the worker would still have been in close proximity to her partner).

Overall, the Arbitrator was satisfied that the worker’s employment was a substantial contributing factor to her death.

The appeals

Deputy President Wood was asked to consider whether the Arbitrator had erred in finding that section 4 and 9A were satisfied. DP Wood concluded that the Arbitrator’s findings were available on the evidence and that there had been no error on a point of law.

The Court of Appeal was asked to consider whether DP Wood had erred in declining to disturb findings of fact made by the Arbitrator and whether she had failed to properly consider the ‘critical element’ of whether the death was causally linked to the worker’s employment specifically, rather than an indirect link through her partner’s work-related delusions.

The Court of Appeal upheld DP Wood’s determination on all grounds, citing the Insurer’s failure to identify an error in law. The Court confirmed the Arbitrator’s power to make findings of fact on the available evidence as well as DP Wood’s obligation to uphold those findings where reasonable.

Implications 

Matters such as this demonstrate the extent to which home and work-life stressors and professional and personal relationships can become blurred.

Now, as we see the already growing rate of Australians working from home fast-tracked amidst coronavirus concerns, the legal tests applied under sections 4 and 9A will no doubt be applied to a wide range of varied circumstances going forward.

With a significant proportion of the Australian workforce now working remotely it is critical that employers and insurers are properly informed of the legal issues that apply to injuries suffered at home.