State of New South Wales (Western NSW Local Health District) v Knight NSWPICPD 2023

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Background

An employee was found to have a compensable injury after being attacked by a dog whilst working from home. In doing so, the Personal Injury Commission (PIC) was satisfied that the injury arose out of or in the course of employment (s4 of the Workers Compensation Act 1987 (the 1987 Act)), and that employment was a substantial contributing factor to same (s9A of the 1987 Act).

Brief Facts

This case was a determination of an appeal against a decision of the PIC constituted by a Member.

While working from home (with the employer’s knowledge and consent) on the morning of 8 October 2021, the worker was bitten by a dog as she attempted to intervene in a dog attack on her daughter’s puppy, which was outside her front door.

The worker was employed as a case worker. It was noted that her employment duties required her to constantly be on the phone and take video calls and therefore the puppy had to be left outside so that it did not disturb any of the phone calls.

The worker made a claim for workers compensation shortly after the incident. Liability was disputed. It was asserted that intervening in a dog attack did not form part of, or was not incidental to, her work duties, nor was she directed or expected by her employer to intervene.

Member Homan awarded the worker compensation for weekly payments and medical expenses, finding that the physical and psychological injuries sustained by her on 8 October 2021 arose in the course of employment as defined by s4 of the 1987 Act, and being satisfied that employment was a substantial contributing factor to her injuries pursuant to s 9A of the 1987 Act. It was against those findings that the employer alleged error in the appeal.

Judgment

The employer asserted “that in leaving her workstation and leaving her house to attend to her daughter’s puppy, the [worker] had taken herself out of employment.” The employer submitted that the Member rejected this submission and in so doing fell into error of both fact and law. In terms of the error of law, the employer argued that the Member failed “to note that in the course of employment is a temporal concept”.

In finding that the asserted error of law had not been established, President Judge Phillips noted the Member’s key findings as follows:

“…the dog attack commenced while the [worker] was in the performance of her actual work duties. Although she ceased performing those duties to investigate and then intervene in the attack, as was the case in Smith, I am satisfied that this was a reasonable and practical necessity and consistent with what her employer would have reasonably expected of her in the circumstances. I do not accept that the employer would have expected the [worker] to disregard the distress of the puppy and continue on with her work. I am not satisfied that this conduct took the [respondent] outside the ordinary course of her employment.”

President Judge Phillips stated that the submissions about the employer’s expectation was put to the Member by the worker’s counsel, and this was neither responded to nor challenged by the employer.

Regarding s9A of the 1987 Act, President Judge Phillips reiterated that determining whether employment was a substantial contributing factor to the injury requires a weighing of all factors contributing to injury. He was satisfied that the Member assessed the various work and non-work related factors in undertaking the evaluative exercise required. In doing so, President Judge Phillips noted the Member’s finding that the worker, as a result of her duties, was required to keep her household pet outside to keep the environment quiet and professional. In doing so, quoting the Member:

"The probability of the injury was substantially or materially increased, however, by the unsupervised presence of the puppy tied up at the front of the [worker’s] home. I accept that this circumstance arose due to the [worker] being at work and the nature of her employment."

He did not consider that the duration of the worker’s employment, her state of health, hereditary risks, lifestyle or her activities outside the workplace were of assistance in determining whether employment was a substantial contributing factor to the injury.

The Member’s determination was therefore upheld.

Implications

This case highlights the broad approach taken by the PIC in respect of ss4 and 9A of the 1987 Act in the context of a worker injured whilst working from home. As hybrid working appears to be the ‘norm’, this case is a timely reminder for employers to continually take a proactive approach to risk assessment with respect to their employees’ work from home set-up.