Toll Transport Pty Ltd t/as Toll Global Express - Wollongong v Apulu (NSWPICPD 2023)

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Key Takeaways

This decision is a timely reminder about how a worker may be in the course of employment even if they are conducting activities not precisely within their job description. In this case, the worker was engaged in an activity which allowed him to continue on with his duties for his employer, which led to a finding that the worker was in the course of employment.

Brief Facts

The worker was a delivery driver. On 18 November 2020, the worker sustained injury to the left leg in the form of aggravation of a pre-existing asymptomatic condition of the left leg around the Achilles tendon. The worker was incapacitated as a result of the injury and provided light duties. An off-sider was assigned to help the worker because he was not otherwise able to do his full job.

On 9 March 2021 the worker sustained a further injury which was an aggravation of the 18 November 2020 injury. The injury of 9 March 2021 occurred while the worker and the off-sider were endeavoring to assist a motorist to move his vehicle which had broken down.

The insurer disputed liability for the worker’s claim and argued, among other points, the following:

• the only work related injury was the injury on 18 November 2020, the effects of which had ceased.
• The second injury on 9 March 2021 did not arise in the course of employment because the activity of the worker to stop and help a motorist was outside the scope of his employment.
• Employment was not a substantial or the main contributing factor to the worker’s injury on 9 March 2021, because the worker’s physical size caused the injury.

Judgment

The worker lodged an application in the Personal Injury Commission and the case was heard before a Member. The Member decided in favour of the worker.

The Member considered that the injury on 9 March 2021 met the definition of both a personal injury (a frank incident aggravates a pre-existing condition) and disease injury. The Member found that employment was a substantial contributing factor and the main contributing factor. Assisting the broken down car allowed the worker and the off-sider to carry on with their duties, and therefore the worker was in the course of employment.

The Member rejected the insurer’s argument that the March 2021 injury was caused by the worker’s obesity. The Member stated the worker’s pre-existing obesity was irrelevant, the worker having been overweight when he commenced employment in 2015. Regardless, the Member was not willing to accept that the worker had fully recovered from the effects of the injury on 18 November 2020.

The insurer appealed the Member’s decision, which was dismissed by for the following reasons:

• the fact that the worker could have reversed the truck around the broken down car did not make what the worker did ‘any less incidental to his employment’ as a delivery driver.
• The injured worker had not recovered from the effects of the injury on 18 November 2020, and the events on 9 March 2021 did not break the chain of causation.
• The incident on 9 March 2021 was both a personal and disease type injury. The employment was a substantial contributing factor to the injury.
• Even if the test was the main contributing factor, the test was satisfied. The test is reviewed in the context of all of the evidence, not only the medical evidence. The worker’s obesity was a contributing factor, but not the main contributing factor.

Implications

Each case is to be determined on its own facts and evidence – both medical and factual. When reviewing claims for injury it is important to drill down into exactly how an injury happened. When looking into the circumstances of how the injury occurred, take into account whether the activity being performed is one which was expressly or impliedly encouraged by the employer. If so, you are likely to have a compensable injury.

Injuries can fall into both categories of a personal injury and disease injury. When this happens, best practice is to look at the claim from both perspectives. This means asking the medical examinations to address both whether employment was ‘a substantial contributing factor’ (personal injury) and ‘the main contributing factor’ (disease injury).