Mooney v White (NSWPICPD 2022)

Link to Decision

Key Takeaways

Deputy President Snell revoked a Member’s finding that an injury sustained by a live-in caretaker was not in the course of employment. He directed the matter to a new Member for redetermination. This is an interesting decision about the extent which a person is in the course of employment.

Brief Facts

The injured person lived on the respondent’s property rent free and carried out a role as a live-in caretaker. He had multiple duties including house and land maintenance. On 10 January 2007, the injured person went offsite to dinner with friends at the local bowling club. He sustained an injury when he fell from a first-floor verandah to the ground. The injured person could not remember the incident.

The insurer disputed liability for the claim on the basis that the injured person was not a worker, and the injury did not occur in the course of employment with employment being a substantial contributing factor to the injury.

The Member determined that the injured person was a worker but that the injury did not arise out of or in the course of employment. The Member concluded that the injured person did not establish that he was on the balcony for a work related purpose, and therefore was not in the course of employment when he fell. The Member did not accept the injured person’s belief that the reason he would have been on the balcony was to check on the cattle if they were disturbed.

An award for the respondent was entered. The injured person appealed that decision.

Judgment

Deputy President Snell allowed the injured person’s appeal and revoked the Member’s decision. He remitted the matter to a different Member for re-determination on the issue of whether the injured person’s injury arose in the course of employment.

The Deputy President did not consider that the Member had properly dealt with all of the available evidence regarding why the injured person fell from the balcony. The injured person believed that the upper railing on the first-floor verandah of the house collapsed, causing the fall. The Deputy President found that evidence relating to whether the upper railing collapsed needed to be considered by a different Member and redetermination was required.

At the hearing, the injured person argued that, in the alternative, the reason that he was on the balcony was not relevant. This was because the injured person was a live-in caretaker and was therefore in the course of his employment 24 hours a day, 7 days a week. The Deputy President considered that this issue required examination of the contract and a ‘deep dive’ into the worker’s specific duties in execution of that contract. He found this second issue also required consideration by a Member for redetermination.

Implications

There are times where a worker will be in the course of employment even if they are not engaged in specific work tasks. In particular, there are some contracts between workers and employers which may require workers to be ‘on the clock’ 24 hours a day, 7 days a week. It is important to review those contracts when ascertaining whether a worker is in the course of employment while engaged in an activity which, on the face of it, does not appear to be connected with an employment-related duty.