Workers Compensation

Bennison v Qube Ports Pty Ltd [2026] WADC 87, decided by Cormann DCJ in the District Court of Western Australia on 3 September 2026.

1. What the case was about

Mr Bennison was employed by Qube Ports Pty Ltd as a stevedore. On 17 July 2022, he injured his left distal bicep/elbow while climbing a ladder at work. Qube accepted liability for his medical expenses, but the dispute concerned his entitlement to income compensation. He claimed income compensation from 18 July 2022 to 9 January 2024, arguing that although he was partially incapacitated, there was no suitable employment available to him and therefore his compensation should effectively be calculated at the total-incapacity rate.

2. The important factual findings

The injury was relatively minor. Mr Bennison returned to work the day after the injury and worked his normal shift. Medical evidence subsequently identified a partial-thickness distal bicep injury/tendinosis without a tear. The arbitrator found that:

• Mr Bennison was partially, but not totally, incapacitated from 26 July 2022 to 9 January 2024.
• Initially he had a lifting restriction of approximately 3–4 kg, which later increased to 20 kg.
• He could perform various types of work, although he was unsuitable for heavy labouring.
• He had transferable skills, including leadership and computer skills.
• He was potentially suitable for roles such as service adviser, warehouse supervisor, administrative assistant, laboratory assistant and forklift driver.

A particularly important finding was that Qube would have facilitated Mr Bennison’s return to work, accommodating his medical restrictions. The arbitrator considered it more likely than not that Qube would have provided suitable duties within his existing employment.

3. Why Mr Bennison did not return to Qube

The Court placed considerable significance on the fact that Mr Bennison’s failure to return was not ultimately because he was incapable of working. He had commenced planned long-service leave and went caravanning with his wife. He subsequently decided to resign from Qube in order to establish a home-brewing business and care for his children. When he discovered in December 2022 that he had been rostered to work, he contacted Qube. Qube asked for an updated medical certificate so that a return-to-work plan could be developed. He did not provide one, partly because his resignation was about to take effect. He accepted in evidence that, even if Qube had offered duties within his restrictions, he would not have taken them because he was on leave and had decided to resign.

4. The grounds of appeal

Mr Bennison appealed the arbitrator’s decision on four alleged questions of law:

1. There was insufficient evidence that Qube would have modified his pre-injury role to accommodate his restrictions.
2. The arbitrator had misconstrued “suitable employment“ under s 48 of the Workers Compensation and Injury Management Act 2023 (WA), particularly by failing to consider whether the work was a genuine “real job” available on the open labour market.
3. The arbitrator failed to determine whether Mr Bennison was physically and vocationally suited to each of the 13 alternative roles identified in the evidence.
4. The arbitrator failed to calculate the appropriate rate of partial incapacity compensation by comparing total incapacity compensation with what he could earn in suitable alternative employment.

5. The Court’s decision on Grounds 1 and 2

The Court held that there was evidence supporting the arbitrator’s finding. Qube’s national management injury adviser, gave evidence that Qube could provide Mr Bennison with employment in roles including team leader, with accommodations for his lifting restrictions. There was also evidence that Qube had actually begun discussing his return to work and had requested an updated medical certificate to determine his capacity. The Court emphasised an important appellate principle:

An arbitrator does not make an error of law merely because they may have reached a wrong or doubtful factual conclusion.

Where there is evidence capable of supporting the finding, choosing between competing evidence or inferences is generally a question of fact, not a question of law. Consequently, Ground 1 did not raise a question of law.

Ground 2 “suitable employment”

Section 48(2) of the 2023 Act provides that, for partial incapacity, income compensation is calculated by taking the total-incapacity amount and deducting what the worker earns, or is able to earn, in suitable employment.

Mr Bennison argued that the arbitrator needed to consider whether the modified work constituted genuine “real jobs” available on the open labour market, rather than duties assembled merely to accommodate his restrictions.

The Court rejected the argument that the arbitrator had made a legal error. The evidence indicated that the duties were not artificially created for Mr Bennison. Rather, they were tasks falling within the ordinary range of a stevedore’s work, with employees allocated tasks according to their skills and medical restrictions.

The Court therefore concluded that no question of law arose from Ground 2.

6. Grounds 3 and 4

The Court did not need to determine Grounds 3 and 4.

This was because Mr Bennison had accepted that these grounds only became relevant if the Court overturned the finding that Qube would have provided suitable employment in his existing role.

Because the Court upheld that finding, there was no need to separately determine the 13 alternative occupations or calculate hypothetical earnings from those occupations.

7. Final result

The appeal was dismissed. Importantly, the Court did not simply decide that Mr Bennison had no physical incapacity. Instead, the critical finding was that:

he was partially incapacitated, but Qube would have provided suitable, paid employment accommodating his restrictions, and he would have been able to earn at least what he earned before the injury.

Accordingly, there was no demonstrated entitlement to the claimed income compensation, and Mr Bennison failed to establish a question of law warranting an appeal.

Practical significance

The decision is particularly relevant to WA workers’ compensation disputes involving partial incapacity and “suitable employment”. The key propositions emerging from the decision are:

• Suitable employment can potentially be work within a worker’s existing role, modified to accommodate medical restrictions.
• The work does not necessarily have to be a separately identified position occupied by another employee.
• Evidence that an employer would allocate ordinary duties consistently with a worker’s restrictions can support a finding of suitable employment.
• On an appeal under s 391 of the 2023 Act, a worker cannot turn a disagreement about the arbitrator’s factual findings into a question of law merely by characterising it as an error of law.
• Where an arbitrator finds that suitable employment would have enabled the worker to earn at least their pre-injury earnings, it may be unnecessary to undertake a detailed assessment of other hypothetical occupations and their potential earnings.

In short: Bennison is principally an appellate decision about the limits of an appeal from a workers’ compensation arbitrator and the meaning/application of “suitable employment” in the context of an employer’s proposed return-to-work arrangements. The Court considered the arbitrator’s findings to be factual findings supported by evidence, rather than appealable errors of law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Likely future medical expenses to be incurred denied – Armet v CFC Consolidated Pty Ltd [2026] WADC 81.

1. What the case was about

The case concerned an appeal by Stephane Armet against a WorkCover WA arbitrator’s decision refusing his claim for payment of future medical treatment expenses arising from injuries he said he suffered at work in 2015.

Mr Armet had suffered a lumbar-spine injury on 18 March 2015, followed by an aggravation on 4 September 2015. CFC Consolidated had accepted liability for the workers’ compensation injury.

In 2023, Mr Armet applied for payment of anticipated treatment expenses, including physiotherapy, chiropractic, hydrotherapy and psychiatric/psychological treatment sessions.

CFC opposed the application, for reasons that the expenses were not “reasonable expenses” because they were not sufficiently connected with the compensable injuries.

2. What happened before the appeal

The arbitrator dismissed the application in September 2024.

His conclusion was essentially that previous decisions had already dealt with these matters and that the evidence did not establish that the proposed treatment was reasonably connected with the compensable injury.

3. The appeal to the District Court

Mr Armet appealed to the District Court and the Court granted leave to appeal but ultimately dismissed the appeal. In coming to its conclusion, the Court reduced Mr Armet’s numerous grounds of appeal into five principal questions:

1. Was he denied procedural fairness because the arbitration was decided on the papers?
2. Were the arbitrator’s reasons inadequate?
3. Was the arbitrator lacking integrity, independence or impartiality?
4. Did the arbitrator apply the wrong law?
5. Did the arbitrator wrongly apply the principles of estoppel/res judicata and therefore fail to properly consider conflicting evidence?

4. The ultimate result

The outcome can be summarised very simply:

The Court’s formal conclusion was that although leave to appeal was granted, the appeal was dismissed.

5. In practical terms

The judgment states that Mr Armet’s case failed not simply because the arbitrator disagreed with his medical evidence, but because:

1. some of his alleged injuries had already been determined in earlier proceedings;
2. for the remaining compensable injuries, the evidence did not sufficiently establish entitlement to the proposed future treatment expenses; and
3. his complaints about the assessment of the medical evidence largely concerned findings of fact, which could not be converted into successful questions of law merely by describing them as legal errors.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

A Case About Liability in Labour Hire Arrangements

Case: Moon Recruitment Pty Ltd v Execom Software Pty Ltd t/as Execom Personnel [2025] WADC 18
Issue: Who was the true employer of an injured worker—and therefore, who was liable for his workers’ compensation entitlements?

Introduction

The District Court of Western Australia recently considered a case that highlighted the legal complexities in labour hire arrangements. At the centre of Moon v Execom was a dispute between two companies over who employed Mr Horne, a fabricator injured on his first day at work.

This case reinforces the importance of properly identifying contractual parties and clarifies the test for determining an employer in multi-party arrangements.

Background

During August 2019, Mr Horne was hired by Moon Recruitment Pty Ltd for a short-term role at Echo Marine, a boat builder in Henderson, WA. Moon Recruitment operated as a labour hire company, it paid Mr Horne, but he worked under Echo Marine’s supervision.

By prior arrangement between Moon Recruitment and Execom, Mr Horne was then sent a written offer on 30 August 2019 by Execom in respect of the same job. He would in terms of the offer agree to provide his services to Execom’s ‘client’ and Execom would agree to pay him, as well as to take out workers’ compensation insurance to cover him. However, Echo Marine was not Execom’s client. It had no contractual or other relationship with Echo Marine, the business at which he was to work. Execom did arrange for Mr Horne to be covered by a workers’ compensation policy with its insurer. Mr Horne commenced work at Echo Marine and was injured soon thereafter. Some weeks after his injury, Mr Horne signed the Execom offer. Execom made a claim to its insurer, which accepted liability to make workers’ compensation payments to Mr Horne and proceeded to do so.

Despite initially making a claim with its own insurer, Execom later argued that Moon Recruitment, not Execom, was Mr Horne’s true employer and thus liable for his compensation. Mr Horne, meanwhile, lodged claims against both companies. The applications were heard together, and the arbitrator found that Moon Recruitment was in fact Mr Horne’s employer.

Legal Framework

The appeal was heard under the Workers’ Compensation and Injury Management Act 1981 (WA), specifically section 247(2), which requires a question of law to be determined on appeal.

Moon Recruitment’s grounds of appeal were:

1. The arbitrator erred in finding no contract existed between Execom and Mr Horne.
2. The arbitrator erred in finding there was a contract between Mr Horne and “Moon Recruitment,” rather than the incorporated entity, Moon Recruitment Pty Ltd.

Key Legal Questions

• Who was Mr Horne’s employer for the purpose of workers’ compensation?
• Was the correct entity held liable (that is, Moon Recruitment Pty Ltd or Kerrie Moon in his personal capacity)?

Findings

1. Identity of the Employer

The Court found that:

• All arrangements and interactions regarding Mr Horne’s employment were handled by Moon Recruitment.
• Mr Horne had limited knowledge of Execom and only received a contract offer after his injury.
• Execom’s involvement stemmed from a separate contractual arrangement with Moon.

The Court applied the “reasonable person” test, asking: What would a reasonable person in Mr Horne’s position believe about who their employer was? The answer pointed clearly to Moon Recruitment.

2. Applicability of CFMMEU v Personnel

While CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 was considered, the Court agreed with the arbitrator’s decision to distinguish it. That case dealt with characterising a work relationship under a clear contract, whereas Moon v Execom focused on contract formation and employer identity.

The Court also cited Agrigrain v Rindfleish [2024] NSWCA 295, supporting the distinction between characterisation and identification cases.

3. Moon Recruitment vs. Moon Recruitment Pty Ltd

Initially, the arbitrator had found Kerrie Moon personally liable due to the incorrect naming of the employer. However, this issue was not raised during arbitration, so no legal error could be claimed on appeal.

Still, the Court allowed Moon Recruitment to submit documentation showing its corporate status. The Court then amended the orders to reflect Moon Recruitment Pty Ltd as the correct party.

Conclusion

The appeal was dismissed on both grounds:

• Execom was not Mr Horne’s employer.
• The arbitrator did not err in attributing liability to Moon Recruitment (ultimately corrected to Moon Recruitment Pty Ltd).

The Court reinforced that, in such disputes, the key test is what a reasonable person would have understood about who employed them, based on objective facts and conduct.

Key Takeaways

• Contract formation and the identity of the employer are distinct from characterisation issues (as clarified in CFMMEU v Personnel).
• The “reasonable person” test is the guiding standard in disputes over employer identity.
• Properly naming legal entities is crucial as errors can lead to unintended personal liability.
• Courts may allow post-hearing corrections if compelling evidence (like ASIC documentation) supports the correction.

OZ Shut Pty Ltd v Hilton [2025] WADC 10 

The District Court of Western Australia has dismissed an appeal by an employer, confirming that a sales representative injured while shopping during a work journey was entitled to workers’ compensation. The decision in OZ Shut Pty Ltd v Hilton [2025] WADC 10 serves as a helpful clarification of the principles governing work-related travel, “down-time,” and the concept of employment-related purpose under the Workers Compensation and Injury Management Act 2023 (WA).

Background

Ms Hilton was employed as a sales consultant by OZ Shut Pty Ltd. On 1 November 2022, she was directed to attend a 4:00pm sales appointment in Halls Head. After completing an earlier appointment, she travelled from Middle Swan and arrived near the appointment site at 3:40pm. She entered a shopping centre to use the restroom and then went into Kmart, where she purchased a dress. As she exited Kmart, she slipped and fell, sustaining injuries to both knees and ankles.

OZ Shut denied liability, arguing that the injury occurred outside the course of her employment. The matter was heard before an arbitrator, who determined that the injury did occur in the course of employment. OZ Shut then appealed to the District Court.

The Legal Framework

The appeal was governed by the Workers Compensation and Injury Management Act 2023 (WA) (WCIMA 2023), which commenced on 1 July 2024. Section 9 of the Act provides that injuries sustained during a “work journey” are compensable, except where the journey is substantially interrupted or deviated from for a purpose unconnected with employment.

The key question before the court was whether Ms Hilton’s decision to enter Kmart constituted such an interruption or deviation, or whether it remained within the scope of her employment.

The Court’s Findings

1. No substantial interruption or deviation

Judge Staude held that entering Kmart did not amount to a “substantial interruption” or “substantial deviation” from Ms Hilton’s work journey. She was still en route to her scheduled appointment, and the stop at Kmart was brief—approximately 10 to 15 minutes. The court found that:

• The shopping centre was adjacent to her appointment location;
• The purpose of the visit (purchasing professional attire) was not wholly unconnected to her work; and
• The deviation did not delay or impact her attendance at the appointment.

The court reaffirmed that an interruption or deviation must be “substantial” to invoke the exclusion under s 9(2), which it defined as being of “real significance, weighty, or important.” On the facts, that threshold was not met.

2. Shopping was connected to employment

Even if the deviation had been substantial, the court held that it was not “unconnected” with employment. Ms Hilton’s role required her to be professionally attired, and her evidence that she was purchasing a dress for work was unchallenged. Judge Staude concluded that this provided a sufficient nexus to employment.

3. Down-time is still work time

In the alternative, the court accepted the arbitrator’s finding that Ms Hilton was still “at work” during her down-time between appointments. OZ Shut had expressly permitted sales staff to undertake personal errands such as shopping, provided they remained contactable and available for appointments. This practice was confirmed by Ms Hilton and her co-workers, and was not rebutted by the employer’s witness, who conceded he was not involved in supervising the sales team.

The court found that Ms Hilton’s activity fell squarely within the scope of her employment and, further, that even if it was an “interval” case, the employer had induced or encouraged her to spend her time in that way, in line with Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 and Comcare v PVYW [2013] HCA 41.

Clarifying “Work Journey” under the New Legislation

Section 9 of the WCIMA 2023 replaces the former presumption under the repealed Workers’ Compensation and Injury Management Act 1981 (which treated interruptions over one hour as “substantial”). Under the new Act, the assessment of what constitutes a “substantial interruption” or “substantial deviation” now depends entirely on the specific facts, context, and connection to employment.

In this case, a 10–15-minute stop for work-related shopping within the same shopping centre did not qualify as substantial.

The Importance of Employer Policies and Supervisory Practices

A crucial part of the arbitrator’s (and the Court’s) reasoning rested on the actual work culture and supervisory instructions. Evidence showed that Ms Hilton and other sales consultants were:

• Routinely allowed to shop or engage in personal activities between appointments;
• Required only to remain contactable and available; and
• Paid for their “down-time” between client meetings.

This lack of clear employer direction or restriction meant that such incidental activities fell within the scope of employment.

Legal Tests Applied: Substantial Deviation and Employment Connection

This decision reinforces several core legal principles under WA compensation law:

• “Substantial” deviation or interruption requires something weighty, not just minor or brief.
• “Unconnected with employment” means lacking a reasonable or foreseeable link to work duties—buying clothes for work does not meet that threshold.
• Whether someone is “in the course of employment” involves looking at objective facts, employer expectations, and any implied permissions. 

Practical Implications for Employers and Employees

This case carries practical takeaways for both employers and employees:

• Employers: Should ensure that their policies about permissible activities during “down-time” or travel are clear, consistent, and documented. If certain actions (e.g., shopping) are discouraged or prohibited, that should be explicitly communicated.
• Employees: Should understand that work-related activities—even outside an office—can still fall within the scope of employment if they are reasonably connected and not expressly forbidden.
• HR & Compliance: Consider training managers to avoid mixed signals about permitted conduct and document informal permissions or workplace norms.

Conclusion

The court dismissed all six grounds of appeal, finding that:

• Ms Hilton was on a work journey at the time of the injury;
• There was no substantial deviation or interruption;
• The purpose of entering Kmart was not unconnected with employment; and
• She was effectively still at work, or at minimum, engaging in an employer-approved interval activity.

The appeal was accordingly dismissed.

Key Takeaway

OZ Shut v Hilton reinforces the principle that brief personal activities during a work journey—especially those tied to employment obligations—will not necessarily break the chain of employment for compensation purposes. Where an employer allows flexibility during “down-time,” the scope of employment may extend to incidental activities such as shopping, particularly when such conduct is common and known to be permitted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Essayid v Saint [2021] WADC 61

The plaintiff brought an action against three parties.

The Plaintiff injured his hand on 24 September 2017 whilst working on a fishing vessel when a hopper lid closed on the Plaintiff’s hand and caught it. The Plaintiff suffered wounds to three fingers, a fracture of one finger, and tendon damage.  The personal injury occurred when the plaintiff turned to his right and looked straight down to pick up a hose in his left hand.  He then put his right hand out and onto the metal lip of the hopper tank to steady himself. The foam rubber seal which was around the lip of most of the hopper was missing from the section where the Plaintiff put his hand. The hopper lid closed on the Plaintiff’s hand and immediately caught it.  He could not pull his hand away.  He screamed out to get attention.  Another crew member then immediately raised the hopper lid and came to the Plaintiff’s aid.

The primary matter in dispute is the legal relationship between the four parties.

1. The Plaintiff was engaged as a fisherman on the fishing vessel (Vessel);
2. The Second Defendant (Owner) was the owner of the Vessel;
3. The First Defendant (Skipper One) entered into a Joint Venture Owner Skipper Agreement (JV Agreement) with the Owner pursuant to which Skipper One would have full responsibility for all activities, safety, taxes, training, legal compliance, and staff on the Vessel. The Owner only provided the Vessel for which it shared in the profits; and
4. The Third Defendant (Skipper Two) entered into a Change of Nominated Skipper Agreement with Skipper One because he had injured himself and for the period of 22 September 2017 and 2 October 2017 and therefore required a replacement.

The Legal Relationship between the Owner and the Plaintiff

It was argued that the Owner owed a duty to those on the Vessel to ensure such persons were not exposed to reasonably foreseeable hazards and to provide a safe working environment onboard the Vessel.

The Owner was held not to be able to discharge the common law duty to take reasonable care for persons on the Vessel and therefore owed no duty.

The above obligations were to be discharged by Skipper One on a day-to-day basis and this was held to be recognised in the JV Agreement where it was acknowledged and accepted that those obligations would be undertaken by the Skipper One. This obligation was later assumed by Skipper Two whilst he was the temporary skipper.

The Legal Relationship between the Skipper One and the Plaintiff

The Plaintiff and Skipper One entered into a Share Fishing Agreement (SFA) that provided that the Plaintiff would work as a Fisherman as required and as mutually agreed between Skipper One and the Plaintiff in the operation and maintenance of the Vessel. The Plaintiff would be paid by way of a share of the profits of the voyage’s catch and would contribute to the expenses. The SFA expressly excluded any intention to create a relationship of either partnership or employment between Skipper One and the Plaintiff. It that there was no entitlement to annual leave, sick leave, long service leave, or other benefits which usually accrue to a relationship of employment and stated that the provision of services by the Plaintiff was on a ‘fee for service‘ basis.

The court looked at the relationship between the parties holistically including the remuneration structure and concluded that, notwithstanding the express words used in the SFA, the Plaintiff was an employee of Skipper One.

The Legal Relationship between the Skipper Two and the Plaintiff

Skipper Two did not sign any agreement with the Plaintiff. Skipper Two signed an agreement with  Skipper One and the Owner which provided for his temporary appointment as skipper for the relevant period.

There was no express term of that agreement that Skipper Two would step into the shoes of Skipper One but in practical terms during the voyage, Skipper Two did stand in Skipper One’s shoes vis-à-vis the Plaintiff. This was an effective delegation of the contractual obligations owed to the Plaintiff for a temporary period.

Common Law Duty Owed by Skipper One and Skipper Two

The common law duty of care owed by an employer to their employee is a personal, non-delegable duty to ensure that reasonable care is taken to avoid exposing his employees to unnecessary risk of injury. The duty includes an obligation to take reasonable steps to provide a safe system of work.

The duty owed by Skipper One, as an employer, is non-delegable. He had a duty to provide, maintain and enforce a safe system of work. He is bound by any failure by other persons on the Vessel to meet that duty.

The obligation to provide a safe system of work arises out of an employment relationship but it can also be owed by someone other than the employer. The extent of any duty owed is defined by the role discharged by the person who might be said to owe the duty.

The Skipper Two had held a Skipper’s ticket for 10 years and had been fishing for 28 years and could reasonably have foreseen the same risks that Skipper One could foresee.

Skipper Two had stepped into the shoes of Skipper One for the duration of the voyage and even though he did not become the Plaintiff’s employer by reason of his assumption of that role, he stood in the shoes of Skipper One specifically in respect to the Plaintiff as it was left to him to undertake any necessary training and give appropriate warnings both to the Plaintiff and also to the rest of the crew. He was obliged to ensure that with a new and inexperienced crew member on board that all necessary safety measures were taken.

He owed a duty to the Plaintiff consistent with the duty owed by Skipper One, and it was non-delegable.

It was held that these duties had been breached by both skippers.

Statutory Duties:

Occupational Safety and Health Act 1984

s19. of the Occupational Safety and Health Act 1984 (OSHA) provides that an employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards.

s19. Of OSHA provides that a person that has, to any extent, control of (a) a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or (b) the means of access to and egress from a workplace, shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.

The court held that Skipper One had breached his duties pursuant to s19 and the Skipper Two had breached his duties pursuant to s22.

Occupiers Liability Act 1985 (WA)

S5(1) Occupiers’ Liability Act 1985 provides that the care which “an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, …..be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.”

An occupier is defined as a person occupying or having control of premises which include any vessel. The court held that during the period of the temporary appointment of the Skipper Two, Skipper One ceased to be the occupier of the Vessel and the Skipper Two became the occupier. The court went on to hold that the Skipper Two should have bought to the attention of the Plaintiff the risks associated with the operation of the hopper lids, should have instructed him on how to hold onto the Vessel whilst at sea and should have warned and directed all crew to give a warning before operating the hopper lids and to keep a lookout. This duty was breached in totality.

The court, therefore, concluded that both Skipper One and Skipper Two were to pay Plaintiff damages in the sum of $23,595 and dismissed the action against the Owner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

THOMPSON -v- ST JOHN OF GOD HEALTHCARE INC [2021] WADC 15

On the morning of the 26^th of November 2018, the appellant went to gym and performed certain leg exercises. Later in the day she went to work at a hospital, where she was employed as a theatre nurse. She alleged that she suffered an injury at work causing a gradual onset of low back pain radiating into her right leg. Her employer denied this.

The dispute between the employer and employee was whether the employer was liable for her unfitness to work.

The arbitrator formulated the question as follows:

“Whether [the appellant] sustained an injury arising out of or in the course of her employment (s 5(1)(a), Workers’ Compensation and Injury Management Act 1981 (WA) (Act))”

His decision was that he was:

“… not persuaded, on the balance of probabilities, to accept the assertions made on behalf of [the appellant] that the medical evidence establishes that she sustained a personal injury by accident arising out of in the course of her employment.”

The appellant was not entitled to workers’ compensation and she then took the matter on appeal to the District Court of Westen Australia.

There were two grounds of appeal, namely that:

• The arbitrator erred in law when determining whether appellant suffered an injury as defined in s. 5 of the Act, because he utilised the incorrect test; and
• The Arbitrator erred in law when he found the appellant an unreliable witness when there was no reliable evidence to support that finding.

The Court held that an appellant can only appeal on a question of law by virtue of the provisions of s 247(2) of the Act. (Dodson v Woolworths Group Ltd [2020] WADC 157).

A question of law can be either an error of law, or an error in which law and fact are mixed (Catholic Education Office of WA v Granitto [2012] WASCA 266).

There is no clear difference between errors of law, errors of fact and mixed errors of law and fact, and there is no definitive test for this (Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21).

If the ground of appeal does not involve a question of law, then a linguistic reformulation of the problem will not make it so (Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17).

An error of law must also be material to the decision so that, but for the error, the decision would, or might, have been different (BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250).

The court then looked at the definition of “Injury” in Act.

“injury means —

(a) a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer’s instructions; or

(d) the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree;”

The appellant argued that the arbitrator had incorrectly relied on the test in s5(d) of the Act. Instead, he should have relied on s5(a). The importance being that s5(d) requires that work contributes significantly to a pre-existing condition. “Significant” contribution is not required in s5(a). Employing the wrong test, with its more onerous requirement, led the arbitrator to reject the appellant’s version.

The court found that the appellant suffered from an underlying asymptomatic L5 radiculopathy.  The appellant alleged that there had been a gradual onset of right leg pain during her shift. In other words, it was her work on that shift which caused her previous asymptomatic low back condition to produce right leg pain. The hospital denied this and alleged it was triggered by her gym exercises earlier that morning.

The issue was therefore whether the cause of the appellant’s condition becoming symptomatic was her physical effort at her place of work.

Because of the fundamental and contradictory differences between the two scenarios it was necessary to consider the issue of credibility.

The Court then looked at the evidence in the case. There were two medical professionals, a GP and a physiotherapist who both recorded that the appellant had told them that the pain in her right buttock and right leg had started when she used the leg press at the gym.

The court thus held that it did not matter whether the test s5(a) or s5(d) was employed because on either version the injury was caused by the exercise in gym and not by work. The appeal was therefore dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

CLARK -v- SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD [2021] WADC 11

Introduction

In December 2014, the plaintiff was employed by a company called Mineworks when he suffered a back injury whilst working as a painter and sandblaster at the Australian Marine Complex (AMC).

This case was a separate tort claim against the defendant, Schneider Electric (Australia) Pty Ltd (Schneider).

The job to be completed was the construction of switch rooms (rooms) for Chevron Australia Pty Ltd (Chevron).

Chevron had given the contract for the construction of the rooms to Schneider. Schneider then engaged a subcontractor called HVLV Pty Ltd (HVLV). HVLV then engaged Mineworks to supply workers to complete certain of the painting work. Mineworks had no presence on the work site and merely provided workers, of which the plaintiff was one. Schneider controlled the worksite.

The Plaintiff worked beneath the switch room structures, which were mounted on concrete filled drums and stood approximately 1.5 m above the ground. The Plaintiff was 1.76 m tall and was required to work 10-hour days, Monday to Friday, and five hours on Saturday. He was therefore required to either stoop or sit and work above his head for extended periods. As a result, he experienced severe lower back pain extending into his buttocks. This was later identified as disc protrusions at the L3/4, L4/5 and L5/S1 levels.

Negligence based tort actions generally have four primary components, namely duty of care, breach of that duty, causation, and finally damage.

The Plaintiff thus sought to show that Schneider owed him a duty of care, which they breached, and finally that this caused the damage or injury which he had sustained.

Duty of Care

The plaintiff alleged that as an occupier of AMC, or as the head contractor at AMC, Schneider owed him a duty of care. He argued that there were three possible sources for that duty of care:

1. a common law duty;
2. a duty pursuant to s 5 of the Occupiers’ Liability Act 1985 (WA); and
3. a duty pursuant to s 22 of the Occupational Safety and Health Act 1984 (WA).

The court indicated that the common law duty in Western Australia had been superseded by a duty pursuant to Civil Liability Act 2002 (WA). The alleged common law duty was that Schneider should have provided a place of work, or system of work which did not unreasonably expose the plaintiff to the risk of harm. This would be the same as a duty under the Civil Liability Act.

S 5 of the Occupiers’ Liability Act 1985 (WA) provides that an occupier of premises has a reasonable duty towards a person entering onto a premises to see that that person will not suffer injury or damage by reason the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible. This may, in certain circumstances, be extended, restricted, modified, or excluded by agreement.

s22 of the Occupational Safety and Health Act 1984 (WA) provides a person that has control of a workplace where persons who are not employees of that person work shall take such measures as are practicable to ensure that persons who are at the workplace are not exposed to hazards.

s5B of the Civil Liability Act 2002 (WA) provides that a person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless the risk was foreseeable, that is, it is a risk of which the person knew or ought to have known and that the risk was not insignificant and that, in the circumstances, a reasonable person in the defendant’s position would have taken precautions. Further, that in determining whether a reasonable person would have taken precautions against a risk of harm, the court is to balance the following:

1. the probability that the harm would occur if care were not taken.
2. the likely seriousness of the harm.
3. the burden of taking precautions to avoid the risk of harm.
4. the social utility of the activity that creates the risk of harm.

The court then turned to principles governing the duty of principal contractors to the workers of independent contractors, and relied on three cases:

1. Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1: A principal contractor, who employs subcontractors, owes a duty to the employees of the subcontractors to take reasonable care when co-ordinating the activities of trades at the worksite to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised.
2. Stevens v Brodribb Sawmilling Co Pp Ltd (1986) 160 CLR 16: This is an exception to the rule in the Leighton case where the court held that if a principal contractor has engaged independent contractors to do work that might readily have been done by its own employees, in circumstances in which there is a risk to them of injury arising from the nature of the work, then there is a duty to direct and coordinate of the activities being undertaken.
3. CGU Insurance Limited v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117: Leighton and the Stevens exception are not exhaustive of the circumstances in which liability may be found on the part of a principal or head contractor. The nature and extent of the duty of care must be established by a reference to the general law of negligence. A duty may arise in circumstances where, “reasonable care on the part of the contractor affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present”.

The court then turned to the facts of this case and more particularly the relationship between Schneider and HVLV (the intermediate sub-contractor). The contract between Schneider and HVLV provided that HVLV “was responsible for the performance of the subcontract work, relevantly the painting and sandblasting of the switch room structures, was responsible for organising the way in which the work was performed and was responsible for the employment or hiring of workers to perform the work. Further, HVLV maintained ‘complete control and responsibility over its employees’ in the way in which they performed their work duties. The subcontract agreement did not give Schneider the right to control and direct the employees of HVLV as to the manner in which they were to perform their work duties, trades, and activities on site. Schneider did not have the right, nor the responsibility, by the subcontract to control and direct how subcontractor employees ought to perform their work duties.”

Thus, the court held there was no duty owed by Schneider to the plaintiff.

Causation

The court raised two issues in relation to causation. The first was that there was no evidence that clearly linked the conditions of work to the final injuries. The second was that there was no evidence that even if Schneider had taken the steps that the plaintiff had put forward (inter alia, a roster-based rotational system of work and a different chair) that these would have avoided or reduced the risk of injury to Mr Clark.

Thus, the court held that even if it was wrong on the issue of duty of care, Schneider was still not liable because causation was absent.

Conclusion

The plaintiff’s action was therefore dismissed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

(BRIGGS -v- WACHS – PILBARA (HEDLAND HEALTH CAMPUS) [2018] WADC 73)

The Hedland Health Campus employed Mr David Briggs (Mr Briggs) as a Registered Nurse. In March 2016, Mr Briggs was assaulted at work as a result of which he suffered an injury to his left shoulder. The employer accepted liability. In February 2017 Mr Briggs drove from South Hedland to Perth and back to see an approved medical specialist, Dr Cordova. The question which arose for determination was whether the employer was obliged to pay Mr Briggs’ vehicle running expenses, together with meals and accommodation in the sum of $1,996.08.

In order to answer that question, it was necessary for the Court to determine which clause of schedule 1 to the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) applied.

An approved medical specialist such as Dr Cordova may be required to make an assessment of a worker, the approved specialist is required to give to the worker and the employer a written report of the worker’s degree of impairment, including details of the assessment and reasons justifying the assessment and a certificate specifying the worker’s degree of impairment.

Clause 17(1aa) of Schedule 1 to the Act provides that a worker can claim for certain specified expenses for his/her first assessment or attempt at an assessment for the purposes of s 93L of the Act (which this was) but not including the cost of any travel, meals, or lodging.

Clause 19(3A) of Schedule 1 to the Act provides that where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist the employer is liable to pay the worker’s vehicle running expenses, reasonable fares and expenses and reasonable cost of meals and lodging.

Considering the two clauses above, the Court applied the principle that statutory texts enacted by the same legislature are to be construed so far as possible to operate in harmony and not in conflict.  That principle of harmonious construction applies to the construct ion of provisions within different statutes of the same legislature to create a very strong presumption that the legislature did not intend to contradict itself but intended that both should operate.

Clause 17(1aa) is confined by its express words to expenses arising from a s 93L assessment.  Clause 19(3A) deals with any case where a worker travels for his/her degree of impairment to be assessed by an approved medical specialist or panel.  Clause 19(3A) includes but is not limited to s 93L assessment.  Clause 19(3A) is therefore wider in its potential application than cl 17(1aa).

There is a principle of statutory interpretation that where there is a conflict between two sections of an act and where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision in so far as it is inconsistent with the special provision, must be deemed not to apply.

Applying that principle, the Court was satisfied that the arbitrator was correct in concluding that the two provisions can in fact be read together.  Although cl 19(3A) expressly contemplates the payment of a worker’s travelling expenses where a worker travels in order to have their degree of impairment assessed by an approved medical specialist, there are a number of reasons for such an assessment.  Clause 19(3A) provides for travel, meal and lodging expenses for all attendances for the purposes of common law assessments (s93L).  In the latter scenario the position is governed by cl 17(1aa). The Court was not prepared to disregard the plain words of the clauses, as there is a longstanding principle of statutory interpretation that all words in legislation should (where possible) be given meaning and effect therefore, those exclusionary words do not apply only to expenses payable under cl 17 and declined to construe the Act so as to conclude that a worker is compensated for medical and other expenses under cl 17(1) whilst, notwithstanding cl17(1aa), paid the associated travel and other expenses under cl 19.

Therefore, the employer was not obliged to pay Mr Briggs’ vehicle running expenses, together with meals and accommodation in the sum of $1,996.08.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

RAMSAY HEALTH CARE AUSTRALIA PTY LTD VS WYATT – [2017] WADC 145

On 8 April 2014 (on a rostered day off), Ms Wyatt attended the hospital where she worked to complete a form that had been requested of her previously. It is accepted that her attendance did not relate to the nursing duties for which she was employed. As she went to sit on a chair proximate to the computer she intended to use, she missed the chair, landed heavily on her buttocks on the floor and suffered injury. Thereafter, Ms Wyatt commenced a workers’ compensation claim for weekly payments of compensation and statutory expenses.

The hospital denied liability and disputed the fact of the injury arose out of or in the course of her employment with it.

On 29 November 2016, an arbitrator at WorkCover found in favour of Ms Wyatt and ordered that the hospital pay her weekly payments of compensation for total incapacity for the period from 8 April 2014 to 12 November 2014 and from 12 to 22 January 2015.

The hospital appealed the arbitrator’s decision, pursuant to section 247(1) of the Workers’ Compensation and Injury Management Act. The issues for the appeal were:

• whether the factual material placed before the arbitrator compelled a finding that the Ms Wyatt’s injury was in fact suffered in the course of her employment, notwithstanding that she had not been rostered to work on that day and had attended her place of work of her own volition; or
• whether Ms Wyatt’s attendance at the hospital on that day was reasonably required, expected or authorised in order to carry out her actual duties or necessarily incidental thereto, that is to say, in the context of what Ms Wyatt was employed to do.

The court observed that after “… having reviewed the arbitrator’s findings and reasons, I am satisfied that in making the finding that the arbitrator did not apply the correct test when determining if the respondent’s injury occurred in the course of her employment…”.

The judge found that he was “…. satisfied that the arbitrator was in error in focusing on what the respondent (Ms Wyatt) was doing at the time, rather than whether the appellant (the hospital) had induced or encouraged the respondent to engage in that activity at the time and the place when she suffered the injury …” and dismissed Ms Wyatt’s appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

In the recently decided matter of Simpson v Alliance Contracting PTY (Ltd) and Friob PTY (Ltd) [2016] WADC 158, the Plaintiff was severely injured in a mine site accident when he made his way under the suspended stemming bucket of a loader and attempted to remove an obstruction by reaching his left hand up into a discharge chute.  At that particular instance the driver of the loader inadvertently engaged the hydraulics of the vehicle allowing the operating sliding gate in the discharge chute to severely lacerate and partially amputate the Plaintiff’s left hand.

In an action against his employer, the employer as Defendant commenced Third Party Proceedings against Friob PTY Ltd (Friob) who had manufactured and supplied the stemming bucket at the request of the Plaintiff’s employer.

The Court was requested to decide whether it was reasonably foreseeable for Friob that a person, such as the Plaintiff, may use a variety of methods to clear a blockage at the gate of the discharge chute in a thoughtless, inadvertent, careless or deliberate manner by inserting a hand or arm into the discharge chute in an attempt to manually clear a blockage.

Numerous expert witnesses were called including but not limited to a Civil Engineer, an Equipment Asset Manager, a Mechanical Engineer and the General Manager of Friob.

Find out more about workers compensation here. 

In considering the relevant legal principles, including Section 5A (2) of the Civil Liability Act 2002 (WA), causation, duty of care and the assumption of risk, the Court found as follows:

a)   Friob had a duty of care to manufacture design and supply stemming buckets:
i) that were fit for their intended purposes;
ii) with reasonable care and skill so as to not to create any unavoidable hazards;
iii) in a manner which avoided reasonably foreseeable risk of injury to an employee; and
iv) which avoided reasonably foreseeable risk of injury;
b)   that an Australian Standard:
i) is a guide to, but cannot dictate, the standard of reasonable care required in the circumstances of individual cases;
ii) also represents the consensus of professional opinion and practical experience as to sensible safety precautions and a standard of reasonable conduct;

However, in this case, the risk of injury of the kind suffered by the Plaintiff and the general manner in which it might occur were not reasonably foreseeable for the following reasons, among others:

a)  the stemming bucket was manufactured and designed:
i) for delivering stemming material into a blast hole on a mine site;
ii) for a loader and it was unable to operate in isolation to that loader;
b)  the stemming bucket was hydraulically operated with a sliding gate which was in-built not open or exposed;
c)  the stemming bucket was designed to be used by a single worker and operated by him with controls in the cabin;
d)  it was manufactured to be hydraulically operated by the driver and not by someone within reach of the operative/driver and positioned in the cabin;
e)  the loader operator/driver did not need to be in close proximity to or require access to the hydraulically operated sliding gate in the ordinary cause of operating the stemming bucket;
f)   various warnings were included in an operation and maintenance manual provided by the manufacturer;
g)  the loader operator/driver was required to carry out training modules in safety rules and operating procedures which were common across the mining industry; and
h)  when the stemming bucket was on the ground there was no access to the discharge chute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.