Knife-attack ruling misapplied workplace injury test

A ruling that a worker's knife-attack injuries weren't compensable, because of a possible drug-dealing connection, has been revoked for misapplying the "course of employment" test and considering "irrelevant matters".

In January 2017, the Burwood Council, NSW worker was undertaking early-morning cleaning duties at a park when he was stabbed four times. The assailant was never caught, and the worker claimed it was a random attack, but following revelations he'd sold cannabis to a homeless man who frequented the park, the Council said his injuries were linked to illegal activity, not his employment, and denied liability for his injuries.

The worker admitted he'd sold cannabis to the homeless man the year before but said there was no proof drug dealing had anything to do with the attack. He said he was carrying out his usual duties in his usual place of employment when he was exposed to the dangers of being at the park in the dark, making his injuries compensable.

As reported by OHS Alert early in 2022, NSW Personal Injury Commission Member John Wynyard found illegal activities had taken the worker out of the course of his employment and dismissed his claim.

The worker appealed, telling PIC Acting President Michael Snell the Member erred in finding he wasn't injured in the course of his employment. The Member's judgment involved a "mixed error of fact and law" that defied the evidence and contributed to a failure to consider whether his employment was a substantial contributing factor to his injuries, he said.

The worker argued that while the Council's insurer concluded he arrived at work early to meet a person or persons in relation to illegal activities and in doing stepped outside of his employment, there was no evidence he was at the park for any reason other than to carry out his employment duties.

He rejected claims he had conceded the stabbing was a targeted attack related to drug dealing.

He said that the evidence the Member relied on only suggested a possible motive for the assailant to attack him and did not address the nature of the activity he was engaged in when he was attacked.

The Council argued that Member Wynyard was obligated to consider whether, at the time of the attack, the worker was engaged in a criminal activity that had nothing to do with his employment, and his findings were open to him.

Establishing a causal connection not required

Acting President Snell found the Member erred in considering the potential causal link between the assault and the worker's cannabis dealing the previous year.

It was of little relevance to the issue of whether the worker was in the course of his employment at the time of the assault, which was the basis on which his case was conducted.

There is not a requirement, to establish injury in the course of employment, that there be a causal connection between the employment and the injury.

Whether there was such a causal connection could be relevant to whether the assault arose out of the employment. It was not of assistance in considering the allegation brought, being whether the assault occurred in the course of the worker's employment.

The Member misapplied the test of 'injury' in section 4 of the [NSW Workers Compensation Act 1987], in that he conflated the tests governing injury arising out of the course of employment and injury in the course of employment.

The Member had regard to irrelevant matters, as to whether the worker had established a causal connection between the employment and the injury.

Acting President Snell revoked Member Wynyard's determination and ordered that the matter be redetermined by a different PIC member.