Successful appeal in cigarette break injury

Monday 4 March 2019

A Queensland woman who broke her leg whilst climbing down a rooftop ladder after a pre-work cigarette break has been subject of recent media attention. 

Her workers compensation claim was initially denied as she was not authorised to be on the roof to smoke and had not “commenced” employment for the day, however this decision was overturned by the Industrial Court of Queensland.  The Court determined that Ms Sarkaria had commenced employment and was on an “authorised recess” when she sustained her work-related injury.

The ruling is an example of a “course of employment” compensation claim which captures the less clear situations such as entering and exiting a workers building, travelling for work and participating in social work functions.

The Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCA) outlines the circumstances when a “course of employment” workers compensation claim may be made:

  • The worker has attended their place of employment and are now temporarily absent due to an authorised recess; and does not voluntarily place themselves in any abnormal risk; or
  • Travelling for the purposes of employment; or
  • Attending training which the worker is expected to attend by the Employer; or
  • Attending any medical or rehabilitation services related to their work injury.

Workers compensation does not apply if someone is injured on the way to or from work; but the situation is less clear about walking in from or out to the carpark at the end of the day.

Based on a literal interpretation of the WIRCA Act, this should not be covered but it appears that the Courts have exercised a generous approach and have covered these situations if they have merit.

  • In Lukey v Mercy Public Hospitals Inc (2012) a nurse who was walking out of the hospital at the end of her shift but tripped on a cracked pavement before she got to her car, had her claim accepted.
  • In Berryman v Saferoads Pty Ltd (2012) a labourer who was assaulted by a drunk co-worker following a work Christmas party had his claim accepted.
  • In Fletcher v AMRS (Aust) Pty Ltd & VWA (2012) a meter reader who tripped over a low chain fence in the employers car park before having to garage his work vehicle at home, had his claim accepted; and
  • In VWA v Jones Lang Laselle (Vic) Pty Ltd (2012) an office worker who was walking through the ground floor foyer of a high rise office building when she slipped on a wet floor. Although she had not commenced work as yet and she worked on a different floor in the building, her WorkCover claim was accepted.

Alternatively the following situations were rejected by the court:

  • A CEO who played golf in between attending a work conference interstate and then flying home was not covered by WorkCover when he sustained a neck injury lugging his golf clubs and his baggage from the airport to his car – Stephens v Greyhound Racing Victoria (2014).
  • A retail assistant who was injured in the shopping centre car park on her way to work – O’Dea v L’Oreal (2012)
  • A worker who had left for the day but returned to pick up his wallet that he had left behind – Aloi v VWA (2013)

Adviceline Injury Lawyers recently acted for a lady who tripped in a coffee shop located in the base of her work building on the way to work and ultimately had this claim accepted.

If you have sustained a “course of employment” type injury please call Adviceline Injury Lawyers on (03) 9321 9988 and speak to a lawyer for some professional advice.

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