A full Tasmanian Supreme Court has ruled that an 'on-call' worker was injured in the course of his employment when he broke his leg while walking his dog. 

The full court dismissed the previous appeal determination that had set aside the compensation case.

The worker broke his leg in May 2018 and claimed worker’s compensation from his employer, the Hydro Electric Corporation (HEC). 

The court heard the worker broke his leg while walking with his partner and his dog beside the lake at Tullah. The worker stepped onto a log, lost his footing, fell, and broke his leg.

The worker’s home was in Ulverstone and he was employed by the HEC as a relief area coordinator. The HEC provided him with a residence at Tullah and there were days when he was required to work from 7am to 5pm. At the time he was injured, he was on call. 

After submitting a compensation claim, liability was disputed and there was a hearing before the Workers Rehabilitation and Compensation Tribunal (TASCAT).

Tribunal Chief Commissioner Alison Clues made the determination that the worker’s injuries arose in the course of his employment.

The employer then appealed and the appeal was heard by Justice Gregory Geason, who made orders to the effect that the determination of the tribunal be set aside and the referral to the tribunal dismissed.

Throughout the litigation, the employer contended that the worker broke his leg while walking his dog and it was not during the course of his employment.

The worker argued he was injured while doing something required by his contract of employment – standing by on 'availability duty' at Tullah within an area of mobile phone coverage, ready to go when needed within 15 minutes of being contacted. 

Chief Commissioner Clues rejected the contention that the worker was in the course of his employment because he was performing contractual duties, but she held that the Hatzimanolis principle applied, and that the injury occurred during an interval between episodes of work when the worker was doing something he was induced or encouraged to do by his employer.

However, the appeal judge concluded that the Chief Commissioner erred in law by making a finding that was not open to her on the evidence and that the injury fell outside of the concept of an injury occurring in the course of employment, and was not compensable. 

The court found that once Justice Geason concluded that the tribunal decision was based on an error of law, he did not automatically follow that the decision would have to be reversed. 

Justice Alan Blow held that the appeal judge should have addressed the submission to the effect that the worker was injured while undertaking actual work.

“His Honour had the power to make any order with respect to the appeal from the tribunal that was just ’for the purpose of ensuring the determination of the merits of the real question in controversy between the parties’,” Justice Blow said.

“It was in the interests of justice that he dealt with the submission that he overlooked. He erred, and denied the worker procedural fairness, by failing to address that submission.”

Justice Tamara Jago said the worker was injured in the course of his employment, agreeing that he was present at Tullah because of his employment contract. 

“He was being paid pursuant to that employment contract. At the time he was injured he was complying with a specific requirement of that employment contract, namely to be within mobile phone service range,” Justice Jago said.       

“His need to comply with his contractual obligations induced his presence there. He was in that area when the injury occurred. On either classification, the injury occurred in the course of the [worker]’s employment.”

Read the judgment

Nazar v Hydro Electric Corporation [2022] TASFC 11 (6 December 2022)