Injury Sustained During Altercation, Not in the Course of Employment

A worker has failed to convince the Administrative Appeals Tribunal (AAT) that the injuries he sustained during an altercation had arisen out of or in the course of his employment.

Mr O’Loughlin was delivering fuel at a petrol station when he observed a man running out of the service station workshop, throwing objects and striking his fist at a car that had just been driven into the station by a woman. Mr O’Loughlin confronted the person and was subsequently punched in the face and kicked in the left leg.

Mr O’Loughlin’s employer initially accepted liability to compensate him for his medical expenses and incapacity. However, after over three years, the employer revoked its decision and denied liability on the basis that the injury did not arise out of or in the course of Mr O’Loughlin’s employment.

The Tribunal found that woman in the car had driven off when Mr O’Loughlin yelled out “Hey you, cut it out”. A heated verbal dialogue continued between the two men. The assailant walked towards Mr O’Loughlin twice, but turned back each time. On the third occasion, however, the assailant started throwing punches at Mr O’Loughlin’s face.

The assailant then lost his balance and fell. Mr O’Loughlin stood over the assailant and pretended to throw a punch at him. The assailant then kicked Mr O’Loughlin and injured his left knee.

Although Mr O’Loughlin claimed that his behaviour had been prompted by his concerns for safety at the petrol station, the Tribunal noted that he had not mentioned any safety concerns during the altercation or in his statement to the Police. The Tribunal found that Mr O’Loughlin’s actions were initially a result of his concern for the woman’s safety. Later in the confrontation, Mr O’Loughlin was effectively demanding respect from the assailant, the Tribunal found.

The Tribunal thus rejected the claim that the injury had arisen out of Mr O’Loughlin’s employment. Senior Member Friedman refused to accept the argument that Mr O’Loughlin was fulfilling his occupational health and safety obligations by taking reasonable steps to minimise a risk to health and safety.

In determining whether the injury had arisen in the course of employment, the Tribunal applied the principles established by the High Court in Comcare v PVYW [2013] HCA 41:

The Tribunal accepts that at the time the injury was sustained, Mr O’Loughlin was engaged in service to his employer because the hose was still connected to the underground tank at the service station and the process of delivery of fuel had not been completed. However, the Tribunal agrees with the respondent that the majority in PVYW held that for an injury to have occurred in the course of employment, an employee must be doing the very thing that the employer encouraged the employee to do when the injury occurred. Therefore the question is whether the respondent induced or encouraged Mr O’Loughlin to engage in the activity at the time the injury occurred.

The Tribunal held that while at times an employer may expect an employee to assist a person in need, the confrontation in this case would probably have ended when the assailant had started walking back to the workshop at the first instance.

In all the circumstances, Mr O’Loughlin was injured when, after the first intervention, he engaged in the activity of confronting the assailant and continuing the confrontation by initiating the other interventions, none of which was induced or encouraged by the respondent”.

Accordingly, the Tribunal was satisfied that the injury did not arise in the course of Mr O’Loughlin’s employment.

The Tribunal also rejected the argument that the extended meaning of “injury arising out of or in the course of employment” under s 6 of the Safety and Rehabilitation Act applied:

Mr O’Loughlin unnecessarily confronted and provoked the assailant verbally on a number of occasions (the second, third and fourth interventions) and physically (the fifth and sixth interventions) at the service station, and these actions led to the injury that was sustained by Mr O’Loughlin. His actions were voluntary and deliberate, and in carrying out these actions he was aware of an unusual risk of injury from assault by the assailant.”

O’Loughlin and Linfox Australia Pty Ltd [2014] AATA 577

Sourced:   CCH Australia, 26/8/2014