When is a deviation from a journey, arising out of or in the course of employment, substantial?
15 June 2023
In the recent District Court decision of Western Australia of Douthwaite v Mediserve Pty Ltd [2023] WADC 56, the Court found that:
- the worker suffered an injury during a journey arising out of or in the course of his employment, and
- the worker’s deviation from the journey was substantial and for reasons unconnected with his employment.
Background
Mr Douthwaite (the worker), who normally resided in Perth, was employed as an agency nurse under a short-term contract by Mediserve Pty Ltd (the employer) in Papanya in the Northern Territory between 5 and 27 March 2020.
The employer paid for the worker’s travel and accommodation from and to Perth. On 27 March 2020 the worker had completed his work and was driven to Alice Springs—where he was booked into the Mercure Hotel from noon for one night—for a flight to Perth the following day.
At the hotel the worker ate lunch and drank a bottle of wine. At 5pm he left the hotel and went to a pharmacy for medication and visited a bottle shop for another bottle of wine. He then returned to the hotel and slept.
At 9pm the worker rang the hotel’s room service to order a meal to find there was no further food service available. He then left the hotel to attend an Indian restaurant, but it was closed and he decided to return to the hotel.
Before arriving back at the hotel, he met a group of five teenage aboriginal girls, who he did not know and with whom he engaged in light banter; the girls mentioned mugging him. The worker was alert and thought to “watch his back” and “be careful” but was not fearful of the girls. He asked the girls where the nearest 7-Eleven was to buy food and they took him to a Coles Express, which was walking in the opposite direction to his hotel. He continued to engage in light banter with the girls.
At the Coles Express the worker did not buy food as the selection was not to his liking but did purchase some “roll your own” tobacco. The worker continued to walk with the girls in the opposite direction from his hotel, socialising with them. He did not know where he was but had decided he no longer required food.
At 10.30pm the worker was sitting in a park some 2.5 kms from his hotel, with the girls (two of whom were playing with his hair) and preparing to smoke a cigarette. Whilst sitting at the park, the worker was hit on the head by an unknown person and briefly lost consciousness. When he regained consciousness, the worker found he was bleeding from his head; the girls told him that an unknown male had struck him on the head and had stolen his wallet.
The worker dialled 000 and reported the incident. He attended Alice Springs Hospital and was treated for lacerations to the back of his head and neck tenderness and was admitted overnight. The worker’s alcohol level was recorded at 0.09.
The following day the worker was discharged from the Hospital and returned to Perth on 29 March 2020.
Relevant issues
It was not in dispute that the worker suffered an injury during an interval or interlude within an overall or episode of employment.
The Arbitrator found that, applying Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 and Comcare v PVYW [2013] HCA 41, although the employer “required, induced or encouraged” the worker to stay in Alice Springs during the interval after completing his contract as an agency nurse, he was not required, induced or encouraged to be at the place where he was initially socialising and subsequently assaulted, being a park 2.5 km from his hotel. There was no sufficient connection between the injury and his employment to permit a finding that the injury arose out of or in the course of that employment.
On appeal:
- The worker amended his appeal to argue that it was not an ‘interval’ case but a ‘journey’ case and the Arbitrator had failed to apply s19(2)(b) of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) (this was not pleaded in the arbitration proceedings) and hence to be entitled to compensation the worker only had to show that the injury occurred during a journey that was incidental to his employment.
- The employer contended that even if the Arbitrator had erred in not treating the claim as one to which s19(2)(b) applied, the outcome would have been no different.
Section 19(2) of the Act excludes from the statutory meaning of ‘injury’ an injury suffered in two circumstances:
- during a journey between the worker’s place of residence and place of employment, or
- during “any substantial interruption of, or substantial deviation from” a journey arising out of or in the course of employment that is made for any reason unconnected with the worker’s employment.
It was accepted that the journey between Perth and Papunya was a journey in the course of employment and the focus was therefore on the second limb.
His Honour found that:
- The worker leaving the hotel and going in search of food was a deviation from the journey arranged by the employer but was not a “substantial deviation”.
- By the worker proceeding from Coles Express and going with a group of girls to the park to socialise, taking him late at night in the company of persons he did not know from a secure place of accommodation to a public space some 2.5kms away from that accommodation, did deviate substantially from the journey; he did so for a reason unconnected with his employment.
- The Arbitrator’s decision should be affirmed, and the appeal dismissed.
- Although the Arbitrator should have applied s19(2)(b) of the Act to the facts, his failure to do so (due to the manner in which the claim was argued) did not vitiate the decision to dismiss the appeal.
- The operation of s19(2)(b) of the Act is consistent with the principles in Hatzimanolis and Comcare v PVYW and did not permit a different outcome in this case.
