Stockwell v Workers’ Compensation Regulator Appeal Allowed

Background

The appellant carried out employment as a showroom consultant for Kitchen Connections, working at their Homeworld Helensvale Shopping Centre outpost. The store did not have dedicated bathroom facilities, with staff expected to utilise the Centre’s toilets.

On 15 December 2021 at approximately 8:45am, prior to the commencement of her shift at 9:00am, the Appellant was traveling from the showroom to the public bathroom when she slipped on a puddle, falling forward to the ground and injuring her knee, face, and shoulders.

The Appellant made a claim for compensation with WorkCover Queensland. This was rejected on the basis that she had not sustained an “injury” within the meaning of ss 32, 34(1)(c), and 25 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (‘the Act’). This decision was then confirmed by the Workers’ Compensation Regulator upon review.

Position of the Parties

The Appellant contended that the injury fell within the scope of s 32(1) of the Act on the basis that: –

a. The injury was an injury “arising out of or in the course of” her employment, per s 32(1) of the Act, by virtue of: –

• The injury occurring after she’d entered the premises where she carried out her employment, during a time that she was there for the purpose of performing her work duties; and
• The incident site was between her workplace and the bathrooms that employees were expected to use. That being that the hazard was at a place where the employer had placed her, and her employment brought her to the “particular locality” where the danger arose.

b. Her employment was a “significant contributing factor” to the injury, per s 32(1) of the Act, by virtue of: –

• The employer not providing its own bathroom facilities, requiring staff to use a public toilet within the centre;
• She slipped whilst traversing from her workplace to those toilets; and
• The incident was a state of affairs to which she would not otherwise have been exposed, but for her employment.

The Respondent contended that the Appellant’s injury did not arise out of, or in the course of, the Appellant’s employment, as: –

• The Appellant had not yet commenced work for the day, being due to commence at 9:00am;
• The Appellant was not performing any work duties, or anything incidental to same, at the time of the accident;
• The Appellant was on an undertaking of a personal and private nature, unrelated to her employment duties, at the time she sustained her injuries;
• The Appellant had left the premises of her employer at the time she sustained her injuries; and
• The Appellant was not preparing herself for the engagement of work duties at the time of the incident, but was on a “frolic of a personal nature”.

The Commissioner noted that the effect of the Regulator’s position, if accepted, would be that a worker who attended their place of work in the period between when they complete their journey to work, but before commencement of their work, would not be afforded any protection under the Act until their commencement time.

Decision

The Commission allowed the Appellant’s appeal, setting aside the Respondent’s decision of 3 June 2022, and accepting the Appellant’s application for compensation under the Act. The Appellant was also awarded costs of the hearing, payable by the Respondent.

The Commissioner concluded, as a factual finding, that there was an expectation of the employer that the Appellant arrive at work prior to her commencement time in order to prepare for work, so as to ensure that she was ready to serve customers from 9:00am. Nothing that it was held in Mayne v South Kalgurli GM Ltd that a reasonable period of time should be permitted to allow a worker to properly prepare themselves for the work for which they are engaged, the Commissioner concluded that the Appellant had arrived at a reasonable time before her commencement time. The Commissioner did not accepted that the Appellant was engaged in a frolic of her at the time of the injury.

Turning to the question of whether the activity that the Appellant was undertaking at the time of the incident occurred in the course of the Appellant’s employment. The Commissioner noted that it has long been held that allowances must be made for a worker to engage in the “ordinary habits of human nature”, and concluded that the activity was of such a type and “clearly incidental” to her employment.

The Commission considered whether employment was a significant contributing factor to the injury. Concluding that the nature of the Appellant’s employment led to the practical requirement to use the public restroom, and that it was her employment that had brought her to the site where the incident occurred, the Commission opined that employment was a significant contributing factor to the injury.

The Commission finally briefly considered the Respondent’s alternative argument that the Appellant was on her journey from home to work at the time of the incident and therefore precluded from a claim for compensation on the basis of s 35(1)(a) of the Act. The Commission did not accept this argument, given its conclusion pertaining to the Plaintiff’s reasonable early arrival at her place of employment. As detailed by the Commission, “the Appellant concluded her journey from home to work when she entered the Showroom and started to take steps to prepare for her work.

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