In brief – The old principles outlined in Workers Compensation Nominal Insurer v Hill take on a new significance in COVID-19 Australia
In Workers Compensation Nominal Insurer v Hill  NSWCA 54 the New South Wales Court of Appeal approved a decision of the Workers Compensation Commission in S L Hill and Associates Pty Ltd (de-registered) v Hill  NSWCCPD 37, to award compensation to the dependants of a worker who died while working from home, pursuant to the Workers Compensation Act 1987 (NSW).
The worker, Ms C and her domestic partner, Mr S, cohabited the same home and were raising two children, the youngest of whom had been born only a few weeks before the worker's death. Further, Ms C and Mr S were employed by the same family company as financial advisors.
In June 2010, Ms C was working from home as a result of caring for their newborn. Some time prior to June 2010, Mr S started to develop paranoid delusions that Ms C was conspiring with AMP and ASIC to report on him and the activities of the business, that Ms C was accessing his computer to spy on him, and that she was being unfaithful towards him. On the morning of 16 June 2010, the paranoia, depression and anxiety experienced by Mr S culminated in the assault and killing of Ms C by Mr S, in the bedroom of Ms C. Mr S was not convicted of murder on the grounds of insanity.
Findings of causal connection between employment and assault, and that employment was a substantial contributing factor to worker's death upheld
Notwithstanding the fact that at the time of Ms C’s death, she was at home, in her pyjamas and in her bedroom and there was no evidence that she had performed any work at all that day, the decision to award workers' compensation to the dependants of Ms C was affirmed.
The New South Wales Court of Appeal held that the death of Ms C arose out of or during the course of her employment because the course of employment extended beyond a worker’s normal hours and place of work and included all things incidental to the performance of that work. It was held that while Ms C was attacked early in the morning, in her bedroom, she was likely acting in the course of her employment and to this end, the following facts were accepted:
Both Mr S and Ms C would work together full time from Monday to Friday.
Ms C would start work from as early as 7:30 AM, and would continue throughout the day as late as 9:00 PM.
Ms C’s work required her to be at the premises and at home, which was evidenced by the fact that her bedroom typically contained work files and other work materials. This allowed her to perform work and take care of their child.
Hence, the causal connection was satisfied as there was sufficient evidence to conclude that at the time of Ms C’s assault, she was in her workplace and at the very least available on call to perform her work duties.
The Court of Appeal also accepted that Ms C’s employment was a substantial contributing factor to her injuries and resulting death. For this purpose, the Court looked at the nature of the work and the particular tasks that Ms C was required to perform in her employment, rather than looking at what Ms C was actually doing on the morning of her assault. In determining that Ms C’s employment was a substantial contributing factor towards her death, the following was accepted by the Court:
While it was not a contractual condition of her employment that she work with the risk of sudden and violent attack, she was in fact working with Mr S as her supervisor and co-worker, who was mentally ill. This created a hostile working environment which became a condition of her employment.
The delusions upon which Mr S acted included delusions that Ms C was conspiring against him with ASIC and AMP, which related to Ms C’s employment. This demonstrated “a palpable and direct connection” between Mr S’s delusions, Ms C’s employment and the harm suffered by her.
It is accepted law that an employee can suffer compensable harm as a result of physical attack, verbal abuse or sexual harassment, even when the attack, abuse or harassment was carried out on the basis of mistaken fact or without justification. Hence, the fact that Ms C was attacked by Mr S on the basis of delusions, meant it could be claimed that Mr S’s delusional behaviour was part of her conditions of employment.
What does the decision in Workers Compensation Nominal Insurer v Hill mean for employers in COVID-19 times?
The notion that an employee can receive workers compensation, for a workplace injury that was incurred outside of the workplace (including at home) and/or beyond typical working hours of the business, is not new. In particular, prior successful claims for workers compensation have included claims for injury sustained at home (see TGT Transport v Zammit  VSCA 162; Van Oosterom v Australian Metropolitan Life Assurance Co Ltd  VR 507), on a workplace retreat or excursion (see Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473); or while walking in to the foyer of the building in which the claimant worked, prior to the start of normal business hours (see VWA v Jones Lang Lasalle (Vic) Pty Ltd  VSC 412).
However, for millions of Australians in the era of COVID-19, it is the new norm to work from home. Consequently, there ought to be a renewed emphasis by employers on ensuring safe working from home setups and conditions for their employees and in understanding whether any factors in a worker's personal or home life might be contributing to a risk of workplace injury.
Although Workers Compensation Nominal Insurer v Hill has a fairly unusual and unique set of facts involving a violent personal relationship between two partners, which was blended in to a professional working relationship, this case is a significant reminder that with working from home now well and truly in place with Coronavirus restrictions, there are bound to be claims for injuries that occur in circumstances that may not be considered to be work-related in the traditional sense.
This means that employers must tread an increasingly fine line between discharging a duty to take reasonable care that the place of work is safe and what may previously have been considered an employee's right to privacy at home.
The boundaries between work and home became blurred for many employees working flexibly from home a long time ago, but now with millions of Australians working from home on what is likely to be a long-term basis during COVID-19 restrictions, it seems that the scope for injuries to be causally linked to employment has become significantly greater, particularly for those employees who do not follow strict or traditional hours of work and work late nights or on weekends to complete work.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.