Hydro Electric Corporation v Nazar - [2022] TASSC 37

[2022] TASSC 37

COURT: SUPREME COURT OF TASMANIA

CITATION: Hydro Electric Corporation v Nazar [2022] TASSC 37

PARTIES:  HYDRO ELECTRIC CORPORATION
  v
  NAZAR, Buddy Detlef

FILE NO:  258/2021
DELIVERED ON:  9 June 2022
DELIVERED AT:  Hobart
HEARING DATE:  23 July 2021
JUDGMENT OF:  Geason J

CATCHWORDS:

Workers’ Compensation – Whether injury arising in the course of employment – Employee required to be at place where injury suffered – Suffıciency of connection between activity and employment – Injury sustained during recreational activity – Injury not sustained during course of activity induced or encouraged by employer – Injury outside of the concept of an injury occurring in the course of employment – Appeal upheld.

Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473, Comcare v PVYW 250 CLR 246 applied.
Westrupp v BIS Industries Limited [2015] FCAFC 173, Dring v Telstra Corporation [2021] FCAFC 50, Humphrey Earl Ltd v Speechley [1951] 84 CLR 126 referred to.
Workers Rehabilitation and Compensation Act 1988, s 25.
Aust Dig Workers’ Compensation [91].

REPRESENTATION:

Counsel:
             Appellant:  P Jackson SC
             Respondent:  K Read SC
Solicitors:
             Appellant:  Abetz Curtis
             Respondent:  McLean McKenzie & Topfer

Judgment Number: [2022] TASSC 37
Number of paragraphs: 31

Serial No 37/2022
File No 258/2021

HYDRO ELECTRIC CORPORATION v BUDDY DETLEF NAZAR

REASONS FOR JUDGMENT GEASON J

9 JUNE 2022

This appeal is from the Workers Rehabilitation and Compensation Tribunal ("the Tribunal").
The respondent suffered an injury as defined by the Workers Rehabilitation and Compensation Act 1988 ("the Act"). The issue before the Tribunal was whether the injury was compensable under the Act. More particularly whether the injury arose out of or in the course of the respondent's employment with the appellant. Such injury is compensable pursuant to s 25 of the Act which is in these terms:
"25 Liability of employers to compensate workers for injuries
(1) If in any employment –
(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or
(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) –
his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act –
(c) to the worker; or
(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants.
(1A) Compensation is not payable under this Act in respect of a disease which is an illness of the mind or a disorder of the mind and which arises substantially from–
(a) reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or
(b) a decision of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] TASSC 37
Decision Date: 9 June 2022

CaseChat Overview and Summary

In Hydro Electric Corporation v Nazar, the primary concern was whether an injury sustained by an employee while participating in recreational activities at a location designated for employee recreation qualified as an injury occurring in the course of employment. The case was heard in the Court of Appeal of the Supreme Court of Tasmania. The appellant, Hydro Electric Corporation, sought to appeal a decision that ruled in favour of the respondent, Nazar, who claimed workers' compensation for injuries sustained during a recreational activity at a location provided for employee recreation.

The central legal issue before the court was to determine the sufficiency of the connection between the employee's recreational activity and their employment to classify the injury as one occurring in the course of employment. The court had to examine whether the recreational activity was sufficiently related to the employment to warrant compensation under the Workers Compensation Act. The court also needed to assess whether the recreational activity was encouraged or induced by the employer, as this could affect the scope of the employer's liability.

The court examined the principles established in previous cases and found that the recreational activity in question was not sufficiently connected to the employment to classify the injury as one occurring in the course of employment. The court held that the recreational activity was purely voluntary and not induced or encouraged by the employer. The court also noted that the recreational facility was available to all employees and was not exclusively for work-related activities. Consequently, the court concluded that the injury Nazar sustained during the recreational activity did not fall within the concept of an injury occurring in the course of employment. The appeal by Hydro Electric Corporation was upheld, and the decision in favour of Nazar was reversed.

The final order of the court was that the appeal by Hydro Electric Corporation was upheld, and the decision of the primary judge was set aside. The court ruled that the injury Nazar sustained during the recreational activity at the employee recreation facility did not qualify as an injury occurring in the course of employment, and thus, Nazar's claim for workers' compensation was dismissed.

Orders