Mr Whittingham, the Applicant, severely injured his back, right shoulder and ribs, whilst at his work Christmas party in 2008.
At some point during the course of the evening, the Applicant fell over, sustaining the subject injuries.
There are conflicting accounts in regard to how the Applicant fell, and what caused him to fall. The Applicant alleged that he had been tackled to the ground by his fellow co-worker and Managing Director, Michael Scott, however, Mr Scott denied this allegation. Mr Scott recalled the Applicant tripping over a gutter and sustaining injuries in that manner, subsequent to the Applicant attempting to charge at him. Both parties had been drinking during the night and claimed to be having a "bit of rowdy fun".
It was determined that both parties were significantly intoxicated at the time of the incident, and therefore their ability to recall the events of the evening was impaired. Their recollections were therefore deemed unreliable.
There was one independant witness to the accident, whose account of the events leading up to the accident were considered reliable, as he was not intoxicated. He recalled that it was the Applicant, Mr Whittingham, who attempted to charge at his supervisor, Michael Scott. He confirmed that in the process of trying to do this, the Applicant tripped over a gutter, thereby sustaining the subject injuries. The fact that it was the Applicant’s own actions which ultimately caused his injuries was integral to the outcome of this claim.
Regardless, the Applicant’s injuries rendered him unable to return to his usual employment as a Sheet Metal offsider.
The Applicant claimed that because he had been injured at a work Christmas party, being intimately connected with his usual course of employment, this constituted a work injury. He therefore claimed entitlement to workers compensation, given that the injuries sustained at the Christmas party had physically prevented him from returning to work.
There were 3 central issues to be decided by the Workers Compensation Commission, pursuant to Sections 4, 9A and 14 of the Workers Compensation Act 1987:
- Whether the Applicant has sustained an injury as defined by Section 4 of the Act.
- Whether employment was a substantial contributing factor to the injury.
- Whether any conduct by the Applicant may have contributed to his injuries.
In conjunction, these issues would determine whether:
(a) An employer can be liable for injuries sustained by an employee during the course of a work Christmas party.
(b) Therefore, whether the Applicant was entitled to workers compensation.
The Arbitrator found that Section 4 was easily satisfied, and that the Applicant had sustained an injury for the purposes of the Act, given that he had damaged his neck and back and had broken several ribs.
In regard to whether the Applicant’s employment was a substantial contributing factor to the injuries sustained, it was held that because the Applicant was in attendance at a Christmas party which was largely for the benefit of his employer, it was therefore intimately related to the course of the Applicant’s employment. However, although attendance at the Christmas party itself was considered to constitute the Applicant’s course of employment, there was difficulty in determining whether he sustained the subject injuries whilst undertaking a normal part of his employment, or whether his actions had gone beyond what was considered normal for his line of employment.
In relation to the third issue to be decided, and relying on the testimony of the one (sober) witness to the event, the Respondent (the Applicant’s employer), conceded that the Applicant voluntarily charged at his supervisor, fell over, and was subsequently injured. They claimed that this act constituted a deviation from the Applicant’s normal course of employment, and was instead considered “wilful misconduct”, as his job did not require him to voluntarily, if only jokingly, charge at his supervisor. The Respondent further claimed that this conduct on behalf of the Applicant substantially contributed to his injuries.
If this was to be accepted, the injuries would be considered the fault of the Applicant, rather than his employer, and therefore he would not be entitled to workers compensation.
In arriving at this conclusion, the Respondent relied upon the authority of Justice Nielson in Stojkoric v Telford, where it was held that an Applicant who initiated a fight at a work event had ceased to act in the course of his employment.
The Arbitrator accepted the Respondent’s evidence and concluded that the Applicant did not injure himself in the course of his employment. He further accepted that the Applicant’ decision to charge at his supervisor constituted an "intervening act", going beyond what was usually required during the course of his employment.
He noted that if the Applicant had fallen and injured himself whilst, for example, relieving himself outside, this would have been in the course of his employment and he therefore would have been entitled to workers compensation.
He further confirmed that the Christmas party, organised by the employer, who encouraged employees to attend, was intimately related to the Applicant’s employment, however, the Applicant had engaged in an act which went beyond this and this was how he was injured.
In this case, the Applicant was unsuccessful and workers compensation was not awarded to him.
The central notion confirmed in this case is that it is possible for an employer to be held responsible for injuries occurring at a work Christmas party. Providing that an Applicant does not engage in any behaviour which is considered as wilful misconduct, it is generally considered that attendance at a work Christmas function constitutes an employee’s usual course of employment, and therefore any injuries occurring at such an event will be the responsibility of the employer.
For more information on the above please call Joe Bonura from our Personal Injury Department on (02) 4626 5077 or jbonura@marsdens.net.au.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
