The NSW Personal Injury Commission (NSWPIC) has recently determined that a courier driver who sustained injury in a road rage incident, did so in the course of his employment.
Background
Mr Ali (the worker) was employed by Hunter Operations Pty Ltd (the employer) as a courier driver.
On 21 January 2019, the worker was performing his job as a courier driver when another driver overtook him and made offensive gestures towards him. After the other driver stopped his motor vehicle in front of the worker, blocking his passage forwards, the worker exited his motor vehicle to speak to the other driver. This interaction then escalated to a physical altercation that resulted in the worker sustaining both physical and psychological injury. The worker subsequently lodged a claim for workers' compensation.
In response to the workers' compensation claim, the employer's insurer denied liability, on the basis that the worker's injuries did not arise in the course of his employment, including because he had taken himself out of the course of employment when the injuries were sustained, by exiting the motor vehicle to engage with the other driver.
The decision
The NSWPIC considered the following:
- whether the psychological and physical injuries the worker sustained in the physical altercation were sustained in the course of, or arose out of, his employment; and
- whether the worker's injuries were solely attributable to serious and wilful misconduct on his part, in which case he would not be entitled to compensation.
The NSWPIC decided that the worker was in the course of his employment when he sustained the injuries. There was emphasis placed on the fact that a worker is in the course of employment when doing something that is part of or incidental to the worker's service.
This decision was based on evidence suggesting that:
- although the worker had engaged in the physical altercation with the other driver, he had not instigated it; and
- the worker's goal in exiting his motor vehicle to speak to the other driver was to ascertain why the driver was blocking his path and attempt to resolve the issue, so he could continue to perform his work as a courier.
In these circumstances, the NSWPIC accepted that it was reasonable for the worker to exit his motor vehicle to engage with the other driver and that doing so had not taken him out of the course of his employment.
The employer had submitted that when the worker opened the door of his motor vehicle and stepped onto the roadway, he took himself out of the course of his employment; that remaining outside the motor vehicle engaging in the altercation was not in any way connected or incidental to his employment, and therefore had not been injured 'in the course of his employment' and not entitled to compensation. The NSWPIC did not accept either submission.
The member ordered the matter to be remitted to the PIC President for referral to a medical assessor for assessment of whole person impairment, for the sum of damages awarded to be determined.
Takeaways for consideration
For the purpose of workers' compensation legislation, a worker may be taken to have sustained injuries in the course of their employment even if they are engaging in conduct that is not strictly within their duties at the time that the injuries are sustained.
Whether a worker's conduct will be considered as being in the course of employment will depend on the facts and circumstances of each case. You can read the full decision here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
