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Course of employment

Van Wessem v Entertainment Outlet PL [2010] NSWWCCPD 97. Keating P

Arbitrator Oldfield failed the appellant widow’s claim, on substantial contributing factor.

The deceased mortgage broker was sole working director of the respondent, a contractor to Aussie Home Loans PL, when he was killed while cycling recreationally.

The death claim relied on evidence of the deceased’s continuous electronic attendance on clients.

Keating P said, in [70]: “Applying the rationale in Badawi v Nexon Asia Pacific [2009] NSWCA 324 [39 WCMS 1], the Arbitrator concluded that the connection between Mr Van Wessem’s injury and his employment was not “real and of substance”, nor having any proper link with his employment or being incidental to it.”

The President, at [99+], considered authorities: Davidson v Mould (1944) 69 CLR 96: course of employment extends beyond working hours, to comprehend necessary incidents; Commonwealth v Oliver (1962) 107 CLR 353, per Dixon CJ: course of employment where worker would not be but for employment; Henderson v Com’r Rwys (WA) (1937) 58 CLR 281, per Dixon J: course of employment contemplates incidents; Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, per Dixon J; interval injury requires incident of employer authorization; Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473: tests in Henderson, Speechley should give way to interval injury incidental to employment considering the employment generally and particular activity authorization, noting consonance in Whittingham v Comm’r Rwys (WA) (1931) 46 CLR 22 and Danvers v Comm’r Rwys (NSW) (1969) 122 CLR 529.

Additionally the Commission president noted Archer v East West Airways Ltd [1976] WCR 176: “a real and substantial nexus’ of steward injured at home responding to duty call; Jadoul v Qantas [2001] NSWCC 175: likewise, injury in home collecting baggage for duty.

Also, Keating P referred to Hook v Rolfe (1986) 7 NSWLR 40: relevant, not necessarily dominant, purpose proper for inquiry; Mayhew v G & S Mayhew PL (1995) 12 NSWCCR 389: one relevant incident among several purposes.

“To satisfy the general nature, terms and conditions of his employment, Mr Van Wessem was either obligated to, or elected to, carry a mobile phone with him for the purposes of responding to referrals forwarded to him through Aussie Home Loans.

“He did this routinely. During the course of his regular rides, the unchallenged evidence is that he regularly placed calls to or received calls from clients or potential clients pursuant to the contractual obligations between his employer and Aussie Home Loans.

It was part of the general nature and terms of his employment. In my view, when the worker was conducting himself in this way, he was acting in the course of his employment,” the President said [123].

To 1987 Act s 9A substantial contributing factor, Keating P said ... >>


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