Compensation paid for bird swoop injury

By Andrew Hobbs on January 19th, 2018
  1. Fire, Emergency & Incidents
  2. Workers' Compensation


FOR many of us, driving to and from work is the most dangerous activity of our day. But who would have thought that making the journey from the office carpark to the building entrance would be fraught with danger?

Spare a thought for supermarket employee Anita Smith who had parked her vehicle in the staff carpark at the Kiama Village Shopping Centre, NSW, and was walking into the mall when she was attacked by a Pee Wee, also known as a Magpie Lark, on 14 May 2017.

She has been awarded $16,838 in workers’ compensation after a tribunal found that her employer was liable for the aggressive bird attack.

In Smith v Woolworths Ltd (2017), the New South Wales Workers Compensation Commission (NSWWCC) heard that Ms Smith sustained a severe injury to her right eye that required surgery following the attack.

She returned her work as a customer service officer at the Woolworths Supermarket on a part-time basis in late July, before her claim for workers’ compensation was discontinued in November.

Where does the journey begin?

Woolworths disputed Ms Smith’s claim for workers’ compensation, telling the NSWWCC that there was little connection between the injury and the worker’s employment “in terms of a bird attacking somebody who happens to just be standing not whilst performing duties and certainly not yet within the hours of her work.”

According to Chapter W1 Workers’ Compensation in the Health & Safety Handbook, claims for injuries suffered during travel are compensable – but that travel must be work-related.

Editor-in-Chief of the Handbook, Michael Selinger, a partner at Holding Redlich lawyers, says: “A journey claim will commonly arise when an employer directs their worker to attend a different location for work, e.g. to visit a client, and the worker sustains an injury in the course of travelling to that location.

But he adds: “In NSW, for a claim relating to travel to and from work to succeed, there must be a real and substantial connection between the employment and the incident out of which the personal injury arose.”

NSWWCC arbitrator John Harris said that this was the case, adding that it was well established by case law that a journey to work ended when a worker parked their vehicle.

“The applicant had parked her car in a designated staff parking area. The passage from at least that point to the Woolworths store was necessarily incidental to the employment contract,” he said.

“It is extremely unlikely that Ms Smith would have been attacked by the Pee Wee at that time, had she not been in the course of her employment”.

No way to shift the blame either

Woolworths also submitted that simply because it knew of the bird’s activity did not mean it was liable, saying management of the shopping centre had been informed to the bird’s activity but had not done anything to help resolve the problem.

But Arbitrator Harris also did not accept this argument.

“It is trite law that an employer does not escape liability to pay workers’ compensation entitlements simply due to the fault of another party, in this case, the apparent failure by centre management to do something about the dangerous Pee Wee,” he said.

State-by-State differences

The decision was made in NSW, where travel to and from work can be covered under workers’ compensation law.

According to the Health & Safety Handbook, this cover may also extend in the ACT, NT and Queensland, while travel to and from work is not covered in SA, WA and Victoria – and not normally in Tasmania and under Commonwealth law.

Travel that is clearly work-related, on the other hand, is covered in every jurisdiction except Victoria, where some restrictions apply.

Chapter W1 of the Health & Safety Handbook contains much more information about the localised differences in workers’ compensation, looking at who each jurisdiction defines as a worker, when those workers might make a claim for injuries incurred during work breaks and whether leave accrues while workers are receiving compensation.

It also contains a step-by-step guide to handling a workers’ compensation claim and guidance on how to develop a return to work policy.

Click here to sign up for an obligation-free 14-day trial of the Handbook to find out more.


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