On 16 June 2010 between 7:30am and 4pm, the worker, Michel Carroll was attacked and killed by her de facto partner, Steven Hill who was subsequently found not guilty of murder by reason of mental illness. Michel and Steven were employed as financial advisors by their company, S L Hill & Associates Pty Ltd.
Michel had two children, a 16-year-old son and a newborn baby. Her son gave evidence that she worked from home while caring for the baby, regularly worked from her bedroom and wore her pyjamas.
Both children made claims under the NSW Workers Compensation Act 1987 for payment of death benefits including funeral costs, a lump sum benefit at the time of death of $455,900 and a weekly payment of $114.30 per child until they reached the age of 16 or 21 if they were studying full time.
Liability for the claim was declined by the Worker’s Compensation Nominal Insurer (“insurer”).
On 16 January 2018 an Arbitrator in the Workers Compensation Commission (“the Commission”) rejected the application for death benefits. The arbitrator was not satisfied that the injury suffered by Michel was inflicted in the course of her employment or that it arose out of her employment and doubted that employment was a substantial contributing factor.
The children appealed the decision.
On 7 May 2018 Presidential Member Keating at the Commission revoked the decision of the arbitrator and remitted it to another Arbitrator for re-determination. He noted that the Arbitrator could not be satisfied Michel was in the course of her employment when she died as the evidence had not indicated her time of death. The Presidential Member found this to be an error as the time of death whilst important was not determinative of whether there was a connection between Michel’s employment and her death to establish she was in the course of her employment when she was killed.
The Presidential Member highlighted the evidence of Michel’s 16 year old son combined with the photographs taken by police depicting work items in the bedroom indicated that she “was either actually performing employment related duties at the time of her death or was on-call.”
On 19 December 2018 a different Arbitrator at the Commission issued a certificate of determined finding that Michel died as a result of injury arising out of and in the course of her employment and that her employment was a substantial contributing factor to the injuries. The Arbitrator ordered payments in favour of the children.
On 16 January 2019 the insurer appealed submitting that the Arbitrator had erred in determining that:
- The worker’s employment caused or materially contributed to the injury and that the worker’s death was an injury arising out of or in the course of her employment. The insurer argued the Arbitrator erred in looking at the motive for the assault and that the cause of her death was Steven’s mental illness which was not a part of her employment.
- The worker was performing work duties or was on call at the time of the injury and that the injury arose out of the course of her employment. The insurer argued the Arbitrator erred in finding that Michel was engaged in work duties or that she was on call as there was uncertainty about the time of the assault and death and what she was doing at this time noting she usually commenced work at 9am, her office was on another floor, she was still in her pyjamas, there was no evidence that work had been planned for that day or any work-related activity from her telephone and computer records and there was no evidence that the she was on call on the day or that there were fixed times where she would be “on call”.
- The worker’s employment was a substantial contributing factor to her injury and death. The insurer argued that Michel’s employment had little connection to her injury and death and that the cause of her death was her personal relationship with Steven who suffered from schizophrenia and paranoid delusions.
On 22 July 2019 Deputy President Wood (“DP”) at the Commission rejected each of the three grounds of the appeal and dismissed the application.
In relation to the first ground, the DP found the motive was a relevant consideration to be considered by the Arbitrator and the Arbitrator found a causal connection based on the evidence available which was that Steven held beliefs about the way Michel was conducting her duties, had mistrusted her in relation to the business and that these matters were on his mind shortly before the assault.
In relation to the second ground, the DP found that Arbitrator had not fallen into error as the evidence was that Michel and Steven lived and worked in the same premises and that she had arranged her work around the needs of her baby and the evidence supported that fact that she had either commenced work or was required to be available for calls at the time of her death.
In relation to the third ground, the DP found the Arbitrator had applied the relevant authorities and that the findings were open to her on the evidence and no error had been established.
Third Appeal to NSW Court of Appeal
The insurer appealed the presidential decision to the NSW Court of Appeal.
One of the insurer’s arguments was that because Steven’s delusions were not real they could not form part of the conditions of Michel’s employment, meaning, there could be no connection between the employment and her death. On 31 March 2020, this argument was rejected by Judge Basten who stated:
“It is not in doubt that a person can suffer compensable harm as a result of a physical attack, verbal abuse, sexual harassment or bullying at work. The source of such conduct may be a co-worker or a supervisor… an injury caused by conduct which would not be described as “reasonable action” is compensable. It does not matter whether the conduct was carried out on the basis of mistaken facts, or vindictively and without any justification (such as the refusal of a sexual advance). There is no reason to exclude delusional conduct from a potential cause of compensable harm…In principle, the conduct of a co-worker or supervisor (Mr Hill was both) forms part of the employment conditions of the injured worker.”
Judge Basten went on to comment that domestic violence between couples in the same business who work from home normally would not be compensable, but in this case:
“The findings of fact demonstrated a palpable and direct connection between Mr Hill’s delusions, Ms Carroll’s employment and the harm suffered by her.”
The Court of Appeal dismissed the appeal and the children have retained their entitlement to death benefits.
The above is a reminder that each case must be considered on its own facts. In the normal course of things, someone assaulted in their bedroom while wearing their pyjamas before the commencement of their contractual work hours may not ordinarily be covered by workers compensation legislation, but a thorough examination of the facts indicates this isn’t always the case.