Workers’ compensation fails to cover teacher participating in activity with students
The Queensland Industrial Relations Commission (QIRC) handed down a decision on 7 March 2019, which will impact the availability of workers’ compensation for teachers who sustain injuries while participating in activities with students, as Rachel Drew and Rose Sanderson of Holding Redlich write.
The QIRC held that a teacher, the appellant, was not entitled to workers’ compensation for an injury she sustained while taking a turn on a rope swing activity during a school camp with 11 students and a number of other teachers.
Despite the fact that the appellant was at the location with all of the students and other teachers at the time of her injury, the QIRC found that the appellant made a voluntary decision to take a swing on the rope and that the injury she sustained did not arise out of, or in the course of, her employment.
This raises concerns for teachers claiming workers’ compensation for injuries sustained on school camps, school excursions and even potentially at school, while participating in an activity with students.
For example, a teacher who sustains an injury while playing a game of soccer with students, which is not part of the school’s planned activities, may now face difficulties in having a workers’ compensation claim accepted.
The appellant was employed by Brisbane Catholic Education as a maths and marine studies teacher.
In November 2016, the students and teachers attended an educational trip to Vanuatu.
On 24 November 2016, in accordance with the approved itinerary, the students were scheduled to visit the Mele Cascades waterfalls in Efate.
Due to weather conditions, it was decided that the Mele Cascades activity was not appropriate.
As a result, the teachers sought an alternative activity for the students to undertake.
The teachers consulted with the staff of the resort they were staying in and decided to replace the Mele Cascades waterfalls visit with a visit to the Rentapao waterfalls and the Blue Lagoon.
The Blue Lagoon was a popular tourist attraction.
One of the activities at the Blue Lagoon was a large rope swing activity. The rope swing activity involved swinging from a ground level platform using a large rope into the middle of the Blue Lagoon.
The rope swing activity was operated by the Blue Lagoon staff who provided instructions and demonstrated how to use the rope swing.
The water was assessed as being deep enough to avoid injury and the teachers ascertained that the rope was fit for purpose.
The teachers determined that the risk of injury to students from participating in the rope swing activity was low.
Teacher A, who had previously attended the Mele Cascades waterfalls on a past trip to Vanuatu, determined the risk to students was comparable to, if not less than, the risk posed by hiking up the Mele Cascades waterfalls.
The teachers supervised the students at all times.
The students took turns on the rope swing, as did the appellant and another teacher.
The appellant injured her shoulder on the rope swing.
The appellant lodged a claim with WorkCover Queensland for her injured shoulder.
WorkCover rejected the claim on the basis that the injury did not arise during the course of her employment.
The matter proceeded to hearing before a Commissioner in the QIRC.
The law and submissions
Section 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act) provides that compensation is payable for an injury sustained by a worker.
The Act defines injury as a personal injury arising out of, or in the course of employment if (for an injury other than a psychiatric or psychological disorder) the employment is a significant contributing factor to the injury.
The appellant argued that compensation is payable because:
- She is a worker; and
- The injury she sustained on 24 November 2016 is a personal injury arising out of, or in the course of, her employment; and
- The employment is a significant contributing factor to the injury.
The decision of the Regulator relied on the common law on intervals.
The Regulator’s submissions included that the appellant’s decision to swing on the rope was an interval in her employment.
The Regulator submitted that deciding to swing on the rope was a voluntary action, and that she was not induced or encouraged to swing on the rope by her employer.
The appellant’s legal team submitted that the law of intervals did not apply because the appellant was present with students at the time of her injury, rather than undertaking a private activity like dining alone or taking a shower.
The appellant’s legal team proposed an alternative argument that if the QIRC found that the appellant’s injury was sustained during an interval, she was induced or encouraged to take part in the rope swing activity because a member of the College Leadership Team was present at the Blue Lagoon, and did not provide any direction to the effect that teachers could not participate in the activity.
Teachers may no longer be able to rely on workers’ compensation when participating in activities with students, unless that activity is required to be performed in undertaking teaching duties.
We recommend that schools take out travel accident insurance policies for staff to cover this gap in workers’ compensation coverage.
The QIRC decision on this case was published on 13 March 2019 and can be accessed at: https://www.sclqld.org.au/caselaw/QIRC/2019/46.