Blue Lagoon Rope Swing Fail Found To Not Be Part of Employment

Employer Liability and Workers' Compensation

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DATE PUBLISHED: January 21, 2020

EMPLOYER LIABILITY AND WORKERS’ COMPENSATION UPDATE

Ms Glass was employed as a teacher and suffered shoulder injuries while swinging on a rope on a school approved excursion at the Blue Lagoon in Vanuatu on 24 November 2016.  She applied for worker’s compensation but her claim was rejected as a ‘frolic of her own’.

The matter first proceeded before the Queensland Industrial Relations Commission which found in a decision of 7 March 2019 that the injury arose from a personal and voluntary decision to participate in a recreational activity that ‘…fell well outside the ambit of her teaching duties and responsibilities’ and upheld the rejection of her compensation claim.

Ms Glass appealed that finding to the Industrial Court of Queensland (Glass v Workers Compensation Regulator [2020] ICQ 001), however, in a decision handed down on 15 January 2020 President Martin dismissed this worker's appeal.  His Honour held as follows with respect to whether the injury from using the rope swing arose out of, or in the course of employment:

“...it was open to the Commissioner to hold that in circumstances where [the employer] had gone to some lengths to identify and manage risk, and to compel the observation of plans designed to deal with risk, the use of the rope swing was outside the scope of employment.

The finding made on this point was supported by other findings made, including that:

a) the rope swing was not an authorised or approved activity for either staff or students;

b) on her own evidence, Ms Glass made a voluntary choice to participate in the rope swing activity;

c) the rope swing activity was recreational in nature and it was not a requirement of Ms Glass’ employment that she participate; and

d) it was physically impossible for Ms Glass to actively supervise students while also participating in the rope swing activity."

The Court noted that the grounds of appeal did not address the issue of whether employment was a significant contributing factor but found the worker would have failed on this point on the facts and concluded:

"The Commissioner correctly observed that the employment must be important or of consequence so far as the injury is concerned and that there must be some connection between the two things. There was nothing that required Ms Glass to use the rope swing. There was no urgency arising out of her employment which led her to use the rope swing. It was something she decided to do and her employment was not a significant contributing factor to her injury."

This decision highlights the ongoing tension between what might be considered recreational activities and employment related activities.  Importantly, it sets out what is required in order to link such activities to employment.

A link to the published decision of the Court can be found here

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