The festive season has well and truly arrived. An exciting and anticipated time of year where workplaces throughout Queensland will be taking an opportunity to celebrate accomplishments, catch up with colleagues and reflect on another year that has passed us by.
This is also the time of year that personal injury firms often see an uptick in people calling up to seek advice in respect of incidents (usually caused, or contributed to, by alcohol) that have occurred at the annual Christmas party.
The festive season is always a timely reminder that while it is important to celebrate the accomplishments of another big year with your colleagues, incidents occurring at the annual Christmas party have potential to result in personal injuries.
Everyone has heard the stories that occurred at a Christmas party, that happened to a friend of a friend, where there were inappropriate comments or advances, the person who stumbled off the dance floor, or even that fight that broke out between two work colleagues when things boiled over after a few shots at the bar. In fact, many people have perhaps experienced this directly at their own work Christmas functions.
These types of incidents have the potential to result in personal injuries to employees, such as psychological and/or physical injuries, that employers (and WorkCover Queensland) can be held accountable.
The Workers’ Compensation and Rehabilitation Act 2003 (“the WCRA”) provides the following in respect to the “meaning of injury” –
“An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury”.
The primary consideration for an injury sustained at a work Christmas party is whether employment is a significant contributing factor to the injury.
If the answer to the above question is “yes”, an injured worker may have compensation entitlements available to them through a statutory claim with WorkCover Queensland, and potentially an entitlement to common law damages.
While this will inevitably turn on the specific facts of each case, there are many cases that have dealt with this particular issue which indicate that if an employer encourages or induces a worker to attend a social event outside normal work hours, the worker’s attendance is considered to be an activity arising in the course of their employment.
However, there are also cases where injured workers have failed to recover compensation for an injury sustained during a work social event on the basis they have engaged in an activity that is so far removed from the organised social event that these actions constitute a “frolic on their own”.
An example of a “frolic on their own” is the tragic case of Australian Leisure & Hospitality Group Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) & Campbell [2014] QIRC 105. This case involved an application for compensation lodged by the husband of a deceased worker who passed away from head and spinal injuries after she dived into the Noosa River while attending a Christmas party organised by the employer.
The Queensland Industrial Relations Commission held the deceased employee was “on a folic of her own” as she was not induced or encouraged to dive into the river.
Whether a personal injury arising from a Christmas party organised by an employer will be compensable in statutory and/or common law damages will turn on the individual facts of the case. However, the following key takeaways are important to remember:-
- if an employer encourages or induces a worker to attend a social event, the workers’ attendance at the event is considered to be an activity arising in the course of their employment;
- if the worker engages in an activity that is so far removed from the work event to constitute a “frolic of their own”, employers (and WorkCover Queensland) are unlikely to be held accountable.
It is also important to highlight that simply having an accepted entitlement to statutory compensation through WorkCover Queensland does not automatically give rise to a viable common law claim for damages.
Accordingly, it is important to seek advice from an experienced personal injury practitioner who can work through these issues and advise on potential entitlements.
On a final note, while often referred to as “the silly season”, it is important for workers to remember not to get too “merry” this festive season, and for employers not to forget about their obligations to manage foreseeable risks of injuries, as the festivities could quickly end in tears for all involved.
