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PERSONAL INJURIES COMPENSATION MLL315

SCHEMES

EXAM SUMMARY NOTES

TOPIC 2 – ENTITLEMENT TO RECEIVE COMPENSATION UNDER WIRC ACT 2013 (VIC) 6 ENTITLEMENT PROVISION: S 39 6 I. WHO IS A ‘WORKER’ 7 Statutory definition of ‘worker’ 7 WORKER/EMPLOYEE OR INDEPENDENT CONTRACTOR? 8 Traditional ‘control’ test: 8 On Call Test of Bromberg J 8 Contractors deemed to be employees 9 STATUTORILY DEEMED WORKERS 10 NON-WIRC/AC ACT STATUTORILY DEEMED WORKERS 11 EXCLUDED CATEGORIES 12 II. INJURY 12 1. ‘PRIMARY’ INJURIES 13 1.1 Primary injuries—mental injuries 13 2. INDUSTRIAL DEAFNESS 14 A. Industrial deafness 14 B. Acoustic Trauma: 14 3. ‘EXTENDED’ INJURIES 14 4. DISEASE 15 5. GRADUAL PROCESS INJURIES 16 6. INJURIES THAT RESULT IN DEATH 16 NEXUS BETWEEN INJURY & EMPLOYMENT 18 1. PRIMARY INJURIES - ‘OUT OF OR IN THE COURSE OF EMPLOYMENT’ 18 Meaning of ‘out of employment’ 19 Meaning of ‘in the course of employment’ 19 The Test: 19 Injury that is Incidental to employment 20 Car parks and entrances to buildings 21 Injury occurring during intervals or interludes 21 Test: 21 Injury suffered during an ‘authorised recess’ 22 Breaking the rules (S46) 22 Injury suffered by the worker while working from home 23 Injury suffered by a worker as a result of being assaulted at the place of employment 23 2. INDUSTRIAL DEAFNESS—CAUSAL CONNECTION 24 3. ‘EXTENDED’ INJURIES—INJURIES TO WHICH THE ‘SIGNIFICANT CONTRIBUTING FACTOR’ TEST APPLIES 24 SCF - Defined in Schedule 1, Part 3, clause 25 25 Recurrence, aggravation, acceleration, exacerbation, or deterioration 25 4. DISEASES IN THE COURSE OF EMPLOYMENT - ‘OUT OF OR IN THE COURSE OF EMPLOYMENT’ AND SIGNIFICANT CONTRIBUTING FACTOR 25 4.4 DISEASES DUE TO THE NATURE OF EMPLOYMENT—DUE TO THE NATURE OF EMPLOYMENT AND SIGNIFICANT CONTRIBUTING FACTOR 26 Proclaimed diseases—proclamation 26

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5. GRADUAL PROCESS INJURIES—DUE TO THE NATURE OF EMPLOYMENT 27 6. INJURY THAT RESULTS IN DEATH— ‘OUT OF OR IN THE COURSE OF EMPLOYMENT’ 27 ‘MANAGEMENT ACTION’ AS A ‘DEFENCE’ TO ‘MENTAL INJURY’ CLAIMS 28 CONNECTION TO THE STATE OF VICTORIA 29 NO ENTITLEMENT TO COMPENSATION: S 40 30 RESTRICTION ON COMPENSATION 31

TOPIC 3 - COMPENSATION PAYMENTS UNDER WIRC ACT 2013 (VIC) 32

1. COMPENSATION IN WEEKLY PAYMENTS - S160 32 ‘INCAPACITY FOR WORK’ 33 ‘Suitable employment’ 33 ‘Odd lot’ doctrine 34 ‘RESULTS FROM, OR IS MATERIALLY CONTRIBUTED TO BY’ COMPENSABLE INJURY 34 QUANTIFYING COMPENSATION IN WEEKLY PAYMENTS 35 1. ‘FIRST ENTITLEMENT PERIOD’ 36 2. ‘SECOND ENTITLEMENT PERIOD’ 36 3. ‘AFTER THE SECOND ENTITLEMENT PERIOD’ 36 ALTERATION OR TERMINATION OF COMPENSATION IN WEEKLY PAYMENTS 38 REDEMPTION OF WEEKLY PAYMENTS BY ‘SETTLEMENT’ 40 2. COMPENSATION FOR MEDICAL AND LIKE SERVICES 40 GENERAL PRINCIPLES FOR ENTITLEMENT TO MLE 41 DURATION OF PAYMENTS 42 3. COMPENSATION FOR NON-ECONOMIC LOSS 42 1. ASSESSING ‘INJURY RESULTING IN PERMANENT IMPAIRMENT’ 43 1.1 Assessing the ‘degree of impairment’ under AMA-4 43 2. CALCULATING COMPENSATION FOR NON-ECONOMIC LOSS 44 No Disadvantage—Compensation Table: s 221 45 INTERPRETING THE AMA 4 GUIDES – TAC V SERWYLO (VSC, 2010) 45 4. DEATH BENEFITS 46 DEPENDANTS DEFINED: S 234 46 Summary of what to know 46

TOPIC 4 - COMMON LAW DAMAGES UNDER VICTORIAN WORKERS’ COMPENSATION LEGISLATION 48

APPLICATION OF THE WIRC ACT 48 REQUIREMENTS FOR BRINGING ACTIONS FOR COMMON LAW DAMAGES 49 SERIOUS INJURY: THE THREE ‘GATEWAYS’ 49 PROCEDURE FOR SEEKING SERIOUS INJURY CERTIFICATE 50 GATEWAY 1: IMPAIRMENT OF 30% OR MORE 51 GATEWAY 2: IMPAIRMENT LESS THAN 30% BUT VWA ISSUES CERTIFICATE 52 GATEWAY 3: IMPAIRMENT LESS THAN 30% BUT COURT GRANTS LEAVE 53 NARRATIVE TEST 54 APPROACH TO DETERMINING SERIOUS INJURY UNDER THE NARRATIVE TEST 55 STEP 1: IDENTIFYING THE COMPENSABLE INJURY 55 What is an ‘injury’? 56 Compensable injury 56 STEP 2: IDENTIFYING THE IMPAIRMENT OR LOSS OF BODY FUNCTION 56 CATEGORIES OF IMPAIRMENT OR LOSS OF BODY FUNCTION – STEP 2 57 ‘Permanent’ 58 Category (a) impairment 58 Category (b) impairment 59

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Category (c) impairment 59 STEP 3: IDENTIFYING THE CONSEQUENCES OF THE IMPAIRMENT OR LOSS OF BODY FUNCTION 60 1. Aggravation of pre-existing condition 61 Multiple injuries (compensable and non-compensable injuries) 61 Multiple injuries/impairments from separate incidents - ‘aggregation’ 62 Injuries with both physical and mental consequences 63 STEP 4: NARRATIVE TEST: SATISFYING THE 3 ‘REFERENCE POINTS’ 64 Reference point 1: Consequences re pain & suffering or loss of earning capacity 65 Loss of earning capacity consequences 65 Suitable employment 66 Continue permanently to have a loss of earning capacity 66 Rehabilitation or retraining: further test 66 Pain & suffering consequences 67 Reference point 2: comparison with other impairments 68 Reference point 3: ‘very considerable’ test 69 OTHER ISSUES RELEVANT TO SERIOUS INJURY APPLICATIONS 69 THE TIME FOR ASSESSING WHETHER AN INJURY IS SERIOUS 69 MEDICAL PANEL FINDINGS 70

TOPIC 6 - ENTITLEMENT TO RECEIVE COMPENSATION UNDER THE TRANSPORT ACCIDENT

ACT 1986 (VIC) 71 ENTITLING PROVISION – S 35(1) 71 1. TRANSPORT ACCIDENT OCCURRED ON OR AFTER 1 JANUARY 1987 72 TIME LIMIT FOR MAKING A CLAIM 72 2. CONNECTION TO VICTORIA 72 ACCIDENT OUTSIDE VICTORIA 73 3. PERSON SUFFERED AN ‘INJURED’ 73 NERVOUS SHOCK 73 4. WHAT IS A ‘TRANSPORT ACCIDENT’? 74 A. ‘INCIDENT’ 74 B. INCIDENT ‘DIRECTLY CAUSED BY THE DRIVING OF’ A VEHICLE 75 C. VEHICLE OF AN APPROPRIATE KIND 75 ‘motor car or motor vehicle’ 76 ‘Highway’ 76 ‘Used or intended for use’ 77 MAKING A CLAIM- SEE TOPIC 10 77 RESPONSIBILITIES OF THE INJURED PERSON 77 RESPONSIBILITIES OF THE TAC 78

TOPIC 7 – COMPENSATION PAYMENTS UNDER THE TRANSPORT ACCIDENT ACT 1986 (VIC)

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1. WEEKLY PAYMENTS 79 A. WHO IS AN ‘EARNER’? 79 B. INJURED AS A RESULT OF TRANSPORT ACCIDENT 80 C. SUFFERS LOSS OF EARNINGS 80 D. WEEKLY PAYMENT IN RESPECT OF LOSS OF EARNINGS 80 E. PERIOD OF ENTITLEMENT 82 Post-‘period of entitlement’ review 82 Cessation of weekly payments 82 2. IMPAIRMENT BENEFITS 83

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A. PRELIMINARY DETERMINATION BY TAC: ‘LIKELY...IMPAIRMENT BENEFIT’? 83 B. INJURED PERSON HAS ENTITLEMENT UNDER TA ACT 84 C. DETERMINATION OF ‘DEGREE OF IMPAIRMENT’ BY TAC 84 i. In accordance with AMA-4 or other ‘methods prescribed’ 84 ii. Injury must have stabilised 85 iii. Based on ‘current impairment’ 85 iv. Psychiatric impairment: direct impairment only 86 v. Minimum thresholds of impairment 86 vi. 6-year time period for determination 86 QUANTIFICATION OF IMPAIRMENT BENEFIT 86 3. COMPENSATION FOR MEDICAL AND LIKE BENEFITS (MLB) 87 A. MLB NOT REQUIRING TAC AUTHORISATION 88 B. LB REQUIRING TAC-‘AUTHORISED PROVIDER’ 88 C. MLB REQUIRING TAC-‘AUTHORISED SERVICE’ 89 D. FUNDING AGREEMENTS 89 i. Individual funding agreements 89 ii. Travel allowance payment agreements 90 iii. Agreements for payments relating to modified vehicles or homes 90 4. COMPENSATION FOR DEATH 91 SUSPENSION OF COMPENSATION 92 TAC NOT LIABLE TO PAY COMPENSATION 92 CERTAIN COMPENSATION NOT PAYABLE OR REDUCED BY TAC 93

TOPIC 8 - COMMON LAW DAMAGES UNDER THE TRANSPORT ACCIDENT ACT 1986 (VIC) 95 REQUIREMENTS FOR BRINGING ACTIONS FOR COMMON LAW DAMAGES 95 SECTION 93: SERIOUS INJURY PROVISIONS 95 Section 94: Indemnity by TAC 96 Section 93(8): Wrongful death damages proceedings 96 SERIOUS INJURY: THE THREE GATEWAYS 97 GATEWAY 1: IMPAIRMENT OF 30% OR MORE 97 GATEWAY 2: IMPAIRMENT LESS THAN 30% BUT CERTIFICATE ISSUED BY COMMISSION 97 GATEWAY 3: IMPAIRMENT LESS THAN 30% BUT COURT GRANTS LEAVE 98 APPROACH TO DETERMINING ‘SERIOUS INJURY’ UNDER S 93(4)(C) AND (D) 98 STEP 1: IDENTIFYING THE COMPENSABLE INJURY 99 STEP 2: IDENTIFYING THE IMPAIRMENT OR LOSS OF BODY FUNCTION 99 STEP 3: IDENTIFYING THE CONSEQUENCES OF THE IMPAIRMENT OR LOSS OF BODY FUNCTION 100 i. Aggravation of pre-existing condition 100 ii. Multiple injuries (compensable and non-compensable injuries) 100 iii. Multiple injuries/impairments from separate incidents— ‘aggregation’ 100 iv. Injuries with both physical and mental consequences 100 STEP 4: NARRATIVE TEST: SATISFYING THE 3 ‘REFERENCE POINTS’ 101 Reference point 1: Consequences re pain & suffering or loss of earning capacity 101 Loss of earning capacity consequences 102 Pain and suffering consequences 102 Reference point 2: comparison with other impairments 103 Reference point 3: ‘very considerable’ test 103 OTHER ISSUES RELEVANT TO SERIOUS INJURY APPLICATIONS 103 LIMITATION PERIOD 103 THE TIME FOR ASSESSING WHETHER AN INJURY IS SERIOUS 104 MEDICAL PANEL FINDINGS 104

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TOPIC 9 -INTERACTION BETWEEN THE WORKPLACE INJURY REHABILITATION AND

COMPENSATION ACT 2013 (VIC), TRANSPORT ACCIDENT ACT 1986 (VIC), AND OTHER

SCHEMES 105

INTERACTION BETWEEN WIRC ACT AND TA ACT 105 INTERACTION BETWEEN WIRC ACT AND THE COMMON LAW, AND OTHER PERSONAL INJURIES ‘SCHEMES’ 106 WIRC ACT AND THE COMMON LAW 107 RECOVERY PROCEEDINGS 107 SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH) 107 SEAFARERS REHABILITATION AND COMPENSATION ACT 1992 (CTH) 108 MILITARY REHABILITATION AND COMPENSATION ACT 2004 (CTH) 109 NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 (CTH) 109 VICTIMS OF CRIME ASSISTANCE ACT 1996 (VIC) (VOCA ACT) 110 What types of compensation are available? 111 Overlap with common law damages? 112 Reform? 112 INTERACTION BETWEEN TA ACT AND THE COMMON LAW, AND OTHER PERSONAL INJURIES ‘SCHEMES’ 112 TA ACT AND THE COMMON LAW 112 SECTION 94 TA ACT 113 RECOVERY PROCEEDINGS 114 TA ACT AND OTHER SCHEMES 114 SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH) 115

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Topic 2 – Entitlement to receive compensation under

WIRC Act 2013 (Vic) • In this topic, we will examine the requirements that a worker must satisfy before

being entitled to receive compensation under the Workplace Injury Rehabilitation

and Compensation Act 2013 (Vic) (WIRC Act) or the Accident Compensation Act

1985 (Vic) (AC Act), depending on which Act applies (see topic 1).

• Under both Acts entitlement to compensation raises a number of issues, namely:

I. Who is a ‘worker’?

II. What is an ‘injury’?

III. Whether that injury ‘arises out of or in the course of any employment’?

IV. Whether there is a connection to the State of Victoria?

Entitlement provision: s 39

• The provisions that set out the requirements for entitlement to compensation are ss

39(1) and (2) and 37 of the WIRC Act (ss 82(1) and (2) and 80 of the AC Act).

Section 39 of the WIRC Act provides as follows:

1. If there is caused to a worker an injury arising out of or in the course of

any employment, the worker shall be entitled to compensation in

accordance with this Act;

2. If there is caused to a worker an injury arising out of or in the course of

any employment which results in or materially contributes to the death

of the worker, the worker’s dependants shall be entitled, subject to this

Act, to compensation in accordance with this Act.

3. Subject to section 7(1) and section 40(2) and (3), if a worker suffers an

injury which occurs by way of a gradual process over time and which is

due to the nature of employment in which the worker was employed at

any time before notice of the injury was given, the worker or the worker's

dependants are entitled to compensation under this Act as if the injury

were an injury arising out of or in the course of employment.

• Therefore, a person must satisfy four requirements before being entitled to

compensation, namely:

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i. That the injured party is a ‘worker’;

ii. That an ‘injury’ has been sustained by that worker;

iii. That such injury ‘arises out of or in the course of any employment’; and

iv. That there is a connection to the State of Victoria.

i. Who is a ‘worker’

• It is crucial for the injured party to prove that he or she is a ‘worker’ within the

meaning of the Act.

• This may be done if the person establishes that she is:

1. a ‘worker’ within the definition of that term in the Act: s 3 WIRC Act, para

(a); s 5 AC Act, para (a);

2. deemed to be a worker by the Act: s 3 WIRC Act, para (b); s 5 AC Act, para

(b); or

3. within a class of persons specifically entitled to compensation under the

WIRC Act or AC Act by other Victorian legislation; or

• Conversely, certain persons are not entitled to compensation or specifically

excluded, and by consequence such persons are not ‘workers’ within the meaning

of the Act

• The two ways to be a ‘worker’ under the WIRC Act

• Common law employee: s 5(1)(a)

▪ Contract of employment

▪ Independent contractors not covered

• Deemed worker: s 5(1)(b)

▪ Schedule 1, Part 1

Statutory definition of ‘worker’

• Under the definition of worker in s 3(a) of the WIRC Act:

1) "worker means an individual—

a) who—

i) performs work for an employer; or

ii) agrees with an employer to perform work—

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at the employer's direction, instruction or request, whether under a contract of

employment (whether express, implied, oral or in writing) or otherwise; or

b) who is deemed to be a worker under this Act;

Worker/employee or independent contractor?

• The difference between a worker/employee and an independent contractor

depends on balancing several factors (indicia).

• It corresponds, respectively to the distinction between a contract ‘of

service’ (employer- employee relationship) and a contract ‘for services’

(principal-contractor relationship).

• Broadly, an ‘employee’ is usually employed under a contract of service. An

independent contractor (e.g. a repairman called to fix your washing machine or

television set) is usually employed under a contract for services.

Traditional ‘control’ test:

• Modified in Stevens v Brodribb HCA 1986 per Mason J, at 29:

1. Degree of control that employer/principal can exercise over

employee/contractor is a ‘significant factor’

▪ This ‘degree of control test’ is not so much the ‘actual control’ that

a person exercises over another ‘as in the right of the employer to

exercise it’, citing Dixon J in Humberston v Northern Timber Mills

▪ This is common law adapting to contemporary society

On Call Test of Bromberg J

• The test determined in the High Court cases of Stevens v Brodribb and Hollis v

Vabu Pty Ltd involves examining the ‘totality’ of the relationship in question, and

employing a multifactor or multi-indicia assessment to characterise the true nature

of that relationship.

• Simply expressed, the question of whether a person is an independent contractor

in relation to the performance of particular work, may be posed and answered as

follows:

• Viewed as a “practical matter”:

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1. is the person performing the work an entrepreneur who owns and

operates a business; and,

2. in performing the work, is that person working in and for that

person’s business as a representative of that business and not of the

business receiving the work?

o NB: If the answer to that question is yes, in the performance of that

particular work, the person is likely to be an independent contractor. If no,

then the person is likely to be an employee.

• The second limb of the On Call test of Bromberg J, at [208], was not applied

in Fair Work Ombudsman, although the court accepted the validity of both limbs -

see [176]-[186] for the test and [187]-[200] for the application of the first limb.

• The second limb follows directly from the first limb's positive answer,

namely that the 'person' is working as an entrepreneur who owns and

operates a business. If this same person is working 'in and for' the business

just described, that person is an independent contractor--on the other hand,

if this person is working 'in and for' the business receiving the work, that

person is an employee.

Contractors deemed to be employees

• A contractor may be deemed a ‘worker’ if the provisions of clause 9 of Schedule 1

of the WIRC Act apply.

• This provision is in exactly the same form as ss 8, 9, and 10 of the AC Act.

• 5 factors to consider:

1. contract in place: clause 9(1)(a)

2. services by IC ‘not ancillary to the provision of materials or equipment’ by

that IC: s 9(1)(b)

3. IC does 80% of work him/herself: s 9(1)(c)

4. gross income from contract is at least 80% of gross income from those

services during the ‘relevant period’ (12 months): s 9(1)(d)

5. But not a deemed worker if IC ‘carrying on an independent trade or

business’: s 9(2)

• Clause 9(1) establishes a 3-limbed test that an employment relationship will be

deemed to exist where:

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1. the labour component of the contract is more than the non-labour

(materials/equipment) component (‘ancillary services’ test); and

2. the natural person (contractor) personally performs 80% or more of work for

that principal; and

3. the contractor does 80% or more of his or her overall work for one person

(principal).

Statutorily deemed workers

• In what circumstances will a person be a ‘deemed worker’ under the Act?

Schedule 1, Part 1 of the WIRC Act lists those who are deemed workers under the

Act.

Deemed workers under the Act include the following:

i. a ‘student’ at a school while employed under a work experience arrangement, etc,

or a TAFE student undertaking a practical placement: clause 1(1)(a)-(e), and (g),

Division 1, Part 1 WIRC Act; s 5F(1)(a), (b), and (d) AC Act

ii. an apprentice: clause 1(1)(f) WIRC Act; s 5F(1) AC Act;

iii. a person performing work in a ‘declared training program’: clause 1(1)(g) and

clause 2 WIRC Act; s 5F(1)(d), 5G AC Act

iv. a person attending an ‘employment program’ provided by the Authority: clause

3(a) WIRC Act; s 5H AC Act

v. a secretary of a Co-operative Housing Society: clause 4 WIRC Act; s 5I AC Act

vi. a door to door seller: clause 5 WIRC Act; s 5J AC Act

vii. a timber contractor: clause 6 WIRC Act; s 6 AC Act

viii. the driver of a vehicle carrying passengers for reward who drives the vehicle

pursuant to a contract of bailment and who is required to make payment for the

use of the vehicle: clause 7 WIRC Act; s 7 AC Act

ix. an owner driver carrying goods for reward: clause 8 WIRC Act; s 7A AC Act

x. a ‘contractor’, in certain circumstances (see further below): clause 9 WIRC Act;

s 8 AC Act

xi. a share farmer who is employed by contract by the owner of land where the share

farmer is entitled to receive less than one third of the income derived from the

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land (whether by cash and or in kind) or is under the contract specified as entitled

to compensation under the Act: clause 12 WIRC Act; s 11 AC Act

xii. a person who performs work for a religious body or organisation within a

specified class that has been the subject of an order of the Governor in Council:

clause 13 WIRC Act; s 12 AC Act

xiii. a person employed by the Crown or any department ‘in all cases where this Act

would apply if the employer were a private person’, including a minister, member

of parliament, judge, and bail justice: clause 14 WIRC Act; s 14 AC Act

xiv. a municipal councillor: clause 15 WIRC Act; s 14AA AC Act

xv. a person customarily attending certain pre-arranged places (‘places of pick-up’)

at which employers select and engage persons for employment: clause 16 WIRC

Act; s 15 AC Act

xvi. ‘sporting contestants’: clause 17 WIRC Act; s 16 AC Act. Except:-

a. a rider ‘in a horse race under the Rules of Racing of Racing Victoria’:

clause 17(3)(a) WIRC Act; s 16(4)(a) AC Act; or

b. a person who holds a licence etc to ride granted in accordance with the

Rules of Racing of Racing Victoria (not being an apprentice or the owner

or trainer of the horse) and who agrees to ‘do ride work on a horse’ etc:

clause 17(3)(b) WIRC Act; s 16(4)(b) AC Act; or

c. a rider in a horse or pony race or a driver in a harness race conducted ‘as

part of a mixed sports gathering’ within the meaning of the Racing Act

1958 (Vic): clause 18 WIRC Act; s 16A AC Act

xvii. an ‘outworker’ within the meaning of the Outworkers (Improved Protection) Act

2003 (Vic): clause 19 WIRC Act; s 17 AC Act;

xviii. a sailor: s 38 WIRC Act; s 81(1) AC Act.

Non-WIRC/AC Act statutorily deemed workers

• Those persons deemed to be workers for the purposes of the WIRC Act/AC Act

include:

• jurors: Juries Act 2000 (Vic) ss 54-59.

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• registered or probationary members of the State Emergency Service

engaged in specific emergency service work: Victoria State Emergency

Service Act 2005 (Vic) s 47(1).

• persons assisting a police officer, in the course of duty, at the officer’s

request: Police Assistance Compensation Act 1968 (Vic) s 2(1).

• prisoners or offenders subject to a corrections order or persons subject to a

diversion order whilst performing a specific activity: Corrections Act 1986

(Vic) ss 104ZP(a), 104ZP(c), 104ZR.

• volunteer working at a prison: Corrections Act 1986 s 104ZP(b).

Excluded categories

• Voluntary workers are excluded by implication

• Gratuitous services will not, by the performance of those services, create

an employment relationship: Plumb v Wade (1936) 10 WCR (NSW) 160.

• Except certain volunteers specified in Sch 1, e.g. emergency services,

teaching assistants, etc.

• Sporting contestants: clause 17 of Sched 1

1) Except as provided in subclause (3), if a person is engaged by an employer to

participate as a contestant in a sporting or athletic activity, neither the employer or

self-insurer nor the Authority is liable to pay compensation for an injury received

by the person if the injury is received while the person is—

a) participating as a contestant in a sporting or athletic activity; or

b) engaged in training or preparation with a view to so participating; or

c) travelling between a place of residence and the place at which the person is so

participating or so engaged.

ii. Injury

• The term ‘injury’ is defined in s 3 of the WIRC Act (s 5 of the AC Act) as:

1) . . . any physical or mental injury and, without limiting the generality of that

definition, includes

a) industrial deafness;

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b) a disease contracted by a worker in the course of a worker’s employment

(whether at, or away from, the place of employment); and

c) a recurrence, aggravation, acceleration, exacerbation or deterioration of

any pre-existing injury or disease.

• This Topic distinguishes between various kinds of injury:

1. ‘Primary’ injuries

2. Industrial deafness

3. ‘Extended’ injuries

4. Diseases

5. Gradual process injuries

6. Injuries that result in death

1. ‘Primary’ injuries

• Section 3 of the WIRC Act (s 5 of the AC Act) defines ‘injury’ as ‘any physical or

mental injury’.

• A primary injury is an injury that arises ‘out of or in the course of any

employment’, without needing to satisfy any further criteria to establish its

connectedness to employment.

• The other kinds of injury generally require something more than this.

1.1 Primary injuries—mental injuries

• Distinction drawn between primary and secondary psychiatric

impairment/disorder: s 56 WIRC Act

• Primary—arises directly from injury—compensable

• Secondary— ‘arising as a consequence of, or secondary to, a physical

injury’—not compensable

▪ Also, relevant to common law gateway to ‘disentangle’: s 325(2)

• NB: Defence to mental injury claims by ‘management action’ that was reasonable

(see below)