Legal: Time to make personal risk assessments
Queensland Teachers' Journal, Vol 125 No 1, 21 February 2020, page no. 26
A controversial court decision means teachers must now make personal “risk assessments” in their own interests when deciding whether to join in with student activities.
On 15 January, the Industrial Court of Queensland ordered that the appeal be dismissed in the matter of Geraldine Glass v Worker’s Compensation Regulator  ICQ 001.
The decision was described by Industrial law expert and University of Sydney Emeritus Professor Ronald C McCallum AO (on ABC’s law report program) as one that “does not make sense”. It could mean that many teachers quite reasonably refuse to take the risk of participating in school camps and other traditionally legitimate bonding activities with students outside the classroom.
In his decision, Industrial Court President Martin appears to distinguish the case from traditional “interval” cases, which say that employees are not covered by WorkCover during discrete interval periods when they are not engaged in their employment. Instead, he found that Ms Glass’s case was one of characterisation and about whether or not her unique actions in this matter fell within the definition of injury in s.32 of the Workers’ Compensation and Rehabilitation Act.
Unfortunately, this is cold comfort for teachers who can expect “coal face” WorkCover decision makers to apply the case as a precedent that bars teachers from cover if they participate in non-risk-assessed activities with students. An application has now been made to progress the matter to the Court of Appeal in Queensland.
Swings and roundabouts
Ms Glass was a teacher at Xavier Catholic College in Hervey Bay. On 24 November 2016 she was on an end-of-year school excursion when she injured her shoulder while swinging on a rope at the Blue Lagoon in Vanuatu. The approved itinerary for the day of the injury had the group attending a local waterfall, but due to dry weather the attraction was underwhelming, with no water flowing. Because of this, staff at the resort recommended that the group go to popular local beauty spot the Blue Lagoon instead. The Blue Lagoon had a well-established rope swing from a platform into the water. The students started swinging and encouraged Ms Glass to have a go. When it was her turn, Ms Glass swung out and injured her shoulder as she held onto the rope.
Before the trip, the school had submitted a six-page risk management plan to Brisbane Catholic Education International Travel and Advisory Panel (ITAP). The original itinerary had been approved by the ITAP, which gave evidence that the rope swing activity would not have been approved, as it was “an unsafe and high-risk activity” (as opposed to snorkelling and scuba diving).
On 4 July 2017, the Workers’ Compensation Regulator rejected Ms Glass’ application for compensation for the shoulder injury on the grounds that her injury did not arise out of, or in the course of, her employment with the school. The regulator considered that her injury was sustained during an “interval” in her employment, and that she was not induced or encouraged by her employer to participate in the rope swing activity.
Appeal to the QIRC
The Queensland Industrial Relations Commission (QIRC) appeared to find that Ms Glass was injured during an “interval” in her employment. Interval cases had previously only concerned injuries that had occurred between discrete periods of actual work, rather than singling out brief “disqualified” activities undertaken during work periods.
Appeal to the Industrial Court
In his decision to dismiss the appeal, President Martin steered the decision away from being characterised as an interval case and stated: “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.”
Measures teachers can take to protect themselves
It is difficult to derive clear practical principles from this latest decision, but several circumstances unique to the injury were singled out to distinguish it from an injury that would have entitled Ms Glass to compensation. Using these as guides, teachers are advised:
- to refuse to participate in any activities that have not been formally risk assessed
- not to volunteer to take part in any activity
- not to take part in any activity they have not been expressly required to do by their employer
- not to take part in any activity which makes it difficult or impossible for them to “actively” supervise students.
Watch this space for the outcome of the next appeal.