Glass v Worker’s Compensation Regulator [2019] QIRC 046

This case was an appeal against a decision of the Worker’s Compensation Regulator.

Ms Glass was a mathematics and aquatic studies teacher to secondary students at Xavier Catholic College in Hervey Bay. On the 24th 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 tour group comprised of five adults and twenty-seven students and departed on the 23rd November 2016. This school trip had been offered for over a decade as part of overseas marine studies and cultural exchange and Ms Glass had previously volunteered to attend on six occasions. Ms Glass and Mr Tony McQuaid were tour coordinators of the trip.

The original approved itinerary for the 24th November had the group attending the Mele Cascades waterfall but due to dry weather the Erakor Island Resort tour desk recommended the group attend the Blue Lagoon instead.

In the several years the trip had been running, this was the first time the group had visited the Blue Lagoon. On arriving at the Blue Lagoon, the group discovered a rope swing activity. When it was Ms Glass turn to participate she held the rope, placed her foot on the knot at the bottom of the rope and swung out and dropped into the water and felt something in her shoulder go.

Upon returning to her accommodation, Ms Glass iced and strapped her shoulder and took Nurofen and Panadol to assist with the pain over the next few days.

On the 4th July 2017 the Workers’ Compensation Regulator rejected her application for compensation for the shoulder injury.

The Regulator agreed that Ms Glass was a worker as set out in legislation and that she had sustained an injury to her right shoulder.

The issues for appeal were whether Ms Glass’ injury arose out of, or in the course of, her employment with the school and whether Ms Glass’ employment was a significant contributing factor to her injury.

Ms Glass argued that at the time of the injury, she was doing the work she was employed to do, or at the very least, her participation in the rope swing was incidental to that work. It was argued that Ms Glass’ was on a frolic of her own and the injury arose out of her personal and voluntary decision to participate in the recreational activity that was not approved or authorised by Brisbane Catholic Education and that formed no part of her role and her employment only provided the background for her injuring.

Dr Margaret Lee as a member of the Brisbane Catholic Education International Travel and Advisory Panel (ITAP) highlighted that the activity would not have been approved by the ITAP as it was an unsafe and high-risk activity. However, she acknowledged that just because it was a high risk activity it did not mean it could not be engaged in.

Ms Glass said she undertook her own risk assessment upon arrival at the Blue Lagoon and Mr McQuaid told the Commission he observed that the rope was thick and considered there was no danger of it breaking and he believed water depth was not an issue. However he did not consider other potential risk such as the risk of someone falling or slipping from the platform, being tangled in the rope or of someone suffering a muscle tear from weight bearing on the rope and no formal risk assessment was undertaken.

Mr McQuaid also acknowledged that there was some risk of injury from inappropriate entry into water.

There was reference to the Brisbane Catholic Education and School policies, codes and guidelines for safety and international travel. The Guidelines contemplated circumstances that could arise while travelling which required documentation to be retained in the event there is a change in travel plans.

However, any significant variation to the original proposal, itinerary or activities required a resubmission of the original travel proposal to ITAP. Mr McQuaid was aware of this requirement.

The school had submitted a six page risk management plan to ITAP which contained risk assessments for various activities proposed on the itinerary such as snorkeling and scuba diving.

On its own, swimming in the Blue Lagoon would most likely have been an acceptable alternative activity, but if a risk management plan for the rope swing was submitted to the ITAP it would have been rejected. No attempts were made by any of the teachers who were present on the trip to contact ITAP, the school principal, the school workplace health and safety manager or the Brisbane Catholic Education Health and Safety division in order to obtain guidance or advice in determining the suitableness of the Blue Lagoon or the rope swing activity as a replacement for the Mele Cascades excursion.

The question raised on appeal was whether Brisbane Catholic Education induced or encouraged Ms Glass to engage in the rope swing activity.

It was found that Ms Glass was undertaking an activity that would not ordinarily fall within the parameters of her normal work functions and Brisbane Catholic Education did not induce or encourage, either implicitly or explicitly, Ms Glass to undertake the rope swing activity. The activity was not authorised and she made a voluntary choice to participate in a recreational activity that was not a requirement of her employment.

It was also physically impossible for Ms Glass to actively supervise the students whilst also participating in the rope swing activity. Her employment was not the real or effective cause of her injury and she was not undertaking her functions as a teacher at the time of the injury.

The significant contributing factor for Ms Glass was her voluntary decision to participate in the rope swing activity not her employment.

Ultimately, it was found that Ms Glass was a worker for the purposes of the Act and suffered a shoulder injury on 24 November 2016, however the injury sustained by Ms Glass did not arise out of, or in the course of her employment and her employment was not a significant contributing factor to her injury. It was also found that the injury sustained was not an injury within the meaning of the Act and her appeal was dismissed and she was ordered to pay costs of the appeal for the respondent.

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