A Tasmanian man who fell and broke his leg while walking his dog wins his worker's compensation claim, after a court ruled it happened in the course of his employment as he was on-call at the time.
Buddy Detlef Nazar was working in a relief position for Hydro Tasmania in the remote town of Tullah in 2018.
While on-call for work, he was walking with his partner and dog when he slipped on a log and broke his thigh bone.
Mr Nazar won his claim in the Workers Rehabilitation and Compensation Tribunal, but Hydro won on appeal in the Supreme Court.
Mr Nazar then appealed to the Full Bench of the Supreme Court and was successful in a judgment delivered earlier this week.
The amount of compensation to be awarded is still to be determined in the worker's compensation tribunal, and the option of a High Court appeal is open to Hydro, with the case citing numerous decisions over "interval" injuries.
Mr Nazar said the decision had been a huge relief, as he continues to battle significant physical and psychological injury.
"After the first supreme court decision where the worker's compensations tribunal decision was overturned, I had lost a lot of hope," he said.
"Yesterday's decision just reaffirmed that you may have setbacks, but giving up will get you nowhere.
"I may not be able to physically do what I used to, so I want Hydro to retrain me in engineering.
"That is a long shot, but at least with worker's compensation on my side now, they can support me in my future endeavours in that field."
Mr Nazar was based at a Hydro residence in Tullah — about 90 minutes from his Ulverstone home — working as a relief area coordinator.
He was required to respond to calls within 15 minutes, and to stay within phone reception range.
The court heard that Mr Nazar was walking with his partner and dog, and intended to show his partner a lodge in the remote town.
However he noticed he had lost phone coverage, so they turned and walked in the opposite direction.
They were back within range when he slipped on the log.
These cases are 'never easy'
The general principle of "course of employment" has been settled in Australia, but its application is far more difficult.
Tasmania's Chief Justice Alan Blow described such cases as "never easy".
Australian courts have been grappling with the concept for the better part of a century.
In 1937, a Western Australian railway ganger was killed by a train while crossing a line in their lunch break. Because they lived in a camp near the station, the court found it was during employment.
More recently, there was the 2013 case of a Commonwealth Government worker who was on a work trip to a country town when a light fitting fell on her while she was having sex in a motel room. The High Court ultimately rejected her claim that this occurred in the course of her employment.
Chief Justice Blow assessed a range of cases, and determined "course of employment" came down to any of four factors.
These were: if the worker was performing their actual duties; if they were doing something reasonably required in carrying out these duties; if they were induced to do something by their employer while in an interval between periods of work; and if they were somewhere for their employment and were injured doing something induced by their employer.
Hydro Tasmania argued Mr Nazar walking his dog was not in the course of his employment.
Mr Nazar's legal counsel argued he was injured while standing by for work within mobile phone coverage in Tullah — something required by his employer.
Chief Justice Blow said the case fit into one of the definitions.
"Since [Mr Nazar], as required by his contract of employment, was in the Tullah area, available to be called out, ready to respond to a call within 15 minutes, and in a fit state to respond to a call, and since he was being paid for his time on available duty, I am satisfied that his injury occurred when he was performing duties imposed by his contract of employment," his decision reads.
Toe lost after infection
While welcoming the decision, Mr Nazar said he still faced a long road to regain any semblance of his former life.
He still vividly remembers the moment his feet "flew out" from under him, the sound of his thigh bone fracturing, and the immeasurable pain.
Mr Nazar went through multiple rounds of surgery and had a rod inserted through to his hip joint.
He described Hydro's initial reaction as supportive, which changed when he sought worker's compensation.
Mr Nazar has since ceased employment with Hydro.
He described his physical recovery as "hell".
"When I lost my job, the freak-out happens where you need financial income to keep paying bills for medications and recovery," Mr Nazar said.
With his right leg now carrying 90 per cent of the load, he developed an infection in his big toe which formed an ulcer and spread, resulting in the loss of his toe.
He then needed to have adjustments made to the rod in his leg, resulting in further distress.
"So more pain and recovery; however, the pain is still yet to subside," Mr Nazar said.
"I live with a constant 3- to 4-out-of-10 deep ache that never subsides. Then with exercise or movement, I get a 6- to 8-out-of-10 on the pain scale of stabbing pain that feels like a screwdriver getting pushed into various places between my knee and lower back."
He relies heavily on pain medication to get through every day but was hopeful that obtaining worker's compensation would help him to return to work.
"Taking it day by day and one problem at a time. But I can only change things I can control," Mr Nazar said.
