Usher v Coffs Harbour City Council [2021] NSWPIC 196


This is a claim for medical expenses and weekly benefits following a flu injection provided by the Respondent as part of a Work Health & Safety Programme resulted in an injury to the worker’s shoulder. The issue considered was whether this was an injury arising out of or on the course of employment and, thereafter, whether the worker’s employment was a substantial contributing factor.

By way of background, the worker was employed by the Respondent as an Operations Supervisor.  The Worker alleged that she sustained an injury to her right shoulder in the course of her employment on 9 April 2020 when she was administered a flu injection arranged by the Respondent.

The Worker’s evidence, which was not challenged, was that the Respondent had for some years organised flu injections for employees during work time.  In April 2020, the arrangements made by the Respondent were varied from those in past years because of the Covid-19 Pandemic.  Instead of the injections taking place at the Respondent’s depot (as had occurred in previous years), arrangements for employees to be vaccinated at a drive-through clinic at Coffs Harbour Stadium were made.

The evidence from the Respondent was that having the vaccination was voluntary and not a requirement to perform any role of the worker’s duties with the Council.  It was stated that in terms of the control and coordination at the Coffs Harbour International Stadium, the medical centre was responsible for the implementation of the injections.

In an email from the Respondent dated 2 April 2020 entitled “Flu Vaccination Email”, it was described that the vaccination programme was a proactive approach to employees’ health and wellbeing.  The evidence from the Respondent was that these vaccinations were not a requirement of the Council, and it was up to individual employees as to whether they receive the vaccination.

The worker reported that she booked for the flu vaccination on the day of the flu shot on 9 April 2020 and drove to the stadium at her allotted time.  She assumed the needle was going into her right arm, near the bicep, as this was where she had always flu shots, but the nurse said she was going to put it in the top of her shoulder.

The Member was satisfied that the flu injection was administered during the Worker’s normal working hours.  The vaccination arrangements were made by the Respondent and the vaccination provided free to employees of the Respondent.  It was accepted that there was a benefit to the Respondent as the vaccination programme would be expected to result in a reduction in the number of employees getting the flu and that for several years, the Respondent arranged for its staff to have flu injections.  Before 2020, those injections were undertaken at the Respondent’s depot although the venue was changed due to Covid-19 concerns.  The Member held that it could be inferred that this was for mutual benefit of both working staff and the Respondent, not merely by promoting intangible benefits from good employment relationships, but by safeguarding the health of the Respondent’s workforce.

The email dated 2 April 2020 from the Respondent was sent by the Respondent’s Work Health & Safety team leader.  Accordingly, the Member found that the flu injection arrangements were considered a work health and safety initiative which was of importance to the Respondent.  The Respondent’s communication with the Worker after she had freely committed to have the vaccination was sufficient to convey to the Worker the Respondent’s expectation that she would thereafter act in accordance with the Respondent’s instructions concerning having the injection at the time, date and place set out in the resulting email.

The Member found that there is more than sufficient evidence to establish that the Worker’s injury arose in the course of her employment.  The Respondent chose, coordinated and arranged with the medical centre for some features of the manner in which the vaccination of the Applicant and other staff was to occur.  While the Worker was not engaged in the performance of her duties at the time and was not in her place of employment, the administering of the flu injection was incidental to her employment, and she attended a location directed by the Respondent.

Accordingly, it was found that the Worker had sustained an injury to her right shoulder on 9 April 2020 that arose out of and was in the course of her employment such that s4 was taken to have been satisfied.

Similarly, it is stated there was a causal relationship between the injury and what the Worker was required to do such that employment considered to be a substantial contributing factor within the meaning of s9A of the Workers Compensation Act 1987 (WCA).

Employer learning

The key take-away from the above is that if an employer offers (as opposed to necessarily directs) an employee to receive a vaccine (whether for Covid-19, influenza or otherwise), and an injury or condition results from that vaccination there may exist a statutory liability on the part of the employer to provide workers compensation that result from such an injury. However, when considering whether such a liability exists, it is necessary to consider whether there is any material benefit on the part of the employer to the employee having the vaccination in question and the degree of control that the employer has over the arrangements pertaining to the employee receiving the vaccine.

Contributor: Daniel Tuxford

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.