As you would expect, an employer's liability to pay compensation for injuries outside the workplace is much more contentious than in cases where the injury happened in the normal course of an employee's work. Recent cases exploring the margins of this expansive liability suggest an employee may be entitled to compensation for injuries sustained out-of-work from birds or bees, but not, it would seem, from the birds and the bees.

First, the birds.

In December, the NSW Workers Compensation Commission handed down its decision in Smith v Woolworths. Compensation was ordered to be paid to Anita Smith, who suffered injuries after a bird attacked her while she was walking outside the shopping centre where she worked. During the proceedings, her employer argued that Smith was standing in an area known for bird attacks. Indeed, Wooloworths relied on articles in the local newspaper featuring the particular peewee responsible for Smith's injuries as evidence that she had chosen to "navigate a risky passage where a bird that was known to the public that would be aggressive and attack". The employer also argued there was not a sufficient connection between her job and her presence outside the shopping centre to warrant the imposition of liability for the bird attack.

The commission rejected these arguments, finding Smith "was in the course of her employment at the time of the attack, having been brought to that very spot by reason of her employment". Its decision also noted Smith had been walking from the designated staff parking towards the shopping centre when she was attacked, leading them to conclude her employer had in fact "authorised, encouraged and permitted" her to take the route leading past the offending bird. This, it was held, was a sufficient connection to her employment for her to be entitled to workers' compensation payments, notwithstanding that she was not working at the time of her injuries.

Second, the bees – or, perhaps more accurately, the insects.

The recent April 2018 case of South Australia v Roberts also illustrates the importance of a connection between an injury and employment. In this case, an employee, Jennifer Roberts, sought worker's compensation after insects bit her in her employer-provided accommodation – a two-bedroom cabin in a caravan park – during a work assignment in Oodnadatta. She then contracted polyarthritis as a result of the bites. Importantly, her cabin had not been made mosquito-proof.

In this case, she was required to stay in the caravan by her employment contract. In other words, she would not have been there were it not for her employment. Therefore, South Australia's Supreme Court found she was entitled to compensation, as her job amounted to a significant cause of her injury. The court was careful to reiterate that the injury must be significantly attributable to the person's employment to be compensable. For instance, the court opined that had she been injured while practising extreme sports in the cabin, her employer would no longer be found to be a significant cause of the injury.

Finally, the birds and the bees.

In the controversial 2013 case of Comcare v PVYW, the High Court denied workers' compensation to an Australian Public Service employee despite the fact she was injured on what was ostensibly a work trip. Many readers will already know the facts of this case. This particular worker was staying overnight in an employer-provided hotel. She was injured when a light fitting fell on her face after she and an acquaintance had used it creatively during sex. The employee argued that because this injury took place while she was staying overnight at the hotel for work-related purposes it therefore occurred in the course of her employment.

The High Court disagreed, and in doing so clarified what is meant by being injured in the course of your employment. For an injury to be classified as having occurred during the course of employment, it must in some way relate to the employee's duties or the employer must have somehow induced or encouraged the activity that brought about the injury. The court found that while the employee was present in the hotel room because of her work duties, this was not itself the reason for the injury (which was the result of adventurous recreational activities). As these activities could not be said to have been induced or encouraged by her employer, and they were certainly not part of her job, the injury did not occur in the course of her employment and she was ineligible for compensation. It would seem, at least on the face of this decision, that employees are not entitled to compensation payments for injuries arising from the birds and the bees.

For injured employees seeking compensation, the key lesson from these cases is that context is king. When considering eligibility for worker's compensation, whether on a work trip, at the office Christmas party, or in any other grey area where an employee has been injured off the clock, it is simply not enough that their employment merely provided the occasion for the injury to occur. Instead, employees must be able to show how their injuries are attributable to their employment, or how the injury-causing behaviour was induced or encouraged by their employer.

This means employees should ensure that they are informed about what does and does not form part of their working duties, their employer's expectations of them and be mindful of the risks when their behaviour takes them outside of these parameters.

John Wilson is the managing legal director at BAL Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleagues Robert Allen and Aimee Cesarin for their help in preparing this article. john.wilson@ballawyers.com.au