Highlights of Noteworthy Decisions

Decision 764 21
14/10/2021
G. Dee
  • In the course of employment (recreational activity)
  • Right to sue

The respondent worked for a catering company that contracted with a ski club to provide food services at the club's ski resort. She was injured while participating in a tube run on a ski hill at a staff appreciation event held for staff of the ski club and contractors. She filed a civil action against the ski club for personal injuries. The ski club brought an application for a ruling that the respondent's claim was barred by the WSIA.

The application was denied.
The respondent was not in the course of her employment at the time of the accident. Tribunal decisions have generally found that accidents arising out of and in the course of employment involving sporting or other recreational activities will show one or more of the following features: strong encouragement of attendance by the employer, including pay for attendance and potential consequences for non-attendance; employer organization, control, or supervision of the event such that the risks the worker is exposed to are under the control of the employer; and encouragement of the worker's participation in order to promote the employer's business interests.
Some decisions have applied the reasonably incidental activity test when deciding whether participation in social events was considered in the course of employment. However, despite the use of the terminology "reasonably incidental" in a number of social event cases, the important focus remained on the factors listed above.
In this case, the respondent's attendance at the event was voluntary and unpaid, the event took place outside of her scheduled work hours, and she faced no negative consequences if she did not attend. The accident occurred while she was using equipment supplied by the ski club at a location on the premises of the club where she did not work. Her employer had no control or influence over the hazard that resulted in her injury.
The fact that the worker's employer assisted with providing food for the event, that the respondent provided brief assistance at the buffet, and that the event was closed to the public were not sufficient to bring the worker in the course of her employment.