Causal link required between the act of violence and the employment
There must be a clear causal link between the employment and the act of violence, eg. an assault on a soldier on guard duty by an intruder who has entered the patrolled area.
Note that, in such a case, the soldier would also be in the course of employment, however the Initial Liability Module tests for act of violence before testing course of employment generally.
Note also that the paragraph does NOT require a temporal link between the employment and the act of violence. Accordingly, an NCO on leave who was assaulted by a private soldier as a “pay back” for perceived mistreatment would be covered by s 6(1)(a) even though he or she was not in the course of employment at the time of the assault.
In Kennedy v Telstra Corporation Limited (1995), the applicant was assaulted at night while returning to the hotel where he was staying in the course of his employment; he contended that he would not have been injured but for his employment. The Federal Court rejected this proposition, discussing the required causal link in the following terms:
I do not think that the requirement of this provision has been met in the present circumstances. On a common sense and practical application of the “but for” test, there is no causal nexus between the employment or the performance by the employee of the duties or functions of his employment and the assault. The assault arose from the confrontation of two groups late at night which was not related in any way to the performance by the applicant of the duties or functions in his employment.
However, liability was accepted on another basis because he was in the course of employment at the time of the assault.