“Arising out of and in the course of his employment” – this phrase which encompasses two concepts – what does it mean?
An employer’s liability for compensation under the Work Injury Compensation Act (“WICA”) is set out at section 3(1) read with Section 3(6) which reads:
Employer’s liability for compensation
3.—(1) If in any employment personal injury by accident arising out of and in the course of employment is caused to an employee, his employer shall be liable to pay compensation in accordance with the provisions of this Act.
3.–(6) For the purposes of this Act, an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, to have arisen out of that employment.
It is noteworthy that “arising out of” and “arising in the course of” are two separate and distinct concepts. An accident has to satisfy both requirements before it qualifies for compensation under section 3(1) of WICA. An accident arising out of the employment requires a causal connection between (a) the employment (and its incidents) and (b) the accident. In contrast, an accident arises in the course of the employment if it bears a temporal relationship with the employment.
The employee does not need to prove that the injury arose “out of and in the course of the employment” – it is the accident which needs to have arisen “out of and in the course of the employment” for an employee to be entitled to compensation under WICA.
Where an employee suffers personal injury caused by an accident which took place in the course of his/her employment, the presumption at section 3(6) of WICA kicks in and the burden of proof then shifts to the employer to prove that the accident had not arisen out of the employee’s employment.