Mary Karekos & Corinna Edwards | December 2012 | Employers Liability
In the matter Fox v NSW Police Force [2012] NSWIRComm 134 (‘Fox’) Boland, Walton and Staff JJ considered whether a Police Officer (‘officer’) who fractured his right leg when kissing his wife goodbye was on a journey or sustained an injury in the course of his employment. The Industrial Relation Commission (IRC) found that the officer was not in the course of employment, or on a journey, and as a result, not entitled to Hurt on Duty benefits.
Who does this impact? Claims managers and employers when considering whether a journey has been abandoned or aborted, as well as whether there is a connection to employment.
What action should be taken? Consideration given to declining claims where an injury is sustained when a worker has returned to his or her place of abode during a shift and/or while undertaking non-employment related activities.
TurkAlert
The Fateful Goodbye Kiss
The Decision Facts of the Case On 29 December 2010, the officer suffered a fracture of his right tibial plateau. The officer left his place of residence in uniform, in a marked police car. After driving for approximately 3 to 4 minutes he realised that he had left his reading glasses, together with a USB stored in his glasses case, and returned to his home to collect the items. The officer drove into his property got out of his car, leaving the engine running, and met his wife who handed him the glasses case. As he began to walk towards the police vehicle, his wife called to him for a farewell kiss. In the process of doing so he fell and sustained the injury.
Issues In issue was: 1. Whether the officer sustained an injury arising out of or in the course of his employment (section 4 of the Workers Compensation Act 1987); and 2. Whether the officer’s injury occurred while on a journey (section 10 of the Workers Compensation Act 1987).
1
The Fateful Goodbye Kiss Mary Karekos & Corinna Edwards | December 2012
TurkAlert
Decision The IRC found that the officer aborted his journey when he entered the boundary of his residence and therefore was within the boundary of the land on which the place of abode is situated. As a result, the officer was not on a journey as prescribed by the 1987 Act. Further the IRC found that the primary activity the officer was engaged in when injured, namely the collection of his glasses and USB, were nonemployment activities. Therefore, the IRC held that there was no causal connection between the officer’s injury and his employment.
Impact of the 2012 Amendments The 2012 amendments apply to injuries sustained after 19 June 2012 while on a journey and include a further requirement that there must be a real and substantial connection between the employment and the accident or incident. The 2012 amendments do not apply to police officers, paramedics or fire fighters. This decision, whilst not binding, will be relevant in proceedings before the Workers Compensation Commission when the issue is whether or not a worker is on a journey. This decision will not impact the changes to the journey provisions, namely whether or not there is a real and substantial connection between employment and the incident which occurred on a journey.
Conclusion In Fox the IRC found that once the worker had re-entered the boundary of his place of residence, he had aborted or abandoned his journey to work, and therefore the injury is not compensable under the journey provisions. Further, the worker was found outside his employment while engaged in activities only remotely connected to his duties.
For more information, please contact: Mary Karekos Partner T: 02 8257 5731 M: 0419 281 720 mary.karekos@turkslegal.com.au
Corinna Edwards Lawyer T: 02 8257 5702 M: 0400 624 162 corinna.edwards@turkslegal.com.au
www.turkslegal.com.au Syd | Lvl 44, 2 Park St, NSW 2000 T: 02 8257 5700 | F: 02 9264 5600 Melb | Lvl 10 North Tower, 459 Collins St, VIC 3000 T: 03 8600 5000 | F: 03 8600 5099