Turkalert injury on a journey to or from work

Mitchell v Newcastle Permanent Building Society Ltd [2013] NSWWCCPD 55 [22 October 2013] - link to decision Robbie Elder and John Hick | December 2013 | Employers Liability

Liability for injuries received while on a journey to or from work were excluded as part of the 2012 reforms unless there is ‘a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.’ s10(3A) Workers Compensation Act 1987.

Just what this requires was recently considered by DP O’Grady of the WCC when he confirmed an arbitrator’s decision that a worker had failed to establish that there was a real and substantial connection between her employment and the incident that resulted in her injury while on a journey home from work.

Background The worker was employed as a business loans processor whose usual hours were from 8:30am until 5:00pm.

On this occasion, the worker was asked by her employer to stay back at work after her normal hours to conduct a ‘clean desk inspection’. After completing this additional work, she left the workplace shortly after 5:50pm. As the worker was walking to her vehicle in the darkness, she tripped on an exposed tree root and fell, sustaining injuries to her left wrist, back, neck and left shoulder.

TurkAlert

Injury on a journey to or from work – real and substantial connection with employment

The worker made a claim for compensation that was declined by the insurer relying on s10(3A) - link to section.

The Proceedings The worker commenced proceedings in the WCC claiming an entitlement to compensation principally on the basis that her injury had arisen out of her employment (s4) and her employment was a substantial contributing factor to the injury (s9A).

The worker also claimed that the injury had occurred while on a journey (s10) and there was a real and substantial connection between her employment and the incident because the sun had set at 4:53pm (last light having occurred at 5:21pm) so that she was exposed to the risk of tripping in darkness and that it was dark because she had finished work later than normal.

The Arbitrator accepted that there was a ‘link between the fact that Ms Mitchell was employed and her tripping’ in that but for her being employed, she would not have been making that journey. However, he then went on to find that there was ‘no link between the employment of Ms Mitchell in her particular job as a loans processing officer and her tripping over the tree roots.’

1

In the Arbitrator’s view, there was only a tenuous link between her employment and the fact that she was on the journey, she had not been exposed to any special danger by the lateness of her departure and darkness having fallen and her journey had not become more perilous due to the change in the time that she finished work.

On appeal, DP O’Grady contrasted the prevailing conditions at the worker’s normal finish time and those 50 minutes later before concluding that there was no causal link between the worker’s employment and her injury despite the fact that her journey home was delayed while she was performing work tasks which had resulted in her travelling home in the dark, rather than the twilight hours.

In dealing with s10(3A), DP O’Grady observed that the section requires there to be a causative element between the employment and the accident or incident out of which the injury arose. The question of whether there is a real and substantial connection is something that is to be inferred from the facts based on common sense. In this case, the link between the worker being employed in the particular job and her tripping over the tree roots was considered as too remote.

Conclusion When assessing journey claims to or from work, the nature of the worker’s job and its inherent requirements must be closely considered in order to decide whether there is a causal link between the employment and the accident or the incident that resulted in the worker’s injury.

TurkAlert

Injury on a journey to or from work - real and substantial connection with employment Robbie Elder and John Hick | December 2013

Robbie Elder Senior Associate T: 02 8257 5766 M: 0418 970 181 robbie.elder@turkslegal.com.au

The causal link must be something that is actual and of substance and not too remote or tenuous.

The fact that a worker is employed and is travelling either to or from work when the incident occurs is simply not enough to satisfy the causal requirement that is necessary.

Claims where the accident or incident of injury is merely incidental to the journey without a real and substantial connection with the worker’s employment should be declined.

John Hick Partner T: 02 8257 5720 M: 0417 264 707 john.hick@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

2