In June 2012, the NSW Government removed most journey claim entitlements from the Workers Compensation Act 1987 (the Act) with its Workers Compensation Legislation Amendment Bill 2012.

Since then, workers injured on a journey between their place of abode and work-related sites are only entitled to compensation - under s 10(3A) of the Act - if there is "a real and substantial connection between the employment and the accident or incident out of which the personal injury arose".

In identifying the type of journey claim that will be accepted under NSW's new restricted journey provisions, the WCC has found that:

  • a worker who was  injured  while  travelling  home after being required to stay back at work in the dark is entitled to workers' compensation; and
  • a worker who was employed as a casual/ relief teacher  was injured whilst travelling to work when he tripped and  fell on broken and uneven ground while walking hurriedly to work.

Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (18 March 2014)

On 5 July 2012, the service station worker closed the station at 5.30pm and was riding her motorbike home when a car travelling on the other side of the road swerved to avoid cattle on the road and struck her motorbike. The worker suffered leg fractures and claimed workers' compensation, but the employer denied liability.

In December 2013, the Workers Compensation  Commission (WCC) found the worker - who normally finished work at 2.30pm - was required to stay at work late for training, which meant she had to travel home in the dark when it would have been harder for drivers to see the cattle.

The WCC found the employee probably wouldn't have been injured during her journey if she wasn't required to stay late at work.

The employer appealed, arguing the connection between the journey and the worker's employment wasn't real and of substance because the worker's daily duties had finished and she had left the workplace.

It also argued there was no evidence that the driver of the car had to swerve suddenly because it was difficult to see the cattle at night.

But on appeal Deputy President Bill Roche found "the darkness played a role in the accident, though it may not have been the sole cause of the accident", and the worker was required to travel in the dark because of her work duties.

"In these circumstances, the connection between the employment and the accident was real and of substance," he said.

Field v Department of Education and Communities [2014] NSWWCCPD 16 (27 March 2014)

On 23 December 2012, the worker, a casual relief teacher was contacted by an agency known as Casual Direct at 7.30 am and asked him to attend the Hampton Park Public School at Lakemba to work for the day.

When he received a call from Casual Direct, he would arrange to take the necessary transport to each particular school.

During the Arbitration the worker gave evidence that he had taught at the school in the past and noted it was a strict school; staff were required to be present at the school by 8.30 am in order to be given lessons for the day, shown to the classrooms or given 8.30 am playground duty.

The employer argued that the worker’s belief was not sufficient to establish the required link between the employment and the fall because the evidence

  • only  reflected  Mr  Field’s  belief  based  on  past experiences;
  • did  not  disclose  how  many  times  Mr  Field  had worked at the school;
  • did not disclose what was meant by “required”;
  • did not disclose how Mr Field came to know that he was required to be at the school by that time, and
  • did not disclose what was required on the day of the injury.

The Arbitrator agreed and rejected the worker’s claim, and in summary said any link between the employment and the incident was Mr Field’s belief or perception that he had to be at the school at 8.30 am, which was not supported by evidence that the respondent required or demanded his attendance at that time;

The worker appealed. Deputy President Bill Roche upheld the appeal finding that

  • s 10(3) may, but does not necessarily require a causal  connection  between  the  employment and the accident, connection is a wider concept than causation.
  • It is no answer to a witness’s evidence to say that it cannot be accepted because “it is only his or her belief or perception”. Virtually all evidence from a witness (apart from things or real evidence) is based on the witness’s perception of the particular event or situation he or she is describing. That does not mean that, for that reason alone, it cannot or should not be accepted. It is for the tribunal of fact to assess the reliability of the evidence against the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]).
  • The logic of the worker’s evidence  was  and  is compelling. He explained the basis for his assertion that staff were required to be at the school by 8.30 am, namely, his past experience. He also explained why  staff  had  to  be present by that time. His reasons were logical and plausible. The respondent called no evidence to rebut Mr Field’s evidence and did not challenge it in  cross-examination and the Arbitrator erred in not accepting it.
  • The worker was hurrying because of the late notice given to him by Casual Direct and from the school’s requirement that staff be at the school by 8.30 am. There is no contest that Mr Field was using one of the most direct routes to the school.
  • That there may have been other routes available to him that did not have cracked or damaged surfaces.

Conclusion

For a journey claim to succeed, the connection between employment and the accident must be real and of substance and which is a broader concept than causation, that is, that the injury was arising out of the employment.

Provided a worker can prove there is a connection between the employment and the injury they are likely to succeed on liability.

It would appear that the insertion of s 10(3) has made little difference to journey claims in New South Wales. What has changed however is the impact on premiums for employers in that such claims are now premium impacting when they were not previously so. It is extremely important for employers to ensure that such claims are managed in the same way as a non-journey related claims.