Resurrection of journey claims of personal injury and workers compensation

In two recent presidential decisions, Dewan Singh and Kin Singh trading as Krambach Service Station v Wickenden [2014] NSWWCCPD 13 (18 March 2014) and Field v Department of Education and Communities [2014] NSWWCCPS 16 (27 March 2014), Deputy President Roche considered whether, as required by section 10(3A) of the 1987 Act, there was a ‘real and substantial connection’ between the employment and the accident or incident under which the personal injury arose.

Background

Wickenden involved a casual employee at a service station who normally started at 9.30am and finished at 2.30pm. The employee was asked in June 2012 to work longer hours, 7.30am to 5.30pm during a training period to open and close the service station.  On 5 July 2012, the employee closed the service station at 5.30pm and started her trip home in darkness. While riding her motorbike home she was involved in an accident when a car swerved onto her side of the road and struck her motorbike.

Field involved a relief teacher who on 23 October 2012 at short notice was asked to attend a school at Lakemba. He suffered a personal injury when he tripped and fell on broken and uneven ground while walking hurriedly to the school in order to arrive there on time.

Presidential decisions

In Wickenden, DP Roche said 10(3A) required a real and substantial connection between the employment and the accident concerned. On its own, the mere fact of travelling to and from work will not provide that connection (Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72). The Deputy President considered the circumstances the worker faced, namely, riding home in darkness, was connected with her employment because her employment required her to work later than normal and to ride home in darkness rather than in daylight. The Deputy President noted Mrs Wickenden’s employment had to create, and did create, a factual association or connection with the employment that was real and of substance.

In Field, DP Roche considered as in Bina whether, and in what circumstances s 10(3A) is satisfied, will be a question of fact, applying the words of the provision in a common sense and practical manner in each case. The Deputy President noted the Arbitrator based his decision on the premise that Mr Field had to prove his employment caused him to trip and fall. The Deputy President said that is not the test.

For the reasons explained in Bina and Wickenden, section 10(3A) may involve, but does not necessarily require, a causal connection between the employment and the accident. Based on Mr Field’s unchallenged evidence that he tripped and fell because he was hurrying to get to the school on time, DP Roche found a real and substantial connection between his employment and the accident was established, being one that was real and of substance.

In practice

• Section 10(3A) does not require a causal connection between the accident or incident and the employment before it can be satisfied.
• It will usually be satisfied, depending on the facts, when there is a real and substantial connection between some feature of what the worker was required, expected or authorised to do, by reason of his or her employment, and the accident or incident out of which the personal injury arose.
• The mere fact of being on a journey between a place of employment and a place of abode, of itself, does not satisfy section 10(3A).
• Whether Section 10(3A) is satisfied will be a question of fact, applying the words of the section in a common sense and practical manner in each case.  

Conclusion

The Commission has adopted a wider view of the new journey provisions than otherwise first thought. 

Therefore a careful analysis of the facts of each case is required in order to determine whether a real and substantial connection is established between the employment and the accident.  Simply travelling to and from work is not enough – there needs to be something more. 

In other words, there must be something unusual or different about what was required of the worker in the course of his or her employment such that the connection between the employment and the accident was real and substantial.

Authors: Gary Forster, Judith Edwards and Malcolm Griffin