GN 2.4 Journey claims

Published: 12 August 2019

Last edited: 11 June 2024

- GN 2.4 Journey claims

Application: This guidance does not apply to exempt workers

Overview

An injury does not need to occur while a worker is physically at a workplace in order to be compensable. A worker who is injured away from their place of work but who is in the course of employment at the time of injury may be entitled to compensation.

For instance, a personal injury (not being a disease injury) received by a worker on any journey to which section 10(3) of the Workers Compensation Act 1987 (1987 Act) applies is deemed to have arisen out of or in the course of employment. However, there must be a 'real and substantial connection' between the employment and the accident or incident which results in the injury, for journeys to/from a worker’s place of abode.

This guidance considers journey claims, including personal injury on a journey, the meaning of 'real and substantial connection', and dis-entitling conduct.

Journey claims

Personal injury on a journey

Section 10(1) of the 1987 Act provides that a personal injury received by a worker on any journey to which this section applies is, for the purposes of the Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

The injury sustained by the worker must be a personal injury (within the meaning of section 4 of the 1987 Act).

A worker on a journey covered by section 10 of the 1987 Act who contracts or aggravates a disease is not entitled to compensation.

This matter considered the meaning of 'personal injury' in section 10(1) of the 1987 Act. The worker received an injury when he nearly collided with a motor vehicle while riding his motor scooter from his usual place of abode to his place of employment in February 2009. He suffered an aneurysmal subarachnoid haemorrhage at the workplace shortly after the 'near miss' and was hospitalised.

The question before the then Workers Compensation Commission (Commission) was whether the worker had suffered a personal injury, that is, that he suffered a sudden identifiable pathological change on a journey to which section 10(1) applies. The Commission held that on the evidence the only available finding was that no personal injury had occurred on the journey.

Section 9A of the 1987 Act (employment must be a substantial contributing factor to the injury) does not apply to an injury sustained on a journey as defined in section 10 of the 1987 Act. Instead, section 10(1) of the 1987 Act deems a journey injury to be one 'arising out of or in the course of employment'.

'On any journey to which this section applies'

The journeys to which section 10 of the 1987 Act applies include those between:

the worker’s place of abode and place of employment
the worker’s place of abode or employment and an educational institution which the worker is required by the terms of their employment, or is expected by their employer, to attend
the worker’s place of abode or place of employment and a place to which they are travelling in order to obtain treatment, a medical certificate, or payment of compensation for a work injury
any camp or place where the worker is required to reside temporarily or where it is reasonably necessary for the worker to reside temporarily and the worker’s place of abode
a journey between a worker’s place of abode and a place of pick-up (refer to Clause 14, Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 – deemed workers/place of pick-up)
the worker’s place of abode and place of employment in order to pick up wages or other money
one place of employment to another place of employment with another employer.

'Place of abode'

Place of abode includes not only a worker’s usual residence but also the place where a worker spent the night before commencing a relevant journey and the place where the worker is intending to stay the night following a relevant journey (refer to the definition of place of abode in section 10(6) of the 1987 Act).

A journey from a worker’s place of abode commences at, and a journey to a worker’s place of abode ends at, the boundary of the land on which the place of abode is situated (section 10(4) of the 1987 Act). If the worker lives in a house, this will be the boundary line. If the worker lives in a unit, it will be the boundary line of the land on which the block of units is situated.

A place of employment may also be, for a period of time, a place of abode. The complexity that can arise was examined in the matter of Sydney Local Health District v Fragar [2014] NSWWCCPD 59.

This case concerned an injury received by a worker during the course of a journey between two places of employment, a journey to which section 10(5) of the 1987 Act applies. The worker was a nurse travelling between two hospitals where she was employed, one in Lithgow and the other in Sydney. The principle issue concerned whether the worker’s occupation of temporary accommodation at the site of the hospital in Sydney, where she intended to reside overnight and the following day before commencing duties, was a place of employment within the meaning of section 10(5).

On the 7 October 2010, the worker commenced her first day at work at Lithgow as a casual. She finished her shift at about 5:30 pm. She then set out to drive to Sydney with the intention of staying overnight in the nurses’ units at Canterbury Hospital in Sydney before commencing duties the next day at the hospital. Her shift was due to commence at that hospital on 8 October 2010 at 9.30 pm.

During the course of the journey, at approximately 7.30 pm, she stopped for coffee. As she left the restaurant and walked towards her vehicle, she fell. She suffered a fracture to her right elbow, as a result of which she was incapacitated from 7 October 2010 to 6 December 2010. The worker made a claim for weekly compensation against both employers for injury to her right elbow. The insurers for both employers denied the claim.

The Commission reviewed the leading cases finding that the worker “..was injured during the course of a journey between two places of employment to which section 10(5) of the 1987 Act applies. Her intended occupation of temporary accommodation, namely a nurses’ unit located at the site of the hospital where she was due to commence duties, was both a place of employment and a place of abode. Her occupation of the unit for in excess of 12 hours before commencing duties did not destroy the characterisation of the unit as a place of employment.”

What does 'real and substantial connection' mean?

For injuries sustained on journeys to or from a worker’s place of abode on or after 19 June 2012, there must be a real and substantial connection between employment and the accident or incident out of which the injury occurred.

The 2012 amendments introduced section 10(3A) to the 1987 Act. Section 10(3A) provides that a journey referred to in subsection (3) to or from the worker's place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.

Note: The changes to journey provisions in 2012 do not apply to exempt workers.

It is important to understand that the requirement is for there to be a real and substantial connection between the employment and the accident or incident – not between the employment and the injury.

For many journey claims between home and work, this connection between employment and the accident or incident can be difficult to establish. The mere fact of travelling to or from work will not be enough to satisfy the section.

In Alexander v Secretary Department of Education and Communities [2015] NSWWCCPD 41 a worker was granted paid leave to attend a graduation ceremony. While travelling to the ceremony from the place of employment, the worker died as a result of a traffic accident. The facts of the case did not establish that there was a real and substantial connection between the employment and the accident or incident.

A real and substantial connection between the employment and the accident or incident was found in Namoi Cotton Co-Operative Ltd v Easterman (as Administrator of the Estate of Easterman) [2015] NSWWCCPD 29.

The deceased was on a journey between her place of employment and her place of abode within the meaning of section 10(3) of the 1987 Act when she was involved in a fatal motor vehicle accident. The issues on appeal concerned whether there was sufficient evidence to support the Arbitrator’s finding that the deceased was suffering from fatigue at the relevant time and that fatigue was the probable cause of the accident; and whether there was a real and substantial connection, pursuant to section 10(3A) of the 1987 Act, between the employment and the accident that led to the deceased’s death. The deceased had worked 60 hours, all on night shifts in the five days preceding the accident.

In finding for the estate, Keating, P. held that:

The Arbitrator was correct to find that the work-related fatigue suffered by the deceased was a real and substantial connection between her employment and the accident, therefore the requirements of s 10(3A) of the 1987 Act were satisfied.

Disentitling conduct

Interruption to or deviation from the journey

An interruption to or deviation from a direct journey to or from work does not necessarily disentitle a worker.

There is no entitlement to compensation for a journey injury if the personal injury was received during or after any interruption to or deviation from the journey and the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey, unless, in the circumstances of the case, the risk of injury was not materially increased because of the interruption or deviation (section 10(2) of the 1987 Act).

A worker need not take the most direct route between home and work to be on a journey. A worker may choose a longer route to allow him or her to achieve a purpose additional to the journey provided the journey still retains the character of a journey between home and work.

The worker had adopted a practice of calling upon her grandmother fortnightly after leaving work and before travelling to her place of residence. The practice was a regular one from which she departed very rarely, if at all. In order to call upon her grandmother the appellant was obliged to travel about 19 additional kilometres further than she would if she were to travel directly to her home.

On the day in question, she undertook one of such visits to her grandmother. After they ate a meal together she left her grandmother's residence and set out for home. She collided with an unattended truck, parked on the verge of the highway and suffered injuries including a severe head injury which caused brain damage.

The majority held:

There is no obligation upon a worker to take the shortest and most direct route from the worker's place of work to the worker's abode so long as the journey can be said to be a journey between the worker's place of abode and place of employment. And there is no reason why a worker might not, within the statutory meaning of a journey, choose a route, albeit an indirect and longer one, which may enable the worker to achieve a purpose in addition to the purpose of reaching the worker's residence in order to spend the interval between ceasing and recommencing work, again provided that the journey still has a character of a journey between his or her place of work and place of abode, and there is no material increase in risk during or after any deviation or interruption.

Whether an interruption to a journey has the effect of creating two journeys, neither of which fits the statutory specification, is a question of degree and fact. Each case must be determined on its particular facts.

Serious and wilful misconduct; influence of alcohol or other drugs and medical or other condition of the worker

There is no entitlement to compensation for a journey injury if:

the personal injury is attributable to the serious and wilful misconduct of the worker (section 10(1A) of the 1987 Act)
the worker was under the influence of alcohol or other drugs (within the meaning of the Road Transport Act 2013) unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily (section 10(1B) of the 1987 Act)
the personal injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury (section 10(1D) of the 1987 Act).

GN 2.3 Managing claims for workers with a psychological injury

GN 2.5 Recess claims

Related: Legislation and regulations