GN 2.5 Recess claims
Application: This guidance applies to exempt workers
Overview
A worker who sustains an injury while temporarily absent from the workplace during an ‘ordinary recess’ or an ‘authorised absence’ may be entitled to workers compensation benefits under section 11 of the Workers Compensation Act 1987 (1987 Act).
This guidance provides information to assist insurers in determining a recess claim.
Note: Section 9A of the 1987 Act, which requires a worker to show that their employment was a substantial contributing factor to the injury, does not apply to recess claims.
Determining a recess claim
The required elements of a recess claim under section 11 of the 1987 Act are:
- the person is a worker
- on the day of the injury, the worker attended at their place of employment pursuant to their contract of service or training contract
- the injury occurred when the worker was temporarily absent from the place of employment during an ordinary recess or authorised absence
- the injury is a personal injury
- during the absence from the place of employment, the worker did not voluntarily subject themselves to any abnormal risk of injury.
Personal injury
Section 11 of the 1987 Act refers to a ‘personal Injury.’ This term limits the definition of injury so that the section does not apply to a disease or aggravation of a disease. Therefore, a worker who contracts a disease during an ordinary recess or authorised absence will not be able to claim compensation under section 11 of the 1987 Act.
Absence from place of employment
Section 11 of the 1987 Act provides that the injury must occur outside of the place of employment. The term ‘place of employment’ is not defined in the legislation.
Determining place of employment is a factual question that is decided on a case-by-case basis. This requires looking at the worker’s contract of employment or training contract and determining whether the injury occurred during an absence that is an ‘ordinary recess’ or an ‘authorised absence’ from the place of employment.
What is an ordinary recess?
An ordinary recess may include situations where:
- there is a brief interruption in a continuous period of work
- there is a period of rest that occurs in the normal working day
- it normally occurs at regular times (e.g. lunch or afternoon tea break)
- it is recognised by established practice in the workplace
- it is taken with the express or implied permission of the employer.
What is an authorised absence?
An authorised absence may include situations where:
- there is an abnormal break in work which has been authorised by the employer
- it is brief in duration
- it varies from normal practice.
Abnormal risk of injury
The worker must establish that they did not subject themselves to an abnormal risk of injury. This is an objective test that is determined having regard to the facts of the case.
A worker will likely have subjected themselves to an abnormal risk of injury where they:
- knowingly and intentionally subjected themselves to an abnormal risk of injury, and
- made more than a simple or careless error in judgement.
A worker must have knowledge of the risk, and a determination to proceed in disregard of its consequences.
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