Macroyannis v MAC Tipping Pty Ltd [2021] NSWPIC 263 (27 July 2021)

The Applicant was a self-employed Truck Driver who sustained injury to his back when he slipped on spilt milk at a Coles Supermarket.

He alleged that the injury occurred when he stopped to carry out grocery shopping in between deliveries. His claim for lump sum compensation and medical expenses was disputed by the insurer and the matter proceeded to Arbitration before Member Wynyard.

The issue in these proceedings was whether, at the time that he was injured, the Applicant was on a temporarily authorised absence from his place of employment (i.e. his truck) in accordance with Section 11(a) of the Workers Compensation Act 1987 (the 1987 Act), or whether he had in fact finished his work for the day.

Section 11 of the 1987 Act provides that:

11 RECESS CLAIMS

If a worker on any day on which the worker has attended at the worker’s place of employment pursuant to the worker’s contract of service or training contract–

(a) is temporarily absent from that place on that day during any ordinary recess or authorised absence,

(b) does not during that absence voluntarily subject himself or herself to any abnormal risk of injury, and

(c) receives a personal injury during that absence,

the injury is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.

Material facts

The Applicant started and finished work at variable times, depending on the number of jobs he had each day. He would usually work from 7am to 5 or 6pm, and sometimes he also performed jobs in the evening. He had a number of clients and with some he entered into formal agreements, but with others he worked on a more casual basis. The Applicant alleged being injured sometime between 4-5pm. He claimed that he planned to do some grocery shopping with his wife prior to performing one last job for the day, which was a delivery to his nephew that had been arranged over the telephone.

There was a lack of evidence to support that the Applicant had another job scheduled for the afternoon.

One of the key considerations was whether the Applicant had parked the truck in the Coles car park, or whether he had parked in a nearby yard, where he would usually store the truck overnight.

Decision

Member Wynyard said that all that needed to be proven to trigger Section 11 was that the Applicant was temporarily absent from his truck during an absence which he had authorised, and that his injury was not caused through any fault of his own.

The Member accepted that the Applicant would occasionally need to leave his truck, which was his place of employment, for reasons including obtaining food and groceries. He noted that because the Applicant was an owner/operator, he could authorise his own absences. The Member accepted that the truck had been parked near Coles (and not at the nearby yard where it was usually left overnight). He also accepted the Applicant’s assertion that he had one more job to perform that afternoon.

The matter was therefore determined in the Applicant’s favour.

Implications

This decision serves as an example of the application of Section 11 where the worker is able to authorise his own absences and dictate his own hours of work. In these circumstances, it is necessary to consider the available evidence to establish whether the worker was on a break, or whether they had ceased work for the day. It was held open to the Member to accept the worker’s uncorroborated testimony on these matters.

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