On the wrong side of the tracks – a journey gone awry

Anderson v Sydney Trains [2024] NSWPIC 417

On 17 April 2023, the Applicant was travelling from her home to attend a training course at Petersham. She was changing trains at Strathfield when she fell walking between platforms, injuring her neck and left shoulder.

The Applicant contended that she tripped on loose gravel / raised cement as she descended a ramp at the station. She also stated that she was carrying a heavy backpack containing textbooks on her left shoulder which flung forward and hit her in the back of the head. The Applicant’s Counsel submitted that it should be inferred that the backpack full of textbooks flung forward as described by the Applicant and was causative of her left shoulder and neck injury.

Issues for determination

Section 10 of the Workers Compensation Act 1987 (the 1987 Act) covers injuries received by workers on a journey. Subsection (3) nominates the journeys covered by this section to include the daily or other periodic journeys between the worker’s place of abode and place of employment. Section 10(3A) provides:

“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.”

Therefore, the issue to be determined by Member Fiona Seaton was whether there was a real and substantial connection between the worker’s employment and the accident on 17 April 2023.

Determination

Member Seaton noted that section 10(3A) of the 1987 Act was intended to limit claims occurring during a journey and should therefore not be considered a beneficial section despite the general beneficial nature of the 1987 Act. The Member quoted President Keating in State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26, in which he stated that the test under section 10(3A);

“may, but does not necessarily, convey the notion of a causal connection. It requires an association or relationship between the employment and the accident or incident, which may be provided by establishing that the employment caused the accident or incident. However, employment does not have to be the only, or even the main cause.”

Upon her review of the evidence, Member Seaton accepted, despite the differing accounts, that the worker was carrying a backpack which hit her in the back of the head during her fall. The Member also accepted the inference that the backpack would have been heavy due to the textbooks.

However, the Member did not accept the inference proposed that the backpack hitting the worker in the back of the head was causative of her injury in the absence of medical evidence to that affect. Member Seaton stated:

“Carrying the backpack full of heavy textbooks required for training with the Respondent is a feature of what the Applicant was reasonably required, expected or authorised to do by reason of her employment and provides a connection between the employment and the accident or incident on 17 April 2023, and it may have contributed to the applicant’s injuries, but it was not causative of the accident or incident.

…

There is nothing about carrying the backpack full of textbooks that exposed the Applicant to a more perilous journey…”

Member Seaton determined that there was no real and substantial connection between employment and the accident on 17 April 2023 pursuant to section 10(3A) of the 1987 Act.

Implications

When dealing with journey claims, it is important for insurers and their representatives to know that section 10(3A) is not a beneficial provision and was intended to restrict claims. The above, and other cases, highlight that in order for there to be a real and substantive connection between employment and the incident, there must be something outwardly causative beyond a simple journey between home and a place of work.

Should you have any queries concerning a workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.