Rankin Ellison Successfully Defends Journey Claim

Hitchings v Secretary, Department of Finance, Services and Innovation

The Applicant lived in Port Macquarie and worked for the Respondent in Queanbeyan as an Aboriginal Procurement Manager.

The Applicant claimed that on 8 October 2019 he left his place of abode in Port Macquarie to drive to the Queanbeyan office to meet clients.  He was just past Kew (approximately 20 minutes from home) when he felt a severe lower back pain which caused him to stop driving and return home.

The Applicant claimed that his lower back injury arose out of or in the course of his employment, or in the alternative, that he was on a journey to his place of employment and there was a real and substantial connection between his employment and the accident or incident out of which his personal injury arose. Liability was disputed by the Respondent and the matter proceeded to Arbitration.

Determination/Reasons

The Applicant was required was to work on Monday and Tuesday in Queanbeyan, Wednesday in Sydney and Thursday and Friday in Port Macquarie.  Arbitrator Isaksen noted that the Applicant’s course of employment would be ‘ordinarily perceived’ as commencing when he started work at Queanbeyan and ended when he completed his work that same day in Queanbeyan, in accordance with the decision of Hatzimanolis v ANI Corporation Ltd [1992] HCA 21.

Arbitrator Isaksen noted the Applicant was driving to commence work on 8 October 2019 when he felt the onset of lower back pain and this occurred during a journey to work and before the activities of his employment had commenced.

Arbitrator Isaksen did not consider the Respondent encouraged or induced the Applicant in the activity of driving from Port Macquarie to Queanbeyan which may bring the injury within the course of his employment.  It was simply a necessary requirement of his employment that he work each Monday and Tuesday in Queanbeyan and as long as he lived in Port Macquarie he needed to undertake a journey to Queanbeyan to complete his employment duties in accordance with his contract.   Arbitrator Iskasen was not satisfied the injury was sustained in the course of employment.  He also did not accept that the injury arose out of his employment with the Respondent as the mere fact that he had to drive from his home to Queanbeyan to start work did not establish a causal connection between his lower back pain and employment, in accordance with the decision Bina v ISS Property Services Pty Ltd [2013] NSWWCCPD 72 (Bina).

Arbitrator Isaksen could not identify any real and substantial connection between the Applicant’s activities of employment and the onset of lower back pain while driving.  The journey was not reasonably required, expected or authorised by reason of his employment, other than what would ordinarily be expected of an employee to travel from his place of abode to attend his place of employment.  His driving on the subject morning was simple a journey to his place of work which was required as part of his contract of employment.

Arbitrator Isaksen noted the Applicant’s situation fits within the decision of Bina that “the mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident” and “if merely travelling to and from work was sufficient to establish the relevant connection, s 10(3A) would be otiose.”

Arbitrator Isaksen found no real and substantial connection between the Applicant’s employment and the incident on 8 October 2019 and therefore Section 10 (3A) of the 1987 Act was not satisfied.  There was an Award for the Respondent.

Implications

The fact a worker suffers an injury while simply travelling from a place of abode to place of employment is insufficient to establish a real and substantial connection as required by Section 10(3A) of the 1987.  The injury must be causally related to an activity or requirement of the worker’s employment and this will depend on the facts of each case and the nature of the worker’s duties.

If you have any questions about a particular workers compensation matter, please contact our team by phoning 02 4929 9333 (Newcastle) or 02 8297 5900 (Sydney).