GN 2.2 Injury

Published: 12 August 2019

Last edited: 24 July 2020

- GN 2.2 Injury

Application: This guidance applies in part to exempt workers

Overview

The basic proposition of the workers compensation scheme in NSW is a worker who has received an injury shall receive compensation from the worker’s employer - see section 9 of the Workers Compensation Act 1987 (the 1987 Act).

This guidance discusses what constitutes an injury and what follows from that. The question as to whether a worker has suffered an injury requires insurers to review all the relevant facts in each individual case.

It is important to understand that compensation is payable for the consequences that result from an injury, not for receiving the injury itself.

What constitutes an injury?

As defined in section 4 of the 1987 Act, the definition of injury:

a) means personal injury arising out of or in the course of employment
b) includes a disease injury which means:
(i) a disease that is contracted in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.

Further information on disease injury can be found in Insurer guidance GN 2.2A Disease injury.

Note: For exempt workers, employment needs to be a substantial contributing factor rather than the main contributing factor. See the exempt worker provisions for the different requirements for exempt workers including paramedics, police officers and firefighters.

The elements of injury

In workers compensation, an injury can be both a personal injury and a disease injury. It doesn’t have to be one or the other. For example, a worker who suffers a personal injury like a fall can also aggravate an underlying disease in the same incident.

Personal injury and disease injury

Nature of injury	Test of contributing factor
Personal injury	Employment must be a substantial contributing factor to the injury. See section 9A of the 1987 Act
Personal injury on a journey	There must be a real and substantial connection between the employment and the accident or incident out of which the personal injury arose. See section 10(3A) of the 1987 Act
Disease injury	Employment must be the main contributing factor (or substantial contributing factor for exempt workers) to the contraction of a disease or the aggravation, etc of a disease. See section 4 of the 1987 Act
Heart attack or stroke injury	The nature of the employment concerned gave rise to a significantly greater risk of heart attack or stroke.

Personal injury

NSW workers compensation legislation recognises two types of injury - personal injury and disease injury.

A simple way to distinguish between personal injury and disease injury is that ‘personal injury’ usually refers to a physical injury and a ‘disease injury’ is an illness, sickness or ailment.

Psychological injuries can be either personal injuries or disease injuries.

A personal injury does not have to be due to an external physical trauma. A rupture of an aneurysm is an example of a personal injury due to an internal cause. A personal injury can be as simple as a bruise or soft tissue strain or as severe as a broken bone or brain injury.

Many cases have described what constitutes a personal injury in order to be eligible to claim workers compensation.

Relevant case law - personal injury

The worker was employed as a truck driver/kitchen hand in 1998. In August 2008, he collided with the passenger side of a car as he rode his motor bike home from work. In his decision, DP Roche considered the meaning of both personal injury and disease injury stating:

… to qualify as a personal injury, there must be some sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. Such a change or disturbance may be as simple as a bruise or a soft tissue strain. If the personal injury also aggravates a pre-existing disease, that does not mean it is no longer a personal injury.

[at para 81]

Arising out of or in the course of employment

A personal injury must arise out of the employment (that is, be related to employment), or be sustained in the course of employment (that is, while performing work duties or something incidental to those duties).

A disease injury must be contracted in the course of employment, or aggravated, etc in the course of employment.

Relevant case law - arising out of employment

The meaning of arising out of employment was considered by the NSW Court of Appeal in this matter involving a worker who was on a business trip to a ski resort. The purpose of the business trip was to secure the resort as a client for the employer (an information technology business).

It was arranged that the worker would go skiing with a representative from the Resort on the final day of the business trip. When the Resort’s representative withdrew from the commitment, the worker and her partner went skiing at that time anyway. While the worker was skiing, her supervisor telephoned and requested that she return to the Resort to discuss further business matters before they returned to Sydney. The worker started to ski down the mountain to the Resort and fell and injured her knee.

The worker claimed workers compensation for the injury. Liability was denied on the basis that the worker was not skiing with the client or her supervisor when the injury occurred. The Court held:

...the meaning of “arising out of ... employment” is settled….

...The necessity for there to be a causal element between the employment and the injury when determining whether a worker sustained injury arising out of employment, has been consistently confirmed...

an injury arose out of employment if it appears...that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury....

[at paras 73-76]

Relevant case law - in the course of employment

This was a High Court of Australia matter involving a worker employed to work in a remote area in Western Australia. The worker was engaged in NSW on a three-month contract, required to work about ten hours each day for six days each week, tools would be supplied for them, ANI would pay board and living expenses, and ANI would hire two vehicles to provide transport for the group.

The worker was injured on a sightseeing trip to Wittenoom Gorge (about 400 km away) on his third Sunday. The trip had been organised by the employer. The question was whether the worker was in the course of his employment when he was injured. The Court noted:

Where, for example … an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality.

Moreover, … it shows that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way…

Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.

… in determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment.

Additional requirements for injury

Employment as a substantial contributing factor

Since 12 January 1997, for a personal injury (not a disease injury), to be compensable, employment must have been a substantial contributing factor (see section 9A of the 1987 Act).

Requirements of section 9A of the 1987 Act

Section 9A of the 1987 Act requires that the employment concerned must be a substantial contributing factor to the injury (not to what results from the injury).

Once it is established that employment is a substantial contributing factor to the injury, the causal test is satisfied. There is no requirement that employment be a substantial contributing factor to ongoing incapacity or the need for medical treatment.

Section 9A(2) of the 1987 Act provides examples of the factors to be taken into account, including, but not limited to:

the time and place of the injury
the nature of the work performed and the particular tasks of that work
the duration of the employment
the probability that this or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if they had not been at work or had not worked in that employment
the worker’s state of health before the injury and the existence of any hereditary risks
the worker’s lifestyle and their activities outside the workplace.

Whether employment was a substantial contributing factor to an injury is determined through the consideration of the relevant facts and evidence in each case.

The link between an injury (whether a personal injury, a disease contracted in the course of employment, or the aggravation etc of any disease) and the worker’s employment must be ‘real and of substance’ and is a matter of ‘impression and degree’ (Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324).

Employment does not have to be the sole or main contributing factor, provided it is ‘real and of substance’.

Note: Section 9A of the 1987 Act does not apply to:

a disease injury (see Insurer guidance GN 2.2A Disease injury)
an injury sustained on a journey (see section 10)
an injury sustained during a recess (see section 11), or
an injury sustained by a trade union representative (see section 12).

Conduct of a worker

Serious and wilful misconduct

There is no entitlement to compensation if the worker’s injury is solely attributable to their serious and wilful misconduct (section 14(2) of the 1987 Act). Both of these elements must be proven.

To be a wilful act, a worker’s actions must be deliberate with full knowledge of the consequences (as opposed to an impulsive action). However, if an injury results in death or serious and permanent disablement, there may still be an entitlement to compensation.

Intentional self-inflicted injury

Compensation is not payable if an injury or death of a worker was caused by intentional self-inflicted injury (see section 14(3) of the 1987 Act). However, there are circumstances where a suicide may not be considered to be an intentional act (see Insurer guidance GN 5.12 Death claims).

GN 2.1 Worker or contractor

GN 2.2A Disease injury

Related: Legislation and regulations

Related: Guidelines and standards

Workers compensation guidelines

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