GN 2.5 Recess claims

Published: 12 August 2019

Last edited: 12 August 2019

- 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 (eg 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.

Tooth & Co Ltd t/as Mona Vale Hotel v Injac [1994] NSWCA 313

In this matter, the court held that a chef who worked from 9am to 3pm and from 5pm to 9pm with a break between the shifts, was not on an ‘ordinary recess’ when injured during the time between the shifts. Mahoney JA considered:

The term “recess” as ordinarily used is not, in my opinion, appropriate to describe the period of time that exists between the end of one shift and the beginning of the next shift worked by the worker. Ordinarily, “recess” is used to denote a break in the actual execution of work during a period of time when the worker is in the course of his employment.

Worrell v Longworth and Anor (2000) 20 NSWCCR 400

In this matter, the worker was an irrigation foreman on a rural property who had worked for a couple of hours in the morning. He was planning on returning in the evening to work for another couple of hours. He was paid only for the hours he worked and not for the time in between.

The worker lived close to the rural property. The employer telephoned the worker at home and invited him to a picnic at the property. The worker accepted the invitation. The worker was injured while boating on a dam at the property during the picnic.

Judge Burke considered that the injury did not occur during an interval in one continuous period of work, but rather during the time between two different periods of work.

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.

Stefanovic v Resource Illawarra Pty Ltd (2002) 24 NSWCCR 518

A worker was injured in a motor vehicle accident while on the way to a doctor’s appointment. The worker’s supervisor had approved the worker taking time to visit the doctor. The worker had intended to return to work following the appointment.

It was considered that an authorised absence was ‘not a “normal recess” but an unusual absence of a temporary nature … for which the employer’s permission has been forthcoming.’

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.

Parasiliti v Dimiakos (1993) 9 NSWCCR 518

In this case, it was held that the worker had subjected herself to an abnormal risk of injury when attempting to cross a busy six-lane highway during her lunch break.

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