Journey and recess claims
Published: 12 August 2019
Last edited: 12 August 2019
This information does not apply to exempt workers - see instead 'Journey and recess claims for exempt workers'
Journey claims
A journey claim occurs when a worker sustains an injury while travelling between:
- the worker’s place of residence and their place of employment
- the worker’s place of residence or place of employment and an educational institution which the worker is required or expected to attend by their employer (for example, as part of their terms of employment)
- the worker’s place of residence or place of employment and a place they are going in order to obtain treatment, a certificate or report for a work-related injury
- the worker’s place of residence and place of employment for the purposes of collecting wages or other money
- one place of employment to another place of employment.
For injuries sustained on journeys on or after 19 June 2012, where those journeys are to or from a worker’s place of abode, there must be 'a real and substantial connection' between employment and the accident or incident out of which the injury occurred.
The requirement is for there to be a real and substantial connection between the employment and the accident or incident - not between the employment and the injury.
Here are two examples of decisions on journey claims:
Mitchell v Newcastle Permanent Building Society Ltd (2013) NSWWCCPD 55
A worker brought a claim for compensation for injury sustained while on her way home. She tripped and fell on exposed roots of a fig tree on the side of a road.
It was held that the fact a worker is on a journey between home and employment is not sufficient to establish there was a real and substantial connection between employment and the accident. The connection must be ‘actual and of substance.’
Dewan Singh and Kim Singh t/as Krambach Service Station and Wickenden (2014) NSWWCCPD 13
A worker was involved in a motor vehicle accident when driving home in the dark after being asked to work late. It was found that the injury was compensable because the darkness played a role in the accident.
There is no requirement that employment be the cause of the accident, but there has to be a connection with the employment that is real and of substance.
There is no entitlement to compensation for a journey injury if:
- the injury is attributable to the serious and wilful misconduct of the worker
- the worker was under the influence of alcohol or other drug unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily
- the injury resulted from the medical or other condition of the worker and the journey did not cause or contribute to the injury
- the injury was received during or after any interruption to or deviation from any journey, and the interruption or deviation was made for a reason unconnected with the worker’s employment or the purpose of the journey, unless the risk of injury was not materially increased because of the interruption or deviation
- a real and substantial connection between the worker’s employment and the accident or incident is unable to be established in a journey between the worker’s place of residence and their place of employment.
Further information can be found in Insurer guidance GN 2.4 Journey claims.
Recess claims
A worker who sustains a personal injury during an ordinary recess or authorised absence (eg a meal break or other break), may be compensated provided they did not voluntarily subject themselves to an abnormal risk of injury.
Here is an example of a decision relevant to a recess claim:
Ekes v EDS Australia Pty Ltd [2006] NSWWCCPD 120
The worker in his afternoon coffee break engaged in a foot race along a balcony of the employer’s premises when he tripped on a raised tile, fell and sustained injury. It was held that section 11 of the Workers Compensation Act 1987 (1987 Act) did not apply because the fall occurred at his place of employment.
It was found that the doing of ‘an act’ (engaging in a foot race) in the ‘particular circumstances’ (on a narrow balcony with uneven tiles) was clearly ‘attended with an unusual degree of risk’ (namely, that someone might fall). The Arbitrator concluded that in engaging in such an act the worker had exposed himself to an abnormal risk of injury.
Further information can be found in Insurer guidance GN 2.5 Recess claims.
Related: Claims journey
Related: Insurer guidance
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