Are you covered by workers compensation insurance travelling to and from your place of work?
The simple answer is no. It is not a straight forward as it once was.
Prior to mid-2012, if you were an employee and sustained an injury during your journey travelling to or from your place of work, you were covered by your workers compensation insurer. These sorts of claims are generally known as ‘journey claims’ and workers could rest easy with the knowledge they would be covered for loss of wages and medical treatment if they sustained an injury travelling to or from work.
Significant legislative amendments introduced in 2012 abolished the concept of journey claims for most workers in NSW. Please note there are some exemptions based on which workers compensation scheme you fall under; for example coal miners are exempt from the 2012 changes.
For the majority of employees under the NSW workers compensation scheme, journey claims are now only available in very limited circumstances. Section 10(3A) of the Workers Compensation Act 1987 (NSW) states that for a journey to be covered by insurance, there must be: “…a real and substantial connection between the employment and the accident or incident out of which the personal injury arose”.
The Workers Compensation Commission and the legal profession continue to grapple with this concept and some interesting case law has evolved which has broadened the scope of what could be considered to be a “real and substantial” connection between the employment and the accident or incident out of which the injury arose.
Such a case was the 2014 matter of Singh v Wickenden. The fact scenario was that Ms Wickenden worked at a service station and normally worked until approximately 2:30pm. On the day of her accident, her employer required her to work later than her usual hours being until 5:30pm. This was on a temporary basis to complete training.
She would ordinarily travel to and from work on a motorbike. On this particular occasion, when she left work after 5:30 pm and rode her motorbike home in the dark, she was involved in a motor vehicle accident when another vehicle driven by Ms Thomas swerved and collided into her bike..
The workers compensation insurer denied liability on the basis that there was no “real and substantial” connection between the accident and employment. Ms Wickenden challenged this decision and was successful however the insurer appealed.
On appeal in the Commission, Deputy President Roche found that Ms Wickenden did not have to prove that the darkness caused the accident and further that the actions of Ms Thomas did not defeat the requirement to establish a ‘connection’ between the workers accident and her employment.
Deputy President Roache was satisfied that Ms Wickenden met the test in 10(3A) because her employment required her to work later than normal and ride home in darkness, which exposed her to a risk of injury due to the darkness.
He further explained that the expression ‘real and substantial connection’ does not require any causal relationship between the two circumstances or situations concerned. It merely requires an association. He stated that employment “does not have to be THE connection between the accident or incident…it only has to be A connection, albeit one that is real and of substance”.
As the law continues to evolve following the 2012 changes, it is important that people are aware of their rights and where they stand.
If you have been involved in an accident and need legal advice, please get in touch for a no-obligation, free consultation to discuss your claim.