The road not (often) taken: Rediscovering journey claims

Author: Chad Farah
Judgment Date: 3 July 2018
Citation: State Super Financial Services Australia Limited v McCoy [2018] NSWWCCPD 26
Jurisdiction: Workers Compensation Commission of New South Wales - Presidential Decision

Principles

• The old 'journey claims' have not been completely abolished by the 2012 Amendments. All workers, whether pedestrians or potentially vehicle drivers, can make successful workers compensation claims for injuries sustained on the way to work under certain circumstances.
  
  
• The usual test of causation does not apply to determining whether there is a 'real and substantial connection' between the accident and the employment, within the meaning of s10(3A) of the Workers Compensation Act 1987 (the 1987 Act).
  
  
• Workers who make late claims but demonstrate that they were ignorant of their rights and obligations are not barred from pursuing compensation, pursuant to s261(4) of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

Background

On 5 December 2013, Suzanne McCoy (the applicant) sustained injury to her right ankle while walking from the Sails Resort in Port Macquarie, where she had been staying, to a venue where a work Christmas party was being held by her employer, State Super (the respondent). The applicant tripped and fell on the pavement, on her way to that party.

Following right ankle surgery and subsequent medical complications, the applicant lodged a workers compensation claim on 1 November 2015. The insurer denied liability on three main grounds:

1. That the applicant failed to make a claim within 6 months of the date of injury, pursuant to s261 of the 1998 Act;
   
   
2. That the injury did not arise out of employment within the meaning of s4 of the 1987 Act; and
   
   
3. That, while the claim fell within the definition of a 'journey claim', there was no 'real and substantial connection' between the employment and the accident, as required by s10(3A) of the 1987 Act.
   
   

The dispute proceeded to the Workers Compensation Commission. The applicant's evidence was that she tripped and fell because she was (1) fatigued after a long day of work, (2) was hurrying to arrive at the party by a certain time and (3) that she fell as a result of a raised paver on the footpath which she had failed to notice in time.

The Arbitrator found that the applicant was not barred from pursuing compensation because she was ignorant of the requirement to do so within 6 months of the date of injury, pursuant to s261(4) of the 1998 Act. However, the Arbitrator found that the injury did not arise out of employment within the meaning of s4 of the 1987 Act.

The Arbitrator then found that the claim indeed fell within the definition of a 'journey claim' and that there was in fact a real and substantial connection between the accident and the employment. Therefore, compensation was payable.

The respondent appealed on one ground only, and in respect of this last point.

Decision on Appeal

The appellant primarily submitted that there was no contemporaneous evidence to support the applicant's allegations about the factors that contributed to the accident, and that she had not explained her logic behind her alleged fatigue or the need to arrive at the party by a certain time. It was submitted the Arbitrator erred in accepting her evidence, on that basis.

President Keating reiterated that the onus was on the appellant to show that an error of law was committed by the Arbitrator, or that the Arbitrator's views were not reasonably supported by the evidence.

The President enunciated the established legal principles in that regard at paragraph 66 of the decision, namely that it is insufficient for it to be shown that a Presidential Member could conclude differently on the evidence, but rather it must be shown that the Arbitrator should have concluded differently in the first instance. Examples of such errors include situations where the fact finder overlooks material evidence or reaches unreasonable conclusions based on that evidence.¹

The President went on to say at paragraph 69:

It was stressed that this is a less onerous test than that found under ss4 and 9A of the 1987 Act, where the injury must arise out of employment and where employment must be a substantial or the main contributing factor.

In examining whether that association or relationship existed as required by s10(3A), the crux of the applicant's evidence was quoted at paragraph 74:

It was noted that this evidence was unchallenged by any other evidence at the hearing. The President concluded that the applicant's evidence alone is not illogical and that it was in fact open to the Arbitrator to accept that evidence as truth.

The President also concluded that it was open to the Arbitrator to draw the common sense inference that fatigue reduced the applicant's reaction time, thereby contributing to the accident, despite the absence of any direct evidence in support of that premise.

For the above reasons, the appellant's submissions were rejected and the Arbitrator's decision was confirmed.

Why this case is important

The general consensus today is that the workers compensation amendments as at 19 June 2012 have largely abolished 'journey claims' where workers were previously compensated for injuries suffered while traveling to and from work. The remaining exceptions are cases where that travel is an inherent part of the job, such as in the case of delivery drivers (as an example).

This case challenges that general consensus.

It is clear from this decision that workers are still able to make successful journey claims if their evidence suggests that employment had an impact, no matter how small, on their behaviour or cognitive functioning leading up to the accident. While this case dealt with a situation where the worker was tired and in a hurry, other situations could include workers that have car accidents on the way to work due to work-related stresses and long work hours resulting in them being absent minded while driving.

It is therefore important for workers compensation insurers to carefully examine the factual allegations surrounding these accidents and challenge them, if possible, particularly given the ease with which the legal test under s10(3A) can be satisfied.

Insurers must also remember that disputing liability for an injury arising from a journey claim cannot be done with reference to ss4 and 9A of the 1987 Act alone because successful journey claims need not arise out of employment in the classical sense. The declinature must specifically address the test under s10(3A) and must be made with reference to that section, also.

NB:

While claims of this kind may give rise to an increase in litigation in the Workers Compensation Commission, they will also create friction for claimants as they pursue compensation in more than one area of personal injury law.

The obvious example here is that Ms McCoy may also have a claim in negligence under the Civil Liability Act against the entity responsible for the footpath. However, the public liability insurer of that entity would no doubt benefit greatly from the findings of the Workers Compensation Commission that the worker was, in effect, distracted and not keeping a proper lookout (by her own admission).

Hence, these journey claims will become two-edged swords for workers who may otherwise wish to seek redress in common law damages; their success in one claim will jeopardise that success in the other.

 

¹ Raulston v Toll Pty Ltd NSWWCCPD 25; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505.