Under the NSW workers compensation legislation, a journey claim refers primarily to injuries that an individual sustained while travelling to and from work.
Section 10 of the Workers Compensation Act 1987 (NSW) covers these kinds of claims. Where a worker alleges an injury on a journey, there must be a real and substantial connection between the employment and the accident out of which an injury has arose.
A worker’s journey is said to begin when they cross the boundary of their home and end when they enter the boundary of their employer. There can be some difficulties in determining when a worker has crossed the boundary.
The recent appeal matter of Ready Workforce (a Division of Chandler Macleod) Pty Ltd v Andronicos 1 was determined by President Judge Phillips on 6 February 2024.
This is a significant case which illustrates how the Personal Injury Commission considers the commencement of a journey for the purposes of Section 10. 2
Background
Mr Costa William Andronicos (the Applicant) was employed by Ready Workforce (A Division of Chandler Macleod) Pty Limited (the Respondent) since late 2017. The Respondent is a labour hire company. The Applicant’s labour was on hire by the Respondent to Keolis Downer Beaches Pty Limited (Keolis), where the Applicant worked as a bus driver.
Keolis had an office within the car park at 1472 Pittwater Road Warriewood. The car park was accessible to the public and was used by commuter taking the B1 bus route.
The Applicant sustained an injury to his right hip and right shoulder on 11 April 2022. He was walking to his vehicle to drive home, following finishing his work duties when he tripped over a speed bump located in a car park. The car park was located at 1472 Pittwater Road Warriewood, within Lot 1 in DP1250192. Whilst Keolis leased various parts of Lot 1 DP1250192, they did not lease the specific site where the Applicant sustained injury.
The Dispute
The insurer relied on section 10 of the 1987 Act to dispute liability for the claim, arguing that the Applicant had commenced his journey home and that he had left the boundary of his employer. 3 Section 10 relevantly provides:
(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(3) The journeys to which this section applies are as follows-
(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,
(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
The Applicant commenced proceedings in the Personal Injury Commission where he submitted that his injury occurred within the boundaries of his employer, having parked his personal vehicle in a space designated to him by Keolis. 4
The Applicant had been advised by way of an email from Keolis’ on demand manager, that he was able to park his personal vehicle in any spot in the car park that did not require access through a boom gate. 5
(a) the daily or other periodic journeys between the worker’s place of abode and place of employment,
(3A) A journey referred to in subsection (3) to or from the worker’s place of abode is a journey to which this section applies only if there is a real and substantial connection between the employment and the accident or incident out of which the personal injury arose.
The Applicant commenced proceedings in the Personal Injury Commission where he submitted that his injury occurred within the boundaries of his employer, having parked his personal vehicle in a space designated to him by Keolis. 4
The Applicant had been advised by way of an email from Keolis’ on demand manager, that he was able to park his personal vehicle in any spot in the car park that did not require access through a boom gate. 5
Findings at first instance
Had the applicant commenced a journey? In making his determination, the Member relied on the decision of Green 6 which approved the test laid down in Chawla 7 as to when a journey starts and ends:-
“the boundary of the land will be the same boundary of the property and the worker will have reached his or her place of employment upon ceasing the boundary of the land/property on which the workplace is situated”. 8
In applying the decision of Green, Member Whiffin found that the Applicant’s journey would have commenced if he crossed the boundary of the land at 1472 Pittwater Road, Warriewood, where his workplace was situated. 9 The Applicant had not crossed this boundary when he was injured. Therefore, he had not commenced his journey.
If no journey, did the injury arise out of or in the course of his employment?
As it was determined that the Applicant had not commenced his journey, the Member was required to determine whether the injury arose out of or in the course of employment. He noted that the course of employment extends beyond a worker’s normal hours and place of work to actions that are incidental to employment. 10
For this issue, Member Whiffin noted that the email from the on-demand manager was an authorisation for the Applicant to park in the car park where his injury occurred. 11
The Applicant was therefore found to be working in the course of his employment when passing through the relevant car park on the way to his vehicle. If It had not been for the email, the Applicant may have parked in a different location. 12 Due to this, it was found that the Applicant’s injury occurred in the course of his employment.
Appeal
Ready Workforce (a Division of Chandler Macleod) Pty Ltd appealed the decision of
Member Whiffin submitting that the findings regarding journey, section 4 and 9A as well as capacity are affected with multiple facts and law. 13 Ready Workforce relied on eight grounds of appeal:
1. The finding that the respondent’s journey had not commenced at the time he was injured was wrong in fact and in law.
2. The findings that the respondent’s journey had not commenced at the time he was injured was against the weight of evidence.
3. The finding and reasons given for the finding that the employment with the employment with the appellant arose out of or in the course of employment were wrong in fact and in law.
4. The finding that the employment with the appellant was a substantial contributing factor to the respondent’s injury was wrong in fact and in law.
5. The finding that the employment with the appellant was a substantial contributing factor to the respondent’s injury was against the weight of the evidence.
6. The member misunderstood the test to be applied in determining if the employment with the appellant was a substantial contributing factor to the respondent’s injury and applied the wrong criteria.
7. The finding that the respondent was Incapacitated from 23 January 2023, or at all, was wrong in fact and in law.
8. The finding that the respondent was incapacitated from 23 January 2023, or at all, was against the weight of the evidence. President Judge Phillips ultimately dismissed all 8 grounds and confirmed the Certificate of Determination from the original proceedings in 2023. Some notable findings from President Judge Phillip include:
The Member was correct in applying Green and Chawla to determined that the area’s outside of the office lease were the respondent’s place of employment. 14
- The Member correctly identified the connection between injury and employment for the purposes of Section 9A. 15
- The Member had appropriately drawn an inference that the email from the on-demand manager was a direction. 16
Moving forward
The significance of this decision and its subsequent appeal must not be understated.
Andronicos continues to follow the precedent set by prior matters determined in both the Personal Injury Commission and the former, Workers Compensation Commission.
It shows that an individual’s workplace is not confined to the specific location whereby they fulfill their duties. A broader approach for the consideration of one’s ‘workplace’ has been adopted time and time again and the current matter is no exception.
Furthermore, the Commission continues to take a broad approach to the consideration of ‘course of employment’. Employment extends beyond hours and location to acts which are incidental to an individual’s employment.
For assistance with journey claims or any workers compensation matter, experienced workcover lawyers can provide the legal support you need to navigate complex cases.
