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Journey Claims -The Decisions Continue…..

Another journey claim has been challenged and on this occasion the decision is in favour of the injured worker. Unfortunately it provides a dangerous precedent as the real and substantial connection with employment may be easier to prove in the future as a result of this case.

In recent newsletters we have discussed a number of decisions with regards to the June 2012 amendments to the journey provisions contained in the NSW Workers Compensation legislation. The amendments to Section 10(3A) removed the rights to compensation whilst on a periodic journey unless the journey had a “real and substantial connection between the employment and the accident incident”. To date all of the decisions have been favourable to employers.

On 25 March 2014 Deputy President Bill Roche delivered the latest decision in Dewan Singh & Kim Singh t/as Krambach Service Station v Wickenden (2014) NSWWCC PD13. Deputy President Bill Roche examined whether a worker would be entitled to compensation following a motorbike accident on the way home from work. Ms Wickenden worked intermittently as a casual employee at the Krambach service station from July 2009. She usually worked a minimum of five hours per day, starting at 9.30 am and finishing at 2.30 pm for three days per week with additional days as required. She normally rode her motorbike from her home at Nabiac to and from work, a journey of approximately 15km each way. If she started and finished her work at the usual time, her journeys to and from work were in daylight.

From the middle of June 2012 the employer requested Ms Wickenden, in addition to her normal duties, to participate in additional training in order to open and close the service station. During the training period which was to last three weeks, she worked from 7.30 am to 5.30 pm. On 5 July 2012, whilst still in the training period, Ms Wickenden closed the service station at the normal closing time of 5.30 pm and started her trip home in darkness. Whilst riding her motorbike home she was involved in an accident when a car swerved onto Ms Wickenden’s side of the road and struck her motorbike. The other driver had swerved to avoid cattle which were on her side of the road.

Deputy President Bill Roche agreed with the Arbitrator’s original findings that whilst there was no direct evidence that the other driver had failed to see the cattle because of the darkness. It was a matter of common sense and general human experience to reach a compelling conclusion the darkness reduced the time that both Ms Wickenden and the other driver had to react and avoid the collision. On that basis it was open for the Arbitrator to conclude that the time of the journey was a factor that contributed to the accident.

The question then remained, was employment a real and substantial connection to Ms Wickenden’s accident? The Deputy President pointed out that simply because she was driving home from work in itself did not result in Section 10(3A) being satisfied. Driving home was not an employment activity and was simply an activity that is connected with employment in that it was something that the overwhelming majority of workers must do each day if they wished to work.

The Deputy President concentrated on the fact that Ms Wickenden’s employment required her to work later than her “normal” finishing time and to travel home in darkness. The danger encountered by Ms Wickenden arose from the danger of driving home in darkness on a narrow country road. Thereby, the employment, requiring her to work until it was dark, exposed her to a danger which contributed to the accident. As darkness played a role in the accident, albeit it may not have been the sole cause of the accident, the connection between employment and the accident was real and of substance. Ms Wickenden did not need to prove that employment “caused” the injury but whether there was a real and substantial connection to employment. This was a different and less demanding test.

Interestingly, the success of Ms Wickenden in this claim should be contrasted with the failure of the worker in Mitchell where she tripped over tree roots on a journey home from work which was also in the dark. In that decision the key difference would appear there was no factual finding that the darkness either caused or contributed to Ms Mitchell tripping over the tree root.

The decision of Wickenden represents the first successful decision by a worker under the new journey provisions. The Deputy President was careful to stress that each journey case should be considered on its own facts and by reference to Section 10(3A). On the strength of Deputy President Roche’s reasoning, provided a worker can establish that an obligation of a worker’s employment caused a set of circumstances and those circumstances then played a role in the accident (albeit not the sole cause of the accident), the connection between employment and the accident would be real and of substance. We expect this more favourable reading of Section 10(3A) will now result in workers who had previously had their cases declined seeking to challenge the declinature in the Workers Compensation Commission.

At this stage we are unaware if the employer in Ms Wickenden’s case will seek an appeal of Deputy President Roche’s decision but we would not be surprised if an appeal was lodged

Source: Gillis Delaney Lawyers Newsletter April  2014

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