Hitchings v Secretary, Department of Finance, Services and Innovation (NSWWCC 2020)

Key Takeaways

A recent decision from Arbitrator Isaksen in Hitchings v Secretary, Department of Finance, Services and Innovation (NSWWCC 2020) examines the real and substantial connection requirement in s10 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The Arbitrator has considered prior relevant authorities and confirmed that in order to satisfy s10(3A) the worker must show some causal connection beyond the mere fact that he or she was travelling between work and home at the time of the injury.

Brief Facts

The worker was employed as a procurement manager. His role involved meeting with clients to promote engagement between indigenous companies and the NSW government.
He lived in Port Macquarie and at the time of the injury divided his time each week between the Queanbeyan, Sydney and Port Macquarie offices.

On 8 October 2019 he was travelling from his home to meet clients at the Queanbeyan office. He was half an hour into the trip when he experienced sudden and severe low back pain. He turned around and returned to Port Macquarie where he sought treatment later that morning.

Judgment 

The worker made a claim for benefits alleging an injury to his lower back arising out of or in the course of his employment or, in the alternative, claimed he was on a journey to his place of employment and there was a real and substantial connection between his employment and the accident or incident out of which his personal injury arose.

Arising out of or in the course of employment

Arbitrator Isaksen observed that the activity of driving to work that morning, which the worker’s medical evidence identified as the cause of his low back pain, was no different from the same activity undertaken by thousands of workers at the start of a working week.

He concluded that the worker was not in the course of his employment at the time of the injury.

Further, and absent any evidence establishing some causal connection between the onset of low back pain while driving, and the worker’s role as a procurement officer, the Arbitrator did not accept that the injury arose out of his employment.

Real and substantial connection

In considering the worker’s alternative argument under s10 of the 1987 Act, Arbitrator Isaksen referred to the decisions in:

• Bina v ISS Property Services Pty Limited (NSWWCCPD2013)
• Dewan Singh and Kim Singh t/as Krambach Service Station v Wickenden (NSWWCCPD 2014)
• Field v Department of Education and Communities (NSWWCCPD 2014)
• State Super Financial Services Australia Limited v McCoy (NSWWCCPD 2018)

All of the above decisions addressed the real and substantial connection requirement in s10(3A).

Those decisions confirm that:

• The mere fact that a worker must travel to and from work is insufficient to establish a real and substantial connection between the employment and the accident - there must be some real relationship (connection) between the activities of the employment and the accident out of which the personal injury arose (Keating P in Bina).
• Whether, and in what circumstances, s10(3A) will be satisfied will be a question of fact, applying the words of the provision in a common sense and practical manner in each case (Roche DP in Field).

In Wickenden, Field and McCoy the requisite connection was made out:

• Mr Field was hurrying because he had been given short notice to attend as a relief teacher. He tripped on an uneven surface on the pathway and sustained injury.
• Ms Wickenden was travelling home in the dark after being asked to work back late. She was injured when she crashed her motorcycle trying to avoid cattle on the road.
• Ms McCoy tripped and fell as she hurried to a work function after being tired from a long day at work.

In Bina the connection was not made out because there was no causal relationship between her employment and the motor vehicle accident which caused her injury. She was simply driving home from work at the time.

In the current case, Arbitrator Isaakson considered the circumstances akin to those in Bina in that the worker was simply travelling to work at the time.

The Arbitrator distinguished the facts from those in Wickenden, Field and McCoy because:

in each of those cases an injury resulted from an event that could be causally related to an activity or requirement of that worker’s employment. In this dispute the onset of low back pain does not result from an activity of employment, or even something which is incidental to that employment. The injury sustained by the applicant only occurred while on a journey from his place of abode to his place of work.

Based on the above, the worker failed to satisfy the requirements of s10(3A) and an award on injury was entered in favour of the Respondent.

Implications

This decision is the latest in a growing line of authority addressing s10 since the provision was amended in 2012.

It confirms that in order to establish liability for injury on a journey, there must be some special feature or characteristic that links, in a causal sense, the worker’s employment and the accident or incident out of which the personal injury arose.

That special feature might be rushing to get to work after being called in at the last minute, walking home in the dark after staying back to complete an important task or falling asleep at the wheel driving home from nightshift.

In each case however, the worker must establish a connection over and above the mere fact that he or she was travelling to or from work at the time.