Hitchings v Secretary, Department of Planning, Industry and Environment (NSWWCCPD 2021)

LINK TO DECISION

Key Takeaways

When determining if an injury occurred on a journey or in the course of employment consideration should be given to the general nature, terms and circumstances of the employment.

Brief Facts

The worker was employed as a procurement officer by the Secretary, Department of Planning, Industry and Environment (‘the Department’). As part of his duties, the worker was to attend the Department’s Queanbeyan office on Mondays and Tuesdays, work in the Sydney office on Wednesdays and work from home in Port Macquarie on Thursdays and Fridays. His duties also involved visiting clients throughout NSW.

On 8 October 2019, the worker left his home in Port Macquarie to drive to the Queanbeyan office. On this drive, the worker experienced a severe onset of lower back pain associated with shooting left leg sciatica.

The worker made a workers compensation claim for this injury, which was disputed by the insurer on the following grounds:

• The worker’s injury occurred on a journey within the meaning of s10 of the Workers Compensation Act 1987 (‘the 1987 Act’) and there was not a real and substantial connection between his employment and the incident from which the injury arose, as required by s10(3A) of the 1987 Act.
• In the alternative, the worker’s injury did not arise out of or in the course of his employment and that the employment was not a substantial contributing factor to the injury, in accordance with s9A of the 1987 Act.

The matter proceeded to an Arbitration hearing, where Arbitrator J Isaksen found that the worker’s injury occurred on a journey from the place of his abode, and the injury did not arise in the course of his employment. He also found that the injury did not arise out of his employment and there was no real or substantial connection between the worker’s employment and the subject journey.

The worker appealed this decision.

Judgment

On appeal, Deputy President Elizabeth Wood characterised the central issue as ‘whether the journey undertaken by the [worker] was a journey between the [worker’s] place of abode and his place of employment, or whether the [worker] was in the course of his employment once he left his abode on the morning of 8 October 2019.’

In determining whether the worker was in the course of employment, Wood DP referred to the HCA decision in Hatzimanolis v ANI Corporation Ltd (HCA 1992) (‘Hatzimanolis’). Whilst it was noted that the factual circumstances of Hatzimanolis could be distinguished from the present matter (Hatzimanolis involved a worker who sustained an injury whilst on an interval from work) the HCA’s consideration of the phrase ‘in the course of employment’ was instructive in the proper application of s4 of the 1987 Act.

In particular, Wood DP noted that the HCA accepted that ‘the course of employment covered not only the actual work which a person was employed to do but also “the natural incidents connected with the class of work.’

Further, in determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment ‘and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen.’

Wood DP found that the Arbitrator failed to give proper consideration to the nature of the worker’s employment and associated requirement to travel between various worksites and meet with clients throughout NSW. Wood DP applied the principles set out in Hatzimanolis and gave consideration to the general nature, terms and circumstances of the worker’s employment and found that the worker‘ was not simply embarking upon a journey from his place of abode to his place of employment. The Queanbeyan destination was just one destination on the overall route upon which the [worker] embarked, having taken with him all of the things, both business and personal, which he would require at each destination throughout the working week.’

Therefore, Wood DP accepted that the worker’s injury was not sustained on a journey within the meaning of s10 of the 1987 Act. Rather, once the worker left his home, he was in the course of his employment.

Implications

When determining whether an injury occurred on a journey within the meaning of s10 or in the course of employment, it is necessary to consider the general nature, terms and circumstances of the worker’s employment. There should be particular scrutiny in circumstances where a worker is required to travel as part of their duties. In these situations, the worker may be found to be in the course of employment from the moment they leave home.