La Macchia v MCS Holdings (Australia) Pty Ltd (NSWPIC 2024)

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Key Takeaways

In this recent decision, the NSW Personal Injury Commission (PIC) examined the real and substantial connection requirement in s10 (3A) of the Workers Compensation Act 1987.

For a personal injury received by a worker on any journey between their place of abode and employment to be compensable, the worker must establish that there is ‘more than a tenuous link’ between the accident and the worker’s duties.

Brief Facts

At the time of the injury, the worker was employed as a disability support worker on a casual basis. She was required to use her own car to travel to and from places of work as rostered. It was also a part of her duties to transport clients when necessary/approved.

On 26 December 2020, the worker was assigned to attend a client’s home to provide overnight support services. On her way to work, the worker’s vehicle ‘left the roadway, became airborne and collided heavily with the ground’.

The worker sustained injuries to her lumbar spine and submitted a claim for weekly benefits. The employer disputed the worker’s claim on the basis that her injuries from the motor vehicle employment and the worker was merely travelling to work.

The worker filed an Application to Resolve a Dispute in the PIC, and gave evidence that a micro sleep caused her car to leave the roadway.

Judgment

The member found the worker’s evidence did not establish that there was work-related fatigue which caused the micro sleep. There was no specialist medical evidence and the worker’s own evidence provided that she ‘did not feel tired’ having had ‘a good 12-hour rest’ and that there ‘was no reason for [her] to feel tired despite having a big week at work’. Accordingly, the Member was not satisfied that the worker’s employment was the contributing cause of the accident.

The Member accepted that although the accident would not have occurred but for the worker driving to work, this alone was not enough to satisfy the ‘real and substantial connection’ requirement. He emphasized that a relationship between the worker’s duties, as a disability support worker, and the car accident must be established.

The Member accepted the worker’s employment did require her to have a car in order to commence work, but he did not accept that it was essential to her ‘actual work functions’. He considered that if it were to be accepted that workers required cars to facilitate certain essential functions of their employment, this would contradict the limiting effect of s10(3A).

On this basis, the Member found that no ‘real and substantial connection’ between the accident and the worker’s employment had been established, and accordingly the injury was not compensable.

Implications

This decision confirms that in order to establish liability for an injury on a journey, there must be something of substance that links the worker’s employment to the accident. The connection between employment and an accident is difficult to establish but this decision demonstrates that the connection is not limited to being causative.

This matter also highlights that merely requiring a car for purposes, such as attending work, is not enough to satisfy the requirements of s10 (3A). Instead, the connection can be established if the accident was related to the worker’s tasks and duties.