Worker successfully claims for injury during journey to work in SA

Posted by Andrew McGiffert |31 May 13 | 0 comments

In an interesting case put before the Workers Compensation Tribunal in South Australia, a worker has successfully argued that a journey between home and work in an employer supplied vehicle was “undertaken in the course of carrying out duties”.

While the journey claim provison of the South Australian Workers Rehabilitation and Compensation Act 1986 is understood to include work related travel from worksite to worksite the scope has been brought into question with the Tribunal finding the workers injuries were compensable under s30(5).

The incident occurred during January of 2011, it involved a Forestry SA supervisor who was driving to her workplace at Mt Burr Forest in a work ute when it left the road and rolled over. The worker sustained severe injuries, including multiple fractures. She had no memory of the incident and there was no evidence of how it occurred.

The worker made a claim for compensation through the SA scheme, arguing there was a “real and substantial” connection between her employment and the incident, as required by s30(5).

This clause of the act used to generate quite a lot of discussion between myself and my previous injury coordinator, we often wondered what it would take to make the connection between private travel that may technically be for work, particularly when going to or from work. While some other states have ‘true’ journey claim provisions that cover the journey to and from South Australia does not.

Naturally the employer denied liability claiming the supervisors journey was “private” and its purpose was “simply to get to her normal place of work”. This is how I would have disputed liability as well, and initially it seems like an open and shut case for the employer.

However, the case became more complicated. Tribunal Deputy President Stephen Lieschke Heard the supervisor was provided with the ute and some equipment to “ensure immediate response to protect forest assets from fire” and was “obliged” to drive the vehicle between her home and work.

Deputy President Lieschke also heard the supervisor wasn’t entitled to carry any other person in the vehicle, and wasn’t allowed to use the vehicle for any other purpose, such as driving to the shops. He found the supervisor “was ‘complying with an instruction from the employer given by the employer in the exercise of its control as employer’ to drive this particular vehicle with its equipment from her home”.

“Driving the ute to Mt Burr in accordance with her employer’s express instruction during the fire season, is in a different category to being granted the concession, privilege or gratuity upon request of driving the employer’s vehicle to and from work,” he said.

“It is the difference between complying with a serious instruction given by the employer, and having the benefit of a discretionary concession, privilege or gratuity.”

So after all of that this isn’t really questioning the journey claim provision, while the journey was out of her work hours, was a ‘private’ trip between her home and work, the incident still technically occurred whilst carrying out work duties. At any time the vehicle was in use it was for “work purposes only” as determined by the grounds the vehicle was provided on. Just by driving the vehicle to the workplace the worker was already in fact “working” and therefore covered by s30(5).

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