It is no longer certain that an employee injured on a journey between home and work will receive  worker’s compensation benefits.

For compensation to be payable, the NSW Act now requires that there be a ‘real and substantial connection’ between the employment and the incident in which the injury occurred.

Even though there are no cases in NSW setting out how this will be applied, the act appears to have been modeled on the South Australian worker’s compensation legislation, which states that a journey is only compensable between the worker’s home and work when there is a ‘real and substantial connection’ between the employment and the accident.

Looking at recent cases in states around Australia, the legislation has been interpreted in similar ways. Here are some examples:

• In the matter of Cusack v South Australia Police  a ‘real and substantial connection with employment’ was found by President  Judge Jennings because the worker’s fatigue (caused by employment) contributed to the accident.
• In Tasmania, The Full Court of the Supreme Court of Tasmania handed down the decision of Motor Accidents Insurance Board  v Cook . In that matter Mr Cook was injured travelling in his colleague’s (Mr Buckingham) company car whilst journeying from their home to a job site where they worked. Mr Cook sued Mr Buckingham for damages for his injuries claiming that they were caused by negligent driving. A major contention between the parties was whether Mr Buckingham was acting in the course of his employment. The Full Court stated that generally speaking, travelling by an employee between their residence and a place  of work is not in the course of employment. They also considered that it was relevant whether the contract of employment  obliged the employees to travel the way were. After considering the Australian Workplace Agreement (AWA) the Full Court did not accept that there was any contractual obligation and that Mr Cook and Mr Buckingham were free to choose their own route and means of transport to the job site and therefore were not acting in the course of employment when the injury occurred.

Ultimately, it seems the new NSW legislation will be interpreted along the lines of; in order to receive worker’s compensation something more than merely a journey home from or to work is required. If you have any questions about worker’s compensation or any other workplace relation queries please do not hesitate to contact us on the details below.