Legislation and legislative intent (the rule) which seem reasonable and definitive are not always clear when it comes to real-life situations (the exceptions).  An interesting example of this is demonstrated by the courts’ treatment of journey claims in the workers’ compensation scheme.

 

Normally, an injury must arise out of, or in the course of employment, and employment must be a significant contributing factor to an injury for it to be covered by the Workers’ Compensation and Rehabilitation Act 2003 QLD (the Act) (‘the Rule’).

 

However, under section 35 of the Act, an injury is taken to arise out of, or in the course of, employment if the injury occurs whilst the worker is on a “journey” to or from work (the exception).[1]

 

But, if there is a substantial delay or substantial interruption of, or deviation from, the journey, then the injury is not taken to arise out of or in the course of employment, and the claim fails (the double exception).

The legislative intent is contained in the explanatory memorandum as:

removing “the requirement for a journey to or from work to be by the shortest convenient route, as there was concern regarding the strict interpretation and application of the provision. The provisions in relation to substantial deviation delay and interruption will allow for contemporary working arrangements such as reasonable journey for working parents taking children to school or child care on the way to and from work. The provisions still provide protection for employers against claims that are incurred beyond those that could be reasonably expected in a journey to and from work”.

Seems straightforward but most of the cases considering the section do not involve diversions for working parents to collect children from school, but rather concern people attending the pub after work.

Some examples which have been held to be substantial delays, interruptions or delays are:

  • A delay of 5 to 6 hours, in what is normally a 2.5 hour journey (even when the cause of the delay could not be explained);[2]
    Finishing work at 5pm to have been with workmates, before attending a dry dock at 6pm to pick up a family member, and falling from a vessel to the dry dock at 11:30pm.[3]

Examples which have been found not to be substantial delays, interruptions or delays are:

  • Having a conversation of 13 minutes and 42 seconds with a co-worker in the car park prior to leaving on a journey home (which takes 14 minutes);[4]
  • Deviating for 10 minutes to look at a cash job whilst on a 20-minute journey home;[5]
  • Travelling from a mine site to get fuel (a reasonable and necessary journey) and having a 31-minute stop over at the pub to have four beers with workmates, before driving home, on a journey that would normally take 76 minutes round trip. It was held that the interruption was less than half the normal journey time so it was not a ‘substantial’ interruption.[6]

An exceptional example:

  • A worker was sexually assaulted in the work car park (which required driving through a security gate) on her way to work. It was held that the worker was still on her way to work at the time of the assault, such that the claimant did not need to establish that employment was a significant contributing factor to the injuries sustained.[7]

So, does the exception prove the rule? A cynical person might take the following from the above:

  • A 7 hour delay can be a substantial interruption to a 2.5 hour journey, even if you don’t know the cause of the delay
  • An interruption might not be substantial if it is less than half the total travel time but also might not be substantial even if it is equal to the total travel time
  • The journey to and from work might have commenced at the time you leave from or arrive at the car park or it might not.

[1] On these journeys, employment does not need to be a contributing factor to the injury (the exception).

[2] Workers Compensation Regulator v McCool (as administrator of the estate of Shane Patrick McCool) [2022] ICQ 4 (C2021/24)

[3] Masters v Workers Compensation Board QIC 3/03/1995

[4]Sucrogen Australia Pty Ltd v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 74 (WC/2013/103)

[5] Natasha Greer and Shane McGee t/a Stuart Panel Works v Simon Blackwood (Workers’ Compensation Regulator) [2014] QIRC 3 (WC/2012/293)

[6] Soden v QComp Mag 1150256/04(6) decision of Industrial Magistrate delivered 29 April 2005.

[7] Teys v Polichronis (WC/2012/275)