FCW Lawyers

Are employers liable for injuries sustained during the daily commute?


Are employers liable for injuries sustained during the daily commute?

13 October 2020 by Nes Demir

An employee lodged a workers’ compensation claim for back pain caused by excessive sitting during his weekly seven-hour commute to and from work.

The insurer disputed liability on the grounds there was no real and substantial connection between the employee’s employment and the incident out of which his back pain arose.

The NSW Workers Compensation Commission held the employer was not liable, noting the employee’s journey between work and home did not classify as being in the course of his employment. The Commission also noted the employer could not have encouraged nor induced the employee to drive for such long periods of time to attend work, as the role required him to work full-time at the same location.

See Hitchings v Secretary, Department of Finance, Services and Innovation [2020] NSWWCC 339

Lessons for employers

  1. Injuries sustained during travel to and from work may be covered under workers compensation legislation in Queensland and South Australia. For all other States and Territories (save for certain exempt workers in New South Wales, Tasmania, and the NT) injuries are not compensable because it is not classified as being within the course of employment.
  2. Work-related trips and excursions are different and may be classified as being within the course of employment – especially where the injury was caused while the employee was undertaking a work-related activity, or activities incidental to the trip or excursion (such as having a shower in the hotel room). The Commission noted the employer may have been liable in this case had the employee suffered injury while travelling to an alternative location required for work.
  1. Irregular travel to and from work may be covered by workers compensation legislation. For example, where an employee is required to work back late and travel home in darkness, during which travel they sustain an injury (see Krambach Service Station v Wickenden [2014] NSWWCCPD 13). Another example is where the employer asks the employee to get to work early, with little notice, and encourages the employee to speed or walk quickly, leading to an injury (See Field v Department of Education and Communities [2014] NSWWCCPD).

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