Court of Appeal delivers clarity on journey claims15 May 2015 | Compulsory Third Party (CTP)
The Court of Appeal has delivered a unanimous decision in the matter of Ballandis v Swebbs & Anor  QCA 76, confirming the correct interpretation of s35 of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) which relates to the ever divisive “journey claim”
By way of some rather convoluted language, s5(1)(b) of the Civil Liability Act 2003 (CLA), provides that journey claims will fall within the scope of the CLA for the purpose of assessing liability and damages.
In the matter of Ballandis, the plaintiff was involved in a motor vehicle accident when he was travelling home from work as a passenger in a utility. The utility was owned by the plaintiff’s employer and, at the time of the accident, was being driven by the plaintiff’s co-worker.
A significant question to be determined at trial was whether the claim fell within the scope of s35 of the WCRA and therefore amounted to a journey claim to be assessed under the CLA. The trial judge found that the claim did indeed fall within s35 and, as a result, the CLA applied which impacted upon the plaintiff’s awards for general damages and gratuitous care.
The plaintiff appealed the decision that his injury did not fall within s35 of the WCRA on various grounds, including:
(a)There was no static workplace as it varied from day to day; therefore there was no particular location where it could be said that the plaintiff worked;
(b)The work system required the plaintiff to attend where the utility was located each day, and travel in it to locations as directed by his employer;
(c)The employment was central to, or a significant contributory factor to, the occurrence of the injuries.
However, the Court of Appeal wasted no time in unanimously dismissing the appeal.
It is clear from the Court of Appeal’s decision that s35 of the WCRA needs to be interpreted on its plain reading. That is, any injury arising while a worker is on a journey from their place of employment to their home is deemed to have arisen out of, or in the course of, their employment. Pursuant to s35(2) of the WCRA, it is irrelevant whether the worker’s employment was a contributing factor to the injury for the purpose of journey claims.
A further contention of the plaintiff, which was quickly put to bed by the Court of Appeal, was that the utility constituted the plaintiff’s place of employment. The Court of Appeal pointed out that if the plaintiff’s position were to be accepted, the scope of s35 of the WCRA would be unreasonably restricted to the plaintiff’s “journey” between the parked utility and his unit.
The Ballandis decision has confirmed that s35 of the WCRA should be read on its plain terms and interpreted broadly. It is a deeming provision that is not dependent upon any element of control on the part of the employer. Therefore, a journey claim can arise equally in circumstances where an employer provides the means to get home (vehicle, cab-charge etc) or the employer has no involvement whatsoever.
For a full transcript of the decision, see: http://www.austlii.edu.au/au/cases/qld/QCA/2015/76.html