External

All the travel provisions in the Act contain the phrase “travelling between”, connoting travelling on a 'whole journey' to or from one distinct place (work) to another (home).

The 'whole journey' concept is one which envisages that there is a primary objective regardless of anticipated journey stops and route alterations for such common purposes as transporting children to childcare, buying a newspaper or purchasing petrol.

Case Law – Wilson and Comcare

After finishing work for the day, Ms Wilson changed into her aerobics gear and went to a nearby class.  She broke her ankle during the class.  Her claim was rejected and this was upheld at review.  In her appeal to the AAT, Ms Wilson contended that:

aerobics was an activity similar in character to her chosen mode of travelling (she usually walked home);  the aerobics was undertaken for a lesser time than it would normally take her to walk home;  any injury suffered by her from the time she left work to arriving home should be an injury within the meaning of the Act; and  cover under the Act was also provided during interruptions, unless the interruption substantially increased the risk of injury.

In relation to this case, Comcare submitted that the intention on leaving work is a material and sometimes decisive consideration, but should not stand as the only matter for the Tribunal to consider.

The Tribunal was requested to place weight on the judgement on the following:

  • Clarke JA in Andruschtahk v Tubemakers of Australia Pty Ltd (NSWCA, 12/11/1987, unreported); and

  • Kerr v NSW Club (1973) 3 NSWE 246 and Pitt v George Ford Pty Ltd (NSWCA, 18/4/1980, unreported), where Samuels JA had said:

“Since in the ordinary course of events, most workers when they leave their place of employment intend ultimately to go to their place of abode, the critical question is likely to be the nature of any interruption ... the question whether, if one occurs, it merely interrupts a journey which remains of the statutory kind, or bisects what would otherwise be a continuous journey into two separate journeys.”

In the Wilson case, Senior Member Hallowes stated:

“I am not satisfied that the applicant's injury should be treated as having arisen out of or in the course of her employment.  Whether the applicant was “travelling between” involves an objective judgement as to the applicant's intention and her actions ... I find that it was not.”

Issues taken into account by the AAT in this case included:

  • what Ms Wilson was doing at the time of her injury;

  • Ms Wilson's purpose at that time;

  • where Ms Wilson was at the time of her injury in relation to her route between place of work and place of residence; and

  • the relationship between the activity during which the injury occurred and her normal mode of travel.

It was concluded that Ms Wilson was not travelling when she sustained her injury.  There was a deviation from, and interruption to, her travelling in attending the aerobics class.  The decision to reject the claim was upheld by the AAT.