External

  • “...where an employee sustains an injury while at a place referred to in ... (section 6 [1]) ... or during an ordinary recess ... if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.” [section 6 (3)]

This is another provision with a number of clauses which must all be satisfied prior to rejection of a claim.

An employee may voluntarily, or choose to submit him or herself to risk of injury.

An employee may unreasonably submit him or herself to risk of injury.

Neither alone applies to section 6 (3).

The injury must result from a voluntary and unreasonable submission to an abnormal, or much heightened, risk of injury than under ordinary circumstances.

Example 1

The Administrative Appeals Tribunal has found that a worker with a 0.136% blood alcohol reading at the time of a car accident was still eligible to make a journey claim.  The man was driving to work while still over the limit from the night before.  He had believed he was drinking low alcohol beer all night and the next morning felt he was sober.

Medical evidence suggested he had unknowingly been shouted full-strength beer.  The Tribunal accepted that the worker approached both working and driving seriously and that he would not have driven if he thought it was illegal.

This ruled out the suggestion that, under sub-section 6 (3), he “voluntarily submitted to an abnormal risk of injury”.

Administrative Appeals Tribunal, Grime v Telstra, No N93/630

Example 2

A worker was hit by a car while crossing a busy 6-lane highway.

Cmr Grayson said:  “It may well have been the applicant's habit to cross the highway (during her lunch recess) without using the nearby traffic lights and it may well have been that prior to Oct 3 1990 she had been able to make the undoubtedly hazardous crossing without misadventure.  But to my mind that does not alter the fact that on 3 Oct 1990 she voluntarily subjected herself to a risk of injury which in any reasonable view would be construed as abnormal.”

Comp Crt of NSW, No 13874 of 1991

Importantly, it should be noted that section 6 (3) cannot be used to exclude journey claims.

Section 6 (3) specifically relates back to two circumstances only:

  •       while at a place; or
  •       during an ordinary recess, such as lunch.

Being on a journey does not mean an employee is “at a place”, rather is coming or going to a place.

This could be a place for:

  •       medical or rehabilitation treatment, including picking up a certificate,
  •       a medical or rehabilitation examination,
  •       work,
  •       education, or
  •       picking up over the counter money from an employer.

The employee has to actually be at such a place for section 6 (3) to even be considered.

AAT case

The applicant was hit by a bicycle while crossing the street against a red light.  Comcare submitted that her travel claim should be disallowed because of the operation of section 6 (3).

The Tribunal held that section 6 (3) did not apply because it referred only to injuries “at a place” or “during an ordinary recess”.

In this case, the applicant was travelling “between his or her place of residence and place of work” and thus section 6 (3) had no application.

Re:  Moore and Comcare 1996