Workers Compensation Comcare Claims NSW

If, on your day off you pop into work to visit workmates, and injure yourself, is your claim a workers’ compensation claim?

A recent decision of the NSW Court of Appeal highlights the issues these facts present: Tran v Vo (2017) NSWCA 1043.

Ms Vo worked as a casual in Cabramatta. On her day off she attended work to purchase a soft drink. Whilst there, a colleague asked if she could assist with cleaning the floor, a task that she normally performed as part of her employment. She did, and in doing so she slipped and fell, with her left hand getting caught in a sugarcane juicing machine and crushed.

In short, the issue for the Court was, at the time of the accident, was Ms Vo an employee or a member of the public? The distinction is significant from a compensation perspective. The amount of compensation payable under the Workers’ Compensation legislation is considerably less than that payable under the Civil Liability legislation.

The Court found that Ms Vo was not an employee, stating:

In particular, the following findings strongly indicate that the requisite causal connection was not present:

  1. the respondent was a casual employee, working on rostered days. The day of her accident was not one of those days. If required to work she would be telephoned by the second appellant. She was not required to work by the appellants on the day of the accident;
  2. the respondent went to the appellants’ premises, not to perform work but to buy a drink and meet her friend who was working there at that time;
  3. at the time of the accident the respondent was not performing a task her employer had induced or encouraged her to perform.

Ms Vo was found to have established negligence against her employer, but as a shop owner, not an employer.  She was awarded damages in the sum of approximately $500,000.

While every case depends on its facts, Ms Vo’s case exemplifies that an employee injured at work may not necessarily be covered by workers’ compensation law. Further, it also highlights that if you are injured at work, you may have rights available to you under the Civil Liability legislation, as well against another party.


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