Anthony Perera v Comcare  AATA 449
- The issue to be determined in this matter was whether an applicant who sustained an injury at the entrance to the building in which he worked was at his "place of work". The AAT determined that the applicant had not reached his place of employment at the time he was injured and that accordingly, the employer was not liable to pay compensation.
Mr Perera was an employee of the Australian Bureau of Statistics. On the morning of 17 March 2008, Mr Perera travelled from his home to his employer's offices on the fifth floor of a building in Canberra City. For most of the journey he travelled by car. At approximately 8.30 am, Mr Perera alighted from the vehicle and walked across a public footpath and then across an area adjoining the footpath towards the front door of the building. Immediately outside the front door, Mr Perera injured his knee. This area was within the crown lease of the land on which the building was situated, but was open to the public.
Mr Perera lodged a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988. Comcare denied liability to compensate Mr Perera on the basis that at the time he was injured he was travelling between his place of residence and his place of work.
The liability of Comcare to pay compensation was dependent on there being an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of employment (section 5A of the Act). Pursuant to section 6(1)(b) of the Act, an injury is considered to have arisen if the injury was sustained by an employee while the employee was at the employee's place of work.
"Place of work" is defined in section 4(1) of the Act as "any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment".
Changes were made to the Act with effect from 13 April 2007, which removed non-work-related journey claims from its coverage. Accordingly, an injury which occurs on a journey between the worker's home and place of work is no longer compensable.
The issue to be decided was whether Mr Perera had reached his place of work or whether he was still on a 'journey' to his place of work.
Mr Perera submitted that once he was within the boundary of the land on which his employer's building was located, he was at his place of work. In this regard, the AAT was referred to the definition of a place of residence being the boundary of the land on which the residence is located.
Comcare referred to the Explanatory Memorandum which accompanied the 2007 amending legislation which stated as follows:
"When an employee is undertaking a journey other than a purely work related journey, for all practical purposes the employer has no control over the circumstances of the journey or the employee's behaviour. It is inappropriate that en employer could be liable for injuries sustained by an employee during these journeys notwithstanding that the employer fully complies with all occupational health and safety requirements in that employee's workplace."
The AAT concluded that Mr Perera had not reached his place of work at the time he was injured. Relevant to this decision, were the following factors:
- the injury occurred at a point outside the building where there was unrestricted public access;
- there were a number of different tenants in the building;
- the premises leased by the Bureau were on the fifth floor only;
- the Bureau had no control over the area in which Mr Perera was injured; and
- there was no evidence that Mr Perera or any other employee of the Bureau carried out any of their duties as employees in the area in which Mr Perera was injured.
In addition the AAT took into account the fact that Mr Perera was injured in a space included in the common areas referred to in the lease of the Bureau's premises. The AAT considered that there was nothing to suggest that a tenant is able to exercise any control over the common areas.
The AAT considered it unnecessary to determine the question of precisely when Mr Perera did arrive at his place of employment.
This issue has only been considered in one other decision since the 2007 amendments1. In that case, the applicant slipped and fell on the steps exterior to the building in which she worked, having finished work for the day. The tribunal determined that when the applicant left the building, she was no longer at her 'place of work'.
It is pleasing to see that the AAT has once again upheld a challenge to a claim for compensation involving a journey claim in line with the 2007 amendments. This decision confirms that if a worker is travelling to or from work, an employer will not be liable to pay compensation in the event of injury.
1. Re Barnard and Australian Postal Corporation  150 ALR 318
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