Can a worker pursue a claim in one State when an injury occurs in another?

Many employers in Queensland have employees that are required to work in more than one State, whether because of the nature of the job (i.e. long-haul transport) or because the employer has premises in more than one State. When this is the case, it is important to understand which jurisdiction will apply if a worker is injured in a particular State, and therefore in which jurisdiction an employer is required to maintain a workers’ compensation policy of insurance.

In the matter of Singh v WorkCover Queensland [2019] QDC 177, a worker (Mr Singh) suffered a back injury when he slipped over while working at a bus depot in Tweed Heads, New South Wales. The employer operated bus services in and around the Gold Coast area, and had bus depots based in both New South Wales and Queensland.

Mr Singh sought to pursue a common law damages claim in Queensland pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (the Act) on the basis his employment was connected with the State. Mr Singh’s attempt to pursue his damages claim in Queensland was necessary because in New South Wales, a worker must be assessed as having sustained at least a 15% impairment to pursue a damages claim, whereas in Queensland there is currently no minimum threshold.

For compensation to be payable in Queensland, and for a damages claim to be pursued for a work-related injury, the injured workers’ employment needs to be “connected with” the State of Queensland. To determine whether employment is connected with a particular State, the following “cascading” test needs to be applied:

1. In what State does the Claimant usually work?
2. In what State is the Claimant usually based?
3. In what State is the employer’s principal place of business?
4. In what State did the injury occur?

In a “cascading” test, if any of the questions from 1-4 (in order) above can be answered with certainty, there is no need to determine the next question. As can be seen from the order of the above questions, where the injury occurred is only relevant if the previous questions cannot be answered with certainty. 

In Mr Singh’s case, Mr Singh argued that while he had only ever worked for the employer in New South Wales, his intention was to work in the Queensland bus depots, and this intention was shared by his supervisor (who also happened to be called Mr Singh).

The Court in Mr Singh’s case found that Mr Singh’s supervisor was only authorised to employ staff at a single depot in New South Wales, and was not authorised to determine who would work at the Queensland depots. The Court also found that the mere fact Mr Singh could be asked to work at a depot in Queensland under his contract of employment was insufficient to establish a connection with the State. Mr Singh was found to have no entitlement to pursue his claim in Queensland, and his application was struck out with costs.

Despite the findings in Mr Singh’s case, there are a number of scenarios where a worker’s employment will be connected with another State despite an injury being sustained in Queensland, or vice-versa. For that reason, it is prudent for any employer whose employees perform work (or could conceivably perform work) in a different State to contact the workers’ compensation authority in each State to determine whether a policy of insurance ought to be taken out.