One of our employees suffers from chronic migraines. When he develops a migraine during his shift, he drives home to either finish his shift from home or take personal leave. If he should have an accident while driving home, can our business be liable? We are based in Queensland.
In Queensland, an injury to a worker is compensable under the legislation if it arises out of, or in the course of, employment. An injury to a worker is taken to arise out of, or in the course of, the worker’s employment if the event happens while the worker is on a journey between the worker’s home and place of employment (section 35 of the Workers’ Compensation & Rehabilitation Act 2003 (Qld)).
However, the injury to the worker is not taken to arise out of, or in the course of, the worker’s employment if the event happens while the worker is in control of a vehicle and contravenes section 328A of the Criminal Code Act 1899 (Qld) (see section 36 of the Workers’ Compensation & Rehabilitation Act 2003 (Qld)). This section makes it an offence for a person to operate a vehicle dangerously. Therefore, if the employee’s chronic migraine causes them to operate a vehicle in a way that is dangerous to the public, an employer may not be liable for an injury that results to them.