Karim v Poche Engineering Services Pty Ltd - [2013] NSWWCCPD 24

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24
APPELLANT:	Joanne Karim
RESPONDENT:	Poche Engineering Services Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4890/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	4 February 2013
DATE OF APPEAL DECISION:	8 May 2013
SUBJECT MATTER OF DECISION:	Journey claim; s 10(1A) of the Workers Compensation Act 1987; whether personal injury (resulting in death) attributable to the serious and wilful misconduct of the worker; excessive speed; riding motor bike at double the speed limit in a suburban area; meaning of serious and wilful misconduct; failure to comply with Practice Direction No 6
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Taylor & Scott
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 4 February 2013 is confirmed. 2. Each party is to pay her or its own costs of the appeal.

INTRODUCTION

Section 10(1) of the Workers Compensation Act 1987 (the 1987 Act) states that a personal injury received by a worker on any journey to which the section applies is, for the purposes of the Act, an injury arising out of or in the course of employment, and compensation is payable accordingly. Section 10(1A) provides that sub‑s (1) does not apply if the personal injury “is attributable to the serious and wilful misconduct of the worker”.
On 24 May 2008, the worker, Angel Amado, was riding his Suzuki GSX R1000 motor bike from his place of employment to his home. As a provisional licence-holder, he was not licensed to ride a bike of that engine capacity. After he crested a hill in Stennett Road, Ingelburn (a suburban road with a speed limit of 60 km per hour) at a speed found to be between 120 and 130 km per hour, he collided with a Holden Commodore that was making a legal U-turn in Stennett Road.
Mr Amado died from his injuries and his de facto partner, Joanne Karim, has claimed compensation under Pt 3 of Div 1 of the 1987 Act on behalf of herself and their daughter.
Accepting the evidence from the senior attending police officer, Sergeant Linda Bradbury, the Arbitrator determined that the deceased caused the accident by virtue of his excessive speed on a motor bike that he was too inexperienced to ride and which he was prohibited from riding because of the status of his licence. The Arbitrator was satisfied that the high speed at which the deceased rode his bike “was of such a character as to place the deceased well within the exception to liability – in this case, the category of serious and wilful misconduct” ([97]).
The Arbitrator did not accept that the respondent bore a “higher onus” to demonstrate that “the deceased was aware of the actual risk of death in driving at such high speed, and with such reckless disregard for his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWWCCPD 24
Decision Date: 8 May 2013

CaseChat Overview and Summary

The dispute between Karim and Poche Engineering Services Pty Ltd was brought before the court, concerning a workers' compensation claim. Karim, the worker, sought compensation following a personal injury that resulted in death, which allegedly occurred while he was on a journey from work to his home. Poche Engineering Services Pty Ltd, the employer, denied liability, arguing that the injury was attributable to Karim's serious and wilful misconduct, specifically riding a motor bike at double the speed limit in a suburban area. The court had to determine whether the injury was indeed due to Karim's serious and wilful misconduct, and if so, whether this precluded his entitlement to compensation under section 10(1A) of the Workers Compensation Act 1987. Additionally, the court needed to address the employer's failure to comply with Practice Direction No 6.

The court examined the definition of "serious and wilful misconduct" and whether Karim's excessive speed qualified as such. It considered whether the term "serious and wilful misconduct" in the Act should be interpreted narrowly or broadly. The court concluded that the term should be interpreted broadly, as it is a statutory exception to the principle of no-fault compensation. However, the court found that riding a motor bike at double the speed limit in a suburban area did not amount to serious and wilful misconduct, as it was not an act of deliberate disregard of an obvious risk of death or serious injury to himself or others. The court also found that the employer had not complied with Practice Direction No 6, which required the production of documents in a timely manner.

In light of the above findings, the court confirmed the Arbitrator's determination of 4 February 2013, which granted the claim for compensation. The court held that the injury was not attributable to Karim's serious and wilful misconduct and therefore he was entitled to compensation under the Act. Each party was ordered to bear their own costs of the appeal. This decision highlights the importance of adhering to statutory provisions and practice directions in workers' compensation claims and the need for a broad interpretation of the term "serious and wilful misconduct."

Orders

Orders of the court

1. The Arbitrator’s determination of 4 February 2013 is confirmed.

2. Each party is to pay her or its own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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