Kemp and K & S Freighters Pty Ltd
[2011] AATA 312
•11 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 312
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3277
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL KEMP Applicant
And
K & S FREIGHTERS PTY LTD
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date11 May 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]..................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for L3/4 – L4/5 disc protrusion – Injury under s 5A(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth) – Diagnosis of back strain – Applicant submitted voluntarily and unreasonably to abnormal risk – Condition not treated as having arisen out of, or in the course of employment – Alternatively, applicant’s serious and wilful misconduct prevents liability to pay compensation to the applicant for incapacity or impairment – Decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(13), 5, 5A, 5B, 6(1), 6(3), 14(1), 14(3)
Bilton and Comcare [1997] AATA 838
Caldwell and Comcare (2008) 104 ALD 98; [2008] AATA 450
Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318; [1997] FCA 1409
Comcare v Calipari [2001] FCA 1534Courtis and Linfox Armaguard Pty Ltd (2009) 112 ALD 682; [2009] AATA 809
Grime and Telstra Corporation Ltd [1994] 20 AAR 43; [1994] AATA 488
Inco Ships Pty Ltd v Hardman (2007) 167 FCR 294; [2007] FCA 1138
Lewis v Great Western Railway (1877) 3 QBD 195
Mendez v Telstra Corporation Ltd (1998) 147 FLR 394
The Commonwealth v Oliver (1962) 107 CLR 353
Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214
Whittaker and Department of Defence [1998] AATA 702REASONS FOR DECISION
11 May 2011 Mr R G Kenny, Senior Member BACKGROUND
1. On 1 March 2009, Michael Kemp lodged a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for rehabilitation and compensation in respect of “L3/4 and L4/5 disc protrusion”. He alleged that this was caused by a workplace incident on 20 May 2008 while he was employed by K & S Freighters Pty Ltd (“K & S”) at the Queensland Magnesia Plant at Kunwarara, north of Rockhampton. On 12 March 2009, a consultant with CGU Self Insurance Services, for and on behalf of K & S, rejected the claim. On 6 May 2009 that determination was affirmed by a reconsideration officer in a reviewable decision for and on behalf of K & S.
ISSUES AND LEGISLATION
2. The issue for the Tribunal is whether K & S is liable, under s 14 of the Act, to provide rehabilitation and to pay compensation to Mr Kemp for an injury which has resulted in incapacity for work or in impairment.[1] The definition of injury is set out in s 5A of the Act.[2] In this matter, the relevant component of that provision is s 5A(1)(b) whereby the term means:[3]
(b)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, the employee’s employment;
[1] See s 14(1) of the Act.
[2] This commenced operation on 13 April 2007: see Act No 54 of 2007.
[3] See also s 4(1) of the Act which refers to s 5A and s 5B of the Act for injury and disease, respectively.
3. In s 6(1) of the Act, activities are identified during which an injury to an employee may be treated as having arisen out of, or in the course of, his employment. It includes, at s 6(1)(b) of the Act, the situation where the injury occurred “while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment”. While that provision includes a recess period, it is not limited to such periods and applies where the employee was at the place of work. The term place of work is defined to include[4]:
Any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
[4] See s 4 of the Act.
4. It is not in dispute that Mr Kemp was at his place of work with K & S when he was injured on 20 May 2008.
5. A disentitling provision is set out in s 6(3) of the Act, which reads:
(3) Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
6. As I read that provision, where disentitlement under s 6(3) of the Act is established, the claimed injury will not be one which has arisen out of, or in the course of, the employee’s employment for the purposes of s 5A(1) and s 14(1) of the Act.
7. In Courtis and Linfox Armaguard Pty Ltd[5], the employee injured his hand and then, in anger and frustration, injured his foot after kicking out at a trolley. The Tribunal determined that it was not necessary to rely on s 6(1) of the Act when considering liability for the foot injury. This was because it considered that the terms of the definition of injury, with its reference to a “physical injury arising out of, or in the course of, the employee’s employment”, was capable of providing a sufficient nexus with employment without the need to rely on the extended definition set out in s 6(1) of the Act. Because s 6(1) of the Act was held not to apply, the Tribunal held that the disentitling provision in s 6(3) of the Act had no operation.
[5] [2009] AATA 809.
8. I accept that s 6(1) of the Act serves to extend the meaning of the term arising out of or in the course of employment.[6] Nonetheless, I am satisfied that the circumstances of Mr Kemp fall directly within s 6(1)(b) of the Act. As s 6(1) of the Act is applicable, s 6(3) of the Act must be considered.[7] Both Mr Ferwerda, for the respondent, and Mr Arnold, for the applicant, made submissions on that basis.
[6] See The Commonwealth v Oliver (1962) 107 CLR 353 at 363; Comcare Australia (Defence) v O’Dea (1997) 150 ALR 318; [1997] FCA 1409 and Mendez v Telstra Corporation Ltd (1998) 147 FLR 394 at 395.
[7] See Bilton v Comcare [1997] AATA 838.
9. In the event that s 6(3) of the Act is not satisfied or, indeed, where it is not appropriate to apply s 6 of the Act, the issue is whether, under s 5A(1) and 14(1) of the Act, compensation is payable for Mr Kemp’s back condition. Where a favourable determination is made under s 14(1) of the Act[8], disentitlement to compensation may still arise under s 14(3) of the Act which reads:
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
[8] See Grime and Telstra Corporation Ltd [1994] 20 AAR 43; [1994] AATA 488 at [41].
APPLICANT’S AND RESPONDENT’S CASES
10. Mr Arnold, for the applicant, submitted that Mr Kemp’s back injury arose out of an incident which occurred on 20 May 2008 when he was travelling from one part of the Kunwarara mine site (“KG2”) to another part of the mine site (“KG1”). He was driving a Mack Fleetliner prime mover, with an attached side-loading trailer carrying a load of magnesite. The truck and trailer rolled onto their right sides when negotiating a corner, thereby causing Mr Kemp to be thrown forward and partly through the windscreen. He submitted that the load of magnesite in the trailer exceeded its capacity and was unevenly distributed, with a greater amount on the right-hand side, and that this caused the trailer to roll to the right as it negotiated a tight left turn. He submitted that the vehicle was being driven at a safe speed and manner and that Mr Kemp was wearing his seat belt up to the point when he realised there was danger of being trapped in his seat and injured through proximity to the right-hand side of the vehicle which was about to impact with the roadway.
11. Mr Arnold submitted that neither s 6(3) nor s 14(3) of the Act served to disentitle Mr Kemp from acceptance of his injury under the Act. In relation to the former provision, he submitted that Mr Kemp had not voluntarily or unreasonably submitted to an abnormal risk of injury. For the latter provision, he submitted that Mr Kemp’s driving did not constitute serious and wilful misconduct and that, in any event, his back injury had resulted in serious and permanent impairment.
12. Mr Ferwerda submitted that Mr Kemp had suffered no more than a soft tissue injury on 20 May 2008 and that the condition had resolved by 30 May 2008. He submitted that the trailer had been correctly loaded by the machine operator at KG2 and that the truck rolled over because of its excessive speed as it attempted to negotiate the corner near KG1. He submitted that Mr Kemp contributed to the soft tissue injury by failing to wear a seat belt at any time and ingesting opiates prior to the roll-over. He submitted that Mr Kemp voluntarily and unreasonably submitted to an abnormal risk of injury and was engaged in serious and wilful misconduct because of the excessive speed, failure to wear a seat belt and the ingestion of opiates. He also submitted that Mr Kemp was an unreliable witness who made unfounded allegations against a range of other persons engaged by K & S.
EVIDENCE
The applicant
13. Mr Kemp’s evidence was that he has been driving trucks since he was aged 14 years and has been licensed to do so since he was aged 17 years. For a period, he was an owner-operator but for most of his working life he has been an employed driver. For three months before 20 May 2008, he worked in that capacity for K & S. On that day, he commenced his 12 hour shift at about 6.00am and transported trailer loads of magnesite from the mining site KG2 to a processing plant at KG1. This was a distance of approximately 12 kilometres over an unsealed private mining road (“the haul road”) which included a sharp right turn near KG1, followed by a short section of straight road and then a sharp left turn. Shortly after 11.00am, Mr Kemp attempted, for the third or fourth time that day, to drive through that part of the road. His truck manoeuvred around the right turn but, in negotiating the left turn, the truck and trailer rolled over to the right and came to a stop on their right sides parallel to and on the edge of the road. He stated that he did not think that the road to KG1 was unsafe but agreed that extra care was needed when using it.
14. The trailer had been filled with 30 tonnes of magnesite by Chris Paul, the operator of a mechanical loader at KG2. Mr Paul advised Mr Kemp by radio that he had loaded 30 tonnes of ore and Mr Kemp recorded this in his log book. As he drove away Mr Kemp sensed, from the feel of the vehicle, that the trailer had been unevenly loaded with greater weight on the right side. He also believed that the load of 30 tonnes exceeded the maximum level for his truck and trailer. He did not stop to check the load because of the difficulty associated with scaling the side of the trailer to achieve that purpose. Mr Kemp had not recognised the man who loaded his trailer and believed that the sub-contractor responsible for loading the trucks, Downer EDI, used KG2 as a training base for new employees. He also said that the loaders automatically calculated the weight of the ore loaded but that incorrect weights were often recorded. He did not observe the loading of the trailer because drivers are required to remain in the truck at that time. He said that he probably complained to the contractor that the load felt heavy and uneven.
15. Mr Kemp described the gear shift pattern in the truck. To the far left there was a deep reduction forward gear and reverse gear. Each of those had a high and low range component. There was then an H pattern with a further four gears at each of the four positions in the H pattern. The first progression through the H pattern took the gears from 1st, to 2nd, to 3rd and to 4th. The second progression took the gears from 5th, to 6th, to 7th and to 8th. Each of the eight positions had a high and a low range which was activated by “flicking”, with a finger of the left hand, a switch on the gear lever. This gave the vehicle a total of eighteen forward gears and two reverse gears.
16. Mr Kemp said that, on approaching the first of the two corners near KG1, he shifted to 4th or 5th gear low range, although he also said that he may have been in 6th or 7th gear low range. With any of those gears engaged, the truck speed was very low, he said, and he estimated that he was driving at about 7 to 14 kilometres per hour (“kph”). Mr Kemp said there was a pothole on the inside of the left turn corner and he drove further to the right to avoid it. As he entered that second corner, he saw in the rear vision mirror that the left side wheels of the trailer were lifting off the road. Mr Kemp then realised that the truck and trailer were about to roll over to the right. He had a fear of being trapped in the driver’s seat and so he disengaged his seat belt and held on to the passenger seat for support. Mr Kemp believed that, because of its low speed, the vehicle was almost at a standstill when it rolled and that this was supported by the location of the spilled ore adjacent to the trailer. It was put to Mr Kemp that he knew the risk of injury from driving his truck into a corner at excessive speed and without wearing a seat belt. He said that was “ludicrous”. He agreed that he had undergone training with K & S and that he was required to wear a seat belt at all times.
17. Mr Kemp said that he believed he lost consciousness for about 30 seconds in the accident and recalled “coming to” with his head and shoulders through the windscreen and resting on the bonnet, his right leg over the gear stick and his left leg under the passenger seat. He dragged himself out backwards using both hands and felt pain in his lower back. Because of the pain, he decided to take pain medication and he reached into the cabin of the truck to his first-aid kit, from which he removed and ingested two Nurofen Plus tablets. Within a short time of the accident, the safety crew from KG1 arrived and transported him the short distance of 500 metres to the first-aid room at KG1. There, after a quick clean-up and change of shirt, he spoke with safety representative Lance Baker and safety officer Lindsay Johnson and, with them, completed a Personal Incident Statement.
18. In the Personal Incident Statement completed on 20 May 2008, Mr Kemp described eight previous loads to KG1; that he did not notice anything unusual in the operation of the truck or the conditions of the road; that he was in 6th or 7th low gear when the truck rolled over; that he braced himself when he knew the trailer was about to roll over; that he was not wearing a seat belt; and that he was conscious throughout the event. He said that the unevenness of the load may have affected the stability of the trailer.
19. In his statement of 9 November 2010, Mr Kemp said that he was knocked unconscious on impact and that, when he “came around”, he was lying with his hips on the dashboard of the truck and his legs facing backwards into cabin. He described “significant” pain and said he was denied access to an ambulance.
20. About two hours after the accident the general manager of K & S, Greg Black, arrived from Rockhampton. Mr Black arranged for him to travel to the Mount Archer Medical Centre where he saw Dr O’Regan, whom he described as the K & S “company doctor”. Mr Kemp said that he was in significant pain, with tingling and numbness in his legs and lower back, and should have been taken by ambulance to Rockhampton Hospital. At the Mount Archer Medical Centre, Mr Kemp met with his wife, whom he had telephoned, and Julie Smith, the K & S office manager, in the waiting room. Dr O'Regan prescribed painkillers for his back and completed a medical certificate for him to be excused from work from 20 to 22 May 2008. Mr Kemp said that in the waiting room Dr O'Regan spoke with Ms Smith, who went in to see the doctor and told him to put Mr Kemp on suitable duties. Dr O’Regan then produced a substitute certificate which declared Mr Kemp “fit for suitable duties (restricted return to work) from 20 to 22 May 2008”.
21. Mr Kemp said that Mr Black came to his house a day or so later and suggested that he come into the K & S premises for a few hours per day. Mr Kemp’s response was that his back was too sore to enable him to do that. He said that, about four or five days after the accident, Ms Smith and Mr Black again came to his house. He signed some papers there and was told by Mr Black that, because it was a single vehicle accident, he would be dismissed from his job if he did not resign. He then resigned from K & S. He said he felt totally incapacitated by back pain at that time and was unable to get out of bed for four days after the accident. Mr Kemp denied that he had been advised about compensation at that meeting. He agreed that he spoke to Ms Smith at the K & S yard on 22 May 2008 but could not recall the details. He agreed that he went to her again with a clearance certificate completed by Dr O’Regan on 30 May 2008 but denied that he was free from incapacity from the accident at that time.
22. In his statement dated 9 November 2010, Mr Kemp wrote that, about three months after the accident, he drove past a truck pulling the trailer which had been involved in the roll-over. At the time, he heard an employee of K & S, “Kenny”, talking on the radio and saying that the trailer should not be loaded with more than 24 tonnes. However, in his evidence, Mr Kemp said that he did not see the trailer. Rather, he merely heard and recognised Kenny’s voice and knew from a previous contact that Kenny was then using the same trailer that was involved in the roll-over. He agreed that he was guessing both that the voice was that of Kenny and that Kenny’s reference was to his old trailer.
23. Mr Kemp said that he did not lodge his compensation claim for eight months after the accident because he was not aware that he could do so. This was despite previous claims having been lodged by him in 1994 and 1995 for ankle injuries. In his statement of November 2010, he wrote that the first of those injuries resulted in his being off work for two weeks. He said that the reason for making the current claim was that he could no longer work. He distinguished his earlier claims because, at that time, he had been able to continue working.
24. Mr Kemp said that he continued to experience back pain after the accident and consulted Dr O’Regan again in August 2008. This resulted in a CT scan on 25 August 2008. It concluded:
Significant disc bulges with root impingement and canal stenosis is noted at the L3 and L4/5 levels...
25. As a result, Dr O’Regan issued a certificate that Mr Kemp was unable to work because of back pain from 29 August 2008 until 25 September 2008. He again attended upon Dr O’Regan in February 2009 after working for several months. “Acute on chronic low back pain” was diagnosed and a certificate was issued which declared him unable to work from 18 to 25 February 2009. Mr Kemp saw Dr O’Regan several times after he left K & S and changed to Dr Prasad at the same practice in early 2009. Mr Kemp agreed that he had not seen Dr Prasad during 2009 specifically for his back. However, he also said that Dr Prasad had examined him in relation to his back.
26. Mr Kemp referred to his post-accident employment. About three weeks after the accident, he was engaged by KG Johnson Haulage as a driver for about one month. This involved him driving a flat top truck between Brisbane and Rockhampton but he was unable to complete sufficient trips per week because of his back and he ceased that job. He was then engaged as a loader operator with LCR Mining Group Pty Ltd (“LCR”) on a coal contract where he earned $38,000 over about five months. He could have remained working for LCR but would have been required to operate out of South Blackwater which did not suit him. At LCR he had time off work because of his back, but he was in a camp and had his own medication. He then worked for about a month for Whincon Pty Ltd where he was a plant operator rather than a driver as he had lost his licence through an accumulation of penalty points. He was working 12 hour shifts for five days per week. He agreed that he did not take time off and consumed codeine for back pain but ceased working there because of his back. He then worked for Ville Ville Pty Ltd in April 2009 for two or three nights but could not handle the work because of his back. He has not been in remunerative work since April 2009. Mr Kemp did not reveal to his employers that he had a back problem and agreed that he had been untruthful but that he needed the work. Mr Kemp denied that he had ever injured his back after 30 May 2008. He noted Dr O’Regan’s reference to a flare up of back pain on 18 February 2009. He described this as part of his ongoing problem after the accident.
27. Mr Kemp said that he had little conversation with orthopaedic surgeon Dr Peter Steadman and had been distracted during their session together. He denied that he rang his wife from KG1 for advice, despite what Dr Steadman said. He denied that he had described Nurofen to Dr Steadman and that his reference was to Nurofen Plus. He said that he experienced numbness when he saw neurosurgeon Dr Scott Campbell and told him that he was not knocked out in the accident. He said that he may have told Dr O’Regan that he might have been knocked out but that his main concern at the time was with his back and legs.
Julie Smith
28. Ms Smith is the Administration Supervisor for K & S. After hearing of the accident, she travelled from the K & S offices to the Mount Archer Medical Centre. After her arrival, Mr Kemp’s wife arrived and then Mr Kemp was brought in. She discussed the return-to-work package with Mr Kemp and she described him as being quite happy with the prospect of working from home. She said that she had not spoken to Dr O’Regan about the terms of the medical certificate but had merely advised him of the availability of an option of Mr Kemp’s working at home.
29. Ms Smith said that, the next day, she went to Mr Kemp’s house with Mr Black. Mr Kemp, his wife and a friend of Mr Kemp were there. Ms Smith completed an Incident Report Form with information provided by Mr Kemp. She said that the Personal Incident Statement completed by Mr Johnson in the presence of Mr Baker and Mr Kemp at KG1 was attached to it. She advised Mr Kemp of his right to seek compensation but he told her that he did not want to go down the compensation path. She said that he was concerned about losing his job, but that she had not raised that as an issue. She spoke to him about working from home but he advised her that he did not want to do that.
30. Ms Smith said that Mr Kemp came to the K & S office to see her on the following day, ie 22 May 2008. He told her that he had resigned from K & S and would provide her with a medical certificate. She said that Mr Kemp returned on 30 May 2008 with a certificate from Dr O’Regan declaring that he had a back strain but was fit to return to work from that date.
Greg Black
31. Mr Black was the Operations Manager at K & S. He has been a truck driver for 30 years and has experience with the same type of truck and trailer that Mr Kemp was driving. When advised of the accident, he drove from Rockhampton to KG1 with another employee of K & S. He saw Mr Kemp, who told him he was a “bit sore” and showed him a gravel rash. Mr Black then inspected the accident scene where he noted the right-side wheel tracks of the truck and trailer were wider than usual and concluded that those wheels had been under extreme pressure. He described the left-side wheel tracks as being normal. He did not see any potholes on the road. Mr Black said the entry road into KG1 was a temporary one and he agreed that the accident investigation team had surmised that the route may not have been to the required standard. He conceded that it was dangerous, to a point, depending on speed. He considered that 50 kph would be too high a speed to negotiate the corner. He said that there was a “40” sign on the first of the two corners and that this depicted an advisory maximum speed of 40 kph.
32. Mr Black inspected the cabin of the prime mover and noted that the gear position was 7th low which, he said, was the equivalent to 15th gear. He said that the high/low range switch on the gear shift was activated by a flick of the finger. He agreed that the gear could have been changed inadvertently through contact with Mr Kemp during the accident. He did a test on the following day with an identical but unladen truck to that in the roll-over and said that, in 7th low, it travelled at 40 to 50 kph. He said that truck speed was determined by the gears, not by the load, and that the difference was that a loaded truck would take longer to reach a given speed.
33. Mr Black referred to an Injury Management Plan completed on 21 May 2008 which was to implement the use by Mr Kemp of a home training pack while he was recovering and before returning to work. However, he said that Mr Kemp chose to resign from his position on 22 May 2008. Mr Kemp had spoken to Mr Black by telephone and said he was aware that there was a clause in the enterprise bargaining agreement covering his employment which meant that a driver at fault in a single vehicle accident would be dismissed. Mr Black denied that he had made Mr Kemp aware of this.
Christopher Skelding
34. Mr Skelding is an inspector of mines with the Queensland Department of Mines and Energy. He receives reports of incidents on mine sites in Queensland’s central region and selects particular incidents for further examination. He inspected the site of Mr Kemp’s accident and examined the management plan of K & S. He completed a report on 23 June 2008. In part, it reads:
At the scene of the roll-over, the road bends sharply at an acute angle which is a hazard that would seem to invite a roll-over. Entering this bend at anything but a crawling speed would risk a roll-over. The haul road has now been re-routed.
35. Mr Skelding also inspected the loading arrangements, including the 30 tonne loads of ore carried by trailers. He concluded that there was no evidence of overloading vehicles at the site.
Chris Paul
36. Mr Paul was employed by Downer EDI as a qualified Plant Operator from January 2008 at Kunwarara. He said that he was experienced in loading side tipper trailers as well as rear load dump trucks and had loaded about 20 trailers before that of Mr Kemp on 20 May 2008. He loaded magnesite in three separate loads from his end loader and placed them at the front, in the centre and at the rear, respectively, of Mr Kemp’s trailer. He rejected the suggestion that his position on the loader was lower than the trailer, thereby preventing him from seeing into the trailer. Rather, he said his position was high enough to afford him a clear view into the trailer. He noted that the three loads he inserted were centred and not unevenly deposited to the right or left of the trailer. He said that, if a load were uneven, he would have arranged for the trailer to be tipped and be reloaded. He said that the loader has a measuring device which advises the weight of each load, that he noted that he loaded 30 tonnes into the trailer and that he advised Mr Kemp of this by radio.
Lindsay Johnson
37. Mr Johnson completed a statement on 15 March 2011. His work experience includes ten years as an Ambulance Officer and as a First-Aid Officer at various times. In May 2008 he was a Senior Safety Officer at KG1 where he was required to respond to incidents on the mine site and provide first-aid assistance if needed.
38. On learning of the truck roll-over, he went to the scene and observed Mr Kemp standing unassisted and in no apparent difficulty. Mr Kemp expressed no particular concern and advised that he had not lost consciousness in the incident. Mr Kemp declined his offer to send for an ambulance. He drove Mr Kemp to the first‑aid room at KG1 where he spoke further with Mr Kemp, in the presence of Lance Baker. He treated Mr Kemp for cuts to his arms and abrasions and bruising to his shoulder and buttocks.
39. Mr Johnson completed the Personal Incident Statement. For this, he asked Mr Kemp a series of questions and typed the responses onto a standard form report. Mr Baker was present during that process and signed the report as a witness. Mr Kemp told him that he was not wearing a seat belt and that he did not normally do so, stating that, in the event of an accident, his preference was to locate himself under the dashboard. Mr Kemp also told him that most truck drivers do not wear a seat belt in their trucks. Mr Johnson denied that Mr Kemp had advised that he had undone the seat belt immediately prior to the incident.
40. Mr Johnson said that Mr Kemp also told him that he believed that there was regular overloading of trucks at the mine site and that his truck may not have been loaded correctly.
Lance Baker
41. Mr Baker completed statements on 2 September 2010 and 17 March 2011. He is a mechanical fitter. He had responsibilities for the fixed plant at the mine site. He was also the elected safety representative who would attend accident scenes. He was driven to the accident scene by Mr Johnson. There, he observed skid marks on the road leading to the truck wheels. He did not measure these. Mr Baker confirmed that he had been present when Mr Johnson completed the Personal Incident Statement by asking questions of Mr Kemp and typing the responses in the incident report. Mr Baker signed the report as a witness.
42. Mr Baker said that Mr Kemp’s concerns were with his shoulder and not his back. At no stage did Mr Kemp request medical treatment. He recalled Mr Kemp saying the he had not been wearing a seat belt. Mr Baker denied that Mr Kemp had said he had been wearing a seat belt and undid it immediately prior to the accident.
Graeme Wooller
43. Mr Wooller completed statements on 13 September 2010 and 15 March 2011. He is the Chief Operating Officer of K & S and was in that position on 20 May 2008. He has 15 years of experience in driving trucks similar to that driven by Mr Kemp. He understood that the truck was in 7th low gear when it rolled over and he equated that to a speed range from stalling speed to 52 kph. He believed that, if the truck had been travelling at a speed of 7 to 14 kph, it would not have rolled over but that 52 kph was too fast to negotiate the turn. He referred to the range change device on the gear stick and said that it required more than a mere touch to operate it as, otherwise, it would be liable to being triggered by vibrations on unmade road.
44. Mr Wooller was familiar with the characteristics of magnesite. He described it as having a “sticky” low flow capacity. He said that the trailer was designed to carry 30 tonnes and he believed that it would not have been physically possible to load 30 tonnes to one side of the trailer. In his later statement, Mr Wooller wrote that he had never heard of any reports that a truck at the mine site was unevenly loaded and that, if the tipper was significantly and unevenly loaded, excess magnesite would have fallen over the edge of the tipper. He said that this would have alerted the driver, causing him to adjust the load to make it safe to travel.
45. Mr Wooller said that the K & S drivers were obliged to wear seat belts while operating trucks on the mine site and he was unaware of anyone who would release the seat belt in the event of a pending accident. He also said that the enterprise bargaining agreement, as it existed in May 2008, had provision for dismissal of a driver involved in an accident where third party road users, mechanical failure or road conditions did not contribute to the accident.
MEDICAL EVIDENCE
Dr James O’Regan, General Practitioner
46. Dr O’Regan treated Mr Kemp from February 2008 and saw him within a few hours of the accident on 20 May 2008. He said that Mr Kemp complained of back pain which was consistent with the accident. He described him as coherent but a little agitated when he saw him on that day. Dr O’Regan supplied a medical certificate which declared Mr Kemp unfit for work from 20 to 22 May 2008 but then issued an amended certificate after he was advised by Ms Smith that a home training pack was available for Mr Kemp to do restricted work at home. He said that he had been under no pressure to issue the new certificate and that Mr Kemp seemed happy about the suggestion of office-based work to be done at home.
47. Dr O’Regan’s clinical notes for Mr Kemp are described as a “complete record” and the first entry is in February 2008. On 20 May 2008, his notes read:
Rolled truck at work going round a corner. Thrown through windscreen. Now burning lower back. No radiation to legs. Sore R shoulder - feels numb now. Some tingling R leg on drive into town. Abrasions on R forearm/L thumb... Stressed out, bit agro initially over delay.
48. Dr O’Regan noted bruising and tenderness to the lower back with an abrasion to the right lower back. On 22 May 2008, Dr O’Regan noted that Mr Kemp’s back was “good” with tenderness to “sides lower back”. On 30 May 2008, Dr O’Regan noted that there was a full range of movement in his back and neck. On that day he completed a Workers’ Compensation Medical Certificate in which he entered the diagnosis of “back strain” and declared that Mr Kemp was fit for return to normal duties from that date.
49. Dr O’Regan conducted drug tests in which Mr Kemp showed positive for codeine. He thought that two Nurofen Plus tablets could have produced that result. He said that Mr Kemp had advised him that he had taken Nurofen and that, if Mr Kemp had nominated Nurofen Plus, he would have written that in his notes.
50. On Wednesday 20 August 2008, Dr O’Regan recorded low back pain with numbness all over both lower legs. He noted that Mr Kemp had been off work “since Monday”. On 29 August 2008, Dr O’Regan completed another Workers’ Compensation Medical Certificate where he entered the diagnosis of “L3/4 and L4/5 disc protrusion” and wrote that Mr Kemp was unable to work from 28 August 2008 until 25 September 2008. He took no history of what Mr Kemp had done since the truck roll-over. He referred Mr Kemp to Dr John Baker, neurosurgeon, after noting that he complained of “persisting pain radiating both legs”. He agreed that disc protrusions do not always produce pain and that the condition could have pre-dated the accident. He also thought that the symptoms described by Mr Kemp would have resolved after 12 months.
51. The clinical notes indicate that Mr Kemp saw Dr Sandhya Prasad, who shared the practice with Dr O’Regan, on 15 January 2009 with complaints of gastro‑oesophageal reflux, hypertension and osteoarthritis. On 18 February 2009, Dr O’Regan noted that Mr Kemp advised of ongoing chronic back pain since the injury in May 2008 with a flare up of low back pain on the previous morning after climbing out of a truck. Mr Kemp’s subsequent consultations were with Dr Prasad, who noted obstructive sleep apnoea on 25 March 2009, gastro-oesophageal reflux and a respiratory tract infection on 18 June 2009, asthma on 24 July 2009, a forearm lesion on 19 August 2009 and asthma on 8 September 2009.
Dr John Baker, Neurosurgeon
52. Mr Kemp saw Dr Baker, who completed reports on 30 April 2009 and 8 October 2009. Dr Baker referred to the CT scan taken in August 2008 and concluded that an MRI should be conducted. This was done on 11 September 2009. In October 2009, he wrote that he found no significant neurological issues and that it was very difficult to nominate any lesion responsible for the constant pain with varying intensity of which Mr Kemp complained.
Dr Peter Steadman, Orthopaedic Surgeon
53. Dr Steadman saw Mr Kemp in March and May 2010. The first consultation was one of dysfunctional behaviour by Mr Kemp because of his personal circumstances and was terminated. Dr Steadman said that Mr Kemp appeared to still be struggling emotionally when he saw him two months later. He recommended that Mr Kemp have a psychiatric assessment. Dr Steadman described difficulty in taking a history of events from Mr Kemp because he displayed chaotic thought processes. He considered that this had an emotional basis and was not related to pain. He said that Mr Kemp kept referring to the negligence of K & S in the manner they arranged medical treatment for him after the accident, in particular for not calling an ambulance for him.
54. Dr Steadman recorded Mr Kemp’s version of the circumstances of the accident including Mr Kemp’s belief that the trailer was overloaded. He described the roads as poorly kept. He noted the lifting trailer wheels, the release of the seat belt and his grabbing of the passenger seat. Mr Kemp told him that, immediately after the accident, he reached for his lunchbox and took two Nurofen tablets. He said that he rang his wife, who is a nurse, and sought advice, believing the K & S staff were more interested in completing the incident report than attending to him.
55. In his examination of Mr Kemp, Dr Steadman described “overstatement” of symptoms or “non-physical contribution”. This was demonstrated, he said, with Waddell tests of self-head compression, false rotation and straight leg raising which was limited to 30 degrees even though Mr Kemp was able to sit at 90 degrees. He considered that the straight leg raising test was an important and very useful mode of assessing capacity. Dr Steadman described diffuse degenerative disease causing low back pain with no operative treatment that would benefit him and observed that there was a significant non-physical contribution to his condition. Dr Steadman considered that the MRI superseded the CT scan and was more important. It revealed diffuse degenerative change. He considered that the disc problem at three levels was a pre-existing degenerative condition and not one which was due to work with K & S. He said that, if only one disc was involved, the likelihood was greater that it was due to trauma.
Dr Scott Campbell, Neurosurgeon
56. Dr Campbell saw Mr Kemp and completed his report on 23 November 2009. He agreed that he had relied on the history he was given by Mr Kemp but was also able to see the objective results in the CT and MRI scans. Dr Campbell was advised by Mr Kemp that he took two weeks off work after the accident during which his employment was terminated; that he then worked for another company as a truck driver on light duties for 20 hours per week and then as a plant operator; and that he was unable to continue with these jobs because of chronic lower back pain and medication-induced drowsiness.
57. Dr Campbell said that Mr Kemp told him that he remained conscious during the accident. He recorded numbness in the legs and tingling in the feet which Dr Campbell said was a sciatic reference. Dr Campbell said that he does not have faith in straight leg raising as a test of a person’s range of movement capacity as it often reveals false positives and false negatives. He preferred to rely on the objective results of CT and MRI scans. Dr Campbell said that he did not detect a non-physical presentation of symptoms by Mr Kemp.
58. Dr Campbell said that the presence of a disc protrusion is not necessarily accompanied by pain but that the larger the protrusion, the more likely it was that pain would result. He said that the MRI scan revealed some resorption of the protrusion or some improvement but was consistent with trauma on 20 May 2008. His opinion was that the back condition was associated with the accident on that day.
59. Dr Campbell concluded that, based on the CT and MRI scans, Mr Kemp had L3/4 and L4/5 disc protrusions with an associated loss of range of movement in the lumbar spine and pain radiating down both legs which he considered to be a permanent condition.
OTHER EVIDENCE
60. The Personal Incident Statement, dictated by Mr Kemp in the presence of Mr Johnson and Mr Baker, was in evidence. The following account is included:
Was loaded at KG2 by Downer operator on a 988. Drove through to the turnoff from the haul to the KG1 access road without incident. I slowed for the corner and believe I was in 6th or 7th gear. I looked in the passenger side rear vision mirror as normal. I noticed the tri of the trailer starting to lift from the ground. I was in too low a gear to attempt to pull it out, I braced myself as I knew the trailer was going over. I was not wearing a seat belt. The trailer rolled onto the driver’s side taking the prime mover over with it. I was conscious throughout the event. I was thrown about the cab and when the truck stopped, I climbed out through the windscreen.
61. The report also noted that Mr Kemp did not notice anything unusual in the operation of the truck or the conditions of the road, that the weather was fine and sunny and conditions were dry. In response to the question what Mr Kemp thought caused the accident to happen, his response was he was “unsure at this time, all procedures were normal”. When asked how the accident might have been prevented, Mr Kemp said: “Unsure, normal procedures were followed. The unevenness of the load may have affected the stability of the trailer”.
62. In evidence was a pathology report, dated 20 May 2008, relating to a drug test on Mr Kemp. It revealed recent codeine ingestion but no suggestion of illicit opiate use.
63. Documents setting out the Safe Operating Procedures for travelling on K & S haul roads were in evidence. One of the requirements was that drivers were to wear a seat belt at all times and not to operate under the influence of drugs. It also required that vehicles were to be driven at a safe speed according to the conditions at the time.
64. Also in evidence was documentation prepared as part of the Queensland Magnesia Pty Ltd investigation into the accident. It refers to the trailer having been loaded with 30 tonnes of ore and to the trailer having a capacity of 34 tonnes. It also noted that Mr Kemp had recently recovered from a flu-like illness for which he may have taken codeine. It concluded that speed may have been a factor in the accident and that Mr Kemp was not wearing a seat belt at the time. It also noted that the intersection where the accident occurred was a temporary route and may not have been to the standard required for Standard Work Practice – Mine Road specifications. In evidence was a statement by an employee of K & S (Rossco) in which he stated that speed tests were conducted on a Mack Fleetliner that, in 7th low gear with an unladen trailer, the road speed ranged between 40 to 60 kph.
65. The truck and trailer were inspected after the accident and reports, dated 22 May 2008, declared that both the trailer and prime mover had been in a roadworthy condition at the time of the accident.
Employer records
66. In evidence was an Employee Induction Checklist completed in relation to Mr Kemp when he commenced work with K & S on 18 February 2008. Also in evidence were the Kunwarara Traffic Rules published by Queensland Magnesia Pty Ltd. The General Operating Rules for Safe Work Procedures include the following reference on seat belts:
All vehicles must be fitted with seat belts and the seat belts must be worn… Seat belts must be worn whenever a vehicle is in motion.
67. Statements from Mr Kemp’s post-accident employers were also in evidence. LCR advised that Mr Kemp was employed as a road train operator for 12 hours per day on five days per week. He ceased work on 21 January 2009 because of the ending of a seasonal contract and with no relationship to disablement. When completing his application to work with LCR on 8 September 2008, Mr Kemp declared that he had never been injured at work and was not aware of any physical difficulty or health problem which may affect his performance of duties.
68. On 10 June 2008, Mr Kemp completed a driver’s questionnaire for the payment of insurance by Regional Insurance Brokers. Therein, he declared that he had not been in an accident in a vehicle under his control.
69. In an application for work with Whincon Pty Ltd on 26 February 2009, Mr Kemp declared that he had never made a claim for worker’s compensation. Attached to that document was a declaration in which he wrote that he had never consulted a doctor for or had treatment for a range of conditions, including a back injury.
70. On 28 October 2010, Nev Mellville, on behalf of Ville Ville Pty Ltd, wrote that Mr Kemp had worked for that company and that his position was terminated because he lost his driver’s licence due to an accumulation of penalty points.
CONSIDERATION
Diagnosis of Mr Kemp’s back condition
71. Mr Kemp’s claim was for “L3/4 and L4/5 disc protrusion”. The report of Dr O’Regan, dated 29 August 2008, identified that condition. Dr Campbell, in late 2009, concluded that Mr Kemp had L3/4 and L4/5 disc protrusions with impairment that was likely to be permanent. Clearly then, there is some support for a diagnosis of the claimed condition. However, in 2010 Dr Steadman described diffuse degenerative disease causing low back pain with no operative treatment that would benefit him and observed that there was a significant non-physical contribution to his condition. In late 2009, Dr Baker wrote that he found no significant neurological issues and that it was very difficult to nominate any lesion responsible for the constant pain with varying intensity of which Mr Kemp complained.
72. While Mr Kemp may well suffer from L3/4 and L4/5 disc protrusion, I am satisfied that it is not causally related to the roll-over incident on 20 May 2008. Dr Campbell identified the accident as the cause of Mr Kemp’s back condition. However, Dr Campbell relied on the history given to him by Mr Kemp and this included references to his being terminated in his employment with K & S after the accident and being forced to surrender subsequent employment because of his chronic back pain and associated medication-induced drowsiness. It also excluded reference to the certification of fitness for work made by Dr O’Regan a few days after the accident.
73. That certificate of Dr O’Regan is of particular significance in this matter. He diagnosed “back strain”, noted that there was a full range of movement in Mr Kemp’s back and neck and declared that Mr Kemp was fit to return to normal duties from 30 May 2008. Indeed, Mr Kemp did return to work immediately thereafter. In his statement of 9 November 2010 Mr Kemp wrote that he was employed from 1 June 2008 until 30 June 2008 by KG Johnson Haulage as a truck driver between Brisbane and Rockhampton. While his evidence was that he ceased that work because of his back, his statement revealed that, from the next day, ie 1 July 2008, he was engaged as a road train/excavator operator with LCR. This employment lasted about six months and his evidence was that he could have remained in that employ but would have been required to operate out of South Blackwater which did not suit him. That conflicts with the employer’s report that he ceased work because of the ending of a seasonal contract and with no relationship to disablement. It is not consistent with Dr Campbell’s understanding of Mr Kemp’s work history.
74. Mr Kemp then worked for about a month for Whincon Pty Ltd as a plant operator, and then for Ville Ville Pty Ltd in April 2009. Mr Kemp did not identify any pre-existing back problem when he sought those employment opportunities. On 8 September 2008, Mr Kemp declared that he had never been injured at work and was not aware of any physical difficulty or health problem which may affect his performance of duties; on 10 June 2008, Mr Kemp declared that he had not been in an accident in a vehicle under his control; and, on 26 February 2009, Mr Kemp declared that he never made a claim for worker’s compensation. The report from Ville Ville Pty Ltd was that his position was terminated because he lost his driver’s licence. Again, this is not consistent with Dr Campbell’s understanding of Mr Kemp’s work history.
75. I accept the employers’ statements about the reasons for Mr Kemp ceasing work and am satisfied that he was employed on a continuous basis for several months from a short period after the accident. That work history is consistent with the initial certification of the period of only two days off work at the time when Dr O’Regan saw Mr Kemp on the day of the accident. Also, it is consistent with the certificate issued by Dr O’Regan on 30 May 2008 that Mr Kemp had suffered a back strain but was fit to return to work. Dr O’Regan diagnosed L3/4 and L4/5 disc protrusion on 29 August 2008 and noted that, on 20 August 2008, Mr Kemp had taken some time off work due to back pain. However, at that time, he did not take a history of Mr Kemp’s work-related activities and did not note any causal association between that L3/4 and L4/5 disc protrusion and post-accident work activity.
76. I am satisfied that Mr Kemp suffered from a soft tissue injury described by Dr O’Regan as back strain as a result of his involvement in the truck roll-over on 20 May 2008. I am also satisfied that any incapacity suffered by Mr Kemp was of a temporary nature and had resolved by the time he was seen by Dr O’Regan on 30 May 2008. While he may now have a more serious condition, I am satisfied that this was not related to his involvement in the truck roll-over on 20 May 2008.
Mr Kemp’s evidence
77. Before giving consideration to the causation of Mr Kemp’s temporary condition of back strain, it is appropriate to make the following observations. Mr Kemp was not a persuasive witness. He has not given consistent accounts of various aspects of the evidence in this matter and I found him to be evasive in responding to questions, especially in cross-examination. By contrast, I had no such difficulty with the other witnesses and, accordingly, prefer their evidence where it is at variance with that of Mr Kemp.
78. In relation to the wearing of a seat belt, Mr Kemp’s oral evidence was that he released the seat belt when the roll-over was imminent. He did not give that explanation when speaking with Mr Johnson, Mr Black or Mr Baker. In the Personal Incident Statement on 20 May 2008, he said that he braced himself when he knew the trailer was about to roll over and that he “was not wearing a seat belt”. Mr Johnson’s evidence was that Mr Kemp said that he was not wearing a seat belt and that he did not normally do so, preferring, in the event of an accident, to locate himself under the dashboard. Mr Kemp expressed the view that most truck drivers do not wear a seat belt in their trucks. I am satisfied that Mr Kemp was not wearing a seat belt at any time while driving the truck from KG2 to KG1 on 20 May 2008.
79. In his evidence, Mr Kemp said that he felt totally incapacitated by back pain after the roll-over and was not able to get out of bed for four days. However, Mr Kemp met with Ms Smith at his home on 21 May 2008 and went to the K & S yard on 22 May 2008 and spoke to Ms Smith again. He returned on 30 May 2008 with a certificate from Dr O’Regan declaring that he had a back strain but was fit to return to work from that date. The evidence does not support Mr Kemp being bed-ridden for four days after the roll-over.
80. Mr Kemp was critical of Mr Paul, who loaded his trailer. He suggested that the loader was not fully qualified and that KG2 was used as a training base for new employees. On the basis of the rigorous cross-examination of Mr Paul by Mr Arnold, Mr Kemp also instructed him that Mr Paul was unable to have a clear view of the loading operation. These matters were strongly denied by Mr Paul. He explained that he was a qualified operator and that his loader was higher than the trailer, enabling him to observe that it had been loaded appropriately. He also said that the loader automatically calculated the weight of the ore loaded into each trailer. Mr Kemp’s evidence was that the weighing mechanism was inaccurate but no evidence was called to support that contention. I accept the evidence of Mr Paul and his assertion that, if a load were uneven, he would have arranged for the trailer to be tipped and then reloaded. In that regard, I have also relied upon the evidence of Mr Wooller. I am satisfied that the trailer was not unevenly loaded by Mr Paul.
81. Mr Kemp asserted that his trailer was overloaded but no evidence was called on his behalf to support that position. He referred to hearing a radio conversation involving Kenny, who described a 24 tonne limit for Mr Kemp’s trailer. He agreed that he did not see the trailer and was guessing that the voice was that of Kenny and that Kenny was referring to his old trailer. That reference does not amount to evidence of overloading and, indeed, the documents prepared as part of the Queensland Magnesia Pty Ltd investigation describe the trailer as having a having a capacity of 34 tonnes. Mr Skelding’s investigation revealed no evidence of overloading at the mine and Mr Wooller’s evidence was that 30 tonnes was within the capacity of the trailer. I am satisfied that the trailer was not overloaded.
82. Mr Kemp gave differing versions of whether or not he lost consciousness in the accident. In evidence, he said that he believed he lost consciousness for about 30 seconds in the accident and recalled “coming to” with his head and shoulders through the windscreen. In his statement on 9 November 2009, Mr Kemp said that he was knocked unconscious, coming to with his hips on the dashboard. In his statement on 20 May 2008, and in speaking with Mr Johnson and Dr Campbell, he said that that he remained “conscious throughout the event”.
83. In his evidence, Mr Kemp described a pothole on the inside of the left turn corner which caused him to drive further to the right of the road to avoid it. In his statement on 20 May 2008, Mr Kemp said he did not notice anything unusual in the condition of the road. He made no reference to a pothole in his detailed statement of 9 November 2009. Mr Black, who inspected the accident scene, did not see any potholes on the road, nor was any pothole apparent in the photographs of the road. I do not accept Mr Kemp’s assertion that, in negotiating the left turn on the haul road, he was forced to travel to the right side of the road to avoid a pothole.
84. Mr Kemp said that he advised Dr O’Regan that he had taken Nurofen Plus immediately after the accident, which has a codeine component, and not Nurofen, which has no codeine. Dr O’Regan said that, if he had been so advised, he would have written Nurofen Plus in his notes rather than Nurofen. He also alleged that Ms Smith pressured Dr O’Regan into changing the medical certificate issued by him on the day of the roll-over. Mr Kemp said that his wife had witnessed this, but she was not called to give evidence. Both Ms Smith and Dr O’Regan strongly denied any pressure to change the certificate. Dr O’Regan stated that he merely changed the certificate after being advised that a home-based option was open to Mr Kemp.
85. Mr Kemp said that he did not lodge his claim for compensation for eight months because he was not aware that he could do so. This was despite previous claims having been lodged by him in 1994 and 1995 for ankle injuries. I note that, in Mr Kemp’s application for employment on 26 February 2009 with Whincon Pty Ltd, he declared therein that he had never made a claim for worker’s compensation for injury or disease. That was clearly a false statement. In his statement of November 2010, he wrote that the first of those injuries resulted in his being off work for two weeks and he was then able to continue working. He said that the reason for making the current claim was that he could no longer work. That is not consistent with the medical clearance given by Dr O’Regan on 30 May 2008 or with his return to work thereafter. I accept Ms Smith’s evidence that she discussed compensation with Mr Kemp at his home on 21 May 2008. Mr Kemp’s wife was present on that occasion and, again, she was not called to give evidence.
86. Mr Kemp alleged that he requested but was denied access to an ambulance for transportation to Rockhampton Hospital when first treated at KG1 after the accident. The evidence of both Mr Baker and Mr Johnson was that they offered to call an ambulance for him but that he declined the offer. Dr Steadman said that Mr Kemp kept referring to the negligence of K & S in the manner they arranged medical treatment for him after the accident, in particular for not calling an ambulance for him. I am satisfied that Mr Kemp’s condition did not warrant calling an ambulance, that Mr Kemp did not request an ambulance be called to attend to him and that he rejected offers for an ambulance to attend.
87. Mr Kemp’s evidence was that he was advised by Mr Black after the accident that, if he did not resign, his employment would be terminated. This was refuted by Mr Black and is not consistent with Ms Smith’s attempts to engage Mr Kemp in a continuation of his employment by using the work-from-home package which she took to Mr Kemp’s house on the day after the accident. I am satisfied that Mr Kemp resigned from K & S on a voluntary basis.
88. The evidence was not clear in relation to which gear was engaged when the truck rolled over or the speed of its travel at that time. In his evidence, Mr Kemp said that he shifted to 4th or 5th gear low range but agreed that he may have been in 6th or 7th gear low range. Mr Black inspected the truck cabin at the accident site and noted that the gear position was 7th low. He said that, if the truck gear lever was in 7th low after the accident, it may have been changed to that by the bumping of the range change device in the accident. Mr Black said that truck speed was determined by the gears, that he tested an identical truck on the following day and, in 7th low, it travelled at 40 to 50 kph. On the understanding that the truck was in 7th low, Mr Wooller equated that to a speed range from stalling speed to 52 kph. He believed that, if the truck had been travelling at a speed of 7 to 14 kph, it would not have rolled over but that 52 kph was too fast to negotiate the turn. I am satisfied that the truck was in 7th low gear at the time of the accident.
89. The photographs of the overturned trailer demonstrate that the magnesite was not strewn widely or in a pattern trailing far behind the trailer. Mr Arnold submitted that this supported the contention that the truck was travelling at low speed. I have noted the evidence of Mr Wooller concerning the “sticky” low flow capacity of magnesite. However, it clearly does flow or else transportation by a side tipping trailer would prove futile. Photographs indicate some spread of the magnesite behind the trailer and the circumstances of the accident were sufficient to project Mr Kemp forward and through the windscreen. I am satisfied that the truck was travelling at the lower end of the range described as being typical for 7th low gear but at more than the crawling speed which was possible in 7th low gear. Mr Skelding’s evidence was that the acute angle of the road at the corner was a hazard “that would seem to invite a roll-over” at anything but a crawling speed. I am also satisfied that that speed, combined with the nature of the turn, were responsible for the vehicle roll-over. In so deciding, I have noted that an investigation found that both the trailer and prime mover were in a roadworthy condition.
Whether back strain arose out of or in the course of Mr Kemp’s employment: the role of s 6 of the Act
90. The evidence points to Mr Kemp’s back strain as having resulted from the truck roll-over. Consideration must then be given to the operation of s 6 of the Act in determining whether it is an injury which “arose out of or in the course of his employment” as a truck driver for K & S.[9] Under s 6(3) of the Act, Mr Kemp’s back condition will not be treated as having arisen out of or in the course his employment if he sustained the injury because he “voluntarily and unreasonably submitted to an abnormal risk of injury”.
[9] See s 5A of the Act.
91. Mr Arnold submitted that s 6(3) of the Act contemplates the common law notion of voluntary assumption of risk and that voluntariness in this context requires that Mr Kemp have been, subjectively, in a position of full knowledge and appreciation of the risk and without reference to any concept of constructive knowledge. I accept the submission that Mr Kemp must have fully appreciated the risk which was being undertaken before he is disentitled from liability.[10] However, an objective element must also be met in that he must have unreasonably submitted to the risk and, further, the risk in question must have been an abnormal risk.
[10] See Grime and Telstra Corporation Ltd [1994] 20 AAR 43 at 47.
92. The evidence of Mr Skelding was that there was a real risk of a vehicle roll‑over while negotiating the left turn on the haul road because of its acute angle. On that evidence, the risk of a roll-over was higher than would be the case of a properly designed and constructed corner and, in that sense, I am satisfied that it was an abnormal risk. I am also satisfied that the risk of injury by an occupant of a vehicle is increased where the occupant is not restrained in the vehicle by a seat belt. Mr Kemp dismissed as ‘ludicrous’ the suggestion that he knew there was risk of injury from driving his truck into the corner at excessive speed and without wearing a seat belt. I do not accept his evidence in that regard. In his statement at KG1, Mr Kemp described himself as having been “thrown about the cab” and forwards into the windscreen, an unsurprising consequence of the absence of a seat belt and one which was causally associated[11] with his back injury.
[11] See Inco Ships Pty Ltd v Hardman[2007] FCA 1138 at [80].
93. Mr Kemp’s evidence was that he consciously chose not to wear a seat belt in an accident, preferring to find security in taking up a position under the dashboard. That strategy clearly reflects a full understanding of and acceptance of the risk of not wearing a seat belt and, on any objective measure, is an unreasonable course of action. Certainly, it was not successful in the accident on 20 May 2008 and I am satisfied that Mr Kemp’s consequential back strain was suffered because he voluntarily and unreasonably submitted to an abnormal risk of injury. As s 6(3) of the Act is applicable to Mr Kemp’s circumstances, his back injury is not to be treated as having arisen out of or in the course of his employment. This has the result that, under s 5A(1) and s 14(1) of the Act, compensation is not payable to him.
Whether compensation is payable: the role of s 14 of the Act
94. In the event that s 6 of the Act should not be applied in the way that I have done so above[12], I have also considered Mr Kemp’s claim without regard to that provision. In that situation, the evidence points to Mr Kemp’s back strain as an injury suffered by him and one arising out of, or in the course of, his employment as truck driver with K & S in accordance with s 5A(1) of the Act for which liability to pay compensation would arise under s 14(1) of the Act. In a situation where s 14(1) of the Act is satisfied[13], the disentitling terms of s 14(3) of the Act must be considered. In accordance with that provision, compensation is not payable in respect of an injury that is “caused by the serious and wilful misconduct of the employee but which is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment”. There is no suggestion that Mr Kemp’s back strain was self‑inflicted and the certification by Dr O’Regan on 30 May 2008 confirms that the condition did not result in serious or permanent impairment.
[12] As was done in Courtis and Linfox Armaguard Pty Ltd (2009) 112 ALD 682; [2009] AATA 809: see paragraph 6 above.
[13] See Grime and Telstra Corporation Ltd [1994] 20 AAR 43; [1994] AATA 488 at [41].
95. Certain behaviour is deemed to be ‘serious and wilful misconduct’ by s 4(13) of the Act, which reads:
For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) shall be taken to be guilty of serious and wilful misconduct.
96. While there is no suggestion that Mr Kemp was influenced by alcohol, Dr O’Regan conducted drug tests in which Mr Kemp tested positive for codeine. Mr Kemp’s evidence was that he took two Nurofen Plus tablets immediately after the accident and Dr O’Regan’s evidence was this could have produced that result. In that case, the drug would not have impacted on Mr Kemp’s driving capability. In any event, even if no tablets were taken by Mr Kemp at the scene of the accident, there is no evidence that the level of codeine revealed in the test on Mr Kemp was sufficient to disturb his faculties, or “the balance of [his] mind” or “the quiet, calm intelligent exercise of [his] faculties”.[14] Accordingly, I am satisfied that s 4(13) of the Act is not relevant in this matter.
[14] See GIO NSW v Nowalinski (1985) 2 MVR 142 at 146.
97. In Whittaker and Department of Defence[15], the Tribunal interpreted ‘wilful misconduct’ as involving “the doing of acts in fact amounting to misconduct intentionally, with knowledge that those acts will amount to misconduct”.[16] In that case, proceeding through an intersection against a red traffic light was found not to amount to wilful misconduct because there was no evidence to assist the Tribunal to determine whether it was done through inadvertence rather than deliberately. That is not the case with Mr Kemp, who was aware that he was obliged to wear a seat belt while driving his truck but, as I have found, was not doing so on 20 May 2008. This was not due to mere inadvertence. Rather, it was his practice not to wear a seat belt and his strategy when an accident was imminent was to seek protection under the dashboard. In so doing, I am satisfied that he accepted a risk of injury and intentionally adopted a practice involving a known risk of physical injury in the event of an accident.
[15] [1998] AATA 702.
[16] Whittaker and Department of Defence [1998] AATA 702 at [23], referring to Lewis v Great Western Railway (1877) 3 QBD 195 at 210 – 211 and Transport Commission (Tas) v Neale Edwards Pty Ltd (1954) 92 CLR 214 at 223, 227 – 228.
98. As to whether misconduct is ‘serious’, the Federal Court made the following observation in Comcare v Calipari[17]:
... For present purposes I would note that the word "serious" in the formula describes the misconduct in question and not the actual consequences of it. Nonetheless, because the s 14(3) disentitlement arises where the injury is caused by the misconduct it is well accepted that the seriousness of the misconduct is to be evaluated having regard to whether that conduct would be attended by the risk of non-trivial injury: see Johnson v Marshall, Sons & Co Ltd [1906] AC 409 at 416.
[17] [2001] FCA 1534. See also Caldwell and Comcare (2008) 104 ALD 98; [2008] AATA 450 at [84].
99. Also, in Inco Ships Pty Ltd v Hardman the Federal Court stated that misconduct “is serious if it significantly increases the likelihood of serious injury”.[18]
[18] (2007) 167 FCR 294; [2007] FCA 1138 at [81].
100. I am satisfied that, in the particular circumstance of his case[19], Mr Kemp’s deliberate decision not to wear a seat belt was conduct which was attended by the risk of non-trivial injury and which significantly increased the likelihood of such injury. Accordingly, I am satisfied that, in accordance with s 14(3) of the Act, compensation is not payable to Mr Kemp in relation to the back strain he sustained on 20 May 2008.
[19] See Inco Ships Pty Ltd v Hardman(2007) 167 FCR 294; [2007] FCA 1138 at [75].
DECISION
101. The decision under review is affirmed.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member
Signed: ..............................[Sgd]............................................
Danielle Armstrong, Research AssociateDate/s of Hearing 10 and 11 November 2010 and 29 and 30 March 2011
Date of Decision 11 May 2011
Counsel for the Applicant Mr A Arnold
Solicitor for the Applicant Mr T Tummon, Rees R & Sydney Jones
Counsel for the Respondent Mr J Ferwerda
Solicitor for the Respondent Mr M Seymour, Clarke Legal
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