Kemp and K & S Freighters Pty Ltd

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

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…