Kibria & Kibria v Workers' Compensation Regulator - [2023] QIRC 288

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kibria & Kibria v Workers' Compensation Regulator [2023] QIRC 288

PARTIES:

Kibria, Siddika & Kibria, Nafisa

(Appellants)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:
WC/2022/200

PROCEEDING:

Appeal against decision of Workers' Compensation Regulator

DELIVERED ON:
5 October 2023

HEARING DATES:
7 September 2023

MEMBER:
HEARD AT:

Pidgeon IC

Brisbane

DATES OF WRITTEN
SUBMISSIONS

Appellants’ outline of closing submissions filed 7 September 2023

Respondent’s outline of closing submissions filed 7 September 2023

ORDERS:

1.        The Appeal is dismissed.

2.           Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a)       Costs are to be in an amount agreed, or if the parties fail to reach agreement by 26 October 2023, the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on 9 November 2023; and

(b)        in the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing.

CATCHWORDS:
WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – appeal against review decision of the Respondent –Appellants’ claim for compensation with respect to their deceased father and spouse – where the deceased worker was a maritime engineer working for the Respondent on its cruise ships operating in Australian waters – where the deceased worker worked on a roster – where the deceased worker did not return to his permanent residence in Parramatta, New South Wales between swings – where the deceased worker was residing at a hotel in Darwin, Northern Territory between swings at the time of his death – where the deceased worker was required to obtain a negative PCR test for COVID-19 before boarding the ship – where the facts involve interstate travel subject to State Government travel restrictions during COVID-19 – where the deceased worker’s cause of death was acute heart failure, ischaemic heart disease, coronary artery atherosclerosis and hypertensive heart disease – where it is not in dispute that the deceased worker sustained an ‘injury’ within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32 – whether the deceased worker was on an ordinary recess when he died pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 34 – whether the deceased worker was on a journey when he died pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 35 – where the deceased worker was not on an ordinary recess or a journey at the time of his death – appeal dismissed

LEGISLATION: Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32, 33, 34, 35, 36, sch 6

CASES:

Comcare v PVYW (2013) 250 CLR 246

Drummond v Drummond (1960) VR 462

Faelmann v Workers’ Compensation Regulator [2016] QIRC 036

Federated Municipal & Shire Council Employees Union of Australia v Shire of Albany

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: [2023] QIRC 288
Decision Date: 5 October 2023

CaseChat Overview and Summary

Kibria and Kibria appealed against the Workers' Compensation Regulator's review decision which declined their claim for compensation in respect of their deceased father and spouse. The deceased was a maritime engineer working for the Regulator on cruise ships operating in Australian waters. The deceased did not return to his permanent residence in Parramatta, New South Wales between work swings and instead resided in a hotel in Darwin, Northern Territory. The deceased worker's cause of death was acute heart failure, ischaemic heart disease, coronary artery atherosclerosis, and hypertensive heart disease. It was not in dispute that the deceased sustained an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32. The legal issues were whether the deceased was on an ordinary recess pursuant to s 34 of the Act when he died and whether he was on a journey pursuant to s 35 when he died. The deceased was not on an ordinary recess or a journey at the time of his death. The appeal was dismissed. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011, costs are to be in an amount agreed, or if the parties fail to reach agreement, the parties are to exchange and file written submissions on the costs of the hearing by 4.00 pm on 9 November 2023. In the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing.

Orders

Orders of the court

1. The Appeal is dismissed.

2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a) Costs are to be in an amount agreed, or if the parties fail to reach agreement by 26 October 2023, the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on 9 November 2023; and

(b) in the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kibria & Kibria v Workers' Compensation Regulator [2023] QIRC 288
PARTIES:	Kibria, Siddika & Kibria, Nafisa (Appellants) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2022/200
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	5 October 2023
HEARING DATES:	7 September 2023
MEMBER: HEARD AT:	Pidgeon IC Brisbane
DATES OF WRITTEN SUBMISSIONS	Appellants’ outline of closing submissions filed 7 September 2023 Respondent’s outline of closing submissions filed 7 September 2023
ORDERS:	1. The Appeal is dismissed. *2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:* (a) Costs are to be in an amount agreed, or if the parties fail to reach agreement by 26 October 2023, the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12-point font size, line and a-half spacing with numbered paragraphs and pages) by 4.00 pm on 9 November 2023; and (b) in the absence of any application to make oral submissions in respect of costs, the question of costs will be decided on any written submissions filed without further oral hearing.
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – appeal against review decision of the Respondent –Appellants’ claim for compensation with respect to their deceased father and spouse – where the deceased worker was a maritime engineer working for the Respondent on its cruise ships operating in Australian waters – where the deceased worker worked on a roster – where the deceased worker did not return to his permanent residence in Parramatta, New South Wales between swings – where the deceased worker was residing at a hotel in Darwin, Northern Territory between swings at the time of his death – where the deceased worker was required to obtain a negative PCR test for COVID-19 before boarding the ship – where the facts involve interstate travel subject to State Government travel restrictions during COVID-19 – where the deceased worker’s cause of death was acute heart failure, ischaemic heart disease, coronary artery atherosclerosis and hypertensive heart disease – where it is not in dispute that the deceased worker sustained an ‘injury’ within the meaning of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 32 – whether the deceased worker was on an ordinary recess when he died pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 34 – whether the deceased worker was on a journey when he died pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 35 – where the deceased worker was not on an ordinary recess or a journey at the time of his death – appeal dismissed
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32, 33, 34, 35, 36, sch 6
CASES:	Comcare v PVYW (2013) 250 CLR 246 Drummond v Drummond (1960) VR 462 Faelmann v Workers’ Compensation Regulator [2016] QIRC 036 Federated Municipal & Shire Council Employees Union of Australia v Shire of Albany