Kimber v Chief Executive, Department of Treasury and Finance

This case concerned an application for permission to appeal on a question of law from a decision of the Full Bench of the South Australian Employment Tribunal. The worker, a paramedic, sustained a lower back injury while transferring a patient from a stretcher to a bed. He claimed additional compensation under Schedule 6 of the SA Ambulance Service Award, asserting his injury was an "eligible injury" under clause S6.35.4 of the Award. The respondent, the Chief Executive of the Department of Treasury and Finance, rejected the claim, arguing the injury did not meet the criteria for an eligible injury.

The central legal issues before the court were whether the trial judge and the Full Bench had erred in their construction of the phrase "dangerous situation" within clause S6.35.4 of the Award. Specifically, the court had to determine if it was open to the trial judge to define "dangerous situation" as one giving rise to any risk of harm, and if the Full Bench's characterisation of a "dangerous situation" as one involving a "relatively high degree of risk" was permissible. Furthermore, the court considered whether clause S6.35.3 was correctly interpreted as applying to environments and activities exposing officers to a "high or very high degree of risk," and whether the relevant inherently unsafe activity should be considered generically as "patient transfer" or more specifically as the particular actions taken at the time of the injury.

The Court held that the trial judge's interpretation of "dangerous situation" was too broad, failing to recognise that the clause was intended to address an elevated circumstance of risk beyond the ordinary incidence of risk. It found that the Full Bench's descriptors for a "dangerous situation," such as being "full of danger or risk, or having a relatively high degree of risk," were appropriate and reflected a heightened level of risk. The Court also agreed that clause S6.35.3 was directed towards high-risk environments and activities. Crucially, the Court determined that for the purposes of the clause, the relevant inherently unsafe activity was "patient transfer" described generically, rather than the specific actions performed during the incident, as a more specific interpretation would render the mere fact of injury sufficient to satisfy the criteria.

Permission to appeal was granted on certain grounds concerning the construction of the Award, but the appeal itself was ultimately dismissed.