Krleski v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 67
•11 April 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Krleski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 067 |
PARTIES: | Krleski, Marko v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/160 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 11 April 2014 |
HEARING DATE: | 13 February 2014 |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. Costs reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - whether employment is a significant contributing factor to the injury - whether the Appellant sustained an injury on the day that he attended the place of employment as required under the terms of his employment - meaning of "day" in |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 34(1)(c), Schedule 6 |
| APPEARANCES: | Mr P.B Rashleigh, Counsel instructed by Hall Payne Lawyers for the Appellant. Mr P.B O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
This is an appeal by Marko Krleski (the Appellant) against a decision of the Review Unit, Q-COMP to confirm an earlier decision to reject the Appellant's application for worker's compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act). Since the making of the claim for compensation, the Act has been amended with the result that Q-COMP has been abolished and replaced by the Respondent, the Workers' Compensation Regulator, Simon Blackwood
(the Regulator). In these reasons, Q-COMP will also be called the Regulator.
The Appeal
The Appellant was employed by G&S Engineering (the Employer) as a fitter on a construction site for the Daunia mine, which is located near Moranbah. His employment was governed by the G & S Engineering Services Daunia Project Union Greenfields Agreement. He was employed in a full time position, working a ten day "on" and four day "off" cycle roster.
On or about 4 July 2012, an online application for compensation was lodged by the Appellant's guardians for an injury described as "Multi-organ impairment (aspiration pneumonia, septic shock - rhabdomyolisis, liver damage) and acquired severe brain injury." [Exhibit R1]
The online application alleges that on 13 April 2012, the Appellant was "found unconcious [sic] in bedroom at MAC Camp".
On 18 September 2012, WorkCover Queensland wrote to the Appellant to inform him of its rejection of his application for compensation.
On or about 11 March 2013, the Appellant sought a review of the Insurer's decision by the Regulator and on 22 April 2013 the Regulator reviewed the Insurer's decision and confirmed its decision to reject the claim.
On or about 21 May 2013, the Appellant filed a notice of appeal against the decision of the Regulator and the appeal was subsequently listed for hearing before the Commission on 13 and 14 February 2014.
This proceeding is by way of a hearing de novo and the Appellant bears the onus of establishing his case on the balance of probabilities. [1]
[1] Toll Holdings Ltd AND Q-Comp (WC/2010/96) - Decision <
Issues for determination in the Appeal
It is conceded by the Regulator in these proceedings that the Appellant was a worker for the purposes of the Act, and that there has been a personal injury. [Transcript 1-4, Lines 1-4]
The matters for determination in this appeal are whether the employment is a significant contributing factor to the injury and whether the Appellant sustained an injury on the day that he attended the place of employment as required under the terms of his employment, whilst the Appellant was temporarily absent from the place of employment during an ordinary recess, within the meaning of s 34(1)(c) of the Act.
Section 32 (1) and s 34(1)(c) relevantly provide:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if-
(a) for an injury other than a psychiatric or psychological disorder-the employment is a significant contributing factor to the injury
"34 Injury while at or after worker attends place of employment
(1)An injury to a worker is taken to arise out of, or in the course of the workers' employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the workers' employment
…
(c) while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themselves to an abnormal risk of injury during the recess."
Background
The Appellant commenced employment with the Employer on 13 March 2012 in accordance with the G&S Engineering Services Daunia Project Union Greenfields Agreement (the Agreement). [Exhibit C1]
The Appellant was employed on a "work cycle" roster arrangement, where he would work ten days in a row, and then have four days rest. The Appellant's ordinary hours of work were from 6.30 am to 5.00 pm.
As the Appellant's usual place of residence was in Mackay, the Appellant was recognised as a "non-local" under the Agreement, which entitled him to "mobilization/demobilization and accommodation".
This designation entitled the Appellant to both the provision of free accommodation during the "on" period of the work cycle, and transport to a location nearest to the employee's usual place of residence during the "off" period of the cycle.
The Appellant was accommodated at the MAC Village, Coppabella ('the village'). The village was owned and operated by The MAC Services Group, which made provision for a number of companies to house employees at the accommodation village. That is to say, housing and general facilities at the village are offered to all workers, who are classified as "non-local" employees.
Residents of the village were required to abide by an Accommodation Code of Behaviour regulation, issued by MAC Accommodation. [Exhibit C6]
Mr David Manning, a construction manager with G&S Engineering, gave evidence to the effect that, at the site, there were a number of companies operating under the auspices of a head contractor, BMA; a structure whereby G&S Engineering was contracted to Sedgman Limited, which in turn was contracted to Bechtel Australia, which was contracted to BMA. [T 1-26, Lines 1-13]
The upshot of this arrangement was that the cost of the Appellant's residence entitlement under the Agreement was not paid by G&S Engineering (or himself), but by Bechtel Australia, and subsequently, BMA. [T 1-27, Lines 5-7]
G&S Engineering had no role in the provision of accommodation at the village.
The village had a range of facilities available to residents. These included; a large 'wet' mess hall with takeaway food facilities, a TAB facility, numerous recreation facilities such as swimming pools, athletic tracks, gymnasiums, shopping facilities and other amenities. [T 1-27, Lines 16-24] It was estimated that 2000-3000 workers resided at the facility at any one time.
While at the village, workers were assigned to small sleeping quarters, commonly referred to as "dongas". Approximately 10 feet wide, the donga contained a bed, small kitchenette, satellite TV, and a toilet and shower, separated by a partition and door.
Under the Agreement, the Appellant, and other "non-local" workers who resided at the village, were required to utilize a bus-in, bus-out (BIBO) service to transport them from the village to the worksite each day.
The BIBO service offered two services in the mornings before the 6.30 am shift start. [T 1-21, Lines 15-20] The trip took 20-30 minutes each way. [T 1-9, Line 22]
The Injury
The Appellant commenced his employment with the Employer on 13 March 2012. On 4 April 2012, the Appellant and his partner, Ms Kirby Gaffney, returned to their hometown of Wollongong for the Easter break.
On 10 April 2012, the Appellant and Ms Gaffney returned to their accommodation at the village quite late in the evening.
On 11 April 2012, the Appellant worked his regular shift. Ms Gaffney gave evidence to the effect that the Appellant and his close friend, Mr Steve Dimoski had breakfast, before meeting her and together catching a 5.20 am bus to the worksite, and all returning together on a 4.30 pm bus, arriving at the village roughly 20-30 minutes later, before having dinner.
It was the evidence of Mr Dimoski that he and the Appellant then went to the gym.
On 12 April 2012, the arrangements of the morning, and return travel in the afternoon were repeated in a similar fashion.
Following dinner on 12 April 2012, the Appellant and Mr Dimoski, and later
Ms Gaffney, decided that they were going to go to one of the gymnasiums in the village. At this point, Ms Gaffney, and the Appellant and Mr Dimoski went their own ways.
The Appellant and Mr Dimoski returned to their rooms, got changed into workout clothing, and walked to the gym, stopping by the soccer fields, located inside the village complex, to watch. Between 7.30 and 8.00 pm, the Appellant and
Mr Dimoski walked towards the gym where Ms Gaffney was exercising. Before entering the gym, they decided that the gym was too busy, and they turned around and went to the other gym located in the village complex. Following their workout, at or around 9.00 pm, they walked back to their respective rooms, once again walking by the soccer fields and watching for some time. The Appellant and Mr Dimoski then returned to their rooms. Ms Gaffney gave evidence to the effect that once she had finished at the gym, she returned to her room, and then went to the Appellant's room for around 30 minutes between 8.30 and 9.00 pm, leaving at around 9.15 pm. [T-10, Lines 20-30] She recalled that the Appellant had mentioned to her that he was feeling a bit tired. [T-15, Line 33]
On the morning of 13 April 2012, Ms Gaffney sent a text message to the Appellant at 4.20 am, asking him to pick up a yoghurt from the eatery before meeting her at the bus. The Appellant did not reply to this message. Ms Gaffney then walked down to the eatery, where she saw Mr Dimoski, who told her he had not been able to wake the Appellant.
Mr Dimoski gave evidence to the effect that on the morning of 13 April, he walked to the Appellant's room at approximately 4.30 am, and tried knocking on the door. Previously the Appellant would be waiting for him, outside the donga. Mr Dimoski knocked very loudly and repeatedly on the Appellant's door, and called his name. He called the Appellant's phone, and could hear the phone ringing inside the room.
Mr. Dimoski could also hear the Appellant snoring. He then tried to open a window, but was unsuccessful. Despite not being able to wake him, he then walked to the eatery, where he saw Ms Gaffney.
After breakfast, Mr Dimoski and Ms Gaffney returned to the Appellant's room. Once again, they tried banging on the door and window of the Appellant's room, calling his phone and screaming and yelling his name at a volume that they were concerned might wake other people [T 1-11, Line 11]. They both could hear what best could be described as snoring; "a kind of unhealthy unfamiliar" sound. [T 1-10, Line 43]. They could also hear the TV running inside the room.
After attempting to wake the Appellant for some time, Ms Gaffney and Mr Dimoski decided that the best decision was for them to walk to the BIBO bus and find an employee from the employer to whom to report. Whilst on the bus, Ms Gaffney repeatedly attempted to call the Appellant on his phone to no avail.
On arrival at the worksite, they immediately went to the employers' OH&S officer, and informed her that they couldn't wake the Appellant, but could hear him snoring. They inquired as to whether there was a contact number for the Appellant to call should he wake up, and how to notify his supervisor that he would be absent. The OH&S officer replied in words to the effect that there was a number the Appellant could call, but Ms Gaffney and Mr Dimoski did not have enough time to obtain that number, as they were required on the job site.
Throughout the day, Ms Gaffney unsuccessfully attempted to call the Appellant several times.
Both Ms Gaffney and Mr Dimoski returned to the village at approximately 5.00 pm, and immediately went to the Appellant's room. They again knocked on the door and windows of the Appellant's room, but could not hear any response. They could hear the TV continuing to play. Ms Gaffney attempted to call the Appellant's phone, but it appeared to have turned off.
Mr Dimoski then went to the reception/office area of the village, and obtained the keys to the Appellant's room.
Ms Gaffney and Mr Dimoski then unlocked the Appellant's door, and walked inside to find the Appellant in his bed, seemingly asleep, covered in blankets. This concerned both Ms Gaffney and Mr Dimoski, as it was hot in the room. Approaching the Appellant, Ms Gaffney observed him to be covered in "crystallized" sweat, and of a faint, "almost white" skin tone with blue lips. His eyes had rolled back into his head, he was making the same "snoring" sound that
Ms Gaffney had heard in the morning, and had urinated in the bed (Mr Dimoski also observed vomit in the bed).
Ms Gaffney then took Mr Dimoski's phone and called triple zero, while telling
Mr Dimoski to run to go and get help. Mr Dimoski ran to the reception/office area to raise the alarm, and then returned to the Appellant's room.
Approximately 30 minutes later, an ambulance arrived and took the Appellant to Moranbah Hospital. He was then airlifted to Townsville Hospital.
No evidence was adduced as to the Appellant's medical condition.
Consideration
Although it was faintly contended for the Appellant that his personal injury falls within s 32(1) of the Act, this submission is unsustainable. Even were it the case that the injury arose out of, or in the course of, the employment, which I doubt but do not have to decide, there is no evidence upon which I could find that the employment was a contributing factor to the injury. The Appellant was an apparently healthy young man who had been employed by the Employer for only a few months. Nothing untoward had occurred at work during the course of his employment. He seemed to be quite normal, albeit a little tired when Ms Gaffney left his donga at around 9.15 pm on 12 April 2012. Something occurred during the course of the night that resulted in his serious injury. There is no medical evidence before me to explain what happened. The Appellant was fine when Ms Gaffney left him and he was apparently unconscious the following morning.
There is simply no evidence that would permit me to make a finding, or draw an inference, that the employment was a contributing factor, let alone a significant contributing factor, to the injury. The Appellant cannot bring himself within s 32(1) of the Act.
It is then put that s 34(1) applies because the event (the injury) happened on a day on which the Appellant attended at the place of employment as required under the terms of his employment.
To bring himself within s 34(1) the Appellant must prove, on the balance of probabilities, that the event occurred on a day at which he attended at his place of employment. In this case his place of employment was the Daunia Mine site which was some considerable distance from the village.
Place of employment is defined in Schedule 6 of the Act:
"place of employment means the premises, works, plant, or place for the time being occupied by, or under the control or management of, the employer by whom a worker concerned is employed, and in, on, at, or in connection with which the worker was working when the worker sustained injury."
Not only was the accommodation village not under the control or management of the employer, the Appellant was not working in, on or at the village when he sustained his injury. Had the village been under the control or management of the employer it might have been necessary to determine whether he was working in connection with it when he sustained his injury.
Thus, it is necessary to determine whether the event happened on a day on which the Appellant had attended at his place of employment; the mine site.
The last time that the Appellant attended at the mine site was 12 April 2012. He did not attend work on 13 April 2012. On the evidence, the incapacitating event almost certainly occurred sometime between approximately 9.15 pm on the 12th when Ms Gaffney left him, and 4.30 am on the 13th when Mr Dimoski tried to wake him. Although counsel for the Regulator submitted that I should find that the event occurred sometime between 9.15 on the 12th and 5.00 pm on the 13th , having regard to the evidence of what transpired, I am prepared to infer that the event occurred during the time period 9.30pm on the 12th and 4.30 am on the 13th.
There is no evidence that would allow me to make a finding as to whether the event occurred before or after midnight of 12/13 April 2012. For the Appellant to succeed I must find, on the balance of probabilities that the event occurred before midnight on the 12th as that is the day that the Appellant last attended at his place of employment. I am unable to do so, even though I accept that the Act, being remedial legislation, requires that if any ambiguity exists it should be construed beneficially. In Victorian Workcover Authority v Virgin Australian Airlines Pty Ltd & Anor [2] Bell J wrote:
"While remedial legislation must generally be interpreted beneficially, the application of the rule must 'be restrained within the confines of 'the actual language employed' and what is 'fairly open' on the words used.' As Brennan CJ and McHugh J explained in IW v City of Perth:
'the task remains one of statutory construction. Although a provision of
[a remedial Act] must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.' "
[2] Victorian Workcover Authority v Virgin Australian Airlines Pty Ltd & Anor [2013] VSC 720.
The Appellant contends that the 10 day "on" period of the Appellant's work cycle is an overall continuous period of work- one "day"; wherein the periods of time outside the Appellants' shifts (from 5.00 pm to 6.30 am) amount to only a break or interval in the work cycle, and as such constitute an ordinary recess. [T2-15, Lines 1-25]
The Appellant’s submission is clearly untenable. Even the most beneficial interpretation of s 34(1) does not allow for such an interpretation.
The Respondent submits that the word "day" in s 34(1) should be given its ordinary meaning of the period from midnight to midnight.
What constitutes a "day" for the purpose of s 34(1) of the Act is not explained by the Act. Nor is it defined in any other relevant legislation.
In West v Armstrong, [3] Madden CJ held that "on each day" in s 74 of the Stock Diseases Act 1908 refers to:
"… each day of the week, and such a day computed from midnight on the one day to midnight on the other, because, in law, day includes day and night."
[3]West v Armstrong [1908] VLR 685.
West [4] was cited with approval by Lucev FM in Moon v JLG Industries (Australia).[5] After delving into the history of what constitutes a day and analyzing several authorities, as well as the definition of "day" in the Shorter and Concise Oxford Dictionaries, his Honour concluded that the word "days" in s 371(2) of the
Fair Work Act 2009 means periods of 24 hours from midnight to midnight.[4] Ibid.
[5] Moon v JLG Industries (Australia) [2011] FMCA 343.
In Laffer and Secretary, Attorney-General's Department [6] the Administrative Appeals Tribunal of Australia observed:
"Although the word 'day' can have different meanings in various circumstances and contexts the generally accepted ordinary meaning of the word is the period of time which begins with one midnight and ends with the next. (See Butterworths Words and Phrases Legally Defined 3rd Edition page 16 and 45 Hallsburys Laws 4th Edition paragraph 1,113)."
[6] Laffer and Secretary, Attorney-General's Department [2013] AATA 585.
In my opinion, the word "day" in s 34(1) of the Act has its generally accepted ordinary meaning of the period of time which begins with one midnight and ends with the next.
As I am unable to find, on the balance of probabilities, that the event happened on a day on which the worker had attended at the place of employment, s34(1) does not apply.
Having so found it is not necessary to decide whether the Appellant was temporarily absent from the place of employment during an ordinary recess, within the meaning of s 34(1)(c) of the Act.
The appeal must be dismissed and the decision of the Regulator confirmed. I will reserve the question of costs.
Order accordingly.
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