Mandep Sarkaria v Workers' Compensation Regulator - [2019] ICQ 1

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 001

PARTIES:

MANDEP SARKARIA

(appellant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

C/2017/19

PROCEEDING:

Appeal

DELIVERED ON:

14 January 2019

HEARING DATE:

19 February 2018

JUDGE:

Martin J, President

ORDER:

1.    The appeal is allowed.

2.    The orders of the Commission are set aside and, in their place, the following orders are made:

(a)    The appeal to the Commission is allowed

(b)   The Respondent’s decision of 23 February 2017 is set aside and, in lieu thereof, it is ordered that the application for compensation of 3 November 2016 be accepted

CATCHWORDS:

WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – SCOPE OF EMPLOYMENT – INTERRUPTION TO CONTINUITY OF EMPLOYMENT – RECESSES – WHAT CONSTITUTES ORDINARY RECESS - where appellant attended her place of employment before shift commenced per the terms of her employment – where appellant was injured during that time before her shift commenced – where appellant was injured by climbing a ladder that gave access to and from the rooftop of the place of employment – where the rooftop was not a designated area for breaks – where the appellant had no permission, nor express or implied encouragement, from the employer to either use the ladder, or use the ladder to access the rooftop – whether the injury occurred on the day on which the appellant had attended her place of employment as required by the terms of her employment – whether the injury happened during an ordinary recess

CASES and LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003, s 34(1)(c)

Bird v Commonwealth (1988) 165 CLR 1

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622

Landers v Dawson (1964) 110 CLR 664

WorkCover Queensland v Dreadon [1999] QIC 47

COUNSEL:

M Forbes for the appellant

P Rashleigh for the respondent

SOLICITORS:

Quinn & Scattini for the appellant

Workers’ Compensation Regulator (direct instruction)

Introduction

On 1 November 2016 Mandep Sarkaria attended for work at the McDonald’s Restaurant at Richlands. In accordance with the policy imposed by her employer, she arrived 10 minutes before her shift was to commence at 9 pm. In that 10 minute period preceding the start of her shift, she climbed a three metre ladder inside a storeroom in order to gain access to the roof of the premises. She went there to smoke a cigarette. Later, as she descended the ladder, she fell and broke her right leg.
Her appeal against WorkCover’s rejection of her compensation claim was dismissed on the basis that she had not established that:
(a)     she was “temporarily absent from her place of employment”,
(b)     she was on an ordinary recess at the time of her injury, and
(c)     that her employment was a significant contributing factor to her injury.
The background to the application
The parties had agreed on a number of facts and the Vice President made a number of findings. So far as is relevant, they may be…

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.

Continue reading Mandep Sarkaria v Workers' Compensation Regulator

Details

AGLC: Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 1
Case: [2019] ICQ 1
Decision Date: 14 January 2019

CaseChat Overview and Summary

The case of Mandep Sarkaria v Workers’ Compensation Regulator involved the appellant, Mandep Sarkaria, seeking workers' compensation for an injury sustained while she was at her place of employment but before the start of her scheduled shift. Sarkaria had attended the premises at approximately 8:50 pm, as required by her employment terms, and used a ladder to access the rooftop, where she smoked a cigarette before falling and breaking her right lower leg. The Workers' Compensation Regulator had rejected her claim, leading Sarkaria to appeal the decision. The appeal was dismissed based on the grounds that she was not temporarily absent from her place of employment, that the injury did not occur during an ordinary recess, and that her employment was not a significant contributing factor to the injury. Sarkaria appealed this decision to the tribunal.

The primary legal issues before the tribunal were whether Sarkaria's injury fell within the scope of workers' compensation under section 34(1)(c) of the Workers’ Compensation and Rehabilitation Act 2003. Specifically, the tribunal had to determine if the injury occurred on a day she was required to attend her place of employment, if she was temporarily absent during an ordinary recess, and whether the injury was due to an abnormal risk voluntarily undertaken during the recess. Additionally, the tribunal considered whether the injury arose out of or in the course of Sarkaria's employment under section 32(1)(a) of the Act.

The tribunal examined the facts of the case and the provisions of the relevant legislation. It found that Sarkaria's attendance at the premises before her shift commenced did not constitute an ordinary recess, as the rooftop was not a designated area for breaks and she had no permission or encouragement from her employer to be there. The tribunal also highlighted that there was a sign warning against accessing the rooftop via the ladder, further supporting the conclusion that the injury did not fall under the provisions of section 34(1)(c). The tribunal upheld the decision of the Workers' Compensation Regulator, rejecting Sarkaria's appeal.

In light of the tribunal's findings, the appeal was allowed, and the original decision of the Workers' Compensation Regulator was set aside. The tribunal ordered that Sarkaria's application for compensation be accepted, reversing the earlier decision and granting her the compensation she sought.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders of the Commission are set aside and, in their place, the following orders are made:

(a) The appeal to the Commission is allowed

(b) The Respondent’s decision of 23 February 2017 is set aside and, in lieu thereof, it is ordered that the application for compensation of 3 November 2016 be accepted

Background

Background to the litigation

Her appeal against WorkCover’s rejection of her compensation claim was dismissed on the basis that she had not established that:(a) she was “temporarily absent from her place of employment”,(b) she was on an ordinary recess at the time of her injury, and(c) that her employment was a significant contributing factor to her injury.The background to the application The parties had agreed on a number of facts and the Vice President made a number of findings. So far as is relevant, they may be summarised in the following way:(a) the appellant attended at the premises at about 8:50 pm in accordance with the employer’s policy,(b) before commencing her shift, the appellant went to the store room of the premises – in which there was a 3 m ladder which afforded access to the roof of the premises,(c) she used the ladder to get onto the roof and she then smoked a cigarette,(d) as she was descending the ladder, she fell and broke her right lower leg,(e) at the time of sustaining the injuries she had not actually commenced her shift,(f) the rooftop was not a designated smoking area for staff,(g) the appellant did not seek permission to go on to the rooftop,(h) there was no encouragement by the employer, either express or implied, for the appellant to be on the rooftop at that time,(i) at the relevant time, there was a sign on the ladder warning against going onto the rooftop, and(j) the ladder was used by managers and other staff to undertake cleaning duties on the rooftop on a regular basis.The argument below In the Commission, the appellant argued that:(a) her injury fell within s 34(1)(c) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act), or(b) her injury arose out of, or in the course of, her employment within the meaning of s 32(1)(a) of the Act. Both of those contentions were rejected. The legislation So far as is relevant, s 34(1)(c) provides:“(1) An injury to a worker is taken to arise out of, or in the course of, the worker’s 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 worker’s 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 themself to an abnormal risk of injury during the recess.(2) For subsection (1)(c), employment need not be a contributing factor to the injury.” The term “place of employment” is defined in Sched 6 of the Act in this way:“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.”Ground of appeal The only ground argued was that the Vice President erred in not holding that the injury fell within s 34(1)(c) of the Act.Section 34(1)(c) The requirements of s 34(1)(c) are that:(a) the event happened on the day on which the worker had attended at the place of employment as required under the terms of that worker’s employment,(b) the event happened while the worker was temporarily absent from the place of employment,(c) the event happened during an ordinary recess, and(d) the event was not due to the worker voluntarily subjecting him or herself to an abnormal risk of injury during the recess.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Mandep Sarkaria v Workers’ Compensation Regulator [2019] ICQ 001
PARTIES:	MANDEP SARKARIA (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NO/S:	C/2017/19
PROCEEDING:	Appeal
DELIVERED ON:	14 January 2019
HEARING DATE:	19 February 2018
JUDGE:	Martin J, President
ORDER:	1. The appeal is allowed. 2. The orders of the Commission are set aside and, in their place, the following orders are made: (a) The appeal to the Commission is allowed (b) The Respondent’s decision of 23 February 2017 is set aside and, in lieu thereof, it is ordered that the application for compensation of 3 November 2016 be accepted
CATCHWORDS:	WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – SCOPE OF EMPLOYMENT – INTERRUPTION TO CONTINUITY OF EMPLOYMENT – RECESSES – WHAT CONSTITUTES ORDINARY RECESS - where appellant attended her place of employment before shift commenced per the terms of her employment – where appellant was injured during that time before her shift commenced – where appellant was injured by climbing a ladder that gave access to and from the rooftop of the place of employment – where the rooftop was not a designated area for breaks – where the appellant had no permission, nor express or implied encouragement, from the employer to either use the ladder, or use the ladder to access the rooftop – whether the injury occurred on the day on which the appellant had attended her place of employment as required by the terms of her employment – whether the injury happened during an ordinary recess
CASES and LEGISLATION:	Workers’ Compensation and Rehabilitation Act 2003, s 34(1)(c) Bird v Commonwealth (1988) 165 CLR 1 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 Landers v Dawson (1964) 110 CLR 664 WorkCover Queensland v Dreadon [1999] QIC 47
COUNSEL:	M Forbes for the appellant P Rashleigh for the respondent
SOLICITORS:	Quinn & Scattini for the appellant Workers’ Compensation Regulator (direct instruction)