McKenzie and K & S Freighters Pty Limited (Compensation)

The case of McKenzie and K & S Freighters Pty Limited (Compensation) concerned an application for review of a decision to refuse compensation. The applicant, Ms. McKenzie, suffered a stress-related injury following a workplace accident on 12 August 2014, where she was driving a forklift that struck a colleague, Mark Warren. Ms. McKenzie claimed this psychological injury, along with subsequent treatment and time off work, should be compensated under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The employer, K & S Freighters, had refused compensation, asserting that Ms. McKenzie's actions constituted serious and wilful misconduct, thereby disentitling her to compensation under section 14(3) of the SRC Act.

The central legal issue before the Tribunal was whether Ms. McKenzie's conduct in operating the forklift at the time of the accident amounted to serious and wilful misconduct as defined by section 14(3) of the SRC Act. This required the Tribunal to determine if her actions, specifically driving with a load that partially obstructed her view, significantly increased the likelihood of injury and if she had voluntarily and unreasonably exposed herself to an abnormal risk. The Tribunal also considered the employer's subsequent actions, including allegations of refusal to undergo drug testing, and whether these contributed to Ms. McKenzie's stress-related injury.

The Tribunal found that Ms. McKenzie was entitled to compensation for her stress-related injury. It reasoned that while her view was restricted, she was still able to see over the pallets and to the side, and her attention was focused on her driver. Furthermore, the injured colleague was in an area designated as a "no-go zone," and the Tribunal concluded that the risk presented by Ms. McKenzie's driving was not abnormal in the circumstances. Crucially, the Tribunal found no evidence that Ms. McKenzie intentionally accepted a risk or engaged in wilful misconduct. The employer's allegations regarding drug testing were also found to be unsubstantiated or improperly handled.

Consequently, the Tribunal set aside the decision under review. It substituted a new decision finding K & S Freighters liable to pay compensation to Ms. McKenzie under section 14 of the SRC Act for the stress-related injury sustained on 12 August 2014. The matter was remitted to K & S Freighters for the assessment of the compensation amount payable to Ms. McKenzie.