Vinidex Pty Ltd v Campbell

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Vinidex Pty Ltd v Campbell [2012] NSWWCCPD 6
APPELLANT:		Vinidex Pty Ltd
RESPONDENT:		Gregory Campbell
INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A1-4995/11
ARBITRATOR:	Mr Jeffrey Phillips
DATE OF ARBITRATOR’S DECISION:		17 October 2011
DATE OF APPEAL DECISION:		10 February 2012
SUBJECT MATTER OF DECISION:		Injury in the course of employment: s 4 of the Workers Compensation Act 1987; employment being a substantial contributing factor to the injury: s 9A of the Workers Compensation Act 1987; serious and wilful misconduct; serious and permanent disablement: s 14(2) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry Lawyers
Respondent:	Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:		1.     For the reasons given in this decision the Arbitrator’s determination of 17 October 2011 is confirmed. 2.     Appellant is to pay the costs of this appeal.

BACKGROUND

1. Mr Gregory Campbell was employed as a production operator in the manufacture of plastic pipes by Vinidex Pty Ltd, the appellant, at its premises near Wagga Wagga, New South Wales. At 6.30 pm on 17 August 2010, Mr Campbell attended work on his scheduled 12 hour shift. He worked with a supervisor, Mr Jeremy Kelleher and fellow worker Mr Jamie Watson. During that shift, at approximately 2.20 am, Mr Campbell was injured. By reason of a head injury then received, he is unable to recall the circumstances.

2. There is no dispute as to the basic facts concerning the occurrence of the subject injury. It seems that a decision was made that night by Mr Campbell, Mr Kelleher and Mr Watson to cut a plastic pipe and to fashion a “board” which they intended to use as a “wake board” as it was towed on the factory floor by a forklift. A sling attached to the board was fastened to the towing pin on the forklift. A small “board” was used first. Mr Kelleher, who had cut that particular board, then cut and fabricated a larger board. That larger board was attached to the forklift by a sling. Mr Kelleher drove off in the forklift at which time both Mr Campbell and Mr Watson were on the board. The board was towed between line two and line eleven within the factory premises. Mr Kelleher turned the forklift to the left and commenced to make a U‑turn. At that time the board swung outwards causing Mr Campbell and Mr Watson to either fall or jump off. As Mr Campbell left the board he fell, striking his head on a timber support used to align pipes stored on the factory floor.

3. An ambulance attended the scene and Mr Campbell was transported to the Wagga Wagga base hospital. He was subsequently transferred to the St George hospital in Sydney. A CT scan demonstrated “bilateral small subdural haematomas with right temporal lobe contusions and blood located in the midline just beneath the tentorium cerebelli”.…