Wilson and K & S Freighters Pty Ltd (Compensation)
[2018] AATA 464
•9 February 2018
Wilson and K & S Freighters Pty Ltd (Compensation) [2018] AATA 464 (9 February 2018)
Division:GENERAL DIVISION
File Number: 2017/0030
Re:Larry Wilson
APPLICANT
AndK & S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:9 February 2018
Place:Perth
The Tribunal decides:
1.to set aside the Reviewable Decision and substitute a decision that the determination made 3 July 2012 which accepted liability not be varied; and
2.the Respondent pay the costs of these proceedings incurred by the Applicant.
....[sgd]................................................................
Deputy President S Boyle
Catchwords
COMPENSATION – reviewable decision – deny liability – serious and wilful misconduct – wilful and false representation – voluntarily and unreasonably submitted to an abnormal risk – decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988(Cth) – s 5A(1)(a), s 5A(1)(b), s 5B(1)(b), s 6(1), s 6(3), s 7(7), s14, s 14(3), s 16, s 19, s 60(1), s 61, s 62, s 62(1), s 64, s 67(1), s 67(8)
Cases
Comcare v Calipari [2001] FCA 1534
Comcare v Porter (1996) 70 FCR 139
Iannella v French (1968) 119 CLR 84
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
R v Aspinall (1876) 2 QBD 48Re Schofield v Comcare (1995) 38 ALD 124
REASONS FOR DECISION
Deputy President S Boyle
9 February 2018
THE APPLICATION
This is an application for the review of a decision made by the Respondent pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on 22 December 2016 (the Reviewable Decision).
The Reviewable Decision was:
The determination made on 3 July 2012 in respect of “bruising over left elbow, left lateral foot and left hip” (where the compensable injury was amended by a reconsideration on Own Motion dated 25 September 2015 to read “pain and paraesthesia left elbow and forearm to ulnar border left hand side, left foot, left hip, lower back and lateral chest wall”) sustained on 12 June 2012 which accepted liability to pay compensation in accordance with s.14 of the SRC Act, be varied to find that K&S Freighters is not liable to pay compensation in accordance with s.14 of the SRC Act for “pain and paraesthesia left elbow and forearm to ulnar border left hand side, left foot, left hip, lower back and lateral chest wall” sustained on 12 June 2012.
The determination of 3 July 2012 to which the Reviewable Decision relates was a decision accepting liability under sections 14, 16 and 19 of the SRC Act in respect of “bruising over left elbow, left lateral foot and left hip” sustained on 12 June 2012 (T36, page 143).
This application is made pursuant to s 64(1) of the SRC Act.
BACKGROUND
The Applicant was born in 1951. He commenced employment with Regal Transport as a truck driver in May 2011 (paragraph 4 of the Respondent’s Statement of Facts, Issues and Contentions (the Respondent’s SFIC)). It is not disputed that at some point Regal Transport became, or was taken over, by the Respondent and that the Respondent is liable for any payment due to the Applicant under the SRC Act.
At some time around 8.30 am on 12 June 2012 the Applicant was struck by a forklift at the Respondent’s business premises in South Guildford (the Respondent’s Yard). As far as the Tribunal is aware, it is not disputed that the force of the impact knocked the Applicant to the ground and that he was momentarily rendered unconscious.
Immediately following the Applicant being struck he was taken by another employee of the Respondent to Dr Peter Brockhoff in Kewdale for medical treatment and review (T43, page 199).
It is not disputed that when the Applicant was struck he was returning to his truck which was parked within the Respondent’s Yard.
The Applicant made a claim for workers’ compensation on 13 June 2012 (T28, pages 116-123). Amongst other things, the workers’ compensation claim signed by the Applicant on 13 June 2012 stated as follows:
8. What injury or illness are you claiming workers’ compensation for? - C/O pain and paraesthesia left elbow and forearm to ulnar border left hand also C/O pain left foot, hip, trunk and lateral chest wall.
9. What parts of your body have been most affected by your injury or illness? Left side of the body, left elbow, left arm, neck, lower hip area.
19. What is the address where you were injured or contracted your illness? -
Regal Transport, 5 Kalamunda Road, South Guildford, walking in the yard.
20. What started the chain of events that led to your injury or illness? - A forklift moving and me walking in the same area in the yard.
21. What action, exposure or event happened to cause your injury or illness? - The forklift slid into me after applying the brakes (raining at the time).
22. What actually injured you or made you ill? - The front mask (sic) and tines of the forklift and landing on the pavement.
In a determination under s 61 of the SRC Act dated 3 July 2012 (T36) in respect of the claim for “bruising over left elbow, left lateral foot and left hip” sustained on 12 June 2012, it was determined by the Respondent that it was liable to pay compensation in accordance with s 14 of the SRC Act in respect of “bruising over left elbow, left lateral foot and left hip” sustained on 12 June 2012 with medical treatment and incapacity as deemed appropriate by a legally qualified medical practitioner pursuant to sections 16 and 19 respectively of the SRC Act.
After the injury the Applicant has not returned to normal duties although he did return for a period on restricted suitable duties and restricted hours until October 2014.
In a reconsideration on own motion under s 62(1)(a) of the SRC Act on 25 September 2015 (T41, pages 178-181) acceptance of liability was changed to:
Pain and paraesthesia left elbow and forearm to ulnar border left hand side, left foot, left hip, lower back and lateral chest wall sustained on 12 June 2012.
(Note that the Respondent at paragraph 5.4 of the Respondent’s SFIC identifies the date of the first reconsideration under s 62(1)(a) to be on 29/05/15. The Tribunal cannot find a document of that date and assumes that the date in the Respondent’s SFIC should be 25/09/15.)
The Applicant has sought to include in the accepted liability other injuries but these have been denied. The Applicant has also more recently sought to have liability accepted for depression and to have more physical injuries added but these have both been denied. These claims are the subject of other proceedings before this Tribunal.
By the Reviewable Decision on 22 December 2016, by a further reconsideration on own motion under s 62(1) of the SRC Act, the Respondent varied the determination dated 3 July 2012 to deny liability for the Applicant's claim (T43, pages 198-201).
The Applicant filed the application (this Application) for review of the Reviewable Decision in the Tribunal on 4 January 2017 (T2).
Basis of Reviewable Decision
Paragraph 9 of the Statement of Reasons (T43 at page 199) dated 22 December 2016 that accompanied the Reviewable Decision identified the following reasons for varying the determination dated 3 July 2012 (as varied) to find that the Respondent was not liable to pay compensation:
9. Further enquiries into the incident of 12 June 2012 show:
9.1.Mr Wilson commenced at K&S Freighters (Regal Transport) on 9 May 2011.
9.2.Upon being appointed, Mr Wilson underwent induction training. This training was done online via the K&S intranet and covered a number of areas.
9.3.Certificates were awarded on completion of a unit.
9.4.Mr Wilson completed SOP24 – Driver Exclusion Zones during Forklift Operations (KSOP24) on 11 May 2011.
9.5.General Site Rules for all Employees, Subcontractors, Contractors and Visitors to the Site were issued on 30 September 2011. A copy was issued to Mr Wilson who signed and dated the document 20 June 2012 stating he had read, understood and acknowledged the procedure.
9.6.The General Site Rules included:
LOADING AND UNLOADING EXCLUSION ZONES (LUEZ)
Pedestrian traffic (including drivers and operators) are not to be within the working area (exclusion zone) of forklift/mobile equipment whilst in operation. This includes not on top of trailer/tray.
All requirements of industry guidelines – LUEZ are to be adopted. Also refer to SOP – 24 Loading and Unloading Exclusion Zones (LUEZ).
BEWARE OF VEHICLES
Make sure that you always make eye contact with any persons driving vehicle/mobile equipment in operational areas. Only approach vehicle/mobile equipment once you have received the approval from the driver/operator and it is safe to do so.
PEDESTRIAN/WALKWAYS
Always use/follow designated pedestrian walkways.
Eye contact and acknowledgement is to be made/received from drivers/operators before crossing from one location to another.
9.7.Mr Wilson had prepared his truck to leave the depot.
9.8.Mr Wilson had been to the toilet in the Operations/Admin Building. Instead of turning left to go to his truck in front of the Admin building (south side) he turned right to go behind the Admin building (north side).
9.9.He was returning to his truck through the loading and unloading exclusion zone (“LUEZ”) which stretches between the Admin building to the south, the HWE warehouse building to the north and the back loading shed to the west.
9.10.On the day of the accident the loading area was full of trucks and freight. The loading area was a LUEZ delineated by traffic cones (witches hats).
9.11.Some of the freight in the LUEZ was loaded quite high. Mr Wilson apparently made his way through the LUEZ contrary to his induction training and site rules, particularly in relation to Loading and Unloading Exclusion Zones (LUEZ), Beware of Vehicles and Pedestrian Walkways requirements. He was unable to see the forklift travelling south (towards his left hand side) and the forklift driver was unable to see Mr Wilson when he stepped from behind a high load of freight when the forklift struck him.
9.12.Mr Wilson was disobeying company and site rules in order to return to his vehicle by the shortest route possible and in disregard of requirements as to use of pedestrian walkways by walking through a LUEZ in disregard of any vehicles which may have been in the area.
9.13.I find that Mr Wilson’s actions constituted serious and wilful misconduct.
10. I further note that:
10.1.In Mr Wilson’s Claim for Workers’ Compensation (T7) he was asked the questions (Question 13) “Have you ever had a similar symptom, injury or illness before, work related or otherwise?” to which he answered “No”.
10.2.Mr Wilson was also asked (Question 14) “Have you ever received medical treatment for a similar injury or illness?” to which he answered “No”.
10.3.Mr Wilson has also told a number of doctors that he had had no previous similar injuries. This is incorrect. For example in a history taken by Dr Low (report 24 February 2014 (T64 at page 232) the Claimant said that in 2010 he strained his back when lifting a gate.
11. I am satisfied that Mr Wilson’s injury was caused by his serious and wilful misconduct and accordingly is precluded from receiving compensation for his injuries pursuant to s 14(3) of the SRC Act because compensation is not payable in respect of any injury caused by the serious and wilful misconduct of the employee.
12. I am also satisfied that Mr Wilson’s injuries, to the extent that such injury is a disease or aggravation of a disease, do not constitute an injury for the purpose of the SRC Act pursuant to s7(7) of the SRC Act as he has, for purposes connected with his employment by the Respondent made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease.
13. Accordingly I find that compensation is not payable under s.14 of the SRC Act in respect of the claimed injuries.
The Respondent accepts that the Applicant was injured on 12 June 2012 (Paragraph C.1 of the Respondent’s SFIC).
ISSUES FOR DETERMINAITON
The Applicant’s Amended Statement of Facts, Issues and Contentions dated 20 October 2017 (Applicant’s SFIC) identifies the issues to be (at pages 1-2):
1. Whether the Applicant disobeyed any “company and site rules” so as to cause the injuries on 12 June 2012 and if so, whether that constituted serious and willful (sic) misconduct within the meaning of s14(3).
2. Whether the Applicant made a wilful and false representation in his answer to question 13 and/or 14 in his workers' compensation claim form (T28) within the meaning of s7(7).
3. Whether the Tribunal should entertain a “defence” notified to the applicant on 15 March 2017 and also included in its statement of issues filed 6 April 2017 and, if so, whether s6(3) applies to this case.
The Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC) identifies the issues as follows (at page 5):
1. Whether compensation is not payable in respect of injury because it was caused by the serious and wilful misconduct of the employee but was not intentionally self-inflicted pursuant to s.14(3) of the SRC Act.
2. Whether compensation is not payable in respect of injury being a disease suffered by the employee or an aggravation of such a disease, when he has, for purposes connected with his employment with the Respondent, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease pursuant to s.7(7) of the SRC Act.
3. Whether the injury is not to be treated as an injury which arose out of, or in the course of, employment because the employee sustained the injury when he voluntarily and unreasonably submitted to an abnormal risk of injury pursuant to s.6(3) of the SRC Act.
The parties’ respective identification of the issues for determination are substantially the same except for the issue raised by the Applicant as to whether the Respondent can, in these proceedings, raise a ground that was not relied on in the Reviewable Decision. On that issue, however, the Applicant in his closing submissions in reply says:
Section 6(3)
7. As to paragraph 11, the applicant does not press the jurisdictional point, but s 6 ''provides for additional circumstances where coverage of the Act is deemed” (Sutherland & Ballard, op cit [6.02]). This case is not within s6 but within the normal provisions of the Act. In any event, the facts do not show that the applicant voluntarily submitted himself as required.
Accordingly, the Tribunal considers that issues for determination to be;
1. Was the injury caused by the serious and wilful misconduct of the Applicant for the purposes of s 14(3) of the SRC Act?
2. Is compensation not payable to the Applicant because the Applicant made a wilful and false representation for the purposes of s 7(7) of the SRC Act?
3. Did the Applicant sustain the injury because he voluntarily and unreasonably submitted to an abnormal risk?
THE EVIDENCE
Documentary evidence
The Tribunal had before it the following documentary evidence:
·T documents 1 – 45 and supplementary T documents ST46 – 56 together comprising 353 pages (Exhibit R2);
·Witness statement of Applicant dated 19 May 2017 (Exhibit A2);
·Supplementary witness statement of Applicant dated 20 October 2017 (Exhibit A3);
·Work assessment report by Dr Durda Bacvic prepared for the Respondent dated 16 May 2013 (Exhibit A1);
·Statement of Kelly Shaw (Hughes) dated 2 February 2017;
·Respondent’s Policy: Pedestrian Safety (PS) – On-line Training Module dated 2 November 2007 (Exhibit R3);
·Certificate of completion to certify the Applicant completed program for pedestrian safety on 10 May 2011 (Exhibit R3);
·Aerial photograph of Respondent’s Yard (Exhibit A4); and
·Excerpt (pages 18-22) of transcript of hearing on 22 March 2017 in Tribunal matters 2014/5639 and Ors (Exhibit R1).
Oral evidence
The application was heard by Deputy President Boyle on 21 November 2017. The Applicant and Kenneth McCallum gave evidence and were cross-examined at the hearing.
Written closing submissions were filed by each of the parties following the hearing.
LEGISLATIVE FRAMEWORK
Section 14(3) of the SRC Act is as follows:
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 7(7) of the SRC Act is as follows:
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
Section 6(3) of the SRC Act is as follows:
(3) Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
Section 6(1) of the SRC Act is, relevantly, as follows:
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) as a result of an act of violence that would not have occurred but for the employee's employment or the performance by the employee of the duties or functions of his or her employment; or
(b) while the employee was at the employee's place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
…
Section 62 of the SRC Act is as follows:
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
Section 64 of the SRC Act is as follows:
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth – the Commonwealth; or
(c) if the decision affects a Commonwealth authority – the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII – the licensed corporation.
…
(3) Despite section 27 of the Administrative Appeals Tribunal Act 1975 , a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
Section 60 (1) of the SRC Act includes the definition of “reviewable decision” as follows;
reviewable decision means a decision made under subsection 38(4) or section 62.
CONSIDERATION
Was the injury caused by the serious and wilful misconduct of the Applicant for the purposes of s 14(3) of the SRC Act?
The Respondent’s argument on the issue of wilful misconduct is set out in paragraph C.2.1 of the Respondent’s SFIC which is as follows:
2.1 Serious and WILFUL Misconduct under Subsection 14(3)
2.1.1 The Applicant disobeyed Occupational Health and Safety training and general site rules by:
(a) being in a working area exclusion zone of forklift/mobile equipment whilst it was in operation;
(b) not ensuring that he made eye contact with any persons driving vehicles/mobile equipment in operational areas;
(c) not using designated pedestrian walkways or making eye contact with drivers/operators before crossing from one location to another.
2.1.2 The Applicant was disobeying company and site rules and in disregard of requirements as to the use of pedestrian walkways by walking through a loading and unloading exclusion zone and in disregard of any vehicle which may have been in the area.
The Respondent’s SFIC reflects the findings in paragraph 9.1 to 9.12 of the Statement of Reasons provided with the Reviewable Decision (T43) (see paragraph 16 above).
The Respondent’s case relies on it establishing a number of critical facts. They are:
(a)the Applicant was in a work area exclusion zone when he was struck;
(b)in the circumstances the Applicant should have made eye contact with the forklift driver; and
(c)there was a designated pedestrian walkway that he Applicant should have been using when he was struck.
Even if those facts are established, the Respondent must still satisfy the Tribunal that, in the circumstances, the Applicant’s conduct amounted to serious and wilful misconduct and that that serious and wilful misconduct caused the injury. In that regard the conduct must be serious, not the outcome of the conduct (Comcare v Calipari [2001] FCA 1534 at [3]).
To argue that the Applicant’s conduct was serious and wilful misconduct, the Respondent relies on various company policies, training courses undertaken by the Applicant and toolbox site meetings. Mr McCallum’s witness statement refers to the following (T44, pages 201-206):
·The Applicant underwent on-line induction at the commencement of his employment on 10-11 May 2011 (paragraph 4 – 7);
·Relevantly the induction training included “Driver Exclusion Zone Policy” training, “Pedestrian Safety” and “Driver Exclusion Zone During Forklift Operations (SOP -24)” (paragraphs 8-10);
·On 24 May 2011 the Applicant was sent a letter attaching “Guidelines for Loading, Unloading Exclusions Zones (LUEZ) (paragraph 11);
·The theme of the June 2011 toolbox meeting, attended by the Applicant, was LUEZ (paragraph 12);
·The General Site rules included (paragraph 14):
LOADING AND UNLOADING EXCLUSION ZONES (LUEZ)
Pedestrian traffic (including drivers and operators) are not to be within the working area (exclusion zone) of forklifts/mobile equipment whilst in operation. This includes not on top of trailer/tray
All requirements of industry guidelines – LUEZ are to be adopted. Also refer to SOP – 24 Loading and Unloading Exclusion Zones (LUEZ)
BEWARE OF VEHICLES
Make sure that you always make eye contact with any persons driving vehicles/mobile equipment in operational areas. Only approach vehicle/mobile equipment once you have received the approval from the driver/operator and it is safe to do so.
PEDESTRAIN/WALKWAYS
Always use/follow pedestrian walkways.
Eye contact and acknowledgement is to be made/received from drivers/operators before crossing form one location to another.
·The theme of the monthly toolbox meeting in October 2011 attended by the Applicant was loading, unloading exclusion zones SOP 24 (paragraph 16).
The LUEZ policy SOP 24 (T21), as the name suggests, relates to an exclusion zone around a truck or trailer while the truck or trailer is being loaded or unloaded using forklifts. The LUEZ procedures and principles have no broader application. By their terms they can only apply when a truck or trailer is being loaded or unloaded.
Obviously for the Applicant to have been in breach of the LUEZ policy the evidence must establish that there was a truck or trailer in the relevant area being loaded or unloaded at the time that the Applicant was struck. The evidence, in the Tribunal’s view, fails to establish that there was a truck or trailer being loaded or unloaded at the relevant time.
The Applicant’s evidence in this regard was unequivocal. At paragraph 28 of his witness statement dated 19 May 2017 he states:
In response to paragraph 22 of Ken’s statement I say that on the morning of my accident it was raining heavily and there were no trucks or trailers in the back freight area to be loaded or unloaded at the time of my accident.
The Applicant confirmed that evidence in his evidence in chief at the hearing (Hearing Transcript dated 21 November 2017, page 25):
MR BRUNS: All right. Mr McCallum uses the expression in paragraph 91 the “Transit storage loading area”. Does that term mean anything to you?
APPLICANT: I've never heard that term. This is the back freight office and back freight - as we knew it - back freight loading and unloading area. And nothing was occurring at that time in that area at the time, so to continue on I tried to walk - as I was walking
MR BRUNS: What was the weather like?
APPLICANT: Bad weather and raining.
MR BRUNS: All right, so you're continue to walk?
APPLICANT: Yes, and I continue walking after - I'm walking alongside the pallets, the pallets are on my left side, clear view to my right side. I just exit the - or not exit - get away from the pallets that are there, you know, there's nothing else there and I am now at the parking - car park area, just started to the car park area and then that's where the collision…
It is not disputed that the “back freight area” to which the Applicant was referring is the area to the east and north of the freight office where the Applicant was struck. Paragraph 22 of Mr McCallum’s statement to which the Applicant was referring was:
On the day of the accident the storage/loading area was full of trucks and freight. The loading area was a no go zone and would have been delineated by traffic cones (witches hats).
The cross-examinations of the Applicant and Mr McCallum in relation to the presence of trucks or trailers in the relevant area are telling. The Applicant was cross-examined at some length and maintained his assertion that at the time of the accident there were no trucks or trailers in the area let alone trucks or trailers being loaded or unloaded. The Applicant said as follows(Hearing Transcript dated 21 November 2017, pages 46 and 70-71):
MR WALLACE: Mr McCallum says Mr Wilson, before I return to your documentation, on the day of the accident the storage loading area was full of trucks and freight, the loading area was a no go zone.You disagree with that, don't you?
APPLICANT: One hundred percent disagree.
…
MR WALLACE: Now, he [Mr McCallum] says that at this time in June of - indeed, a considerable part of the year of 2012 was a very busy period for Regal Transport dealing with an extraordinary amount of work that was coming from the mines in Western Australia, and he will say it would be extremely unusual that there would be no activity involving the loading and unloading of trucks with the use of forklifts in that area in front of the back - - -?---The back freight office.
Back freight area, back freight shed. Do you agree with that proposition?
APPLICANT: It was many times it was very busy in the back freight area. Just on the particular day that I was injured there was nothing there, and that is the reason I took that path because I didn't feel there was any danger.
MR WALLACE: Well, I suggest to you, you took that path because it was just convenient for you and you were prepared to take the risk to get around the quickest way in bad weather to your truck, and so instead of going the route that you should have taken to avoid any risk, you took another one, and you got hit by a forklift. Isn't that the situation?
APPLICANT: When I assessed my route there was no activity, and I didn't feel there was any danger. There was no forklifts, there was no trucks, there was no trailers; nothing in the area other than maybe the one that came out of HWE and hit me.
On the other hand, under cross examination Mr McCallum conceded that he was not in the area at the time of the accident and was only speculating (Hearing Transcript dated 21 November 2017, pages 95-97):
MR WALLACE: You say at paragraph 22 of page 204, on the day of the accident the storage loading area was full of trucks and freight. How can you say that?
MR McCALLUM: At that - that day after I found out what's happened I went and seen the forklift operator, Matt Brown, and got involved basically when did this happen, what happened, and when we went out there, there was different types of freight, but there was a lot of freight there, and again it's just - trucks are coming in and out, it's just - so at that time it's just a normal - normal business day, and at that time it was - 2012 was pretty full on with the mining boom, it was just - it was pumping, it was busy there.
MR WALLACE: Mr Wilson says that he was able to observe before he went down onto the asphalt at some point that there was no trucks or trailers there that could have obscured his view in any way, and no freight being high enough to obscure his view that was on there on pallets, and it was seemingly around about 8.25 am in the morning. How would you describe that scenario given what you've just told the tribunal about how busy 2012 was?
DEPUTY PRESIDENT: I am sorry, are you asking this witness whether he observed the yard at 8.25?
MR WALLACE: No.
MR McCALLUM: No, I wasn't.
MR WALLACE: No, I'm asking him how plausible is the proposition given his evidence that there would be no trucks, no trailers in that area.
DEPUTY PRESIDENT: But isn't this witness confirming he didn't look at that area. He wasn't there at 8.25.
MR WALLACE: Well, I'm afraid that's what the incident report says.
DEPUTY PRESIDENT: No, he's talking about coming back at a later date. He's speculating as to what trucks were or weren't there at 8.25.
MR WALLACE: I am asking him to indicate to the tribunal from his knowledge of being on the site for a number of years, given his evidence of how busy it would be at that particular time in 2012, there would be nothing in that yard.
MR McCALLUM: I would have been very surprised if there's - if there's no freight, and when it's brought to the actual forklift operator later on he would send it straight there and Larry actually stepped out from the freight and that's why you couldn't see him. I wasn't there at 8.25, I wasn't.
The only other evidence put on by the Respondent was the statement of Ms Shaw, another of the Respondent’s employees. Ms Shaw was in the Freight Office (also referred to as the General Freight Administration Building) when the Applicant was struck by the forklift. She was a “first aider” and came out of the Freight Office to attend to the Applicant immediately following his being struck (Ms Shaw’s witness statement dated 2 February 2017, T45). Ms Shaw was not called to give evidence.
Notwithstanding that Ms Shaw was clearly present at the scene of the incident moments after it occurred, she gives no evidence as to whether there was any loading or unloading going on at that time. At paragraph 10 of her witness statement she says:
The incident occurred on the north side of the General Freight Administration Building. It was an area which contained freight and where forklifts and other vehicles operated.
The Tribunal accepts the evidence of the Applicant that there was no truck or trailer in the relevant area and that there were no loading or unloading activities being conducted at the time when the Applicant was struck.
The only so called “exclusion zone” policy identified and relied on by the Respondent is the LUEZ contained in SOP 24 (T21) and in an on-line training module undertaken by the Applicant (Exhibit R3), the terms of which are materially the same. Like SOP 24, the policy outlined in the training module operates only when a truck or trailer is being loaded or unloaded. Insofar as more general references are made to site rules, induction training, company policy and tool box meetings in the Review Decision, the statement of Mr McCallum and the Respondent’s submissions, no details were provided by the Respondent which would indicate that they did anything more than cover or refer to the LUEZ policy in SOP 24 or the materially similar policy set out in the on-line training module.
As the policies relied on by the Respondent only apply when a truck/trailer is being loaded or unloaded, they have no application in the present case as there were no trucks or trailers being loaded or unloaded. Accordingly, the Applicant cannot have been in breach of that policy or site rule or, on the evidence presented by the Respondent, any site rule or policy applying exclusion zones.
The second “site rule” or policy that the Respondent relies on in the Reviewable Decision and this Application is what is described in the Reviewable Decision (T43, paragraph 9.11) as the “Beware of Vehicles and Pedestrian/Walkways requirements”. It appears that this “rule” was included in the General Site rules for all Employees, one iteration of which appears in the Traffic Management Plan (T25) and repeated in paragraph 9.6 of the Reviewable Decision (T43 at page 200). That rule is stated to be as follows (T25, page 110):
6. Pedestrians
·Always use/follow designated pedestrian walkways
·Eye contact and acknowledgement is to be made /received from drivers/operators before crossing from one location to another.
A similar “policy” is set out in the on-line module (Exhibit R3) wherein at page 3 of 11 the following relevant statements are made:
·Designated pedestrian walkways can be found at most sites. These walkways are marked by yellow lines and/or footprints both inside and outside the warehouse. Pedestrians must stay on the walkways where practicable, at all times…
·Managers will monitor employee compliance in relation to the use of pedestrian walkways.
No evidence was presented by the Respondent as to there being any relevant designated walkway. Mr McCallum’s statement makes the claim, repeated in the Review Decision and the Respondent’s submissions in this Application, that (T44, paragraph 25):
Larry Wilson was disobeying company and site rules in order to return to his vehicle by the shortest route possible and in disregard of requirements as to the use of pedestrian walkways by walking through transit storage/loading and unloading exclusion zones (LUEZ) and in disregard of any vehicle which may have been in the area.
Despite Mr McCallum’s claim that the Applicant was in breach of “company and site rules” by not using a designated pedestrian walkway, Mr McCallum’s witness statement does not identify the supposed designated walkway that the Applicant was supposed to use. To the contrary, at the hearing Mr McCallum conceded that there was in fact no applicable designated pedestrian walkway (Hearing Transcript dated 21 November 2017, pages 111-112):
DEPUTY PRESIDENT: The other question I have for Mr McCallum is; you were taken to the pedestrian walkway policy I think which was one of the documents on page 130. Have you got T130 - page 130?
MR McCALLUM: Yes, T130, yes.
DEPUTY PRESIDENT: The pedestrian walkway. Are there any designated pedestrian walkways in this yard, or were there at that time?
MR McCALLUM: Yes, yes.
DEPUTY PRESIDENT: Where were they?
MR McCALLUM: They would basically stretch from the start of the yard to the end of the yard. As I said there's (indistinct) all the way around the outskirts, so we had to get to the areas.
DEPUTY PRESIDENT: Are you able to point to them on the A4?
MR McCALLUM: No, that's not - that doesn't really show you the yard, that's mainly the whole yard as you want to look at the walkways.
DEPUTY PRESIDENT: We are really primarily interested in the area immediately around where the incident occurred. Are there any designated walkways around there?
MR McCALLUM: Yes, in that HWE area there's a walkway in here. There's a walkway along this - this side, and it comes up and it goes behind the back loading shed, and then it comes up - up here, and then from here there's a walkway across here towards receivables.
DEPUTY PRESIDENT: When you say designated that's a designated place where you should walk, not a designated area where you shouldn't - - -?
MR MCCALLUM: Yes, sorry, to - yes.
DEPUTY PRESIDENT: And is there a designated walkway heading to the east, which is heading from the freight office towards where the trucks are parked?
MR McCALLUM: No, there wasn't, no.
Similarly Ms Shaw’s witness statement does not identify the existence of any designated walkways at the Respondent’s Yard.
The Applicant’s evidence, on which he was not cross-examined, is that;
At the time of my accident, there were no painted foot paths for anyone to go from the general freight office to the approved location where I parked my truck and trailer.
[paragraph 9 of Applicant’s witness statement dated 19 May 2017]
If there was any doubt about the existence of a relevant designated walkway, marked as described by the Respondent’s on-line module referred to in paragraph 50 above or otherwise, the aerial photograph of the Respondent’s Yard (Exhibit A4) which was a Google Earth shot taken some time in 2016, shows that there was no relevant designated pedestrian walkway.
Exhibit A4 is informative in a number of other respects. It shows truck parking bays marked in the area in the north-eastern corner of the back freight area adjacent to the wash shed. The Applicant’s evidence at the hearing was that these were bays where drivers could and did park their trucks while they picked up the daily work orders from the Freight Office. In order to get from the areas of these bays to the Freight Office the drivers would have to pass through the area where the Applicant was struck. There are no marked walkways along which drivers coming from these parking bays could transit to get to the Freight Office.
The other thing that Exhibit A4 does, as does the marked-up site plan attached to Mr McCallum’s statement (T44 at page 206), is to demonstrate that where the Applicant was struck was adjacent to marked parking bays immediately to the east of the Freight Office. There was some minor difference between Mr McCallum’s marked up site plan and Exhibit A4 which included the point where the Applicant said that the impact took place. The difference is only a couple of metres. Mr McCallum’s site plan has the point of impact two or three metres to the north of the northernmost of the marked parking bays while the Applicant identifies the point of impact as being right next to the northernmost parking bay. The Applicant’s evidence was that the force of the impact knocked him into the first parking bay. There was only one vehicle parked in the five marked bays. That vehicle was in the southernmost bay.
Whether the impact took place immediately adjacent to the northernmost parking bay, as identified by the Applicant, or a couple of metres further to the north, as indicated in the plan attached to Mr McCallum’s statement, the fact is that it was in the immediate vicinity of the marked parking bays and in an area that people using those parking bays would obviously use to get to and from their parked vehicles. If a person were to park in the northernmost of the parking bays, he or she would get out of the driver’s side of the vehicle effectively onto the spot where the Applicant was struck.
The relevant point is that the spot where the Applicant was struck is clearly an area that people use, and in effect must use, in accessing the marked parking bays. To assert that the area was one into which pedestrian access was somehow prohibited is patently unsustainable.
The Tribunal also notes that the uncontested evidence of the Applicant was that it was common practice for drivers to cross the area in getting to and from their trucks to the Freight Office (Hearing Transcript dated 21 November 2017, pages 31 and 71). There was no evidence that, if the practice was somehow contrary to a site policy or rule, or contrary to the pedestrian policy set out in Exhibit R3, that, in accordance with the Respondent’s claimed policy, managers monitored compliance (see paragraph 50 above). If there were such a policy applicable to the location where the accident occurred, which the Tribunal does not accept, it was a policy that was not enforced or monitored by the Respondent contrary to the terms of the Respondent’s own claimed policy.
The third potential “company or site rule” (paragraph 9.12 of Reviewable Decision and paragraph 23 of Mr McCallum’s statement) identified by the Respondent as being wilfully breached by the Applicant, is the “Beware of Vehicles” policy/rule (see paragraph 36 above). At its highest this could best be described as a motherhood statement or aspirational. Clearly a direction that a person must “make eye contact with any person driving vehicles/mobile equipment in an operational area” presumes that the person has seen the vehicle/mobile equipment. It is obvious that in this case the Applicant did not see the forklift. If he had the accident would not have occurred.
Whether the Applicant should have seen the forklift is a different issue. There is obviously a good argument that the Applicant should have been more alert and should have seen the forklift. The fact is clearly he didn’t. It would be unsustainable to argue, however, that his failure to see the forklift could be characterised as a “wilful” disobedience of “company or site rules” and “serious and wilful misconduct” under s 14(3) of the SRC Act or a voluntary and unreasonable submission to an abnormal risk for the purposes of s 6(3) of the SRC Act.
There are a number of other factors which cause the Respondent’s argument that the claimed conduct of the Applicant falls within the ambit of s 14(3) of the SRC Act to fail. For conduct to come within the exclusionary operation of s 14(3) of the SRC Act, the conduct must not only have been “serious and wilful misconduct” but the conduct must have caused the injury. The Applicant was cross-examined at some length about why he walked along the southern edge of the back freight area at ground level rather than walking on the raised lawn area immediately to the south of the paved back freight area. His failure to use the raised lawn area was one of the matters raised by Mr McCallum in his witness statement (T44, paragraph 20).
It is not clear what point the Respondent was seeking to make in raising this line of argument. Whatever the point was, the flaw in the argument is that the grassed area cuts out two thirds of the way along the northern side of the Freight Office so the Applicant would still have had to come down to the southern edge of the paved area to continue his eastward journey. Whether the Applicant should have used the raised lawn area for that part of his journey appears to be irrelevant.
The alternative route that the Respondent asserts the Applicant should have taken was along the southern side of the Freight Office. The flaw in that argument, apart from the fact that the southern side of the building was no more of a designated pedestrian walkway than the route that the Applicant took, is that emerging from the south side of the Freight Office building at the southern end of the five marked parking bays would have caused the Applicant to be more obscured and his view to the north from, whence the forklift came, to be more obscured than they were using the path that the Applicant took.
Similarly, the purpose of the LUEZ policy (SOP 24) is to prevent forklifts and mobile equipment engaged in loading and unloading operations coming into contact with pedestrians in the vicinity of the truck or trailer being loaded or unloaded. As found above, the LUEZ policy (SOP 24) had no operation at the time of the accident because there were no loading or unloading operations being undertaken. Even if there had been, the forklift that struck the Applicant was transiting across the back freight area from the northern side of the Respondent’s Yard from what is described in Exhibit R4 as the HWE Freight area, or, on the site plane attached to Mr McCallum’s statement (T44 at page 206), as the HWE Warehouse, to an area to the south of what is described on the site plan attached to Mr McCallum’s statement as the “Receivables Shed”. This is an area to the southern end of the Respondent’s Yard well south of the Freight Office. Accordingly, even if there were some loading and unloading exclusion zone in place by virtue of loading or unloading operations being undertaken, the forklift that struck the Applicant was not involved in any loading or unloading. Any claimed failure by the Applicant to comply with a loading and unloading exclusion zone around such operations would not have been the cause of him being struck by the forklift.
For the above reasons the Tribunal finds that the injury was not caused by the serious or wilful misconduct of the Applicant for the purposes of s 14(3) of the SRC Act.
Is compensation not payable to the Applicant because the Applicant made a wilful and false representation for the purposes of s 7(7) of the SRC Act?
As a preliminary issue, it is not clear to the Tribunal whether the basis of the claims that are made by the Applicant, including the claim for which liability had been admitted by the Respondent until reversed by the Reviewable Decision, is a claim for an injury simpliciter under s 5A(1)(b) of the SRC Act – injury other than a disease, or an injury under s 5A(1)(a) of the SRC Act being a disease which is an ailment or an aggravation of an ailment contributed to, to a significant degree, by the Applicant’s employment (s 5B of the SRC Act). It would appear that the initial acceptance of liability for “bruising over left elbow, left lateral foot and hip” was on the basis of that injury being an injury simpliciter under s 5A(1)(b) of the SRC Act. However, that may have changed on the first s 62 of the SRC Act reconsideration when the description of the compensable injury was changed to “pain and paraesthesia left elbow and forearm to ulnar border left hand side, left foot, left hip, lower back and lateral chest wall” sustained on 12 June 2012. That issue is addressed in more detail later in this decision.
Neither party’s statement of facts issues and contentions or closing submissions was particularly helpful on this issue. The Applicant’s SFIC on this issue is as follows (at page 4):
Section 7(7)
5. The Applicant contends that he has not had a similar symptom, injury or illness to being struck by a forklift, and says that his previous injuries have been minor injuries that were not similar in circumstance or severity to the injuries of 12 June 2012 (see Applicant's Witness Statement dated 19 May 2017, paragraphs 19 and 20).
6. The Applicant contends that the answers on the workers' compensation claim form to questions 13 and 14 were not made with the purpose of misleading anyone.
7. “ Wilful” includes an element of purpose, with the employee having no belief that what he said was true. A finding that a person is guilty of fraud is not lightly made (Sutherland & Ballard, op cit, [7.07]). The evidence cannot satisfy those requirements.
The Respondent’s SFIC on this issue was (at page 6):
2.2. Wilful and False Representations under Subsection 7(7)
2.2.1 In the Applicant’s Claim for Workers’ Compensation (T28) he was asked the question (Question 13) “Have you ever had a similar symptom, injury or illness before, work related or otherwise?” to which he answered “No”.
2.2.2 The Applicant was also asked (Question 14) “Have you ever received medical treatment for a similar injury or illness?” to which he answered “No”.
2.2.3 The Applicant has also told a range of treating and medico-legal doctors that he had had no previous similar injuries. For example, Mr Miles recorded (report 08/02/13 to Dr Yamini Preetham) that “the history provided by Larry of absolutely no lower back pain prior to the work injury on the 12th of June ...”. However in a history taken by Dr Low (report 24 February 2014 (T37) Mr Wilson said that in 2010 he strained his back when lifting a gate.
2.2.4 In addition, records from Belridge Medical Centre show that the Applicant had a shoulder injury or symptoms on 3 July 2008 and in the left knee on 22 December 2011. This compares with a history to Mr Soni Narula, Neurosurgeon, who recorded in his report to Dr Yamini Preetham on 2 October 2012 (T21) that “he denies any past history of similar problems.”
The Applicant’s closing submissions (paragraphs 29-31) repeat the three above paragraphs in the SFIC (see paragraph 70 above). The Respondent’s closing submissions were, relevantly, as follows:
9. Injury (other than disease) or Disease- section 5A and 58 of the SRCA
9.1. The 'bruising over left elbow, left lateral foot and left hip' could well be characterised as being injuries that would be covered by subparagraph 5A(1 )(b) of the SRCA (see Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (11 May 2016).
9.2. However, in relation to the neck and low back symptoms, the specialist medical evidence and radiological scanning and imaging, points to pre-existing degenerative changes: an ailment; that on the Applicant's case were aggravated by the incident: albeit that the Respondent does not accept there is any causal connection with the Applicant's neck condition and the incident: and that the aggravation of the lower back condition is a 'disease' the purposes of subsection 7(7) the SRCA, that the incapacitating effects and the need for medical treatment in respect of the lower back condition is no longer causally related to the incident.
…
12. Wilful and False Representation
12.1. It is submitted, that the aggravation of the Applicant's lower back degenerative condition as accepted by the Respondent has occurred as a consequence of the incident then subsection 7(7) of the SRCA, prima facie can be considered given his prior symptomology which he failed to disclose in completing his workers compensation claim. Moreover, it is clear from his gradual and incremental disclosure of the extent of his problems with his lower back over the course of some five years, and that he was cognisant of those problems when completing his workers’ compensation claim.
12.2. The Applicant's workers compensation claim is a purpose that is connected with the Applicant’s employment for the purposes of subsection 7(7).
12.3. The failure to disclose a prior symptom in response to a specific question can be and was both wilful and false (Re Schofield and Comcare (1995) 38 ALD 124).
12.4. Tile evidence does not point to the Applicant's failure to disclose his prior history of lower back problems and having previously claimed workers compensation, was due to carelessness or mistake. There is also no question, it is submitted, that the symptoms suffered prior to the incident was in all probability in respect of the degenerative disease within the Applicant's lower back: and the symptoms arising on and from the date of the incident were similarly in respect of the degenerative disease of the lower back also; albeit by way of an aggravation.
12.5. Exhibit R1, it is submitted, establishes the extent of the Applicant's wilful and false representation, that he had not suffered from his lower back problems prior to the incident.
12.6. It follows that subsection 7 (7) SRCA applies in all the circumstances.
The Applicant’s closing submissions in reply were:
5. As to paragraph 9, it is true that unless the “injury” is classified as a disease, s7(7) has no relevance. It is submitted that no evidence before the Tribunal enables a conclusion that the consequences of being knocked over by a forklift could properly be described as a disease or the aggravation of a disease.
…
Section 7(7)
8. As to paragraph 12, the applicant does not accept either that we are dealing with a “disease” (see 5 above), or that there is evidence about a degenerative condition (whether known to the applicant at the relevant time or not). Otherwise the applicant repeats paragraphs 29 to 31 of his previous submissions.
Section 7(7) of the SRC Act only applies to an injury coming under s 5A(1)(a) of the SRC Act, that is, an injury which is a disease, not an injury under s 5A(1)(b) of the SRC Act, sometimes called an injury simpliciter. Although it is not expressed in such terms, the Tribunal understands the Respondent to argue that the injury suffered by the Applicant on 12 June 2012, or at least the neck and lower back elements of the injury, was an aggravation of an existing ailment for the purposes of the definition of disease in s 5B(1)(b) of the SRC Act.
The second element of the Respondent’s argument is that the Applicant made a wilful and false representation that he had not suffered a similar symptom, injury or illness. The representation is said to be in the answers to questions 13 and 14 in the workers’ compensation application (T28, p.118) completed by the Applicant the day after he was hit by the forklift. In order for the Respondent to succeed in this argument the Tribunal must be satisfied on the evidence that the Applicant deliberately lied in answering those questions. Further, the Tribunal has to be satisfied that not only did the Applicant knowingly make the misrepresentation, but that he made it for a purpose. This section was considered by Justice Jenkinson in Comcare v Porter (1996) 70 FCR 139 (Comcare v Porter) wherein he cited the following passage of Barwick CJ in Iannella v French (1968) 119 CLR 84 at 94-95 (Iannella v French):
In my opinion, “wilful” connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotation elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something. Of course, in some statutory circumstances, the mere doing without consequence or without purpose is forbidden, in which event the conscious doing of the act may suffice to make its performance intentional and in these circumstances wilful.
Jenkins J concluded:
That passage, although directed to the interpretation of a criminal statute, is in my opinion apposite in reference to s.7(7). The verbal context supplied by the phrase “false representation” exposes the legislature's attention to the conceptions and language of the common law, which distinguishes clearly between the objective falsity of a representation, signified by the word “false”, and the representor's knowledge of the falsity, commonly signified in civil proceedings by the word “fraudulent”. (Halsbury (4th ed) vol. 31, paras. 1044, 1059, 1063-1065; R v. Aspinall (1876) 2 Q.B.D. 48 at 56-57). The clause “if the employee has ... made a ... false representation” may be expected, therefore, to signify knowledge on the part of the employee that the representation specified was being made by him and an intention on his part that it be made, as well as signifying the objective falsity, the incorrectness, of the representation, but no more. The addition of “wilful” in that verbal context excites the expectation that what the whole clause in the sub- section requires is that, in addition to what the words previously extracted from the clause signify, the employee should have no belief that the representation is true. The subject matter of s.7(7) confirms the conclusion, tentatively reached upon a consideration of the verbal context, that the clause requires that the representation be made without any belief that it is true. There is no reason to suppose, upon a consideration of the whole Act, that the legislature would intend to attach to an innocent misrepresentation about the existence of a disease - a subject notoriously liable to human misapprehension - the dire consequence of exclusion of the representor from the benefits otherwise available under the Act in respect of the disease and its aggravation. (Comcare v Porter at [149] to [150])
The Respondent refers to Exhibit R1 as establishing “the extent of the Applicant's wilful and false representation”. The Tribunal is of the view that Exhibit R1, being the transcript of the cross-examination of the Applicant in March 2017 in related proceedings in this Tribunal, in fact establishes that at the time that the statements in question were made, namely the day after the Applicant was struck hard enough to be rendered unconscious and taken immediately to the Respondent’s doctor for treatment, the Applicant believed the answers to be correct.
The workers’ compensation claim form in which the questions appear (T28) was being completed by the Applicant in relation to and in the context of the accident at work the day before. He had been struck hard by a forklift. The injuries that he had suffered, clearly caused by being hit by the forklift the day before, were described in answer 8 as:
C/O Pain and Parasthesia left elbow and fore-arm to ulnar border left hand Also C/O pain left foot, hip, trunk and lateral chest wall
In answer to question 9, what parts of the body are affected, the Applicant responded:
Left side of the body, left elbow, left arm, neck, lower hip area
In that context, the answers provided by the Applicant are totally understandable. In fact, on one view, the answers in the context of injuries suffered by being struck by a forklift the day before, are correct. To ask “have you ever had a similar symptom, injury or illness before?” in that context of having been hit by a forklift and in the context of the injuries arising out of the accident as described, invites the answer no. The Applicant answered in the cross-examination in Exhibit R1 when asked about the correctness of the answer that he had provided (page 19 of the March 2017 Transcript):
It’s suggested yes or no but you circled no? – Correct. And my belief and including now is that, no, I’ve never had an injury similar where I’ve been smashed with a forklift and then had injuries. So to me in my mind that answer is correct being no.
It is also worth noting that the answers provided to questions 13 and 14 of the workers’ compensation claim relate to the injury identified in the answer to question 8 which talks only of an injury (singular). The majority, if not all of the “injuries” described in the answer to question 8 relate only to the damage done when the Applicant was struck by the forklift. In that sense again, not only is the Applicant’s answer understandable, but is arguably technically correct. None of the injuries described in the answer to question 8 relates to the back and the back is not an area of the body identified as being injured by the answer to question 9.
It is the Tribunal’s view that the Respondent is being pedantic by attempting to apply a very literal meaning to words used by the Applicant without regard to the context in which the words were used. If that is going to be the approach taken by the Respondent then it needs to be more precise and clearer in the questions that it asks.
The other element of consideration in looking at s 7(7) of the SRC Act as identified by the above passage from Comcare v Porter is the purpose for which the supposedly wilful and false representation was made. On 3 July 2012 the Respondent accepted liability for the injuries that the Applicant had suffered. Those injuries were, on the Respondent’s admission, largely injuries, at that time, under s 5A(1)(b) of the SRC Act, that is injuries simpliciter. It would have been very difficult for the Respondent to argue otherwise a matter of weeks after the Applicant was struck by a forklift with sufficient force to knock him out and given the nature of the injuries.
The Tribunal assumes that “the element of purpose” attaching to the word “wilful” as identified by Barwick CJ in Iannella v French that the Respondent is relying on is that the Applicant provided a deliberately false answer because if he had answered the questions correctly, the claim would have been rejected. That is not borne out by the evidence. Based on the T documents, it seems that the Applicant made a request in July 2015 for a reconsideration of the scope of the initial admission of liability (T39 and T41 at page 180, paragraph 6). That reconsideration of 25 September 2015, by which the Respondent widened the injuries for which it accepted liability (T41), gave rise to or was connected with the workers’ compensation claim form (T42) which is the document originally submitted by the Applicant (T28) with hand-written additions to the answers to questions 8 and 9. The answers to questions 13 and 14 are not altered.
However, by the time that the Respondent came to reconsider the extent of the injuries for which it accepted liability on 25 September 2015, it was aware that the Applicant had had some history of back issues prior to the accident on 12 June 2012. As the Respondent identified in its Statement of Facts, Issues and Contentions at paragraph 2.2.3 (page 6) the “history taken by Dr Low (report 24 February 2014) (T37) Mr Wilson said that in 2010 he strained his back when lifting a gate”. That report of Dr Low is document T37 which is a report addressed to the Respondent and is date stamped as having been received by the Respondent on 28 February 2014.
Therefore at the time that the Respondent made its reconsideration under s 62(1) of the SRC Act in September 2015 which resulted in the acceptance of liability which was revoked by the Reviewable Decision, the Respondent was aware of the Applicant’s relevant medical history relating to his back. Obviously the disclosure of the Applicant’s history of back injury, now claimed to be so critical, was not actually critical to the Respondent when it accepted liability for “Pain and paraesthesia left elbow and forearm to ulnar border left hand side, left foot, left hip, lower back and lateral chest wall sustained on 12 June 2012” in September 2015.
For the reasons set out above the Tribunal does not accept that there was any relevant wilful and false representation made by the Applicant which would invoke the exclusion under s 7(7) of the SRC Act.
Did the Applicant sustain the injury because he voluntarily and unreasonably submitted to an abnormal risk?
The Respondent’s SFIC states its case as follows (pages 6-7):
2.3. Voluntary and Unreasonable Submission to an Abnormal Risk of Injury under Subsection 6(3)
2.3.1 The Applicant disobeyed Occupational Health and Safety training and general site rules by:
(a) being in a working area exclusion zone of forklift/mobile equipment whilst it was in operation
(b) not ensuring that he made eye contact with any persons driving vehicles/mobile equipment in operational areas;
(c) not using designated pedestrian walkways or making eye contact with drivers/operators before crossing from one location to another.
2.4. The Applicant was disobeying company and site rules and in disregard of requirements as to the use of pedestrian walkways by walking through a loading and unloading exclusion zone.
The particulars of the voluntary and unreasonable submission to abnormal risk are the same as the particulars of wilful misconduct under s 14(3) of the SCR Act. For the reasons set out in paragraphs 32 to 67 above, the Tribunal has found that the facts necessary to establish wilful misconduct have not been established by the Respondent. Accordingly, the Respondent’s argument that the Applicant sustained the injuries as a result of a voluntary and unreasonable submission to an abnormal risk for the purposes of s 6(3) of the SRC Act which is reliant on those same facts must also fail.
COSTS
The general rule in relation to costs is that under s 67(1) of the SRC, the costs incurred by a party to proceedings instituted under this Part in respect of that reviewable decision shall be borne by that party. However, s 67(8) of the SRC Act provides:
(8) Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
The Tribunal’s decision is favourable to the Applicant.
The Tribunal finds that the arguments raised by the Respondent in these proceedings lacked legal and factual basis. In particular the facts to support the main argument raised by the Respondent that the Applicant had breached the Respondent’s loading exclusion zone and use of walkways policies were simply non-existent. It appears to the Tribunal that little effort had been made by the Respondent to establish or verify the facts upon which its primary argument was based.
In these circumstances it is appropriate that the Tribunal order that the costs of the proceedings be paid by the Respondent.
DECISION
1.The Reviewable Decision is set aside and the following decision be substituted: the determination made on 3 July 2012 which accepted liability not be varied.
2.The Respondent pay the costs of these proceedings incurred by the Applicant.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle
....[sgd]................................................................
Administrative Assistant - Legal
Dated: 9 February 2017
Date of hearing: 21 November 2017 Date final submissions received: 18 December 2017 Representative for the Applicant: David Bruns Solicitors for the Applicant: JDK Legal Services Representative for the Respondent: John Wallace Solicitors for the Respondent: Clarke Legal
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