Wilson and K & S Freighters Pty Ltd (Compensation)

The applicant, Mr Wilson, sought a review of a decision by K & S Freighters Pty Ltd (the respondent) to deny liability for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Mr Wilson sustained injuries when he was struck by a forklift at the respondent's business premises. The respondent initially accepted liability for certain injuries but later reconsidered its decision, asserting that Mr Wilson's actions constituted serious and wilful misconduct, thereby precluding compensation under section 14(3) of the SRC Act.

The primary legal issue before the court was whether Mr Wilson's conduct in being struck by the forklift amounted to serious and wilful misconduct as defined by section 14(3) of the SRC Act. This required the court to determine if Mr Wilson had voluntarily and unreasonably submitted to an abnormal risk of injury, or if his actions constituted a wilful and false representation, as contemplated by other provisions of the Act. The respondent argued that Mr Wilson had breached various occupational health and safety rules, including entering a forklift exclusion zone, failing to make eye contact with the forklift driver, and not using designated pedestrian walkways.

The court considered the respondent's arguments regarding Mr Wilson's alleged breaches of site rules and safety training. It noted that for conduct to constitute serious and wilful misconduct, it must be serious in itself, not merely the outcome of the conduct. The respondent relied on evidence of Mr Wilson's training, company policies, and site rules concerning pedestrian safety and exclusion zones. However, the court found that the respondent had not established that Mr Wilson's actions met the threshold for serious and wilful misconduct under section 14(3) of the SRC Act. The court also considered whether Mr Wilson had voluntarily and unreasonably submitted to an abnormal risk of injury under section 6(3) of the SRC Act, but ultimately found this defence was not made out.

The court set aside the respondent's decision to deny liability. It found that the applicant's actions did not constitute serious and wilful misconduct that would disentitle him to compensation under the SRC Act. Consequently, the respondent was liable to pay compensation to the applicant in accordance with the Act.