2011 is set to be a good year for Richlands local Tim Bailey as he finally returns to the workforce after suffering a severe back injury in 2009 whilst working as a mechanic.Read More
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A recent case heard by the Industrial Magistrate addressed the issue of whether a worker had 'contravened' section 328A of the Criminal Code in circumstances where the worker had not been charged or convicted of an offence, but was issued with a caution for driving without due care and attention.
His Honour observed that the wording of section 36(2) does not mention the word 'conviction', rather the word 'contravenes' is used. There are other sections of the Act that deal with a person's entitlement if 'convicted' of certain stated offences (eg: fraud). His Honour found that if it was the legislative intent to restrict 36(2) to persons convicted of an offence, then the section would use the word 'convicted' not 'contravened'.
In this case, the worker had commenced his journey to work when he was involved in a single vehicle accident. From the evidence His Honour was satisfied that the worker was struck in the forehead by the guard rail. He found it is likely that after being struck in the head the claimant had no control over the vehicle.
After hearing evidence from several witnesses, His Honour concluded that as the worker would have been unconscious at the time the car crashed into a house, the event occurred independently of his will and therefore could not be found to have been an act of dangerous driving.
Various experts gave evidence of the speed of the car at the time it hit the guard rail. Whilst it was established the worker was travelling between 42 - 74 km/h, speed was not the major significant cause of the accident.
The allegation of dangerous driving by allowing the vehicle to cross the road was also rejected due to the hour of the day in which the accident occurred and the quietness of the street at that time.
His Honour concluded by finding that the worker had not contravened section 328A of the Criminal Code; therefore his injury arose out of his employment.
The appeal was dismissed.
Therefore s36(2) may be enlivened even though there is no charge or conviction under section 328A of the Criminal Code. Whether the driving is 'dangerous' is a matter that will need to be determined on each set of factual circumstances. Whether a worker has 'contravened' the section will depend on a number of factors including; time and place of incident, speed and whether the acts were voluntary.
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