ROBERT JOHN KING V Q-COMP

Date of decision: 12 February 2010, I.M. Hodgins

Mr J Crosby of Justin Crosby Solicitors for the appellant

Mr S Sapsford of Counsel, directly instructed by Q-COMP

Truck Driver - 60 – Injury Type: psychological – Appeal Outcome: appeal dismissed - Significant sections considered: –

S 130 Compensation is payable for an injury sustained by a worker that is caused by the worker’s serious and wilful misconduct only if – the injury results in death or the insurer considers that the injury could result in a WRI of 50% or more

Head Note

Robert King lodged an application for compensation for a psychological condition sustained in the course of his employment as a truck driver after being involved in a fatal motor vehicle accident. WorkCover Queensland (“the insurer”) rejected his application on the basis that his injury was excluded under section 36 of the Act. On review by Q-COMP, this decision was varied and the claim was rejected under section 130 – Injuries caused by misconduct.

The issue at appeal was whether Mr King was entitled to compensation because his injury was caused by serious and wilful misconduct on his part.

His Honour found that Mr King was an experienced interstate driver and had driven B-Double vehicles for many years. He regularly drove the Brisbane to Sydney route and had a good knowledge of the roads. On the day of the accident, it had been raining, and the road surface was wet and greasy. The spray coming off the wheels of his truck meant that Mr King could not see where the rear wheels were positioned on the road. Mr King was aware of the speed limit of 60 kph. The advisory limit on the particular stretch of road for heavy vehicles was 45 kph, however his truck was travelling at 56 kph. His Honour stated that the speed was excessive given the road conditions, traffic and conditions on the road.

The Industrial Magistrate stated that, ‘Mr King’s driving was not a momentary lapse of carelessness. An experienced driver in such road conditions would have driven below the advisory speed to ensure that all parts of the vehicle were not crossing the centre lines. Such driving by Mr King was reckless and amounted to serious and wilful misconduct’.