Queensland Hibernian Friendly Society Ltd v Q-COMP and Craig Barry Borich

Date of decision: 23 April 2010, Commissioner Fisher

Mr Murdoch of Counsel, instructed by MVM Legal for the appellant

Mr O’Neill of Counsel, directly instructed by Q-COMP

Mr Cross of Counsel, instructed by Everingham Lawyers for the second respondent

Key words – chef – Injury Type: physical – Appeal Outcome: appeal dismissed – Significant sections considered:

s32(1) an injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury

Head Note

The second respondent was employed by the appellant as a chef in a retirement village operated by the appellant. The second respondent claimed to have injured his lower back by slipping and falling while working in the kitchen on 28 April 2008. The second respondent lodged an application for compensation with WorkCover Queensland on 1 May 2008. On 21 May 2008, WorkCover provided written notice of its decision to accept the second respondent’s application.

The appellant lodged an application for review with Q-COMP on 20 August 2008. On 6 October 2008, Q-COMP provided written notice of its decision to vary WorkCover’s decision, and to accept the second respondent’s application for an aggravation of a pre-existing condition. The appellant appealed to the Queensland Industrial Relations Commission.

The second respondent stated that he slipped while carrying a 26 kilogram pot of pasta and boiling water and fell backwards onto his left buttock. The appellant submitted that the second respondent tripped, fell forward and lowered himself to the ground, and that the second respondent’s version was a concoction and could not be accepted.

Commissioner Fisher accepted that the second respondent on occasion complained to his work colleagues of lower back pain, however declined to place weight on witness evidence about comments allegedly made by the second respondent prior to the injury. The Commissioner further noted that notwithstanding the different versions of events, there was evidence that the second respondent injured his back as a result of an event occurring in the kitchen on 28 April 2008. The Commissioner further noted that the witness to the event witnessed it entirely by chance, and it was unlikely that the second respondent would concoct an injury by falling while carrying a heavy pot filled with boiling water. The two witnesses in the kitchen both attested to the second respondent being in obvious pain after the event. Medical evidence indicated that an external force such as a trip or slip resulting in a fall was required for the injury to occur, and that the second respondent’s version of the event described a significant incident with which his injury was consistent. The Commissioner therefore concluded that the appellant did not discharge its onus to prove that the second respondent concocted the injury and concluded that he sustained an ‘injury’ within the meaning of section 32(1). The appeal was dismissed.