R.E.C Group Pty Ltd v Q-COMP

9 November 2009, Commissioner Asbury

Mr D G Pratt of Counsel, instructed by Latitude Lawyers for the appellant

Mr MJ Drysdale of Counsel instructed by Bennett and Philp Solicitors for the worker

Mr S A McLeod of Counsel, directly instructed by Q-COMP

Pipe Layer – 28 -physical– Appeal dismissed: –

s130 – compensation is payable for an injury sustained by a worker that is caused by the worker’s serious and wilful misconduct only if (i) the injury results in death; or (ii) the insurer considers that the injury could result in a WRI of 50% or more

Head Note

The worker lodged an application for compensation with WorkCover (Insurer) on 22 September 2008 for an injury arising from an incident at work which occurred on 14 September 2008. The worker sustained third degree burns, when he used a cigarette lighter in or around a container, and there was an explosion, as a result of fumes in the container igniting.

The Insurer rejected the Application for compensation on the basis that the worker was not entitled to compensation because his injury was caused by serious and wilful misconduct on his part.

The worker lodged a review with Q-COMP who set aside the Insurer’s decision and accepted the claim on the basis that the worker’s conduct did not amount to serious and wilful misconduct.

The Appellant appealed to the QIRC contending that consistent with the decision in Australian Meat Holdings Pty Ltd v Q-COMP (2007) 186 QGIG 527, the worker had some appreciation of the risk and that there was a danger in going ahead with the conduct in question. The Appellant submitted that the evidence established that the worker was intending some mischief when he operated the cigarette lighter and that he was annoyed and argumentative and was using safety issues as a means of advancing his angst.

The worker submitted that the facts in AMH could be distinguished on the basis that there was no evidence he was acting in a manner contrary to the system of work. Further, that there was no evidence that any of the other employees advised the worker of the presence of fumes. It was submitted that there was insufficient evidence that the worker was conscious of the presence of the fumes and that the fumes were other than the type of fumes that would ordinarily be encountered in the container. It was submitted that there was no evidence that the worker appreciated the risk associated with a naked flame near the container.

Q-COMP submitted that the appropriate test in deciding whether s130 applies is whether the worker was aware that there were fumes present in the container which posed a serious risk if he used the lighter and whether the worker acted in a deliberate manner in using the lighter in the vicinity of the container. It was submitted that the worker was not aware of the fumes so the second limb of the test need not be considered.

Commissioner Asbury referred to the decision of AMH and stated that misconduct must be both serious and wilful before the exclusion of s130 is enlivened. Commissioner Asbury stated that misconduct is wilful when it is engaged in deliberately and with a consciousness of wrongdoing.

The Commissioner was not satisfied that the worker knew or should reasonably have known, that there were unusually strong fumes in the REC container. Commissioner Asbury did not accept that the worker’s actions could be characterised as serious and wilful misconduct. At worst, his conduct was careless. The Commissioner was unable to accept that the worker had knowledge of relevant risks associated with his conduct, and deliberately undertook them or that he proceeded, with deliberate disregard for whether there was a risk or not.