Keefff Taylor-Lawton v Q-COMP

Date of decision: 19 April 2010, I.M. Lee

Ms S. Anderson of Counsel, instructed by Shine Lawyers for the Appellant

Mr J. Dwyer of Counsel, directly instructed by Q-COMP

Key words – Truck Driver – 46 – Injury Type: physical – Appeal Outcome: appeal allowed - 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

s130 Injuries caused by misconduct

(4) serious and wilful misconduct of a worker does not include conduct engaged in at the express or implied direction of the worker’s employer

Head Note

Mr Taylor-Lawton (“the Appellant”) was employed as a casual truck driver when he was assaulted by a co-worker. He lodged an application for compensation for a head injury with WorkCover Queensland (“the Insurer”). The Insurer rejected his claim on the basis that his employment was not a significant contributing factor to his injury.

The Appellant lodged an application for review with Q-COMP. The review unit confirmed the decision of the Insurer to reject his claim. The Appellant then filed an appeal in the Brisbane Magistrates Court.

At hearing the two issues to be determined were:

• Whether the Appellant’s employment was a significant contributing factor to his injury, and
• Whether the Appellant’s injury was excluded due to the Appellant engaging in serious and wilful misconduct.

Evidence led during the hearing established a history of verbal abuse and harassment of the Appellant and his partner by a co-worker. Despite numerous complaints made to management, no action was taken against the co-worker.

The Appellant was assaulted by the co-worker during a normal working day. There was no evidence of any verbal or physical provocation by the Appellant. The Appellant had no dealings with the co-worker outside work. The only contact between them was during working hours whilst performing their work duties.

His Honour stated that he completely accepted the version of events as stated by the Appellant. Further that the evidence given by the employer was unsatisfactory. Despite being issued with a subpoena to give evidence, the co-worker left Queensland prior to the hearing and did not give evidence.

His Honour stated that the ‘assault was not something that merely happened at work…it was the employment that created the angst between Mr Taylor-Lawton and his co-worker. There were complaints to management and nothing was done so that the employment became a significant contributing factor to the injury. It is not a case of the workplace providing a mere setting for the assault’.

Q-COMP argued that the Appellant’s injury was excluded because he was involved in ‘serious and wilful misconduct’. His Honour stated that as he found that the co-worker was the aggressor and the Appellant did nothing to provoke the attack, any ‘verbal actions’ taken by the Appellant prior to being assaulted did not amount to misconduct.

The appeal was upheld.