Thiess Pty Ltd v Q-COMP

Date of decision: 5 February 2010, Commissioner Fisher

Mr McLeod of Counsel, instructed by CLS Lawyers for the appellant

Mr Lippett of Counsel, directly instructed by Q-COMP

Key words – Diesel Fitter – 39 – Injury Type: lower back – 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 claimant was employed as a diesel fitter at a mine site 170km from Mackay. The claimant’s shift consisted of four 12-hour shifts followed by four consecutive days off. When rostered on, the claimant resided at accommodation facilities operated by the appellant employer, and when rostered off he resided in Mackay. On 18 November 2008, the claimant sustained a lower back injury when he sneezed while in the process of removing work clothes from a washing line outside his donga.

The claimant lodged an application for compensation with WorkCover Queensland on 27 November 2008. By written notice dated 28 April 2009, WorkCover advised of the decision to reject the application. The claimant lodged an application for review of this decision with Q-COMP on 2 June 2009. By written notice dated 27 August 2009, Q-COMP advised of the decision to set aside WorkCover’s decision and to substitute another decision to accept the application. The employer lodged an appeal of
Q-COMP’s decision with the Queensland Industrial Relations Commission.

On appeal, the Commissioner applied the decision of Hatzimanolis v ANI Corporation (1992) 173 CLR 473, and concluded that the roster period of four shifts over four days constituted one overall period of work. While the claimant was not required to live in the accommodation provided by the appellant, the Commissioner found that the appellant provided incentives for employees to reside at the accommodation facilities, and since there was no realistic alternative available given the distance the claimant would have to travel, there was a practical necessity for the claimant to reside at the accommodation facilities.

The Commissioner further concluded that by providing laundry facilities and by acquiescing to the claimant’s practice of hanging his washing outside his donga, the appellant induced or encouraged the claimant to spend an interval in the overall period of work at a particular place and in a particular way. Therefore, regardless of whether the lower back injury was precipitated by the act of sneezing, the Commissioner concluded that the claimant’s injury arose in the course of his employment.

Consistently with Qantas Airways Limited v Q-COMP and Blanch [2009] QIC 20, the Commissioner further concluded that the claimant’s employment was a significant contributing factor to the injury, as but for the employment the claimant would not have been working at the mine site and residing at the accommodation facilities, and the appellant provided laundry facilities and acquiesced to the erection of a clothes line outside the claimant’s donga to be used in the process of washing clothes.

This decision has been appealed to the Industrial Court