Huhu v Workers' Compensation Regulator
[2015] ICQ 21
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Huhu v Workers' Compensation Regulator[2015] ICQ 21
- Add to List
Huhu v Workers' Compensation Regulator[2015] ICQ 21
Huhu v Workers' Compensation Regulator[2015] ICQ 21
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Huhu v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 021 |
PARTIES: | WINSTON JACK HUHU |
CASE NO/S: | C/2015/9 |
PROCEEDING: | Appeal |
DELIVERED ON: | 13 August 2015 |
HEARING DATE: | 28 April 2015 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – ARISING OUT OF EMPLOYMENT – where the appellant was a truck driver and had driven the truck he was using home – where the appellant claimed compensation for a back injury resulting from falling from the cab of the truck – where the Commission found that the appellant was not encouraged or induced to take the truck home – where issues of credit were involved in the resolution of a number of issues – whether the Commission erred by failing to give adequate reasons – whether the Commission erred by wrongly concluding that the appellant’s injury did not arise out of or in the course of his employment Workers’ Compensation and Rehabilitation Act 2003, s 32(1) |
CASES: | Abbott v Blackwood [2014] ICQ 031 Comcare v PVYW (2013) 250 CLR 246 Fox v Percy (2003) 214 CLR 118 Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 Huhu v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 017 |
APPEARANCES: | H Blattman instructed by Shine Lawyers for the appellant M Spry directly instructed by the respondent |
- [1]In January 2014, the appellant (Mr Huhu) commenced employment as a truck driver with Anything’s Possible Transport Pty Ltd. When Mr Huhu finished work on 7 February 2014 he drove the truck he had been using home. Mr Huhu says he injured his back on Sunday, 9 February 2014 as a result of falling from the cab of the truck. He had, he said, been attempting to climb into the cab of the truck when the handle he was using to assist his climb snapped off. As a result, he says, he fell onto his lower back on the bitumen and was injured.
- [2]Mr Huhu sought, but was refused, workers’ compensation, and this appeal is the result.
- [3]In the hearing before the Commission it was clear that matters of credit were involved in the resolution of a number of issues. Of those, the most important was the question of whether Mr Huhu was permitted to take the truck home.
The appellant’s employment
- [4]So far as the matters concerning his employment were relevant to this decision, the Deputy President found:
- (a)The appellant worked Monday to Friday;
- (b)The appellant did not work overtime; and
- (c)Mr Windle, the owner of the appellant’s employer, made known to the drivers that he expected them to keep the trucks clean. There were cleaning products kept in the truck for that purpose.
- [5]A considerable amount of evidence was given with respect to the question of whether or not an employee was able to take the truck he was driving home at night or over the weekend. Mr Windle gave evidence that he did not usually allow drivers to take the trucks home until they had been working for him for some time.
- [6]In Fox v Percy[1] Gleeson CJ, Gummow and Kirby JJ held that a finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.
- [7]The Deputy President accepted Mr Windle’s evidence to the effect that Mr Huhu was not permitted to take the truck home on the weekend in question. The Deputy President set out in some detail the reasons for preferring the evidence of Mr Windle to Mr Huhu on this question and the appellant has not established any grounds for disturbing that finding.
Findings by the Deputy President
- [8]The Deputy President found that Mr Huhu was not permitted to take the truck home on the weekend in question and that the cleaning required by Mr Windle was simply to remove the type of rubbish which might be accumulated in the cab of the truck during the course of the day. The Deputy President also held that:
- (a)the injury was brought about because the appellant took his truck home from work and in the course of cleaning it, fell and injured himself, and
- (b)the employer did not induce or encourage Mr Huhu to take his truck home and clean it over the weekend. All that was required by Mr Windle was a “minimal emptying” of the truck of things such as cigarette butts, plastic containers and the like, and there was nothing unduly onerous about this request being complied with when the truck was returned to the depot at the end of a work day.
- [9]As a result, the Deputy President found that the appellant’s injury “did not arise out of or in the course of his employment”.[2]
Grounds of appeal
- [10]The appellant relied on a number of grounds. In essence, they were as follows:
- (a)Wrongly finding that the appellant was not performing actual work at the time of his injury and treating the matter as an “interval” case when it was not such a case;
- (b)If the matter was an “interval” case then failing to find that the injury had occurred by reference to an activity or by reference to a place;
- (c)Taking into account irrelevant matters including whether the appellant had permission to take the truck home from work; and
- (d)In the alternative, if the question of permission to take the truck home was relevant then failing to consider other relevant matters, including that the appellant was induced to use cleaning products to clean the cab.
- [11]The true nature of the appeal though is revealed in the second last ground, that is, that the Deputy President erred by wrongly concluding that the appellant’s injury did not arise out of or in the course of his employment.
- [12]A final ground was that the Deputy President erred by failing to give adequate reasons for the decision. I will deal with that matter now before turning to the other grounds of appeal. The question of what is required for adequate reasons was considered in Abbott v Blackwood.[3] I will not set out again what I included in those reasons.
- [13]The Deputy President addressed the issues which were placed before her and the evidence which she heard and saw. The reasons naturally concentrated on the question of who should be accepted about the capacity of the appellant to take his truck home. That issue was considered carefully by the Deputy President and it should not be disturbed. Similarly, the other issues which were relevant for the determination of the case as a whole were properly considered by the Deputy President and addressed in her reasons.
What are the tests to be applied?
- [14]For the purposes of the Workers Compensation and Rehabilitation Act 2003 (“the Act”) an injury is defined in s 32 as a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
- [15]The concepts contained within the Act relating to whether or not an injury arises out of or in the course of employment and whether or not employment is a significant contributing factor have been considered in a number of cases which deal with those concepts contained in similar but not identical legislation. The manner in which an injury which occurs during an interval which itself occurs within an overall period of work was considered in Hatzimanolis v ANI Corporation Limited[4]. That decision was comprehensively examined in Comcare v PVYW[5].
- [16]For the purposes of this appeal the following principles enunciated in PVYW are relevant:
- (a)For an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.
- (b)Where the circumstances of the injury involve the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.
- (c)Where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place.
- (d)An employer is not liable for an injury which occurs when an employee undertakes a particular activity, if the employer has not in any way encouraged the employee to undertake that activity, but has merely required the employee to be present at the place where the activity is undertaken.
- (e)There is no justification for taking a “wide view” of an employer’s liability in circumstances where the employer could be seen to have encouraged the employee to be at a particular place.
Did the Deputy President apply the tests correctly?
- [17]The appellant was employed as a truck driver and, while Mr Windle had told him that, at the conclusion of each working day, the appellant should take any rubbish from the cab of the truck and dispose of it, the appellant was not, on 9 February 2014, engaged in employment. He was not driving the employer’s truck nor was he doing anything incidental to driving the truck.
- [18]This is what is commonly called an “interval” case. As the Deputy President found, the employer did not induce or encourage Mr Huhu to take his truck home and clean it over the weekend.
- [19]The Deputy President was aware of the test and applied it correctly.
- [20]The notice of appeal complains that the Deputy President took into account irrelevant matters, namely:
- Whether Mr Huhu had permission to take the truck home;
- The degree of cleaning which he was expected to undertake;
- Whether he could or should have undertaken the cleaning at the end of the working day rather than on a weekend; and
- Whether he could or should have undertaken the cleaning of the cab at the depot rather than at his home
- [21]With respect to the appellant’s submissions, these are all entirely relevant matters in accordance with the tests set out above.
- [22]It is asserted in the notice of appeal that the Deputy President failed to consider a number of relevant matters, namely;
- That the other employees were permitted to take their trucks home;
- That Mr Windle had been informed that Mr Huhu had been taking the truck home every night that week; and
- That Mr Windle did not tell Mr Huhu that he should not continue to take the truck home.
- [23]While it is unnecessary to determine whether all those matters are relevant, it is patent from an examination of the reasons that the Deputy President did consider those matters.
- [24]The notice of appeal also asserts a failure by the Deputy President in considering whether employment was a significant contributing factor. As the Deputy President had already determined that the injury did not arise out of or in the course of employment this was unnecessary.
- [25]I have already dealt with the issue of sufficiency of reasons.
Conclusion and orders
- [26]The appellant has not demonstrated that the Deputy President fell into error of law or fact or discretion. The appeal is dismissed.