Krleski v Workers' Compensation Regulator
[2015] ICQ 6
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- Krleski v Workers' Compensation Regulator[2015] ICQ 6
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Krleski v Workers' Compensation Regulator[2015] ICQ 6
Krleski v Workers' Compensation Regulator[2015] ICQ 6
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Krleski v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 006 |
PARTIES: | MARKO KRLESKI |
CASE NO/S: | C/2014/25 |
PROCEEDING: | Appeal |
DELIVERED ON: | 29 January 2015 |
HEARING DATE: | 22 August 2014 |
MEMBER: | Martin J, President |
ORDER/S: | Appeal dismissed. |
CATCHWORDS: | WORKERS’ COMPENSATION – ENTITLEMENT TO COMPENSATION – EMPLOYMENT RELATED INJURY, DISABILITY OR DISEASE – EMPLOYMENT SUBSTANTIAL OR SIGNIFICANT CONTRIBUTING FACTOR – PRESENCE AT PLACE OF EMPLOYMENT OR WORKPLACE – where the appellant was employed at a mine site – where the appellant was employed on a ten day on, four day off cycle – where the appellant resided in accommodation paid for by his employer near the mine – where the appellant suffered serious brain injury and could not be roused from his accommodation to attend work – where there was no evidence connecting the appellant’s employment with the physical impairment – whether the Commission erred in determining that s 34(1)(c) of the Workers’ Compensation and Rehabilitation Act 2003 did not apply – whether the event happen on a “day” on which the worker had attended at the place of employment – whether, if it did happen on a “day”, it occurred while the worker was “temporarily absent from the place of employment during an ordinary recess” Industrial Relations Act 1999, s 341(2) Workers’ Compensation and Rehabilitation Act 2003, s 32, s 34 |
CASES: | Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463 Cornfoot v Royal Exchange Assurance Corporation [1904] 1 KB 40 Lester v Garland (1808) 15 Ves Jr 248 Prowse v McIntyre (1961) 111 CLR 264 Stock v W Angliss & Co (Aust) Pty Ltd [1964] VR 502 |
APPEARANCES: | D Kent QC instructed by Hall Payne Lawyers for the appellant P O'Neill directly instructed by the Workers’ Compensation Regulator |
- [1]On 13 March 2012 Mr Krleski commenced employment with G & S Engineering Services at the Daunia Mine near Moranbah. He was employed on a “work cycle” roster arrangement under which he would work 10 days in a row and then have four days leave. His ordinary hours of work were from 6.30am to 5pm. As Mr Krleski lived in Mackay he was recognised as a “non-local” under the G & S Engineering Services Daunia Project Union Greenfields Agreement and, so, was entitled to accommodation provided by the employer.
- [2]Mr Krleski was accommodated at the MAC Village at Coppabella. The Village was owned and operated by The MAC Services Group. That group was not connected with Mr Krleski’s employer.
- [3]On 12 April 2012, Mr Krleski undertook his usual work and returned to the Village from the worksite at about 5pm. He then had dinner and, with another employee, went to the gym in the Village. Mr Krleski was last seen on the evening of 12 April at about 9.15pm. He was not seen again until the evening of 13 April when he was found unconscious on his bed in his accommodation unit.
- [4]In Mr Krleski’s application for compensation he is said to have suffered, on 13 April 2012, a “multi organ impairment (aspiration pneumonia, septic shock – rhabdomyolisis, liver damage), acquired severe brain injury”.
- [5]No evidence was called with respect to the cause of Mr Krleski’s injury. Thus, the Deputy President had nothing before him which explained the cause of the injury or when it might have occurred.
- [6]There was evidence that Mr Krleski was not, in accordance with his usual practice, ready to be picked up outside his accommodation by a fellow worker on the morning of 13 April. That worker tried to rouse him by knocking on his door but could only hear what she thought was snoring. On that basis, the Deputy President found that the event in which the appellant sustained injury occurred sometime after 9.30pm on 12 April 2012 and before 4.30am on 13 April 2012 but he could not make any finding as to whether it occurred on 12 or 13 of April.
- [7]In the absence of any evidence connecting the appellant’s employment with the physical impairment he suffered on the evening of 12 April, the appellant could not rely on any part of the Workers’ Compensation and Rehabilitation Act 2003 (‘the Act’) in which the word “injury” was used in the sense given to it by s 32 of the Act[1].
- [8]Section 32 of the Act provides a definition of “injury” in the following terms:
“(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.”
- [9]Section 34(2) of the Act provides that employment need not be a contributing factor to the injury in the circumstances contemplated in s 34(1)(c). That section provides:
“(1) An injury to a worker is taken to arise out of, or in the course of, the worker’s employment if the event happens on a day on which the worker has attended at the place of employment as required under the terms of the worker’s employment—
…
- (c)while the worker is temporarily absent from the place of employment during an ordinary recess if the event is not due to the worker voluntarily subjecting themself to an abnormal risk of injury during the recess.”
- [10]Two issues arise, then, out of that part of s 34 relied upon by the appellant. First, did the event happen on a “day” on which the worker had attended at the place of employment? Secondly, if it did happen on such a day, did it occur while the worker was “temporarily absent from the place of employment during an ordinary recess”?
What is a “day”?
- [11]The ordinary meaning of “day” is the period which begins with one midnight and ends with the next.[2]
- [12]The appellant argues that, in the circumstances of his employment, a “day” should be regarded as each 24 hour period from the time he commences work until he completes his cycle of 10 shifts. Reliance for that proposition is placed on the decision in Cornfoot v Royal Exchange Assurance Corporation[3].
- [13]Cornfoot concerned a policy of insurance upon a ship for a voyage to Algoa Bay “and for 30 days in port after arrival”. The ship arrived and was safely moored at 11.30 am on 2 August 1902. The Court of Appeal held that the expression “30 days” in the policy meant 30 consecutive periods of 24 hours with the first period commencing at 11.30 am on 2 August. It is from that that the appellant says that a day may be interpreted as a 24 hour period. But, that case concerned the attachment of insurance cover. The contrary view would have resulted in the first day being excluded from the calculation[4] and, thus, there would have been no cover from 11.30am on 2 August until midnight the same day. The court held that in a commercial contract of insurance that could not have been the intention of the parties.
- [14]That decision was the subject of close analysis in Stock v W Angliss & Co (Aust) Pty Ltd[5]. That case was concerned with a time limit for the filing of an information or complaint. Sholl J referred to Cornfoot and to cases concerning periods of limitation and said:
“The view which the law takes regarding the attachment and cessation of an insurance risk is one thing, while the view which it takes of the commencement of a period of limitations is quite another thing. Totally different considerations are applicable, and it seems to me that there is no reason at all to suppose that Parliament meant the making of a complaint or the lodging of an information or the issue of a summons to be limited to some precise time of a day.”[6]
- [15]Cornfoot was concerned with the meaning of a term in a commercial contract and, more particularly, what the parties to that contract had intended the word “day” to mean. It is authority for the proposition that “day” can, in certain circumstances, mean a period of 24 hours, but no more than that.
- [16]To adopt the reasoning applied by the appellant would mean that the term “day” would have different meanings for different people. A person engaged in, say, an ordinary clerical occupation would be subject to the “midnight to midnight day” whereas shift workers would be subject to a “24 hour day” the commencement of which would depend upon the contractual arrangement the employee had with the employer.
- [17]In the absence of a definition of “day” in the Act which would allow its meaning to differ according to the circumstances of an individual, the ordinary meaning should be adopted as described by Windeyer J in Prowse v McIntyre[7]:
“A day, the period of the earth's axial rotation, is the natural and fundamental division of time. A day for legal purposes is the mean solar day, a period of twenty-four hours. These hours are reckoned from midnight to midnight, the instant of midnight being both the end of one day and the beginning of the next, for there are no rests in time, and as each instant comes it goes. A day has a significance for law in two ways: first, as a division of time, that is the space of time within which an event happened or is to happen, or something was done or is to be done: secondly, as a. measure of the passage of time, a unit in a period of time.” (emphasis added)
- [18]In the absence of any evidence as to the time of the “injury”, the Deputy President was correct in holding that the appellant had not discharged the onus upon him of showing that the “injury” occurred “on a day on which the worker has attended at the place of employment.”
Temporarily absent?
- [19]In the light of the conclusion set out above, it is unnecessary to consider this issue.
Order
- [20]The appeal is dismissed.
Footnotes
[1] The relevant version of the Act is Reprint 6.
[2] Autumn Solar Installations Pty Ltd v Solar Magic Australia Pty Ltd [2010] NSWSC 463.
[3] [1904] 1 KB 40.
[4] In accordance with the principle in Lester v Garland (1808) 15 Ves Jr 248.
[5] [1964] VR 502.
[6] Op cit at 513.
[7] (1961) 111 CLR 264 at 278.